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  • Theresa Culver

Federal Contractor Affirmative Action Program (AAP) and New Certification Requirements

Annual AAP Certification Requirements

This year marks the first year that federal supply and service contractors and subcontractors must annually certify whether they have developed and maintained a complete affirmative action program (AAP) for each of their establishments or functional units. Contractors had until June 30, 2022 to complete their certifications with the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Although prime contractors already had to certify whether they developed AAPs in the System for Award Management, prior to this year, contractors and subcontractors did not have to produce or file their AAPs with the OFCCP unless requested.

Who must Develop and Maintain AAPs?

Companies that conduct business with the United States federal government are subject to a number of laws and regulations, including equal employment opportunity (EEO) and affirmative action (AA) obligations under Executive Order 11246 (E.O. 11246), Section 503 of the Rehabilitation Act of 1973 (Section 503), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).

Covered federal contractors and subcontractors have an obligation to develop and maintain annual written AAPs, and now have an obligation to certify annually that the AAPs are in place. Generally, contractors or subcontractors with at least 50 employees and a government contract of at least $50,000 (or at least $150,000 for VEVRAA) must develop, maintain, and implement written AAPs that comply with E.O. 11246, Section 503, VEVRAA, and their respective implementing regulations. Contractors must develop and implement their AAPs within 120 days from the start of the covered contract (or upon reaching 50 employees as applicable).

What are the AAP Requirements?

AAPs establish, in writing, a program for contractors to follow for one year, with the overall goal of affording equal employment opportunities to women, minorities, people with disabilities, and protected veterans. AAPs measure an organization’s EEO efforts and engagement in recruitment and outreach to attract, retain, and promote women, minorities, people with disabilities, and protected veterans, but strictly do not create set asides, quotas, or preference programs.

E.O. 11246, Section 503, and VEVRAA each impose written AAP obligations on covered contractors. Contractors subject to all three laws have the option of creating three separate AAPs, one combined AAP, or one AAP for E.O. 11246 and one combined AAP for VEVRAA and Section 503. Section 503 and VEVRAA have very similar requirements, and thus can be combined into one AAP.

During the AAP year, the contractor must collect and maintain certain information and conduct analyses for various required components of the AAP. Written AAPs created pursuant to E.O. 11246 have the most detailed and comprehensive requirements and include both statistical and narrative components. Written AAPs created pursuant to Section 503 and VEVRAA do not have the in-depth statistical analysis required by E.O. 11246, but in addition to the narrative AAP, require employers to list all employment openings with the appropriate state workforce, agency job bank, or local employment service delivery system. In general, each AA law requires different components to be included in the AAP, a brief summary of which is listed below:

E.O. 11246 AAP Components:

  • An organizational display;

  • A workforce analysis ranking lowest paid to highest paid within each department;

  • A job group analysis and the placement of incumbents in job groups;

  • Utilization analysis;

  • Availability determinations along with a description of the methodology used;

  • A comparison of incumbency to availability in an acceptable format;

  • Description of the methodology for setting goals;

  • Designation of responsibility;

  • Description of the in-depth analyses of the employment process and any areas that would impact the FAAP, such as personnel activity or compensation systems;

  • Description of the programs intended to correct any problems identified; and

  • Description of the internal audit system measuring the effectiveness of the FAAP.

Section 503 and VEVRAA AAP Components:

  • A policy statement;

  • A review of personnel processes;

  • A review of physical and mental job qualification standards;

  • A reasonable accommodations statement;

  • A harassment prevention policy and prohibition against retaliation;

  • A section on external dissemination of the policy, outreach, and positive recruitment;

  • An assessment of external outreach and recruitment efforts;

  • An internal dissemination statement;

  • A section regarding recordkeeping obligations;

  • A section regarding responsibilities of managers and supervisors;

  • An audit and reporting system;

  • A section on establishment of responsibility for AAP implementation;

  • A section on training to ensure AAP implementation;

  • A data collection analysis; and

  • A company invitation to self-identify.

Federal government contractors and subcontractors should determine whether they are subject to one or more of the AA laws and whether they need to prepare an annual AAP. As mentioned above, AAPs should have been certified with the OFCCP by June 30, 2022. The United States Department of Labor has sample AAPs for E.O. 11246, Section 503, and VEVRAA that can be used as a basic template for developing a written AAP. However, there are many other components to preparing AAPs that are not covered in this article as well as a litany of other equal opportunity and affirmative action requirements such as minimum recordkeeping requirements, mandatory job listings and annual reporting requirements. It is advisable for any federal government contractor or subcontractor who believes they may be subject to one or more of these laws to contact legal counsel to assist them in preparing their AAPs and complying with their EEO/AA obligations.

For more information regarding Federal Contractor and Subcontractor Affirmative Action Program requirements and certification, please contact Theresa Culver at Fonss & Estigarribia LLP at and (858) 746-6483.

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