Attachment 3 FAR DEVIATON (2).PDF

U.S. Department 1200 New Jersey Ave., S.E.

of Transportation Washington, DC 20590

Office of the Secretary of Transportation

MEMORANDUM TO: Department of Transportation (DOT) Chiefs of the Contracting

Offices (COCOs)

FROM: Chrishaun Jones

Senior Procurement Executive Office of the Senior Procurement Executive

SUBJECT: Transportation Acquisition Regulation (TAR) Class Deviation

(CD) No. 2025-01 – Align the TAR with FAR Class Deviations and CAAC Letter 2025-01 Supplement 1 and CAAC Letter 2025-02 Supplement 1

I. Purpose: This class deviation (CD) is issued in accordance with Transportation Acquisition

Regulation (TAR) 1201.404 to revise or add the following TAR subparts/sections. This CD provides policy to align the TAR with the FAR based on revisions required to implement the President’s agenda based on issuance of certain executive orders and the revocation of other executive orders which necessitated issuance of DOT-issued FAR class deviations as described in the Background section below.

TAR Parts impacted: 1222, 1223, 1252

a. TAR Part 1222 – Application of Labor Laws to Government Acquisitions

Subpart 1222.8 - Equal Employment Opportunity o Status: Removed and Reserved to align with the FAR.

o Sections affected:

1222.808 - Complaints 1222.810-70 - Contract clause.

b. TAR Part 1223 – Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace

Note: Title updated as shown in TAR Deviated Text to align with the FAR Subpart 1223.3 - Hazardous Identification and Material Safety Data o Header updated as shown in TAR Deviated Text to align with the FAR o Sections affected:

1223.303 - Renumbered to 1223.304

c. TAR Part 1252 - Solicitation Provisions and Contract Clauses

Clause 1252.222-72 - Contractor Cooperation in Equal Employment Opportunity and Anti-Harassment Investigations o Status: Removed and Reserved to align with the FAR.

CHRISHAUN

PATRICE JONES

Digitally signed by

CHRISHAUN PATRICE

JONES

Date: 2025.05.31 09:09:53 -04'00'

II. Effective Date: Immediately.

III. Background: On January 21, 2025, President Trump issued E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which revoked E.O. 11246, Equal Employment Opportunity.

On February 15, 2025, the Chair of the Civilian Agency Acquisition Council (CAAC) issued CAAC Letter No. 2025-01, superseded on February 18, 2025 by Supplement 1, in accordance with FAR 1.404(a)(1) to authorize agencies to issue their own class deviations. Supplement 1 to CAAC Letter No. 2025-01 addressed the removal of equal employment opportunity language per revoked E.O. 11246. Several FAR provisions promulgated to enforce E.O. 11246 are not consistent with the direction in E.O. 14173 (see FAR subpart 22.8 and associated provisions and clauses as prescribed at FAR 22.810, as well as affected parts). DOT Office of the Senior Procurement Executive (OSPE), issued FAR CD, titled “Class Deviation No. 2025- 01 from the Federal Acquisition Regulation Regarding Executive Orders 14173 and 14168,” on March 6, 2025 based on this CAAC letter.

As a result of the issuance of DOT FAR CD 2025-01 on March 6, 2025 to align the TAR with the FAR, it is necessary to immediately revise TAR part 1222 by deviating the currently published TAR to remove and reserve TAR subpart 1222.8 to align with the FAR deviated text at FAR subpart 22.8, which is now reserved, as well as to remove and reserve FAR clause 1252.222-72, Contractor Cooperation in Equal Employment Opportunity and Anti-Harassment Investigations, as the prescription for the clause and the underlying FAR text concerning Equal Employment Opportunity were removed based on the DOT-issued FAR CD 2025-01.

Additionally, on February 15, 2025, the Chair of the Civilian Agency Acquisition Council (CAAC) issued CAAC Letter No. 2025-02, superseded on February 18, 2025 by Supplement 1, in accordance with FAR 1.404(a)(1) to authorize agencies to issue their own class deviations.

Supplement 1 to CAAC Letter No. 2025-02 partially implemented Section 2 of E.O. 14148, Initial Rescissions of Harmful Executive Orders and Actions, of January 20, 2025 (see 90 FR 8237), which revoked E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, of December 8, 2021. The removal of requirements related to E.O.

14057 eliminates all non-statutory sustainability requirements or preferences in purchases of food service wares, including paper straws. In addition to removing requirements related to E.O. 14057, the CD also reflects recent updates to Code of Federal Regulation (CFR) citations for the U.S. Department of Agriculture’s BioPreferred Program, a statutory purchasing preference program. DOT OSPE issued FAR CD, titled “Class Deviation No. 2025-02 from the Federal Acquisition Regulation Regarding Executive Orders 14148 and 14208,” on March 6, 2025, based on this CAAC letter.

IV. Applicability: This CD applies to all DOT Operating Administrations (OAs), the Office of the Secretary of Transportation (OST), and the Office of the Inspector General’s (OIG), excluding the Federal Aviation Administration (FAA) per TAR 1201.104(d), and applies to all DOT solicitations and contracts, as appropriate.

V. Expiration Date: This CD remains in effect until the requirements are incorporated into the

TAR, or is otherwise rescinded, whichever occurs first.

