WHAT CONTRACTORS SHOULD KNOW

New FAR 52.222-90: A Recent Executive Order Is Now Showing Up in Federal Solicitations

Federal contractors have another new FAR clause to add to their compliance radar. FAR 52.222-90, Addressing DEI Discrimination by Federal Contractors (APR 2026), is beginning to appear in federal solicitations, providing contractors with a real-time example of how an Executive Order can move from Presidential policy to acquisition implementation and ultimately into the terms and conditions of a federal contract.

The new clause stems from Executive Order 14398, “Addressing DEI Discrimination by Federal Contractors,” signed March 26, 2026. I recently discussed Executive Order 14398 during an 8(a) Program presentation on August 6, 2026, as part of an update on changes affecting federal contractors. At the time, I knew that the Executive Order specifically directed the Federal Acquisition Regulatory Council to implement its requirements through the Federal Acquisition Regulation. What I had not yet personally encountered was the resulting clause incorporated into an actual federal solicitation.

Then, one of our Louisiana APEX clients found it while conducting late-night opportunity research on SAM.gov.

That discovery provides an important lesson for every federal contractor: Acquisition policy is changing, and contractors need to pay close attention to the provisions and clauses contained in every new solicitation.

From Executive Order to FAR Clause - Progression is important for federal contractors to understand. Executive Order 14398, “Addressing DEI Discrimination by Federal Contractors,” signed March 26, 2026, resulted in direction to the FAR Council to implement the requirements, followed by FAR deviation and interim implementation guidance, leading to the creation of FAR 52.222-90, Addressing DEI Discrimination by Federal Contractors. The clause is now being incorporated into federal solicitations and contracts and ultimately requires contractor and applicable subcontractor compliance.

This progression demonstrates how a change in Federal policy can move from an Executive Order, through the acquisition-policy process, and ultimately become a contractual requirement that businesses must understand when deciding whether to submit an offer. The resulting clause is FAR 52.222-90, Addressing DEI Discrimination by Federal Contractors (APR 2026). The implementation information reviewed by Louisiana APEX identifies it as a new clause for federal solicitations and resulting contracts.
What Does the Executive Order Require? Executive Order 14398 defines “racially discriminatory DEI activities” as disparate treatment based on race or ethnicity in recruitment, employment, including hiring and promotions, contracting, program participation, or the allocation or deployment of an entity's resources.

For federal contractors, the requirements go beyond simply agreeing not to engage in prohibited activities. The clause directed by the Executive Order includes requirements addressing contractor compliance, access to certain information and records, subcontractor conduct, reporting responsibilities, and enforcement.

Contractors should pay particular attention to requirements involving: Contractor compliance with the clause; subcontractor and lower-tier subcontractor requirements; furnishing certain information, reports, books, records, and accounts when required by the contracting agency to determine compliance; reporting known or reasonably knowable subcontractor conduct that may violate the clause; potential cancellation, termination, or suspension of a contract for noncompliance; potential suspension and debarment; and potential implications under the False Claims Act. These are significant contractual responsibilities and should not be treated as boilerplate language.
Pay Particular Attention to Your Subcontractors - One of the most important aspects for small businesses is the Executive Order's treatment of subcontractors. The order specifically contemplated the requirements extending through contracts, subcontracts, and lower-tier subcontracts.

That means a prime contractor should not look only at its own internal practices. When the applicable clause is included in a solicitation or contract, the prime should determine what flow-down and oversight responsibilities apply to its subcontractors.
This is particularly important for businesses that routinely assemble teams after identifying an opportunity. Compliance considerations should be part of subcontractor due diligence, not something considered only after award.
Why Contractors Should Care About This Change - FAR 52.222-90 illustrates why contractors should never assume that a solicitation issued today contains the same contractual requirements as a similar solicitation issued six months or a year ago.
Federal contracting requirements can change through legislation, Executive Orders, FAR revisions, class deviations, agency supplements, and other acquisition-policy actions.

A contractor that jumps directly to the Performance Work Statement and pricing schedule may overlook a provision or clause that materially changes its obligations.

This is why Louisiana APEX continually encourages clients to conduct a complete solicitation review before deciding to bid.

Do Not Just Read the PWS - When reviewing your next federal solicitation, look beyond the scope of work. An excellent solicitation review should begin with the Evaluation Factors, followed by the Instructions to Offerors, the PWS/SOW, the CLIN Structure, Representations and Certifications, and finally the applicable FAR, DFARS, and agency-specific provisions and clauses.

Then ask yourself:
Is there anything here that I have never seen before?
If the answer is yes, do not simply acknowledge it and continue preparing your proposal.

Research it. Determine why it is there. Understand what you are now agreeing to. Determine whether it flows down to subcontractors. When necessary, submit a question to the Contracting Officer before the solicitation question deadline.

The Bottom Line - FAR 52.222-90 is a timely reminder that a federal solicitation is more than an invitation to submit a proposal and price. It contains the terms and conditions that may ultimately govern your contract.

The fact that an experienced federal contractor can open a new solicitation and say, “I've never seen this clause before,” is not unusual in today's rapidly changing acquisition environment.

The important thing is what happens next - Do not ignore the unfamiliar clause. Stop. Read it. Research it. Understand it. Ask questions when necessary and know what your company is agreeing to before you submit the offer. That is what informed federal contracting looks like.

Need Assistance Reviewing a Solicitation? Louisiana APEX Accelerator assists eligible Louisiana businesses with understanding federal, state, and local government contracting opportunities, including solicitation reviews, FAR and DFARS requirements, proposal preparation, registrations, certifications, market research, and other government contracting matters.

If you encounter FAR 52.222-90 or another unfamiliar provision or clause in a solicitation, contact your assigned Louisiana APEX Accelerator Government Contracting Consultant before submitting your offer. Louisiana APEX Accelerator services are provided at no cost to registered clients.

Information provided by the Louisiana APEX Accelerator is for educational and technical-assistance purposes and should not be construed as legal advice.