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By Nick Wakeman

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Nick Wakeman

Mass contract modification expected to enforce anti-bias order

The government is likely to use a "class deviation" that modifies all contracts at once in a move to enforce President Trump’s policy banning certain anti-bias and discrimination training.

There will be two class deviations -- one for defense contracts and one for civilian contracts, Office of Federal Procurement Policy told callers into an industry listening session held this week.

OFPP's listening session was closed to the media, but several sources have confirmed many of the points covered in the conference call.

The mass modification will add requirements to existing contracts which will ban certain types of anti-bias and discrimination training. The requirements will be released in the lass deviations to be issued Nov. 21. The move is mandated as part of Executive Order 13950. The deviation will apply to all existing contracts as well as contracts moving forward.

A class deviation doesn’t follow a traditional rulemaking period with drafts and comments and questions. OFPP officials indicated they anticipate a rulemaking process to follow the class deviation and refine what to this point has been a frenetic pace for development of such a far-reaching rule.

In the meantime, OFPP encouraged industry to submit questions now ahead of the class deviation. While the questions might not influence the class deviation, they could help OFPP and the rest of the government understand industry concerns with the executive order and its enforcement.

Most of the questions to OFPP came from trade groups representing companies in the government market: the Professional Services Council, the National Defense Industry Association and the IT Industry Council.

The questions reflect a lot of the fears and concerns in the market that I’ve been hearing from individuals, such as how will the executive order be enforced and what kind of training will be considered a violations?

In many ways the questions reflected the difficult position companies are in because of the broad nature of the order. Many companies see diversity and inclusion as the right thing to do and a business imperative. They want to attract a broad range of employees and bring a wide range of experiences and perspective to the workplace and the solutions they develop for their government customers.

Diversity breeds better solutions is the argument many make.

There is a fear, expressed during the call with OFPP, that the executive order will make it harder to recruit and retain a diverse workforce and there for many government contractors less competitive.

The result will hurt not just contractors but ultimately the government.

OFPP could offer little in way of data or other evidence that was used to formulate the executive order. They said they were not involved in writing the executive order.

OFPP officials also are not involved in the Labor Department actions of creating a hotline for complaints as well as the recent Labor request that companies submit copies of their training courses.

Another question raised during the call involved the impact on publicly-traded government contractors. These companies need to comply with Securities and Exchange Commission requirements. There is a concern that the requirements under the executive order will conflict with SEC requirements.

The OFPP officials also encouraged attendees to the listening session to continue to raise questions and concerns.

“We appreciate the opportunity to participate in this meeting,” said Wes Hallman, senior vice president of strategy and policy for NDIA. “We were able to provide our questions and many concerns surrounding this EO and expect to remain engaged on this issue.”

The trade groups have been active in communicating with the government on the executive order. ITIC, for one, issued an Oct. 9 letter with other 11 other trade groups asking for the executive order to be rescinded.

Posted by Nick Wakeman on Oct 23, 2020 at 11:04 AM


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