DEI Implementation: GSA Announces Class Deviation to the Federal Acquisition Regulation to Implement DEI Related Executive Orders

On February 18, 2025, the U.S. General Services Administration (GSA) issued a Federal Acquisition Regulations (FAR) class deviation—CD-2025-04¹—to implement several Executive Orders (E.O.) relating to Diversity, Equity, and Inclusion (DEI) considerations and certain climate-related initiatives. Pursuant to the deviations, GSA Contracting Officers (COs) are instructed to immediately amend new and open solicitations, make modifications as appropriate at the next reasonable opportunity to existing contracts, and provide specific notices to contractors and subcontractors. Contracts with less than six months remaining are exempt from modification.

Key Takeaways:

• FAR 52.222-21 through -27 & -29 Removed: These clauses will be removed from all GSA contracts and orders with more than 6 months left in performance.
• DEI-Related Procurement Considerations Removed: The GSA has eliminated DEI factors from source selection criteria.
• Notice of SAM.gov Reps and Certs: SAM.gov may continue to require representations and certifications by contractors regarding DEI and climate-focused procurement policies but these will not be considered by COs any longer.
• Immediate Compliance Required: Contractors should assess their current GSA contracts and leases to ensure compliance with the revised regulations and expect contract modifications.

CD-2025-04: DEI Policy Reversal

Class Deviation CD-2025-04, as amended by Supplement 1, implements E.O. 14173, ending most affirmative action-related requirements under the revoked E.O. 11246.   This deviation instructs GSA COs to remove FAR clauses 52.222-21 through -27 and -29 and insert new FAR deviation clauses into new contracts or open solicitations and to modify existing contracts with more than 6 months remaining. COs must immediately cease enforcement of FAR clauses and provisions linked to FAR subpart 22.8 (Equal Employment Opportunity). Additionally, COs are required to remove FAR 52.222-9 (Apprentices and Trainees) from relevant solicitations and contracts. The deviation also mandates that COs notify contractors and subcontractors that compliance with representations in SAM.gov based on E.O. 11246 is no longer required. This includes representations tied to FAR 52.222-25 (Affirmative Action Compliance) and FAR 52.212-3(d) (Offeror Representations and Certifications – Commercial Products and Commercial Services).

The memorandum accompanying the deviation also states that COs “must” tell existing contractors and subcontractors (among other things) the following: “As of February 15, 2025, all uses of the term ‘gender identity’ are not to be recognized or used prospectively by Federal contractors.” This requirement, however, is not captured in any language that is to be incorporated into contracts. It also is not clear what this means in terms of contractor policies regarding recognition of employees’ gender identities.

The deviation does not affect FAR subparts 22.13 (Equal Opportunity for Veterans) and related clauses, FAR subpart 22.14 (Employment of Workers and Disabilities), or existing generally applicable civil rights laws. Contractors and subcontractors must continue to enforce these two provisions and comply with all applicable civil rights laws.

Notably, however, the Class Deviation does not include any new certifications as foreshadowed in E.O. 14173 – Ending Illegal Discrimination and Restoring Merit-Based Opportunity issued on January 21, 2025. The E.O. stated in Section 3 that the head of each agency should include in every contract or grant award language requiring the recipient to agree that compliance with all applicable Federal anti-discrimination laws was material for the government’s payment decisions under the False Claims Act and a term requiring the recipient to certify that it did not operate any DEI programs that violated Federal anti-discrimination laws.  However, to issue a new certification without statutory authority, the FAR Council would need to provide a written justification to the Administrator for Federal Procurement Policy to approve in writing.  See 41 U.S.C. § 1304(b)(2)(B).

What Does This Mean?

GSA contractors and subcontractors can expect amendments to their contracts or subcontracts based on these deviations. However, contractors and subcontractors still need to abide by and implement equal employment opportunity clauses for veterans and workers with disabilities, as well as any applicable civil right laws.  Deviations from other federal agencies are likely to follow in short course. 

In light of these changes, GSA contractors and subcontractors will need to ensure compliance in order to bid on new contracts, and task orders and ensure compliance with upcoming contract modification.  Contracts should wind down activities related to enforcing or complying with E.O. 11246 requirements other than continuing statutory requirements related to veterans and workers with disabilities. Internal policies and training materials should be reviewed and updated to reflect these changes.  As prime contracts are modified, prime contractors should work through appropriate subcontract modifications.  Contractors should also be aware that SAM.gov may continue to prompt for representations related to E.O. 11246 compliance; however, these are no longer required. Finally, contractors and subcontractors must ensure continued compliance with regulations concerning veterans' rights, disability rights, and all other applicable civil rights laws.

^{1 While the deviation is dated February 15, 2025, it was publicly issued on February 18, 2025.}