How are Federal Contractors Selected for an Affirmative Action Audit

On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released the FY 2023 Corporate Scheduling Announcement List (CSAL) for supply & service contractors. This CSAL includes 500 compliance evaluations for federal contractors and subcontractors. The CSAL acts as a notification to establishments that have been selected for a compliance evaluation including establishment-based reviews, Corporate Management Compliance Evaluation (CMCE) reviews, or Functional Affirmative Action Program (FAAP) reviews. The review process begins once the establishment receives the current OMB approved scheduling letter from OFCCP. Whether you are on the scheduling list or not, you may be wondering, how are federal contractors and subcontractors selected for the Scheduling List? 

OFCCP modifies their selection methodology with each scheduling list. Although they are not required to do so, OFCCP has published the selection methodology along with each release of a new list.

For this new release, OFCCP selected federal contractors and subcontractors that did not certify compliance with the regulatory requirements of an Affirmative Action Program (AAP) as of  December 1st, 2022 in the contractor portal. To create the list, OFCCP first identified a list of federal contracts valued at $50,000 or more from the USAspending database. The OFCCP excluded contracts awarded to certain types of organizations, including universities and colleges, certain healthcare contracts exempted from review by OFCCP, and construction companies.

OFCCP then narrowed the eligible pool of contractors to be included on the CSAL by focusing on contractor and subcontractor establishments with 200 or more employees (1000 employees for CMCE reviews of company headquarter locations). These establishments were identified by matching the company names and establishments against 2020 EEO-1 filings. Contractor establishments were removed from the list if they are currently under review, in a monitoring period following a conciliation agreement, in the exemption period after a closed review, pending scheduling for review from a previous scheduling list, or had an active separate facilities waiver.

When finalizing the establishment and CMCE reviews, OFCCP utilized three criteria. The first criteria involved selecting establishments and CMCEs with the highest employee count in each district office. The second criteria selected a maximum of four establishments of any parent company. The third criteria selected a maximum of five CMCE reviews per region. When OFCCP finalized the FAAP reviews, they only selected the four functional units with the highest employee count in each region. 

Each establishment and functional unit were assigned district office codes and regions based on postal address. OFCCP distributed compliance evaluations across regions based on the full-time staff that was available. In the interest of completing the reviews in a timely manner. Continuing a practice implemented in the last scheduling cycle, OFCCP reassigned compliance reviews to the same OFCCP region for parent companies with two or more establishments on the CSAL. Regions have the ability to transfer cases to their district offices or other regions based on their workload.

OFCCP is required to schedule each review in the order served up in their scheduling system. The agency also announced that they plan to finish scheduling reviews from prior CSAL lists before scheduling from the new list. In the past, OFCCP has followed a 45-day delay from the release of a CSAL list before beginning to schedule compliance reviews from the new list. With Directive 2022-02 Effective Compliance Evaluations and Enforcement, published on March 31, 2022, OFCCP notified contractors that they will no longer follow the 45-day delay. It appears OFCCP is following their word as Berkshire is aware of at least one contractor who has received their scheduling letter within one week of the issuance of the new CSAL.

Contractors who believe that OFCCP has placed their establishment on the scheduling list in error are advised to contact OFCCP at OFCCP-DPO-Scheduling@DOL.gov with an explanation and supporting documentation.

For more information about OFCCP’s scheduling process, click here.

If you are on the list and seeking support with navigating your audit, check out Berkshire's Audit Page for more information.