For now, industry has few tools to fight anti-bias training ban
Other than participating in an informal comment period, there is little for industry to do other than wait for the issuance of the class deviation that will enforce President Trump’s executive order banning certain anti-bias and discrimination training.
During a listening session last week, the Office of Federal Procurement Policy told industry participants to continue sending questions and concerns even though they are unlikely to influence the deviation, which will modify all existing contracts and set new requirements for future contracts.
The new requirements will take effect Nov. 21, but the expectation is that the deviation will be released before that date.
Until those two deviations are issued -- one for defense contracts and one for civilian contracts -- there is little industry can do to stop the executive order from taking effect.
In general, there are just a few actions available to companies and the associations that represent them.
- Convince the president to rescind the executive order -- very unlikely that is going to happen.
- Convince Congress to take action and pass with enough votes to override a veto -- also not very likely.
- Mount a court challenge -- more on this later
- Convince a new president to rescind the executive order -- a Joe Biden victory makes that likely.
On the court challenge front, multiple triggers could spur companies to this action. The first one we would be likely to see is if agencies begin cancelling contracts for training because of the ban. A company could then argue the executive order has hurt their business if they can show damage.
Other court actions could be triggered if a company is debarred or suspended. Again, the argument would be the executive order is hurting their business.
The executive order also could trigger challenges based on questions of constitutionality. One argument could be made that the order violates the First Amendment, which prohibits restrictions on free speech.
There is one last option for companies and individuals that I will call the "nuclear option" -- stop doing work for the federal government.
If the executive order stays in place in its current form, I don’t think we’ll see a mass departure of firms from the federal market.
But we could see a slowdown of commercial technology companies entering and forming partnerships with existing primes. That could be a real loss as technologies for artificial intelligence, machine learning, other types of automation and data analytics grow and mature.
There also will be the impact on talent as contractors will likely find it an even bigger challenge to attract the best and brightest to the market.
But for now, industry must wait and watch.
Posted by Nick Wakeman on Oct 28, 2020 at 11:08 AM