Answered on June 14, 2021
It looks like there are three groups in the expression-of-interest camp:
- 1) Applicants that submit resume and identify a specific job.
- 2) Applicants who receive an application back from employer.
- 3) Applicants who formally apply to a position.
The key here is to have an established hiring process and have that documented in writing and applied consistently. Granted that you have that in place, two components of the Internet Applicant rule are noteworthy. Both Sections 3 and 5 provide some basis for only counting Group 3, though Section 5 appears to require requesting application at least twice (see below). Otherwise, Group 2 would apply.
Here is a link to the Internet Applicant Rule (https://www.ecfr.gov/current/title-41/subtitle-B/chapter-60/part-60-1) and the referenced sections below:
"(3) For purposes of paragraph (1)(ii) of this definition, “considers the individual for employment in a particular position,” means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position. A contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes. Likewise, a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position. If there are a large number of expressions of interest, the contractor does not “consider the individual for employment in a particular position” by using data management techniques that do not depend on assessment of qualifications, such as random sampling or absolute numerical limits, to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest."
"(5) For purposes of paragraph (1)(iv) of this definition, a contractor may conclude that an individual has removed himself or herself from further consideration, or has otherwise indicated that he or she is no longer interested in the position for which the contractor has considered the individual, based on the individual's express statement that he or she is no longer interested in the position, or on the individual's passive demonstration of disinterest shown through repeated non-responsiveness to inquiries from the contractor about interest in the position. A contractor also may determine that an individual has removed himself or herself from further consideration or otherwise indicated that he or she is no longer interested in the position for which the contractor has considered the individual based on information the individual provided in the expression of interest, such as salary requirements or preferences as to type of work or location of work, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. If a large number of individuals meet the basic qualifications for the position, a contractor may also use data management techniques, such as random sampling or absolute numerical limits, to limit the number of individuals who must be contacted to determine their interest in the position, provided that the sample is appropriate in terms of the pool of those meeting the basic qualifications."