On October 6, 2023—less than a week into its new 2024 fiscal year (FY)—the Office of Federal Contract Compliance Programs (OFCCP) announced a new list of mega construction designees, identifying twelve new construction “megaprojects,” as part of its Mega Construction Project (Megaproject) Program. The program is intended to provide proactive “compliance assistance” to contractors and subcontractors to help meet their nondiscrimination and affirmative action obligations.
Quick Hits
- The FY 2024 Mega Construction Designees list continues OFCCP’s renewed focus on the construction industry.
- OFCCP initially designated twelve megaprojects in March 2023, defined as construction projects “valued at $35 million or more in funding, some part of which must be federal funding, and are expected to last for at least one year.”
- For FY 2024, OFCCP selected twelve new megaprojects that are evenly distributed among its six regions.
The FY 2024 Mega Construction Designees List
With its third construction-specific CSAL or list in calendar year 2023, and fifth since FY 2020, OFCCP selected twelve megaprojects using methodology similar to that used in its FY 2023 list, including projects where:
- the federal funding agency has a Memorandum of Understanding (MOU) with the U.S. Department of Labor;
- the Notice of Funding Opportunity (NOFO), Funding Opportunity Announcement (FOA), Solicitations, or other similar funding announcements included a requirement that the contractor participate in the Mega Construction Project Program; and
- funding is received under federal infrastructure laws.
Specifically, the FY 2023 methodology included projects funded through the 2021 Bipartisan Infrastructure Law (BIL), and the FY 2024 methodology included projects receiving funding through federal agency programs related to infrastructure investment, including the U.S. Department of Transportation’s (DOT) Rebuilding American Infrastructure with Sustainability and Equity (RAISE) Discretionary Grants and Grants for Buses and Bus Facilities Competitive Program; the U.S. Environmental Protection Agency’s (EPA) Superfund Program; the U.S. Department of Energy’s (DOE) Battery Manufacturing and Recycling Grants Program; the General Services Administration’s (GSA) Public Buildings Service; and the U.S. Department of Interior’s Bureau of Reclamation.
OFCCP’s FY 2024 methodology then retained projects that are:
- located within 100 miles of an OFCCP office;
- not under the jurisdiction of an OFCCP office that was already assigned a Megaproject on the FY 2023 Mega Construction Designees list;
- not yet in the construction stage;
- expected to start before 2026; and
- multiyear in duration.
Within the refined pool of projects, OFCCP used the following to select its twelve new megaprojects:
- two projects per region, and no more than one project per OFCCP District Office;
- federally-funded projects prioritized over federally-assisted projects;
- where possible, a “project’s place of performance is closer to a Place-Based Initiative city” (defined as “geographic locations where the Department of Labor is leading or is involved with workforce development or other technical assistance programs in specific locations to accelerate and build capacity”); and
- “projects with the largest dollar value.”
Comparable projects within the above criteria were then selected on a random basis. OFCCP included the typical disclaimer that its decision to publish this methodology is voluntary, that it has no legal obligation to do so, and that it will revisit its decision each time it revises the methodology.
OFCCP’s initial Megaproject designation partnered with the (GSA) and the DOT, and this second designation adds the DOE and EPA. OFCCP’s October 6, 2023, press release says additional megaprojects may be designated in the future through partnerships with the U.S. Department of Commerce, Department of the Interior, and U.S. Army Corps of Engineers.
Next Steps
Federal contractors and subcontractors that may be part of a megaproject, or that may bid on future projects, may consider how OFCCP’s renewed focus on the industry could affect operations and how best to leverage the agency’s compliance assistance. All construction contractors, whether part of a megaproject or not, may want to review current efforts to meet nondiscrimination and affirmative action obligations and consult OFCCP’s online resources for more information or to address any questions.
OFCCP offers a variety of construction compliance assistance resources, including in its Mega Construction Project Program landing page, Construction Compliance Frequently Asked Questions, Compliance Assistance Guides, webinars, best practices, and other compliance assistance offerings.
Ogletree Deakins’ OFCCP Compliance, Government Contracting, and Reporting Practice Group will continue to monitor developments with respect to these and other regulatory developments and will provide updates on the Government Contractors and OFCCP Compliance, Government Contracting, and Reporting blogs.
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