October 26, 2020

Volume X, Number 300


October 26, 2020

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What’s New in the Latest OFCCP Scheduling Letters?

The Office of Management and Budget recently approved proposed revisions to the Scheduling Letter and Itemized Listing, the Compliance Check Letter, and the Section 503 Focused Review Letter, in addition to introducing the VEVRAA Focused Review Letter. The revisions include only a few substantive changes that impact government contractor disclosures.

OMB recently approved the revised scheduling letters, but fortunately did not adopt all of OFCCP’s proposed changes, including proposed changes to request compensation information during focused reviews. While the new Compliance Check Letter remains substantively unchanged, a few differences exist among and between the other scheduling letters.

In the new Scheduling Letter and Itemized Listing, contractors must now “describe the specific good faith efforts made to remove identified barriers, expand equal employment opportunity, and produce measurable results” when goals are not attained. See Itemized Listing § 17(c). Additionally, contractors must submit a description of their personnel processes assessment and a schedule of the physical and mental qualifications assessment. See Itemized Listing §§ 21-22.

Under the new Section 503 Focused Review, contractors no longer need to submit data regarding the formation of job groups, documentation of all actions taken to comply with the audit and reporting system requirements, or copies of EEO-1 Reports for the last three years. Alternatively, for Section 503 Focused Reviews, contractors must now submit a description of the assessment of personnel processes and a schedule of the physical and mental qualifications assessment, which mirrors the new Scheduling Letter and Itemized Listing. See Section 503 Focused Review §§ 8-9.

The inaugural VEVRAA Focused Review Letter essentially mirrors the new Section 503 Focused Review Letter. Notably, to the extent the focused review data is maintained electronically, contractors must now submit it in a complete, readable and usable format. Unlike the Section 503 Focused Review, however, the VEVRAA audit letter seeks documentation regarding hiring benchmarks. See VEVRAA Focused Review letter § 5.

Note that the OFCCP remains “virtually” operational during the COVID-19 pandemic; therefore, contractors listed on the previously issued Corporate Scheduling Announcement Letter (CSAL) should begin to gather the requested data in the VEVRAA audit letter.

Contractors should also be mindful that the new obligations may apply not only to OFCCP audits, but to general contract compliance as well. Going forward, contractors are certifying their compliance with requirements that are less than concrete and to which enforcement remains uncertain, such as using “good faith efforts made to remove identified barriers, expand equal employment opportunity, and produce measurable results.” Accordingly, contractors should review and update as appropriate their relevant standard operating procedures (SOPs) and codes of ethics and business conducts to help insulate themselves from contractual and legal liability, particularly with regard to the False Claims Act.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 108



About this Author

Kristin Jones Pierre Labor & Employment Faegre Drinker Biddle & Reath Minneapolis, MN

Kristin Jones Pierre advises management nationwide on complex workplace matters, including identifying long-term strategies and best practices to reduce employment-related legal risks while meeting business needs. She represents employers of all sizes, including public and private companies, emerging businesses, and nonprofit organizations.

Employment Counseling

Kristin helps employers identify employment obligations, risks and liabilities from hiring practices to termination. Her experience includes advising employers on:

  • Hiring practices, including recruitment...
Jessica Abrahams Government Contracts Lawyer

Jessica C. Abrahams, chair of the firm’s Government Contracts Team, offers U.S. and international clients comprehensive counsel on issues concerning litigation, compliance, and transactions. Her clients span a variety of industries, from biodefense and health care to information technology, defense products and services, supply chain and infrastructure development. She regularly advises global government contractors, Indian nations, nonprofit organizations and small business owners on contracting best practices and risk mitigation techniques.

A trial lawyer with a proven track record, Jessica has represented clients in federal district and appellate courts, the U.S. Court of Federal Claims, the Boards of Contract Appeals, the Government Accountability Office, and various federal administrative tribunals, in matters that include bid protests, qui tam cases, and other complex litigation and related discovery proceedings. She has experience litigating complex matters relating to the Foreign Corrupt Practices Act, the Customs-Trade Partnership Against Terrorism, and Foreign Ownership, Control or Influence factors. Jessica also assists clients with all aspects of federally funded health care programs, including Medicare, Medicaid, Tricare, and the Federal Employees Health Benefits Act.

Jessica has represented clients with contracts and transactions in numerous industries and geographic regions, including Asia, Central Asia, the Middle East, and Africa, and has significant experience with USAID contracts.

In addition to litigation matters, Jessica also counsels government contractors on a full range of corporate transactions, including mergers and acquisitions and all associated due diligence. She works with clients who are entering the federal marketplace, helping them to identify and obtain meaningful business opportunities and bringing to bear her understanding of the appropriations, legislative and regulatory processes, as well as her familiarity with the federal procurement process.

Stacie L. Linguist Commercial Litigation & Government Contracts Faegre Drinker Biddle & Reath Minneapolis, MN

Stacie Linguist represents clients in commercial litigation and government contracts matters. Stacie helps clients resolve business disputes, obtain government contracts and respond to government investigations. She has worked with clients in a number of industries, including financial services, insurance, health care, defense and technology.

Litigation and Investigations

Stacie litigates bid protests before the Government Accountability Office, the U.S. Court of Federal Claims, and state agencies and departments, conducts internal investigations, and responds to Inspector...