Understanding Recent OFCCP Updates for Government Contractors in Construction

The Office of Federal Contract Compliance Programs (OFCCP) has recently made significant updates to its Frequently Asked Questions (FAQs) sections, particularly concerning federal contractors engaged in construction projects. These updates clarify compliance obligations when one contract covers both Construction and Supply and Service work.

Background of the Changes

In June 2023, a new Corporate Scheduling Announcement List (CSAL) was released, identifying 250 “Construction Contractors” for audit. This list included Supply and Service Contractors involved in construction contracts, raising questions about the OFCCP's auditing authority based on the type of contract rather than the contractor category.

On December 4, 2023, the OFCCP made extensive updates (without public announcement) to the Construction Compliance FAQs to clarify the questions. Notably, these changes include:

• Application of legal authorities to workers engaged in on-site construction. (FAQs 6 & 7 in the Legal Authority section and FAQ 3 in the Compliance review section)
• Guidance on compliance for contracts that include both construction and non-construction work. (FAQ 8 & 9 in the Legal Authority section)
• Emphasis on contractors' responsibility to monitor personnel practices to prevent discrimination. (FAQ 4 on Investigating Discrimination)

Key Takeaways from OFCCP Updates

• Contractors with mixed contracts must comply with affirmative action obligations applicable to the predominant part of the work.
• There is an increased focus on monitoring and assessing compensation and selection policies.
• Roles like supervisors, inspectors, and forepersons are now considered part of the construction trades for compliance purposes.

The OFCCP's recent updates mark a significant change in how construction and mixed contracts are handled. Contractors must now be vigilant in understanding which part of their work is predominant in a mixed contract and ensure compliance accordingly.

It's important to note that while FAQs provide insight into OFCCP's interpretation of laws and regulations, they do not carry the same legal weight as formal regulations. Contractors should be aware that these FAQs can be revised or withdrawn without notice, as we have seen between the June 2023 FAQ update and this update.

As the OFCCP's new FAQs might not fully align with existing regulations, contractors should stay informed and possibly seek legal advice to ensure full compliance.