Executive Order 11246 (the "Executive Order") and Federal Acquisition Regulation (FAR) contract clause 52.222-26 (the "FAR Clause") long have imposed important employment-related requirements on government contractors and subcontractors. New rules now require certifications—by June 30, 2022—regarding compliance with affirmative action obligations.

Companies that have a contract (a "Prime Contractor") or subcontract with the U.S. government of $50,000 or more and that have 50 or more employees are obligated by the Executive Order and the FAR Clause to agree to not engage in discrimination and also to take steps to ensure equal employment and advancement for protected individuals. Under the Executive Order and FAR Clause, within 120 days of the start of a covered federal contract or subcontract, these companies are required to have in place an affirmative action program (AAP) for each employment location, including having a written affirmative action plan (and, where there is a federal contract or subcontract of $150,000 or more, a written plan for veterans is also required as per FAR 52.222-35). Compliance with these requirements is overseen by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP).

Historically, confirmation of contractors' compliance with this requirement was typically only checked during a scheduled OFCCP audit. However, under new rules published by OFCCP, companies that are required to have an AAP must now certify by June 30, 2022, that they have developed and maintained the required AAP and written affirmative action plans for each establishment covered by the requirement. On a going-forward basis, companies first becoming subject to the AAP requirement will have 90 days from the development of the AAP to make the online certification to OFCCP. The certification is made online at https://www.dol.gov/agencies/ofccp/contractorportal.

A company is required to make one of the following representations as part of the certification:

• It has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit.
• It has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained applicable affirmative action programs at each establishment, as applicable.
• It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.

By implementing this online certification requirement, OFCCP will now become aware not only of which companies that hold contracts directly with the U.S. government (so-called "prime contracts") are subject to the requirements of the FAR Clause, but will also now be made aware of companies that are subcontractors under a federal contract who are subject to the requirements of the FAR Clause.

Prime Contractors, or companies that have a contract with a Prime Contractor, should review those contracts, including the contract value, to ensure they are aware of whether they are required to have an AAP (and if so, that they have established the AAP and required plans) and make the certification described above.

If you have any questions about the above or any other federal government contracts issues, please contact a member of the firm's government contracts practice: Mark Fitzgerald, Mark Bass, or Seth Cowell.