On February 18, 2025, the General Services Administration (“GSA”) announced that it issued GSA Class Deviation CD-2025-04 (“the GSA Class Deviation”) effective February 15, 2025, to implement Executive Order (“EO”) 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which, as Blank Rome has previously written about here and here, revoked the landmark 60-year-old EO 11246 titled “Equal Employment Opportunity.”
Below is a summary of the key takeaways.
Overview:
- The GSA Class Deviation only applies to GSA solicitations, contracts, and real property leases. However, it may serve as a preview of how other agencies will implement the revocation of EO 11246.
- The GSA Class Deviation does not include new contract clauses or certifications, whether for the expected Diversity, Equity, and Inclusion certification required by EO 14173, or any other subject.
- Supplement 1 to the GSA Class Deviation removes the term “gender identity” from FAR 22.801 and from clauses in FAR Part 52 that include the term. The apparent purpose of this removal is to comply with EO 11246 titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Notably, Supplement 1 to the GSA Class Deviation states that GSA Contracting Officers (“COs”) “must” notify contractors that “as of February 15, 2025, all uses of the term ‘gender identity’ are not to be recognized or used prospectively by Federal contractors.” There is no guidance on whether or how this prohibition will be made contractually applicable, or the extent of its purported applicability within a contractor’s organization or operations, e.g., to strictly internal communications, to external communications that do not include GSA, to communications with commercial partners, in oral communications, etc. There is likewise no guidance on how, in practical terms, a GSA contractor should cease to “recognize” the phrase “gender identity” nor does the GSA Class Deviation provide or refer to a definition of the phrase “gender identity.” Given these and other issues, we expect this prohibition will be litigated after an affected GSA contractor receives the required CO notice. We recommend that GSA contractors confer with counsel regarding whether and how to respond to a CO notice on this issue. The GSA Class Deviation does not address or purport to prevent GSA contractors from allowing their employees to specify preferred pronouns. (An Office of Personnel Management Memo dated January 29, 2025, has directed the heads of federal agencies to disable Outlook features that prompt government employees for their pronouns.)
Updates Regarding New or Open Solicitations, New Contracts, or Leases with at Least Six Months of Performance Remaining:
- COs must amend solicitations or otherwise incorporate the GSA Class Deviation changes prior to contract award. This will generally require the removal of any and all representations and certifications related to affirmative action and equal opportunity compliance. Notably, the GSA Class Deviation does not purport to modify or rescind any applicable affirmative action and equal opportunity obligations arising under a GSA contractor’s contracts or leases with states.
- COs must notify contractors that although SAM.gov may continue to require responses to representations based on provisions that will no longer be included in GSA solicitations (such as FAR 52.222-25 Affirmative Action Compliance and FAR 52.212-3(d) Offeror Representations and Certifications – Commercial Products and Commercial Services), GSA COs will neither consider those representations when making award decisions nor enforce the requirements of those clauses.
- COs must not include the following clauses in new GSA solicitations:
- 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, Preaward 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
- FAR 52.222-29, Notification of Visa Denial
- Finally, COs must “ensure” that GSA contractors understand that the FAR subparts related to Equal Opportunity for Veterans and Employment of Workers with Disabilities are not affected. Additionally, the GSA Class Deviation states that it does not affect existing federal laws on civil rights, non-discrimination, or any laws that generally apply to a company regardless of whether it is a government contractor.
We will continue to monitor and report on developments as federal agencies continue their efforts to implement EOs and other directives relevant to government contractors.