Things are moving right along with the Office of Federal Contract Compliance Program (OFCCP). In case you blinked and missed it (or looked away, and need to pay attention to it now), over the past few weeks:
The last Supply and Service CSAL issued in July 2023 included only federal contractors who OFCCP maintained failed to certify their Affirmative Action Plans (AAPs) on its contractor portal. The new list includes contractors who properly certified. OFCCP states that the selection methodology for the CSAL focused on low-wage industries and non-construction contractors with contracts under the Infrastructure Bill.
The new compliance reviews will take place under the new Scheduling Letter and Itemized Listing. Directive 2022-02 rescinded the 45-day grace period before OFCCP issues scheduling letters for audits noted on a new CSAL. Directive 2022-02 also states that desk audit responses are due within 30 days of receipt of a scheduling letter absent “extraordinary circumstances” (such as extended medical absence or death in the family of key personnel).
Although the Agency is encouraging electronic desk audit submissions, contractors can still submit by mail.
Whether or not you are on the CSAL list, with OFCCP’s new audit regime being “audit ready” has taken on a whole new meaning. Just a few key areas to address include:
Make sure that you have communicated the range of these changes and those outlined in Circa’s prior blog with your leadership. If your program needs a lot of shoring up, secure agreement on where to focus. Maintaining too many projects at once is detrimental to each.
Here is food for thought, particularly for mid-sized and large contractors who maintain many AAPs. Not every plan-specific indicator evidences a trend that warrants a pro-active response. Nevertheless, the new itemized listing requires detail on “any” indicator in the areas outlined above. Should contractors consider moving to Functional Affirmative Action Plans (FAAPs)? FAAPs organization-based reporting structure may allow better alignment between data and proactive planning. See Circa’s upcoming blog on FAAPs.
OFCCP is putting to the test its untested theory that it can speed audits by receiving all documentation conceivably related to an audit with the contractor’s initial submission. Circa has written on this before, disagreeing.
Through the OMB review period, OFCCP held to its estimate that it will take contractors less than 40 hours to respond to a desk audit request. Interestingly, the Public Burden Statement that concludes the scheduling letter and itemized listing reads: “If you have comments regarding the estimated reporting burden, or suggestions for reducing the burden, please send them to the Office of Federal Contract Compliance Programs (OFCCP), Division of Policy and Program Development, 200 Constitution Avenue, N.W., Room C-3325, Washington, D.C. 20210, and reference OMB Control Number 1250-0003.”
OFCCP has already received input on how hard it will be to respond. This occurred during the public notice and comment period for OFCCP’s “information collection request” (ICR) to use its proposed scheduling letter and itemized listing. The Agency’s April 2022 Supporting Statement acknowledges that “employer associations and law firms” filed comments disagreeing with OFCCP’s burden estimates: “They asserted that the agency underestimated the additional burden on contractors to respond to the proposed scheduling letter and stated that contractors’ human resource information systems do not capture all the information OFCCP is requesting. One commenter stated that OFCCP underestimated the number of employees involved in developing and maintaining AAPs and the actual cost per employee hour.”
The Supporting Statement does not specifically respond to these, or other burden-related concerns raised by contractors’ representatives.
It is good that OFCCP is asking for information on the true burden to contractors of meeting the Agency’s new audit regime requirements. Please feel free to point out whether your experience confirms that the Agency’s burden estimates are low. If you have audits, consider letting the Agency know whether its drive to have complete detail on every audit from the initial desk submission and removal of “PDN rule” guardrails for OFCCP transparency is speeding things up – or grinding the audit process to a halt. Should you respond to OFCCP’s query concerning burden, anonymously or not, fingers crossed OFCCP pays heed to you.