October 22, 2019

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The GAO Is Not Down With OFCCP: Report Criticizes Agency’s “Weak” Compliance Evaluations and May Trigger Increased Contractor Oversight

The Government Accountability Office (“GAO”) recently released a study of the Office of Federal Contract Compliance Program’s (“OFCCP” or the “Agency”) oversight functions for fiscal years 2010 to 2015.  GAO’s report explains that “OFCCP has not found violations in the vast majority of its compliance evaluations,” noting that in the time period GAO studied, OFCCP found violations in 17% of evaluations.  GAO pointed out that OFCCP resolved 99 percent of these violations through agreements between the agency and contractor that outlined remedial measures. 

GAO attributed what it viewed as a low-level of violation findings to OFCCP’s “weak compliance evaluation selection process, reliance on voluntary compliance, and lack of staff training.” Although OFCCP maintains that it uses a nonrandom selection process for compliance evaluations in accordance with the Fourth Amendment’s criteria for conducting administrative searches, GAO found that the process does not sufficiently produce a generalizable sample that allows OFCCP to assess compliance risk across all federal contractors.  Further, in GAO’s view, voluntary compliance “cannot ensure that contractors are complying with basic requirements[,] like developing and maintaining an [Affirmative Action Plan (“AAP”)].”  Indeed, GAO found that many contractors had not submitted a required AAP within the 30-day deadline for doing so after requested by OFCCP.  At least some of this apparent non-compliance is attributable to OFCCP providing insufficient guidance to contractors.  About half of the federal contractors interviewed by GAO reported variation in guidance they have received from OFCCP and in how OFCCP conducts compliance evaluations.  Finally, GAO explained that the lack of staff training contributes to what GAO views as lackluster compliance evaluations, as new compliance officers are not timely trained and current officers do not receive sufficient ongoing training.

GAO recommended that OFCCP implement several measures to increase the support it provides to contractors and to strengthen the Agency’s oversight functions. Among these recommendations, GAO suggested that OFCCP:

  • Adjust its processes for selecting contractors for compliance audits in order to focus enforcement efforts on contractors at greatest risk for not complying with equal employment opportunity and affirmative action requirements;

  • Provide timely and uniform training to OFCCP staff to ensure consistency of evaluations across regions;

  • Increase measures to monitor contractors’ submission and updates of AAPs;

  • Improve OFCCP guidance to the contracting community to assist contractors in better understanding their equal employment opportunity and affirmative action obligations.

OFCCP has recognized that GAO’s findings show there is a need for improvement, and the Agency has acknowledged there is room to improve compliance guidance for contractors and to adjust the Agency’s system for selecting contractors to better identify high-risk areas for compliance evaluations.

The GAO report likely offers welcome news to contractors seeking consistent guidance from OFCCP regarding their equal employment opportunity and affirmative action compliance obligations. That said, contractors would be well advised to monitor OFCCP’s response to this report, as it could usher in a new interest in more comprehensive compliance evaluations.

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About this Author

Daniel L. Russell Jr., Covington Burling, Litigation attorney
Of Counsel

Dan Russell has extensive experience representing government contractors in complex, high-stakes litigation.  He has litigated numerous “contractor on the battlefield” tort suits arising out of wartime incidents, as well as other tort suits that implicate significant national defense interests.  Mr. Russell is frequently called upon by clients to develop and assert an array of federal-law-based defenses, including the political question doctrine, federal preemption, the government contractor defense, and derivative sovereign immunity.

Mr....

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Alexander Hastings, Litigation and e-discovery lawyer, Covington
Associate

Alex Hastings advises clients across a broad range of government contracting issues, including advising clients in transactional matters involving government contractors and assisting defense contractors and pharmaceutical companies in securing and performing government contracts.

Mr. Hastings also advises clients concerning best practices in e-discovery. He assists in investigations and litigations that involve complex e-discovery issues and has represented clients in matters involving the U.S. Department of Justice, Securities and Exchange Commission and the United States International Trade Commission.

202-662-5026