OFCCP adds incentive for contractors to certify in Portal | Constangy, Brooks, Smith & Prophete, LLP

It’s a stick, not a carrot.  

As we have previously discussed, the Office of Federal Contract Compliance Programs instituted a new requirement this year that contractors register and certify compliance in the Contractor Portal. The deadline for completing the process was June 30.

The OFCCP recently announced that, although the Portal remains open, the agency did not extend the deadline and that “[c]ontractors that have not yet registered and certified whether they are in compliance with their AAP obligations should do so as soon as possible.”

Consistent with its prior statements, the OFCCP reiterated that contractors that have not certified compliance in the Portal “will be more likely to appear on OFCCP’s scheduling list. . . .” Although it seems implicit that this increased risk would apply to contractors who did not certify by June 30, the OFCCP’s statement did not say that expressly. Thus, there is at least the potential that a late certification may be better than no certification at all.

In case contractors are still not motivated enough to certify compliance, the OFCCP also advised that “contractors that have not certified compliance by September 1, 2022, will be included on a list provided to federal agency contracting officers. The purpose of this list is to enable contracting agencies to notify contractors of their certification obligations, thereby assisting OFCCP in securing compliance.” And we have already heard that contractors with procurement contracts are receiving letters from contracting officers about their failure to certify in the Portal.

It is unclear what action a contracting officer may be able to take for failure to certify where such an obligation was not part of the contractual agreement and is not included in the OFCCP’s regulations. But most contractors will probably prefer to avoid potential disagreements with their customers.