Contracting

Labor Department wants to ease at least one piece of contractor administrivia

The Labor Department's Office of Federal Contract Compliance Programs launched a portal for contractors and subs to certify their affirmative action programs.

Tom Temin@tteminWFED

May 24, 2022 11:29 am

9 min read

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Federal contracting comes with more rules, regulations and contract clauses than probably any activity on earth. Now, the Labor Department’s Office of Federal Contract Compliance Programs wants to make one of them at least a little bit easier. It’s launched a portal for contractors and subs to certify their affirmative action programs. We get details now from the OFCCP Deputy Director for Policy Maya Raghu, who talked about it on the Federal Drive with Tom Temin.

Interview transcript:

Maya Raghu: OFCCP is charged with protecting America’s workers by ensuring that those who do business with the federal government fulfill the promise of equal employment opportunity. And that comes with certain commitments to ensure that opportunity. One of those requirements is for certain contractors and subcontractors to develop and maintain annual affirmative action programs for each of their establishment business units. So the contractor portal is an electronic platform to promote greater contract or compliance with that AAP, or affirmative action program requirements. And why is this important? Well, developing and maintaining an AAP is a really crucial component of contractor compliance because AAP’s help contractors identify problem areas and plan steps to correct them. So AAP’s and the other data that we get from contractors really provide the foundation for the evaluation work that the agency does when we schedule contractors for compliance reviews. So before the contractor portal, contractors – and this is supply and service contractors, not construction contractors – when they were scheduled for an evaluation would get a letter from us that’s approved by the Office of Management and Budget, and it would require contractors to submit that AAP and other data to us so that we could review it as part of the evaluation. For the contractor portal, those contractors that were scheduled for evaluations would give the AAP’s to us. So in prior years, it might have been a hardcopy. More recently, it’s been electronically or by email. What’s changed now with the contractor portal is that it is an electronic platform for all contractors who are required to develop and maintain AAP’s to certify that they have in fact developed and maintain them. So this is all the contractors that are required to develop them, not just the ones that are scheduled. And that’s a feature and information that we didn’t have access to before.

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Tom Temin: So do the plans themselves go into the portal, or just the fact that yes, we have a plan goes into the portal?

Maya Raghu: At this time, we’re just asking covered contractors who are required to develop AAP’s to register for the portal to certify, either that they have developed it, that they’re required to develop it, but they haven’t yet, or that because they’re a new contractor, they still have time to develop it. At this time. We’re not asking them to actually submit the AAP’s through the portal.

Tom Temin: Do you think that might happen in the future to make your job easier, and then you could almost do with a compliance audit or check without having to go anywhere?

Maya Raghu: Right. So it’s something that we’re considering right now, we’re still in the period where the existing contractors have until June 30, to register and certify. So we’re focused right now on helping contractors to do that. And then after that period we’ll sort of evaluate where we go next.

Tom Temin: And how many contractors and subs I guess it’s all the same for purposes of the portal, do you expect to eventually put in the certifications?

Maya Raghu: I believe it’s about 18,000.

Tom Temin: Just out of curiosity, why not construction companies also that, say, might be building federal buildings or doing those renovations?

Maya Raghu: So federal construction contractors and subcontractors actually aren’t required to develop AAP’s per se. They do have affirmative action requirements. But under our regulations, they’re not required to have sort of this same sort of written program.

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Tom Temin: All right. We’re speaking with Maya Raghu, she’s deputy director for Policy at the Office of Federal Contract Compliance Programs. And in the annual round of contractors that you look at, how do you choose who you visit for a check on their AAP’s, their affirmative action plans?

Maya Raghu: So OFCCP schedules federal contractors for compliance evaluations pursuant to a neutral scheduling methodology, or we take into account a variety of factors, including data that government data sources, geography and other things. So just want to be clear that we don’t target particular contractors, it’s a neutral scheduling methodology.

Tom Temin: So for their standpoint, it’s random as to when you’ll come around. And when you do decide to choose a contractor to look at their affirmative action. What form does that take? Do they visit you? Do you visit them? Is it just an exchange of paperwork? How does it work?

