Additional Information on OFCCP’s Latest Round of CSALs
As we reported last week, OFCCP has released a supplemental list of contractors who have been selected for audit by the Agency. In addition to releasing information about the supplemental list of CSALs, OFCCP also published a new FAQ addressing requests for extensions and a supplement to its recently disclosed scheduling methodology.
Request for Extension FAQ
One of the items raised in the GAO review of OFCCP was the rate of untimely audit submissions by contractors. While looking for alternative ways to ensure contractors prepare the required affirmative action plans, OFCCP has released a new FAQ addressing requests for extensions of time to respond to an OFCCP scheduling letter. In the FAQ, OFCCP states it will provide a 30-day extension for the submission of supporting data in connection with contractors AAPs if two criteria are met. The extension will be granted only if:
(1) the contractor requests the extension prior to the initial 30-day due date for the AAPs, and
(2) the contractor timely submits the basic EO 11246, Section 503 and VEVRA AAPs within the initial 30-day period after receiving the Scheduling Letter and Itemized Listing.
To reiterate, the 30-day extension will be granted for supporting data only, not for what OFCCP considers the “basic” AAPs which “contractors are required to maintain and updated annually.” The FAQ does not explain what constitutes a “basic” AAP.
The FAQ goes on to state failure to submit either the basic AAPs, or the supporting data timely, with the approved extension. “will result in an immediate Notice to Show Cause.” It also highlights that
[a] procedural Notice to Show Cause for failure to submit AAPs and/or supporting data does not require OFCCP National Office approval.
Finally, the FAQ notes that the extension policy is applicable for reviews scheduled on after September 7, 2018. Even though OFCCP states it will grant extensions for submissions, with the above caveats, it is also clear they expect contractors to comply with the reporting requirements in a timely fashion.
Scheduling Methodology Supplement
In connection with release of the supplemental CSAL list, and in an effort for continued transparency, OFCCP also released an explanation of the scheduling methodology for the supplemental list. The impetus behind the supplemental CSAL list was to ensure “the agency’s district and area offices have a sufficient number of available establishments to schedule for compliance reviews until OFCCP releases a new scheduling list.” According to the Agency, the supplemental list was taken from the “pool” of eligible establishments created from the FY 2018 scheduling methodology. Establishments with contracts expiring on or before December 31, 2018 were removed from the list. Notably, and consistent with what we’ve been seeing in the field, OFCCP prioritized establishments with higher employee counts. OFCCP also applied criteria to regulate the number of establishments, and types of audits (FAAPs and CMCEs) assigned to the district offices.
OFCCP makes it clear this is a supplement to the FY 2018 scheduling list and that a new scheduling list is “expected in early 2019.”