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Federal Contract Changes: DoD and GSA Strip DEI Language from Solicitations

Picture of John C. Fox, Esq. John C. Fox, Esq. : Apr 24, 2025 1:16:12 PM

EO 11246 Rescission

Federal Contract Changes: DoD and GSA Strip DEI Language from Solicitations

OutSolve has invited John C. Fox, Esq. as a guest blogger providing legal insights on EEO and compliance issues. The views expressed in his posts are his and do not reflect the viewpoint of OutSolve or its employees.

In John Fox's last blog, he explored the legal risks under the False Claims Act (FCA) when certifying compliance on federal contracts and grants, highlighting the need for proactive evaluation and internal review. In this follow-up blog, Fox explains how two major federal agencies, the DoD and GSA, are already implementing binding contract changes in response to the new anti-DEI Executive Orders. While formal FAR Council rules are still pending, these Class Deviations make one thing clear: change is happening now and contractors must be ready.

FEDERAL CONTRACT/GRANT CLAUSES UPDATE: The Federal Acquisition Regulatory (FAR) Council has yet to issue Proposed, let alone Final, Rules to implement throughout the federal government the two anti-DEI certifications President Trump has ordered up. The Council also has NOT forecast a publication date. (They are a bit busy in Washington D.C. at this time.)

As you know, President Trump earlier this year instructed all federal government procurement and grant agencies to insert into all federal contracts, subcontracts, and grants two certifications as a condition of seeking or renewing federal contracts and grants. Emphasizing the importance of these certifications, I have previously written four Blogs for OutSolve about what these two certifications require and how to prepare to comply with them as the federal contractor and grant communities await their coming:

"Federal Judge Halts key parts of Trump's Anti-DEI executive orders"

“Legal Alert: Federal Court Greenlights Trump Anti-DEI Contract and Grant Certifications: This is Now Real!”

"Part 1: Actions Federal Contractors and Grantees Should Take Now to Certify Their Federal Contracts & Grants"

"Part 2: Actions Federal Contractors and Grantees Should Take Now to Certify Their Federal Contracts & Grants”

LATEST DEVELOPMENTS: Despite the lack of new FAR Council Rules implementing the new anti-DEI certification requirements, the two largest federal procurement agencies, the U.S. Department of Defense (DoD) and the Government Services Administration (GSA) have nonetheless announced what are known in federal procurement law as “FAR Class Deviation” Memoranda. Both Class Deviation Memoranda instruct procurement officers in those two federal agencies (only) what NOT to include in federal contracts and contracts for grants. Both Memoranda instruct federal procurement officers in their departments to strip out of existing and future contracts those clauses the now revoked Executive Order 11246 had required.

The Fine Print: Both Memoranda also instruct federal procurement officers in their agencies what clauses the now revoked EO 11246 had required and which the agencies will no longer include in upcoming contract solicitations. The Memoranda also instruct the procurement officers in DoD and GSA to strip out of open solicitations the contract/grant clauses EO 11246 had formerly required. Both agency Memoranda also instruct their procurement officers that they need NOT amend existing contracts and grants if they are (a) in their last six months of performance, and (b) are not subject to renewal.

Note: Most federal contracts are legally effective for up to five-years, in one-year renewal increments. Renewal is always at the discretion of the procurement agency. So, if you have a DoD or GSA federal contract or grant with a renewal tail on it, your contract or grant will be modified per the above two deviation Memoranda.

PRACTICE TIP: Warn your contract and procurement department colleagues that these changes are coming and are routine.

You may find the full text of the DoD’s Class Deviation Memorandum here and the full text of the GSA’s Class Deviation Memorandum here. Below is a list of the contract clauses DoD and GSA are now stripping out of their existing and future contracts, and pending solicitations even while awaiting a further Federal Acquisition Rule (“FAR”) or a Defense Federal Acquisition Rule (DFAR). Rather than to publish the parallel language of both deviation Memoranda, I have published below only the DoD version (customized to refer to its DFARs references) to economize the number of words in this Update:

“Effective immediately, contracting officers shall—

Not take any action to implement or enforce Executive Order (E.O.) 11246, Equal Employment Opportunity, as implemented in Federal Acquisition Regulation (FAR) subpart 22.8;
Not use the solicitation provisions and contract clauses prescribed at FAR 22.810 or 22.407(a)(4);
Not review the representations in the System for Award Management that are based upon those solicitation provisions; and
Not follow the procedures in Defense Federal Acquisition Regulation Supplement (DFARS) subpart 222.8 or DFARS Procedures, Guidance, and Information subpart 222.8.

Contracting officers shall—

Not use the following solicitation provisions and contract clauses in new solicitations and contracts:
1. 52.222-21, Prohibition of Segregated Facilities.
2. 52.222-22, Previous Contracts and Compliance Reports.
3. 52.222-23, Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity for Construction.
4. 52.222-24, Preaward On-Site Equal Opportunity Compliance Evaluation.
5. 52.222-25, Affirmative Action Compliance. Class Deviation 2025-O0003 Restoring Merit-Based Opportunity in Federal Contracts
6. 52.222-26, Equal Opportunity.
7. 52.222-27, Affirmative Action Compliance Requirements for Construction.
8. 52.222-29, Notification of Visa Denial.
For new solicitations and contracts, use the paragraphs in the attached solicitation provisions and contract clauses in lieu of those paragraphs in the provisions and clauses in FAR part 52, as appropriate.
Amend open solicitations to—
1. Remove the solicitation provisions and contract clauses in paragraph (1) of this class deviation; and
2. Use the paragraphs in the attached solicitation provisions and contract clauses in lieu of those paragraphs in the provisions and clauses in FAR part 52, as appropriate.
Modify existing contracts to remove the contract clauses in paragraph (1) of this class deviation and incorporate the paragraphs in the attached solicitation provisions and contract clauses in lieu of those paragraphs in the provisions and clauses in FAR part 52, as appropriate. Contracting officers are not required to modify contract actions nearing the end of the period of performance (i.e., less than 6 months remaining) and without options to extend.

This class deviation implements E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, and E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. E.O. 14173 revoked E.O. 11246, which was the source of the coverage at FAR subpart 22.8. E.O. 14168 directs the Government to not use the term “gender” in Federal policies and documents.”

While the FAR Council continues to delay formal rulemaking, federal contractors and grantees should not sit idle. The DoD and GSA have already taken concrete steps to align with the President’s Executive Orders by issuing binding Class Deviation Memoranda, meaning the policy shift is actively underway, regardless of broader FAR Council action.

ACTION ITEM: Now is the time to stay informed, coordinate with corporate and institutional procurement and legal teams, and be ready for clause modifications and certification requirements as they begin to appear in new solicitations and contract renewals. This is not theoretical, it’s operational.

We discussed here and here in prior Blogs what those steps are, that they should be taken now, and the data analytical tools OutSolve has available for federal contractors and grantees to help them “GET READY”.

John C. Fox, Esq.

Mr. Fox is the founder of the Law Office of John C. Fox. Mr. Fox has extensive trial experience in cases involving wage-hour and employment discrimination, employment contract disputes, wrongful termination, corporate investigations, discrimination law, and employment matters. He also helps companies build effective human resources systems and provides strategic advice regarding employment practices to minimize legal risk.