In its continuing attack on DEI, the Administration released a new Executive Order (EO) last week targeting DEI practices by Federal contractors and subcontractors. The EO requires federal contracts to include new clauses prohibiting contractors from engaging in DEI programs and activities. The EO states:
- “The Order requires that all Federal contracts that are subject to the Federal Property and Administrative Services Act include a clause prohibiting contractors and their subcontractors from engaging in racially discriminatory DEI activities.
- The Order directs the Office of Management and Budget to issue guidance to contracting agencies to ensure compliance and identify economic sectors that pose a particular risk of engaging in racially discriminatory DEI activities.
- The Order authorizes contracting agencies to cancel, terminate, or suspend contracts — and to suspend or debar contractors — for failure to comply.
- The Order directs the Attorney General to prioritize potential claims under the False Claims Act against contractors or subcontractors that are in violation of the contractual terms prohibiting racially discriminatory DEI activities, and ensure the prompt review of related civil actions brought by private persons.
- The Order directs the Federal Acquisition Regulatory Council to amend Federal Acquisition Regulations to include this clause and remove any conflicting provisions.”
Executive agencies must now translate this mandate into official rule-making and guidance. As these begin to be promulgated, we’ll have more details on how the DEI ban will be enforced. However, the Administration has issued similar EOs targeting federal contractors in the past. While this EO goes further than previous ones, it’s unclear how many DEI programs remain among federal contractors.
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