All existing supply or service contractors (at the prime and subcontract level) that meet the OFCCP’s jurisdictional thresholds must register and certify compliance with the AAP requirements.  New contractors have 120 days to develop their AAP(s), and must register and certify compliance through the Contractor Portal within 90 days of developing their AAP(s).  At present, the registration and certification obligation does not extend to contractors performing on only construction contracts.

With a June 30, 2022 deadline looming, covered federal contractors and subcontractors have just one week remaining to register and submit required affirmative action certifications on the new Contractor Portal created by the Department of Labor’s Office of Federal Contractor Compliance Programs (“OFCCP”).  Announced by OFCCP in December 2021, the Contractor Portal requires covered federal prime contractors and subcontractors to both register and submit a formal certification by June 30, 2022 as to whether they have developed and maintained an Affirmative Action Program (“AAP”) in accordance with all applicable OFCCP requirements.  Certifications will be required on an annual basis in the portal thereafter. 

Every contractor is required to certify that they have developed and maintained AAPs pursuant to all of the laws OFCCP enforces under which the contractor is covered: Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.  For each establishment or functional/business unit, the certification requires the contractor to select one of the below options:

  1. Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit;
  2. Entity has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable; or
  3. Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.

When a contractor selects a response to the certification statement through the portal, the contractor is selecting the response that reflects their AAP status, as of the date they certify.  It is widely expected that OFCCP will utilize certification responses to conduct more – and more targeted – audit, compliance review, and enforcement efforts.  Nonetheless, certification accuracy remains a paramount consideration for contractors, as a knowingly false certification of compliance with AAP requirements could raise the specter of the civil False Claims Act. 

The OFCCP Contractor Portal User Guide provides additional information regarding the registration and certification process and the platform’s functionality. 

Photo of Scott A. Freling Scott A. Freling

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement…

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement advice, claims and other disputes, teaming and subcontracting, and mergers and acquisitions. He represents clients in federal and state court litigation and administrative proceedings, including bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also represents clients in obtaining and maintaining SAFETY Act liability protection for anti-terrorism technologies. Mr. Freling’s experience covers a wide variety of industries, including defense and aerospace, information technology and software, government services, life sciences, renewable energy, and private equity investment in government contractors.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.