OFCCP Releases Second List of Audits for 2023
OFCCP Releases Second List of Audits for 2023
On September 8, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released a list of 1,000 establishments for supply and service federal contractors selected to receive advance audit notices known as Corporate Scheduling Announcement Letters (CSALs). This CSAL list is double the number of contractor establishments selected in OFCCP’s last supply and service CSAL list released on January 20, 2023.
Contractors on the CSAL list can find answers to some frequently asked questions below, including specific action items to take now. Contractors with establishments on the CSAL list should promptly start reviewing their OFCCP audit preparation and defense strategies at those establishments, particularly in light of OFCCP’s new scheduling letter that (as we reported) significantly increases burden and potential risks for contractors.
CSALs are courtesy letters that OFCCP sends to federal contractors to alert them that one or more of their establishments will likely be scheduled for an OFCCP audit in the coming months. Receipt of a CSAL, however, does not mean that the contractor has been scheduled for an OFCCP audit. OFCCP audits do not begin until a contractor receives the Office of Management and Budget (OMB) approved scheduling letter from OFCCP. Contractors on the CSAL list are typically scheduled for audits, so contractors that receive CSALs should check their OFCCP audit preparation and defense strategies to ensure they are prepared for an audit.
The September 2023 CSAL list includes a total of 1,000 contractor establishments selected for the following types of potential OFCCP audits:
According to OFCCP’s methodology, OFCCP used the following criteria to select contractors for this CSAL list:
Contractors on the CSAL list will not be subject to an OFCCP audit until they receive a scheduling letter from OFCCP. Historically, OFCCP sent CSALs to service and supply contractors as a courtesy to let them know that one or more of their establishments may be scheduled for an OFCCP audit and gave them at least 45 days’ advance notice to prepare for the compliance review. Las year, OFCCP changed its policies to allow contractors to be scheduled for an audit immediately after the CSAL list has been published.
OFCCP’s new scheduling letter also allows OFCCP to issue the scheduling letter via email with a read receipt requested, so contractors should make sure that the appropriate personnel at the establishments that may be selected for audit monitor their email inboxes.
Contractors should not anticipate receiving an extension to respond to the scheduling letter except in very limited circumstances. Contractors have 30 days from the date they receive the scheduling letter (whether electronically via email or by physical copy) to provide the information requested in OFCCP’s current scheduling letter. Under the current administration, OFCCP will only grant extensions for submitting responses to the scheduling letter and itemized listing under “extraordinary circumstances,” such as extended medical or military leave absences of key personnel responsible for OFCCP compliance, localized or company‑specific disaster affecting records retrieval (e.g., flood, fire, computer virus), or unexpected turnover or departure of key affirmative action personnel.
Despite OFCCP significantly expanding the number of items in the scheduling letter contractors will be required to provide at the outset of audits, OFCCP has not changed its position on granting extensions to the 30-day timeline. Instead, OFCCP’s new scheduling letter states that OFCCP may initiate enforcement proceedings if the requested information is not provided within 30 calendar days of the contractor’s receipt of the letter.
OFCCP collects contract data from USAspending.gov and establishment-level data from the EEO-1 filings. Sometimes the information OFCCP uses to select contractor establishments for the CSAL list is outdated. Contractors may find that one of their establishments has been closed or is relocated in the CSAL list or the establishment name may not reflect the company name due to corporate changes, such as a merger or acquisition.
Contractors that believe OFCCP should not have selected an establishment identified on the CSAL list should consider working with their counsel to determine if there is a basis to ask OFCCP to remove them from the CSAL list.
Contractors on the CSAL list should promptly begin preparing for a potential audit. Below are some proactive steps to consider.
Since this documentation will be required at the beginning of audits, contractors should start considering now what type of analysis they will perform to meet the 41 C.F.R. Section 60-2.17(b)(3) requirement and the type of documentation they will have available to prove to OFCCP that analysis was conducted if they plan to withhold that analysis on attorney‑client privilege grounds.