Government contractors and subcontractors should be on the lookout for contract modifications as agencies begin implementing DEI-related Executive Orders.
By Dean W. Baxtresser, Danielle Conley, Kyle R. Jefcoat, Anne W. Robinson, Morgan Maddoux, Jude Volek, and Kiley Boland
The General Services Administration (GSA) and Department of Defense (DOD) — the US government’s two leading procurement agencies — have each issued Federal Acquisition Regulation (FAR) class deviations implementing the recent executive orders related to Diversity, Equity, and Inclusion (DEI) policies and programs, which we discussed in these posts. While contracts with less than six months remaining are exempt from modification, these class deviations will potentially impact many government contracts. Prime contractors and subcontractors alike should be on alert with regards to upcoming changes to procurement contracts, and similarly be prepared for language, which has not yet been released and is currently subject to an injunction, implementing mandatory certifications of compliance with new DEI policies and/or requirements. Nat’l Ass’n of Diversity Officers in Higher Educ., et al., v. Donald J. Trump, et al., No. 1:25-cv-00333-ABA, Dkt. 44–45 (D. Md. 2025).
These class deviations implement E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which revoked E.O. 11246, Equal Employment Opportunity — the authority underpinning much of FAR subpart 22.8. The class deviations also propose to address E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which directs the government to not use the term “gender” in federal policies and documents.
Both GSA and DOD direct contracting officers to no longer use certain contract clauses in new solicitations and contracts and to remove clauses, including the following, from existing contracts:
(a) 52.222-21, Prohibition of Segregated Facilities;
(b) 52.222-22, Previous Contracts and Compliance Reports;
(c) 52.222-23, Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity for Construction;
(d) 52.222-24, Preaward On-Site Equal Opportunity Compliance Evaluation;
(e) 52.222-25, Affirmative Action Compliance;
(f) 52.222-26, Equal Opportunity;
(g) 52.222-27, Affirmative Action Compliance Requirements for Construction; and
(h) 52.222-29, Notification of Visa Denial.
While contracting officers have some discretion in selecting contract clauses from FAR Part 52, many clauses are included in contracts by mandate. The provisions that GSA and DOD name for exclusion from contracts primarily fall into the latter group — mandatory not just for inclusion in prime contracts, but in subcontracts as well, when appropriate circumstances apply.
The GSA and DOD class deviations each instruct contracting officers to remove the above-listed FAR clauses and insert new FAR deviation clauses into new contracts or open solicitations, and to modify existing contracts to comply with the deviations. Contracts with less than six months remaining, and with no options to extend, are exempt from the modification requirement. Contracting officers are also directed not to “take any action to implement or enforce” E.O. 11246 (Equal Employment Opportunity), not to use related solicitation provisions and contract clauses, and not to review the representations in the System for Award Management that are based upon those solicitation clauses.
Notably, these class deviations do not target for removal any FAR subparts related to equal employment opportunities for veterans or workers with disabilities. The GSA class deviation notes this specifically; while DOD did not directly address such provisions in its class deviation, the DOD’s list of affected FAR clauses comports with the GSA’s.
These class deviations are merely one step in agency implementation of the Trump Administration’s DEI-related executive orders. Government contractors should be on alert as agencies, including DOD and GSA, continue implementation efforts. Stakeholders will be given a chance to weigh in during the formal notice-and-comment rulemaking process, which agencies will ultimately be required to undertake to implement changes to the FAR.