Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATED February 20, 2025
On February 15, 2025, the director of the U.S. General Services Administration (GSA), in his capacity as chair of the Civilian Agency Acquisition Council (CAAC), issued a CAAC Letter authorizing executive agencies to deviate from existing provisions of the Federal Acquisition Regulations (FAR) and procurement practices in order to implement President Trump’s Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.
This letter further clarifies the extent to which federal contractors are relieved from all obligations that applied under the now-revoked Executive Order 11246, including the maintenance of affirmative action programs for women and minorities and all related requirements established by the rules promulgated pursuant to Executive Order 11246.
The letter first instructs the executive agencies to exclude from new solicitations or contracts the following clauses that have been in use to implement now-revoked Executive Order 11246:
- FAR 52.222-21, Prohibition of Segregated Facilities;
- FAR 52.222-22, Previous Contracts and Compliance Reports;
- FAR 52.222-23, Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity for Construction;
- FAR 52.222-24, Pre-award On-Site Equal Opportunity Compliance Evaluation;
- FAR 52.222-25, Affirmative Action Compliance;
- FAR 52.222-26, Equal Opportunity;
- FAR 52.222-27, Affirmative Action Compliance Requirements for Construction; and
- FAR 52.222-29, Notification of Visa Denial.1
A supplement to the CAAC letter provides that “[a]s of February 15, 2025, FAR clauses and provisions covered under E.O. 11246, Equal Employment Opportunity, will no longer be enforced.”
Therefore, contractors and their subcontractors will not be held accountable for applying the FAR clauses or provisions outlined in FAR subpart 22.8 – Equal Employment Opportunity, or the associated provisions and clauses prescribed at FAR 22.810.
The letter then further provides that “contractors will no longer be required to comply with the system for Award Management (SAM) representation requirements based on these provisions and clauses.”
Regarding E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, the CAAC letter states that the term "gender identity" is removed from FAR 22.801 and the clauses at FAR part 52 that include the term. The letter does not provide further commentary on this change or provide for any new obligations required of contractors in this regard.
Based on these actions, it would appear that the risk of a successful breach of contract or False Claims Act action based on a failure to comply with non-discrimination laws is unchanged absent the adoption of contract clauses requiring new and different representations concerning compliance with non-discrimination or equal employment opportunity obligations and the incorporation of those provisions into federal contracts and subcontracts.
The CAAC letter also explicitly notes that, regardless of the president’s executive orders, federal contractors “are still covered by existing United States laws on civil rights/nondiscrimination. These laws apply whether or not the company is a government contractor.”
Contractors are thus reminded that, to the extent that any of the president’s executive orders may be interpreted as inconsistent with Title VII or constitutional standards, compliance with the orders will not be a defense to claims of unlawful discrimination under federal law. Contractors should, therefore, be thoughtful in how they respond to those portions of the executive order that for the time being are hortatory—this would include any stated desire to define gender identity in a manner inconsistent with the relevant science and law or to interpret statutory rights in a manner inconsistent with court decisions.
We will continue to monitor developments and provide further information for federal government contractors. Should you have questions about federal government contractors’ obligations, please contact your legal counsel.
February 20, 2025 update:
Following the publication of this ASAP on February 19, we became aware of several federal entities that are purporting to add the following language to their contract terms:
In accordance with EO 14173, Contractor agrees that its compliance with all applicable Federal anti-discrimination laws is material to the Exchange’s payment decisions for purposes of 31 U.S.C. § 3729(b)(4). Contractor certifies it does not operate any programs in violation of any applicable Federal anti-discrimination laws.
See, for example, the February 2025 Terms and Conditions posted by the Army & Air Force Exchange Service at https://www.aafes.com/Images/doingbusiness/termscon.pdf.
The inclusion in this type of a clause of an explicit reference to the False Claims Act, 31 U.S.C. § 3729(b)(4) is unusual, if not unprecedented. As violations of the False Claims Act can result in criminal and substantial civil penalties, it is very important that contractors obtain legal advice before agreeing to this term. This is particularly true as it is not clear that this term is being added to contracts in accordance with applicable legal requirements for adopting federal contracting terms or that the language of this term could survive legal challenge. Employers that are asked to agree to this term in either a contract or subcontract should consult with their legal counsel.
See Footnotes
1 The CAAC letter also instructs that when issuing new solicitations and contracts, agencies not include FAR 52.222-9, Apprentices and Trainees, which requires, among other things, that the utilization of apprentices, trainees, and journeymen be in conformity with the equal employment opportunity requirements of E.O. 11246.
