FAR Council Accelerates Implementation Of Executive Order 14398 With Instructions To Agencies

Federal contractors have new insight into how the government may implement and enforce Executive Order (EO) 14398, which aims to prevent federal contractors and subcontractors from engaging in discriminatory diversity, equity and inclusion (DEI) activities related to race and ethnicity. Recent Federal Acquisition Regulatory (FAR) Council guidance and its request for emergency approval for a new information collection form shed more light on what contractors may expect.

FAR 52.222-90 and FAR Council Guidance

EO 14398 directed the FAR Council to issue a deviation and interim guidance on how to implement the contract clause outlined in the EO. In its April 17, 2026, memorandum, the FAR Council provided guidance to contracting agencies on the implementation of Federal Acquisition Regulation Clause 52.222-90 (FAR 52.222-90), which closely follows the EO.

FAR 52.222-90 requires federal contractors to certify they will not engage in any racially discriminatory DEI activities, defined as “disparate treatment based on race or ethnicity” in recruitment, employment, contracting, program participation, or allocation or deployment of resources. The requirements also flow down to covered subcontracts. Contractors must report subcontractor violations and notify the contracting officer if litigation with a subcontractor puts the clause’s validity at issue.

The FAR Council’s recent memorandum instructs agencies to update their class deviations, start using FAR 52.222-90 in covered solicitations and contracts beginning April 24, 2026, and make every effort to bilaterally modify covered existing contracts to include the clause by July 24, 2026. Contracting officers have discretion to modify contracts with final expiration dates no later than December 31, 2026.

There is also new information about which contracts are covered by FAR 52.222-90, with the guidance indicating it applies to solicitations and contracts above the micro-purchase threshold, currently $15,000, including those for commercial products and commercial services, except where the place of delivery or performance is outside the United States.

Emergency Information Collection Request

At nearly the same time as issuing guidance, the FAR Council requested emergency Office of Management and Budget (OMB) approval under the Paperwork Reduction Act for a new information collection request (ICR) tied to implementing FAR 52.222-90.

In the FAR Council’s supporting ICR statement, it explains that, as required by EO 14398, the collection would allow contracting officers to require contractors to furnish information and reports, including access to books, records, and accounts, for purposes of assessing compliance with the clause. The supporting materials estimate over 6,000 contractors may be subject to requests to furnish information and records pursuant to a contracting agency’s request and contractors will spend approximately one hour responding to the principal information request.

Next Steps

While there continue to be unknowns with how EO 14398 will be enforced, these materials give contractors a better sense of both the proposed contract requirements and potential compliance audits by contracting agencies. Additional guidance or rulemaking may answer questions that the FAR Council’s current direction leaves open. Attorneys at Jackson Lewis P.C. continue to monitor the situation as it develops.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.