Implementing President Trump's DEI Executive Order: GSA and Department of Defense Publish Class Deviations

This is an update on our blog of a month ago discussing President Trump’s Executive Order 14173, Ending Illegal Discrimination And Restoring Merit-Based Opportunity (January 21, 2025). (“DEI Order”) Notably, that order repealed President Lyndon Johnson’s Executive Order (No. 11246) that mandated equal employment opportunities for federal contractors, the enforcement of which has been the province of the Office of Federal Contract Compliance Programs (“OFCCP”) established in 1978.

The Department of Defense (“DoD”) and the General Services Administration (“GSA”) recently issued what are referred to as “class deviations” to implement the DEI Order’s requirements. For those who are not frequent flyers in the world of government contracts, a “class deviation” essentially is, in this context, an interim revision to existing Federal Acquisition Regulation (“FAR”) requirements, solicitation provisions, and/or FAR contract clauses set forth in FAR subpart 52.2 or corresponding provisions of the Defense Federal Acquisition Regulation Supplement (“DFARS”). Deviations often are issued on an interim basis by contracting agencies in anticipation of the issuance of “final rules” following the lengthy notice and comments process.

GSA published Class Deviation CD-2025-04 on February 18, 2025 (download link here) to implement the contract aspects of the DEI Order. The deviation, sent to “GSA Contracting Activities”, is applicable to GSA contracts. The deviation directs GSA’s contracting officers to delete the following equal opportunity-related clauses from current and future GSA solicitations and contracts:

  • 52.222-22, Previous Contracts and Compliance Reports

  • 52.222-23, Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity for Construction

  • 52.222-24, Preaward On-Site Equal Opportunity Compliance Evaluation.

  • 52.222-25, Affirmative Action Compliance

  • 52.222-26, Equal Opportunity

  • 52.222-27, Affirmative Action Compliance Requirements for Construction

  • 52.222-29, Notification of Visa Denial

It also deletes the equal opportunity contract regulations set forth in the FAR at subpart 22.8. The deviation also amended a number of other clauses, notably:

·       52.204-8, Annual Representations and Certifications

·       52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services

·       52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Products and Commercial Services

·       52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services)

·       52.222-9, Apprentices and Trainees

·       52.244-6, Subcontracts for Commercial Products and Commercial Services

In addition to making these changes to future and current solicitations, the deviation also requires the modification of existing contracts with more than six months remaining in their final period of performance. And for those contracts that aren’t modified, the contractor will no longer be required to comply with the now-stricken clauses but will be subject to the as-amended clauses that are not outright deleted.

This is a vastly simplified summary of the 70-plus page text comprising the GSA deviation, so I encourage you and/or your counsel to review it to understand how it might affect one’s contracts.

DoD published a similar class deviation (no. 2025-O00003) applicable to DoD contracts on March 4, 2025. It deleted the same clauses as those deleted by GSA and it revised the same clauses that were changed by GSA. Thus, for the most part, the DoD and GSA deviations are essentially identical.

Finally, both deviations provide that the clauses and provisions of FAR subpart 22.8 will no longer be enforced. They further recognize that it will take time for the revised requirements to be implemented in the online representations and certifications that contractors fill out on sam.gov. Accordingly, those representations will not be reviewed or enforced even though contractors may still have to tick the boxes.

No doubt, further contract actions may be forthcoming to implement the DEI Order and the related Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. For example, we anticipate the issuance of reps and certs confirming that a contractor does not operate any programs promoting DEI (i.e., diversity, equity and inclusion). In order to keep abreast of these and new changes being pushed quickly out the door, contractors should keep an eye out for new class deviations. The ones issued by DoD can usually be found here: https://www.acq.osd.mil/dpap/dars/class_deviations.html. GSA’s class deviations usually are published here: https://www.gsa.gov/policy-regulations/policy/acquisition-policy/acquisition-policy-library-and-resources#tab--Class-deviations.

By Howard Wolf-Rodda, Executive Orders, Government Contracts, GSA ScheduleHoward Wolf-Rodda