Defense contractors and subcontractors, take note.

Executive Order 13950 on Combating Race and Sex Stereotyping went into effect on November 21, but the Federal Acquisition Regulations have not yet been updated to include the official contract clause. (See our prior bulletin for details on Executive Order 13950.)

To comply with the Executive Order in the interim, the Department of Defense has issued a memorandum providing the language that agencies within the DoD should use to implement the Executive Order “until it is incorporated in the FAR or [the memorandum is] otherwise rescinded.” DoD agencies are also instructed to amend solicitations that were issued before November 20 to include the clause language.

The DoD memo exempts contracts from this new language if they are exempt from Executive Order 11246. In addition, the contract language provided by the DoD also sets forth the notice provision that covered contractors must provide to unions, employees, and applicants.

Defense contractors should therefore be on the lookout for new or amended contracts that contain reference to “Class Deviation 2021-O0001” or “252.222-7999,” as this is the Defense Department’s reference to this contract language.

It is unclear at this time how other federal agencies are complying with Executive Order 13950 without specific action taken to update the FAR regulations. Contractors should continue to monitor new or modified agreements for any language requiring compliance. Although President-Elect Biden will most certainly rescind Executive Order 13950, until that occurs, covered contractors must comply with the obligations.