Friday, August 25, 2022: OFCCP Webinar Announced Another Document Delivery Portal: This Time For Construction Contractors
The OFCCP calls it the “Construction Contract Award Notification Portal (NCAP).” With the creation of this, its fourth portal (or sub-portal, depending on how you want to split the electrons) after the AAP Verification Portal, the OFCCP Entrepreneur Portal (originally launched alongside the Verification Portal AAP to allow federal contractors wishing to submit their affirmative action programs undergoing audit with the OFCCP), the FOIA EEO-1 Request Objection Portal announced above and the registration portal to the higher education announced above within the OFCCP Entrepreneur Portal, OFCCP seems to be getting into the realm of electronic data delivery portal.
The OFCCP admits (when asked), however, that it has no legal authority to compel contractors to file information with the agency in electronic or digital form (at the option of the agency). Although many contractors have told us that they prefer the ease of delivering documents to the OFCCP in electronic and digital format, this issue nevertheless appears to be of great concern to a segment of the federal contractor community. We continue to receive many inquiries since the OFCCP first announced the AAP Contractor Verification Portal regarding OFCCP’s legal authority to compel contractors to provide documents in electronic format and/or digital.
Further, the OFCCP has taken no steps to issue a proposed rule requiring contractors to file documents with it by electronic and/or digital means to which the agency is otherwise entitled to access in paper form. Rather, it appears that OFCCP will simply rely on contractors to (a) believe/assume that OFCCP has the right to somehow require delivery of electronic and digital documents, or ( b) believe that it is in their interest to voluntarily provide electronic and digital documents. digital documents at the OFCCP.
The OFCCP wants its latest portal to meet the agency’s document delivery needs for construction contractors. Rather than filing a proposal, let alone a final rule, the OFCCP instead informally issued, via email, a “Construction Contract Award Notification Portal (NCAP).” OFCCP NCAP landing page revealed that OFCCP’s intention in developing this online platform was to “modernize the way the agency receives required notices regarding construction contracts and subcontract awards.”
The OFCCP hopes that this construction contractor portal will be the primary method construction contractors use to enter, submit and track contract award notifications for OFCCP review. By stating, as the agency did, that the OFCCP anticipates that the construction contract award portal will eliminate or at least reduce the need to submit contract award notifications by mail or email, it has implicitly acknowledged, again, that it cannot compel contractors to provide documents to OFCCP in electronic and digital form unless the contractor voluntarily chooses to do so. So choose your poison.
For any supply and service contractors reading this blog who are unfamiliar with the unique requirements of the OFCCP Construction Contractors Rules, please be aware that the OFCCP Construction Contractors Enforcement Program has always required submission of documents that are not otherwise routinely required to be provided to the OFCCP by supply and service contractors. Specifically:
“OFCCP regulations require covered construction contractors, procurement officers, construction contractors, and non-construction contractors to provide to the OFCCP [a] written notice – within 10 business days – of the award of a federal or federally subsidized construction contract or subcontract over $10,000,…”
OFCCP Director Jenny Yang noted at the start of a online seminar organized in conjunction with the launch of the OFCCP Building Contractors Portal. See 41 CFR 60–4.2(vs). [Note: The regulations are silent as to any requirement that this notification must be submitted online.]
Prior to the launch of the OFCCP construction portal, such notices were submitted to the regional district or regional offices of the OFCCP, by fax, mail or email, Yang said. OFCCP’s new construction contractor portal will make it “more easy and cost-effective for procurement officers and contractors to submit construction contract award notices securely and electronically,” it said. she asserted. “Bidders will also receive confirmation that their notices have been submitted successfully, and NCAP will provide the agency with more timely and complete information about federal contracts such as contract start and end dates,” the agency added. director.
The launch of the portal comes at “a critical time for the federal government”, Yang observed. “Historic investments in the country’s infrastructure will increase the number of new federal construction contracts and contractors. The information you provide through NCAP will play an important role in enabling the OFCCP to more effectively plan and conduct compliance reviews to ensure that companies doing business [with the federal government met their] equal employment opportunity commitments.
The White House Office of Management and Budget (OMB) has approved the Construction Contract Award Notification form (Form CC-314) (as part of construction record keeping and reporting requirements of the OFCCP), said Daniel Calamari, Acting Director of the Data Systems Branch at OFCCP’s Program Operations Division. However, the OMB has received no request from the OFCCP to permit the development of an electronic document delivery portal, or notice to the OMB of any regulations providing public notice or soliciting public comment, such as required by the Administrative Procedure Act.
The OMB specific webpage on this form contains links to pdf versions of the same form available through NCAP. The webpage (as of Friday, August 26, 2022) states that Form CC-314 is “printable only” however and is not available electronically. Nonetheless, in its supporting statement submitted to the OMB on April 8, 2021 regarding the reauthorization of its construction record keeping and reporting requirements (located here), the OFCCP does mention NCAP but only indicates that the agency was considering the development of an electronic filing portal. Specifically, the OFCCP statement of support stated:
“The OFCCP is requesting re-authorization of the Construction Contract Award Notification Form…. This form is currently approved in both paper and electronic format. The electronic form will eventually be accessible through an online portal, the Award Notification Portal (NCAP), and the agency will include a batch upload feature for the portal that will allow contractors to submit information for multiple notices simultaneously. as the contractor’s email address and whether it is a prime contractor or a subcontractor.
Following a notice and comment period on OFCCP’s request to re-authorize the use of Form CC-314 (not NCAP), The OMB approved the requested changes from July 6, 2021 to July 31, 2024.. Note, the OFCCP of April 19, 2021, Federal Register To remark (86 EN 20417) simply stated that the OFCCP was requesting a reauthorization of Form CC-314, but made no mention of NCAP.
Other webinar presenters provided details of the NCAP home page and a demonstration of how to use the portal. The landing page includes: Frequently Asked Questions (FAQ); Explainer videos; NCAP portal access button; a Manual; and a link to his Technical Support Request Web Page.