60RRBH25R0009 CMOS Class Deviation EO 14173 - Attachment 12.pdf

United States Government FORM G-115f(1-92)

MEMORANDUM

May 29, 2025

TO: Acquisition Management Division

FROM: Jack Schreibman

Director of Administration Senior Procurement Executive

SUBJECT: Class Deviation from the Federal Acquisition Regulation (FAR) Regarding Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit Based Opportunity,” and Executive Order 14168 “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”

BACKGROUND: Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit Based Opportunity,” of January 21, 2025 (see 90 FR 8637), revoked Executive Order 14246, “Equal Employment Opportunity.” Several FAR provisions promulgated to enforce E) 11246 are not consistent with the direction of the President (see FAR subpart 22 and associated provisions and clauses as prescribed at FAR 22.810). This Deviation to FAR describes changes to contract and solicitation terms that will ensure compliance with EO 14173.

This Deviation also addresses Executive Order 14168 “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” by removing the defined term “gender identity” at FAR 22.801 and the clauses at FAR part 52 that include the term.

The RRB has determined that this Class Deviation ensures compliance with Executive Orders 14173 and 14168.

AUTHORITY: This class deviation is issued under the authority of FAR section 1.404(a) and section 1.A.2 of RRB Basic Board Order 5. This class deviation is issued following consultation with the Chair of the Civilian Agency Acquisition Council (CAAC) in accordance with FAR 1.404(a)(1) by letter dated February 18, 2025.

EFFECTIVE DATE: Immediately

EXPIRATION DATE: This FAR class deviation is effective upon issuance and will remain in effect until further notice

DEVIATION:

Effective immediately, when issuing new solicitations or contracts do not include any of the following provisions and clauses:

• 52.222-21, Prohibition of Segregated Facilities

• 52.222-22, Previous Contracts and Compliance Reports

• 52.222-23, Notice of Requirement for Affirmative Action to Ensure Equal Employment

Opportunity for Construction

• 52.222-24, Preaward On-Site Equal Employment Opportunity Compliance Evaluation

• 52.222-25 Affirmative Action Compliance

• 52.222-26, Equal Opportunity

• 52.222-27, Affirmative Action Compliance Requirements for Construction

• 52.222-29, Notification of Visa Denial

Any open solicitations that contain any of the provisions or clauses listed above should be amended to remove the provisions and clauses.

When issuing new solicitations or contracts include the following provisions and clauses, if applicable:

• 52.204-8, Annual Representations and Certifications (JAN 2025) (DEVIATION FEB 2025)

• 52.212-3, Offeror Representations and Certifications – Commercial Products and Commercial Services (MAY 2024) (DEVIATION FEB 2025)

• 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Products and Commercial Services (JAN 2025) (DEVIATION FEB 2025)

• 52.213-4, Terms and Conditions – Simplified Acquisitions (Other Than Commercial Products and Commercial Services) (JAN 2025) (EVIATION 2025)

• 52.222-9, Apprentices and Trainees

• 52.244-6, Subcontracts for Commercial Products and Commercial Services (Jan 2025)

(DEVIATION FEB 2025)

Any open solicitations should be amended to include these required provisions and clauses.

Contracting Officers should modify existing contracts (including leases) with remaining periods of performance of six months or more, at the next reasonable opportunity. For existing contracts with six months or less remaining, no action is required.

When issuing new solicitations, include the following notice:

“System updates may lag policy updates. The System for Award Management (SAM) may continue to require entities to complete representations based on provisions that are not included in agency solicitations. Examples include 52.222-25, Affirmative Action Compliance, and paragraph (d) of 52.212-3, Offerors Representations and Certifications – Commercial Products and Commercial Services. Contracting Officers will not consider these representations when making award decisions or enforce requirements. Entities are not required to, nor are they able to, update their entity registration to remove these representations in SAM.”

Copies of the revised FAR clauses are included as an attachment to this letter.

CONTACTS: Questions or comments about this class deviation may be directed to Stephen Schenk, Acting Chief of Acquisition Management at stephen.schenk@rrb.gov.

CC: Office of General Counsel

ATTACHMENT

(DEVIATION FEB 2025)

Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” of January 21, 2025, revoking Executive Order 11246, Equal Employment Opportunity

Baseline is FAC 2025-03, published in the Federal Register on January 3, 2025, effective January 17, 2025.

Changes made in the proposed rule are shown by [additions] and deletions.

PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 1.1—Purpose, Authority, Issuance

1.106 OMB approval under the Paperwork Reduction Act.

FAR segment OMB control No.

22.8 1250-0003

52.222-21 1250-0003

52.222-22 1250-0003

52.222-23 1250-0003

52.222-25 1250-0003

52.222-26 1250-0001 and 1250-0003

52.222-27 1250-0003

PART 2—DEFINITIONS OF WORDS AND TERMS

Subpart 2.1—Definitions

2.101 Definitions.

United States, when used in a geographic sense, means the 50

States and the District of Columbia, except as follows:

(2) [Reserved]For use in subpart 22.8, see the definition at

22.801.

PART 4—ADMINISTRATIVE AND INFORMATION MATTERS

Subpart 4.12—Representations and Certifications

4.1202 Solicitation provision and contract clause.

(a) * * *

(18) [Reserved] 52.222-22, Previous Contracts and Compliance

Reports.

