The Department of Defense (DOD) is taking steps to comply with President Trump’s Diversity, Equity, and Inclusion (DEI)-related Executive Orders (EOs). In a memorandum dated January 28, 2025, DOD’s Acquisition and Sustainment Office orders contracting officers to “cancel and amend solicitations, and terminate or partially terminate” existing contracts, set-aside contracts, and contract-like instruments like Other Transaction Authority agreements, that contain DEI and Diversity, Equity, Inclusion, and Accessibility (DEIA) requirements. The memorandum authorizes contracting officers to issue bilateral modifications to descope work to remove or end DEI/DEIA requirements. The memorandum also instructs DOD components to submit a list of DEIA-related contracts, along with “a list of all contract descriptions that were changed since November 5, 2024, to obscure their connection to DEIA programs” by February 21, 2025. DOD will ultimately submit this information to the Office of Personnel Management (OPM).
Among the multitude of EOs President Trump signed in his first weeks of office was an EO titled “Ending Radical and Wasteful Government DEI Programs.” As we previously reported, we expected this EO to affect federal acquisition planning and evaluation criteria. OPM issued a guidance memorandum to all agencies shortly after the EO was signed on steps to comply. This included taking steps such as closing DEIA Offices, removing any public material deemed “DEIA” related, and reporting to OPM agency actions done to comply with the EO. OPM since issued a supplemental memorandum on February 5, 2025, clarifying that agencies should not eliminate accessibility or disability-related accommodations, assistance, or other programs required by laws such as the Civil Rights Act of 1964 or the Rehabilitation Act of 1973. Following OPM’s guidance, DOD is not alone in its moves to eliminate DEI/DEIA from its procurements. The Department of Energy, for example, recently eliminated its requirement to submit Promoting Inclusive and Equitable Research (PIER) Plans in proposals to the Office of Science.
Given the evolving understanding of what the DEI EOs cover and how the EOs might conflict with civil rights statutes, contractors should be cautious when evaluating proposed modifications. Modifications that result in a partial or complete termination carry rights to recover certain costs, as well as obligations to subcontractors downstream. Contractors impacted by the DEI EOs should consult counsel before signing any contract modification to ensure their rights and interests are protected.
[View source.]