Maya Raghu: So it’s a process with several steps. So as I mentioned, the first thing we do is we actually publish a list with the contractors and the establishments that are going to be evaluated. And then we send those contractors a scheduling letter that’s been approved by OMB. And it sets out the information that contractors need to submit to us as we start the evaluation. And the first part of it for supplying service contractors is for what we call a desk audit, where we review the data, and we look for indicators or areas of concern. And then we can go and do an on-site evaluation and conduct interviews and look at other records or information at the worksite.

Tom Temin: It strikes me that, if you look at these from what they send through the call for information, there must be consultants out there that can tell you, a company, how to create one of these plans that’ll get by without having you go out and visit. How do you know what they have sent in as a plan, “Man, it looks good,” is what they’re really doing?

Maya Raghu: That’s a great question. So that’s why both the contractor portal certification process and the compliance evaluation process are both so important. What the contract or portal does is, as a first step, contractors are telling us “Yes, I in fact, have developed and maintained a written AAP as I’m required to,” if they’re required to by our regulations. So that’s an important piece of information for us, because part of the reason we develop the contractor portal was in response to a GAO recommendation and report that found that back in 2015, about 85% of contractors who were required to develop and produce AAP’s weren’t actually doing so. Then one of the things that they recommended is that OFCCP develop, perhaps an electronic platform to allow for contractor certification, that they were in fact, complying with those requirements. So that’s an important first step and some important information for us. Then with the compliance evaluation, when contractors are scheduled, that’s when we receive the AAP’s and we’re actually able to review them and analyze them and talk to the contractors, understand what are their policies and practices and look at the data that they’ve provided and their analysis of what they’re doing around hiring. And you know, what kind of applicants and recruitment and promotions and hiring.

Tom Temin: In other words, you want to know not simply that they have a written plan, but that they actually follow it?

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Maya Raghu: Exactly. So with AAP’s they’re required not only to conduct analyses, but then also if they identify problem areas to develop a plan to address those issues.

Tom Temin: And do you ever get complaints, say like a whistleblower, for example, saying, “Hey, we’ve got a great plan in this company. But let me tell you something, and the reality is XYZ?”

Maya Raghu: The bulk of our work is through these neutrally scheduled compliance evaluations. But we do also receive complaints from individuals, from employees, from third parties who may want to tell us what’s going on at a company and ask us to investigate.

Tom Temin: So that happens at some point throughout the year in a given year?

Maya Raghu: Yes.

Tom Temin: All right. And so far, is the portal working as advertised? That is, from your standpoint, is it giving you the information that you hope for?

Maya Raghu: Yeah, so we’re in a period right now, as I said, existing contractors have until June 30 to register and certify in the portal. And so, we’ve been monitoring progress since we opened the portal for registration and certification. So we are able to determine which contractors are covered and required to develop AAP’s, which ones haven’t registered, which ones have registered, but haven’t yet certified. And when the period closes on June 30, we’ll be able to determine who is required to certify and hasn’t, and who was required to certify and did but said they weren’t in compliance. So in the meantime, we’re focused on providing compliance assistance to contractors to make sure that they do register, and that they do certify and make sure we can get as many contractors as possible to do so. And we have a number of resources available on our website, videos, FAQs, a user guide and a help desk as well.

Tom Temin: Yeah I looked at it. It’s a good site. And just a final question: In doing the actual compliance audits for the AAP’s, you’ve got companies of all sizes. It must be much more involved, say if you’ve got a large multinational or publicly traded company that has 500 offices, especially some of these big federal contractors. Everywhere they have a big contract, they might have an office and hiring versus, a 12-person company that does services as a sub-to-a-sub-type of thing. What takes up most of the time?

Maya Raghu: Actually, it’s sort of varies. You will find that for companies that are large federal contractors or have many federal contracts, that they are actually very familiar with all the requirements, and they have the resources to have consultants help them comply with the requirements or have in-house teams. And so sometimes those reviews and getting that information can be more efficient because they understand how the requirements work, and they have the resources to put systems in place to help with that. Whereas sometimes for smaller contractors or newer contractors, it can be a little harder. And so that’s why we have a huge team to provide compliance assistance and help contractors understand and those commitments.

Tom Temin: If you’re big enough to have a vice president of compliance, you’re probably doing it well.

Maya Raghu: Yeah, I mean, again, larger companies and who have many federal contracts are probably going to have the systems in place to make the process more efficient.