Why is GovCon so slow to challenge Trump's anti-bias order?

It’s been nearly a month since President Trump issued his executive order to ban what the administration considers inappropriate training around discrimination, diversity and inclusion in the workplace. That order applies to both government agencies and contractors.

We’ve written a few stories since then and we’ve reported on the reluctance of many companies to speak out. One reason is there are still a lot of questions and unknowns surrounding the anti-bias training order and how it will be enforced.

Many companies have shared with me statements that they value diversity and inclusion, but have stopped short of saying the executive order is a bad idea.

I understand the limits on companies when it comes to speaking out, particularly on such a divisive and political subject. Government contractors historically avoid controversy and don’t want to be seen as picking sides in a political debate.

But I’m surprised at the lack of response from two main industry groups contractors belong to: the Professional Services Council and the National Defense Industry Association.

The Office of Federal Procurement Policy is holding a “listening session” next week for industry to voice their concerns. Perhaps that is when we’ll see PSC and NDIA speak out.

The executive order is a big deal and raises questions about how much the government can interfere with private enterprises. This isn’t similar to using an executive order to increase cybersecurity requirements. Constitutional questions around the government trying to regulate free speech are also on the table.

We also shouldn’t forget the question of whether this executive order is just a form of racism that attempts to countermand the 1964 Civil Rights Act and other legislation banning discrimination.

But few are talking about those questions publicly.

PSC President and CEO David Berteau did go on Tom Temin’s Federal Drive program recently and spoke more about the process questions behind the executive order. But there has been little else.

I’ve reached out to PSC and NDIA multiple times and have been told they are working on their responses. I asked again yesterday.

Absolutely there is a lot to unpack on this executive order, even if you just look at the process side.

The order has short-term requirements, including a Federal Register notice that the Labor Department is due to issue by Oct. 23 asking contractors to provide information on the diversity training and workshops they provide, including copies of the training.

The Labor Department is also creating a hotline for whistleblowers to lodge complaints about companies that provide training that might violate the new bans.

The Office of Management and Budget is to collect data on contract spending on diversity and inclusion during the just-ended 2020 fiscal year.

Finally, there will be an interim rule dictating the addition of new contract clauses in new procurements. These clauses will enforce the ban as well as require primes to push the ban down to their subcontractors. The interim rule is due 60 days after the executive order was issued. That puts the rule out sometime toward late November.

I get that violating these requirements could expose companies to contract terminations and debarment. I can see how that might fuel reluctance to comment.

PSC has told members it doesn’t expect any agencies to do anything until after the interim rule is issued. They also are looking for more guidance from OMB and the FAR Council.

When I’ve reached out to PSC and NDIA for public comment, I’ve been asking about what kind of questions and concerns members are raising? What kind of advice or guidance are they offering members?

We’ve seen other tech industry groups criticize the executive orders, but many of those member companies are global commercial firms so I understand that their boldness is a little easier. It can be different when you have more direct business with the government.

But this is a business reality for contractors. They can’t bank on President Trump failing to be re-elected. An interim rule will still be in place. There are still requirements to comply with.

Perhaps if Trump loses, these will be requirements with no teeth -- so why worry? Is that what PSC and NDIA are telling their members? Just wait it out folks. If Trump is re-elected, we’ll still have time to comply or fight back with a legal challenge.

But PSC and NDIA should be more public -- and perhaps they still will. I continue to hear that they will be making some sort of statement. But dang, it’s taking a long time.

Maybe they can’t attack the requirement right now but they can talk about the importance of diversity and inclusion. They can point to their members and the actions many of them are taking and talk about how the industry wants to welcome a workforce from all walks of life.

The industry and its representatives need to speak.