On March 4, the Department of Defense issued Class Deviation 2025-O0003, Restoring Merit-Based Opportunity in Federal Contracts, which directs contracting officers to remove, replace, and not enforce Federal Acquisition Regulation (FAR) solicitation provisions and contract clauses associated with Executive Order 11246, Equal Employment Opportunity, because it has been revoked by Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.

The class deviation also implements the new administration’s directive to remove the term “gender” wherever it appears in the FAR, to comply with Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.

The class deviation directs contracting officers to:

• • 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)
    • The directive states that contracting officers can no longer use or implement the following clauses:
      • 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
      • FAR 52.222-9, Apprentices and Trainees
  • Not review the representations in the System for Award Management that are based upon the solicitation provisions listed above
  • Not follow the procedures in Defense Federal Acquisition Regulation Supplement (DFARS) subpart 222.8 or DFARS Procedures, Guidance, and Information subpart 222.8
    • DFAR 222.8 is the “Equal Employment Opportunity” subpart of the DFARS, which states that EEOC inquiries are to be referred to the applicable labor advisor.

The class deviation also directs contracting officers to not include the following clauses in new solicitations and contracts, and amend existing contracts to remove the following clauses:

• • 52.222-21, Prohibition of Segregated Facilities
  • 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

Instead, the 2025 class deviation instructs contracting officers to include the following revised contract clauses in new solicitations and contracts, and amend existing contracts to add the revised clauses below.

FAR 52.204-8, Annual Representations and Certifications, is revised to state:

Annual Representations and Certifications

(c) (1) The following representations or certifications in SAM are applicable to this solicitation as indicated:

…

(xiv) 52.222-22, Previous Contracts and Compliance Reports. This provision applies to solicitations that include the clause at 52.222-26, Equal Opportunity. [Reserved]

(xv) 52.222-25, Affirmative Action Compliance. This provision applies to solicitations, other than those for construction, when the solicitation includes the clause at 52.222-26, Equal Opportunity. [Reserved]

The class deviation also removes subsection (d) from FAR 52.212-3, Annual Representations and Certifications. As such, the following clause is eliminated from FAR 52.212-3:

(d) Representations required to implement provisions of Executive Order 11246—

(1) Previous contracts and compliance. The offeror represents that—

(i) It □ has, □ has not participated in a previous contract or subcontract subject to the Equal Opportunity clause of this solicitation; and

(ii) It □ has, □ has not filed all required compliance reports.

(2) Affirmative Action Compliance. The offeror represents that—

(i) It □ has developed and has on file, □ has not developed and does not have on file, at each establishment, affirmative action programs required by rules and regulations of the Secretary of Labor (41 CFR parts 60-1 and 60-2), or

(ii) It □ has not previously had contracts subject to the written affirmative action programs requirement of the rules and regulations of the Secretary of Labor.

The class deviation removes paragraphs (b)(33), (34), and (e)(1)(ix) and (x) for those paragraphs from FAR 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services. The specific language removed is:

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial products and commercial services: [Contracting Officer check as appropriate.]

…

__(33) 52.222-21, Prohibition of Segregated Facilities (APR 2015)

__(34)(i) 52.222-26, Equal Opportunity (SEPT 2016) (E.O. 11246)

__(ii) Alternate I (FEB 1999) of 52.222-26

Similarly, paragraphs (e)(1)(ii)(I) and (J) for Alternate II of FAR 52.212-5 are also removed. That excised language states:

(e)(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), and (c), of this clause, the Contractor is not required to flow down any FAR clause in a subcontract for commercial products or commercial services, other than—

(i) Paragraph (d) of this clause. This paragraph flows down to all subcontracts, except the authority of the Inspector General under paragraph (d)(1)(ii) does not flow down; and

(ii) Those clauses listed in this paragraph (e)(1). Unless otherwise indicated below, the extent of the flow down shall be as required by the clause—

…

(I) 52.222-21, Prohibition of Segregated Facilities (APR 2015)

(J) 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246)

FAR 52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services), is revised to remove paragraphs (a)(1)(vii) and (viii). Those paragraphs stated:

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses that are incorporated by reference:

(1) The clauses listed below implement provisions of law or Executive order:

…

(vii) 52.222-21, Prohibition of Segregated Facilities (APR 2015)

(viii) 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246)

FAR 52.222-, Apprentices and Trainers, was amended to remove paragraph (c), which stated:

(c) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this clause shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, and 29 CFR part 30.

Finally, FAR 52.244-6, Subcontracts for Commercial Products and Commercial Services, was amended to remove paragraphs (c)(1)(xi) and (xii). Those paragraphs stated:

(c)(1) The Contractor shall insert the following clauses in subcontracts for commercial products or commercial services:

…

(xi) 52.222-21, Prohibition of Segregated Facilities (APR 2015)

(xii) 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246)

As federal contractors’ obligations are set by their contracts, the class deviation is an effort to enforce Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity by issuing new contracts, and amending existing contracts, to remove the FAR clauses that implement now rescinded Executive Orders. Contractors should expect to see modifications issued by their contracting officers in the near future; and, once their contracts are amended, review their policies, procedures, subcontracts, and purchase order terms and conditions to determine whether they are in compliance with the new contractual obligations.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.