(19) [Reserved] 52.222-25, Affirmative Action Compliance.

PART 14—SEALED BIDDING

Subpart 14.4—Opening of Bids and Award of Contract

14.405 Minor informalities or irregularities in bids.

(e) Execute the representations with respect to Equal

Opportunity and Affirmative Action Programs, as set forth in the clauses at 52.222-22, Previous Contracts and Compliance

Reports, and 52.222-25, Affirmative Action Compliance.

PART 19—SMALL BUSINESS PROGRAMS

Subpart 19.6—Certificates of Competency and Determinations of

Responsibility

19.602 Procedures.

19.602-1 Referral.

(a) * * *

(2) Refer the matter to the cognizant SBA Government

Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern—

(ii) Is suspended or debarred under Executive Order 11246 or subpart 9.4.

PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 22.8[Reserved]

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2—Text of Provisions and Clauses

52.204-8 Annual Representations and Certifications.

As prescribed in 4.1202(a), insert the following provision:

Annual Representations and Certifications (JAN 2025)(DEVIATION

FEB 2025)

(c)(1) * * *

(xiv) [Reserved]52.222-22, Previous Contracts and Compliance

Reports. This provision applies to solicitations that include the clause at 52.222-26, Equal Opportunity.

(xv) [Reserved]52.222-25, Affirmative Action Compliance. This provision applies to solicitations, other than those for construction, when the solicitation includes the clause at

52.222-26, Equal Opportunity.

52.212-3 Offeror Representations and Certifications—Commercial

Products and Commercial Services.

As prescribed in 12.301(b)(2), insert the following provision:

Offeror Representations and Certifications—Commercial Products and Commercial Services (MAY 2024)(DEVIATION FEB 2025)

(d) [Reserved]Representations required to implement provisions of Executive Order 11246—

(1) Previous contracts and compliance. The offeror represents that—

(i) It □ has, □ has not participated in a previous contract or subcontract subject to the Equal Opportunity clause of this solicitation; and

(ii) It □ has, □ has not filed all required compliance reports.

(2) Affirmative Action Compliance. The offeror represents that—

(i) It □ has developed and has on file, □ has not developed and does not have on file, at each establishment, affirmative action programs required by rules and regulations of the

Secretary of Labor (41 CFR parts 60-1 and 60-2), or

(ii) It □ has not previously had contracts subject to the written affirmative action programs requirement of the rules and regulations of the Secretary of Labor.

52.212-5 Contract Terms and Conditions Required To Implement

Statutes or Executive Orders—Commercial Products and

Commercial Services.

As prescribed in 12.301(b)(4), insert the following clause:

Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial

Services (JAN 2025)(DEVIATION FEB 2025)

(b) * * *

__(33) [Reserved] 52.222-21, Prohibition of Segregated

Facilities (APR 2015).

__(34) [Reserved] (i) 52.222-26, Equal Opportunity (SEPT 2016)

(E.O. 11246).

__(ii) Alternate I (FEB 1999) of 52.222-26.

(e)(1) * * *

(ix) [Reserved]52.222-21, Prohibition of Segregated Facilities

(APR 2015).

(x) [Reserved]52.222-26, Equal Opportunity (SEP 2016) (E.O.

11246).

Alternate II (JAN 2025)(DEVIATION FEB 2025). * * *

(e)(1) * * *

(ii) * * *

(I) [Reserved] 52.222-21, Prohibition of Segregated Facilities

(APR 2015).

(J) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O.

11246).

52.213-4 Terms and Conditions—Simplified Acquisitions (Other

Than Commercial Products and Commercial Services).

As prescribed in 13.302-5(d), insert the following clause:

Terms and Conditions—Simplified Acquisitions (Other Than

Commercial Products and Commercial Services)

(JAN 2025)(DEVIATION FEB 2025)

(a) * * *

(1) * * *

(vii) [Reserved] 52.222-21, Prohibition of Segregated

Facilities (APR 2015).

(viii) [Reserved] 52.222-26, Equal Opportunity (SEP 2016)

(E.O. 11246).

52.222-9 Apprentices and Trainees.

As prescribed in 22.407(a), insert the following clause:

Apprentices and Trainees (JUL 2005)(DEVIATION FEB 2025)

(c) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this clause shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, and 29 CFR part 30.

52.222-21 [Reserved]

52.222-22 [Reserved]

52.222-23 [Reserved]

52.222-24 [Reserved]

52.222-25 [Reserved]

52.222-26 [Reserved]

52.222-27 [Reserved]

52.222-29 [Reserved]

52.244-6 Subcontracts for Commercial Products and Commercial

Services.

As prescribed in 44.403, insert the following clause:

Subcontracts for Commercial Products and Commercial Services

(JAN 2025)(DEVIATION FEB 2025)

(c)(1) * * *

(xi) [Reserved] 52.222-21, Prohibition of Segregated

Facilities (APR 2015).

(xii) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O.

11246).

FAR Deviation Clause

RRB.A.XX – A. General RRB Clause-XX. Executive Order 14208, “Ending Procurement and Forced Use of Paper Straws."

(a) Any Contractor providing any food service wares to the RRB shall comply with, Executive Order 14208, “Ending Procurement and Forced Use of Paper Straws." including all revisions and updates.