VI. Point of Contact: Questions or comments regarding this CD may be directed to DOTAcquisitionPolicy@dot.gov.

Attachments:

A. TAR Deviation Text

Attachment A: TAR Deviation Text

Transportation Acquisition Regulation (TAR) Class Deviation (CD) No. 2025-01 – TAR Part 1222, 1222.8; Part 1223, 1223.3, and Part 1252, 1252.222-72

(DEVIATION) (MAY 2025)

CLASS DEVIATION

TAR Text Baseline is 48 CFR chapter 12 dated April 29, 2025.

Additions are shown as [bolded and bracketed] and deletions are shown in strikethrough deletions.

TAR Text unchanged shown as asterisks.

PART 1222—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 1222.1—Basic Labor Policies Sec.

1222.101 Labor relations.

1222.101-70 Admittance of union representatives to DOT installations.

1222.101-71 Contract clauses.

Subpart 1222.8—Equal Employment Opportunity [[RESERVED] (DEVIATION)(MAY 2025)]

1222.808 Complaints.

1222.810-70 Contract clause.

Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

PART 1222—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 1222.8—Equal Employment Opportunity [[RESERVED]] [(DEVIATION)(MAY 2025)]

1222.808 Complaints.

Contractors shall, in good faith, cooperate with the Department of Transportation in investigations of Equal Employment Opportunity (EEO) complaints processed pursuant to 29 CFR part 1614 and in accordance with clause 1252.222-72 as prescribed in this subpart.

1222.810-70 Contract clause.

The contracting officer shall insert the clause at 1252.222-72, Contractor Cooperation in Equal Employment Opportunity and Anti-Harassment Investigations, in solicitations, contracts, and orders that include the clause at FAR 52.222-26, Equal Opportunity.

PART 1223—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE

ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE

WORKPLACE [ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL

SAFETY] [(DEVIATION)(MAY 2025)]

Subpart 1223.3—Hazardous Material Identification and Material Safety Data [, Material Safety Data, and Notice of Radioactive Materials] Sec.

1223.303[4] Contract clause[s]. [(DEVIATION)(MAY 2025)]

Subpart 1223.70—Safety Requirements for Selected DOT Contracts

1223.7000 Contract clauses.

PART 1223— ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE

ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE

WORKPLACE [ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL

SAFETY] [(DEVIATION)(MAY 2025)]

Subpart 1223.3—Hazardous Material Identification and Material Safety Data

1223.303[4] Contract clause[s].

PART 1252 -- SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 1252.1—Instructions for Using Provisions and Clauses Sec.

Subpart 1252.2—Text of Provisions and Clauses

1252.222-72 Contractor Cooperation in Equal Employment Opportunity and Anti- Harassment Investigations. [[RESERVED] (DEVIATION)(MAY 2025)]

Subpart 1252.3—Provision and Clause Matrix

PART 1252 -- SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 1252.2—Text of Provisions and Clauses

1252.222-72 Contractor Cooperation in Equal Employment Opportunity and Anti- Harassment Investigations. [[RESERVED] (DEVIATION)(MAY 2025)]

As prescribed in 1222.810-70, insert the following clause:

Contractor Cooperation in Equal Employment Opportunity and Anti-harassment Investigations (NOV 2022) [(DEVIATION)(MAY 2025)]

(a) Definitions. As used in this clause—

Complaint means a formal or informal complaint that has been filed with DOT management, DOT agency Equal Employment Opportunity (EEO) officials, the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP) or a court of competent jurisdiction.

Contractor employee means all current Contractor employees who work or worked under this contract. The term also includes current employees of subcontractors who work or worked under this contract. In the case of Contractor and subcontractor employees who worked under this contract, but who are no longer employed by the Contractor or subcontractor, or who have been assigned to another entity within the Contractor's or subcontractor's organization, the Contractor shall provide DOT with that employee's last known mailing address, email address, and telephone number, if that employee has been identified as a witness in an EEO or Anti- Harassment complaint or investigation.

Good faith cooperation means, but is not limited to, making Contractor employees available, with the presence or assistance of counsel as deemed appropriate by the Contractor, for:

(1) Formal and informal interviews by EEO counselors, the OFCCP, or other Agency officials processing EEO or Anti-Harassment complaints;

(2) Formal or informal interviews by EEO investigators charged with investigating complaints of unlawful discrimination filed by Federal employees;

(3) Reviewing and signing appropriate affidavits or declarations summarizing statements provided by such Contractor employees during EEO or Anti-Harassment investigations;

(4) Producing documents requested by EEO counselors, EEO investigators, OFCCP investigators, Agency employees, or the EEOC in connection with a pending EEO or Anti- Harassment complaint; and

(5) Preparing for and providing testimony in depositions or in hearings before the Merit Systems Protection Board, EEOC, OFCCP, and U.S. District Court.

(b) Cooperation with investigations. In addition to complying with the clause at FAR 52.222-26, Equal Opportunity, the Contractor shall, in good faith, cooperate with the Department of Transportation in investigations of EEO complaints processed pursuant to 29 CFR part 1614 and internal Anti-Harassment investigations.

(c) Compliance. Failure on the part of the Contractor or its subcontractors to comply with the terms of this clause may be grounds for the Contracting Officer to terminate this contract for default or for cause in accordance with the termination clauses in the contract.

(d) Subcontract flowdown. The Contractor shall include the provisions of this clause in all subcontract solicitations and subcontracts awarded, at any tier, under this contract.

(End of clause)

Office of the Secretary of Transportation

MEMORANDUM TO: Department of Transportation (DOT) Chiefs of the Contracting

Offices (COCOs)

FROM: Chrishaun Jones

SUBJECT: Transportation Acquisition Regulation (TAR) Class Deviation

(CD) No. 2025-02 Amendment No. 1 – TAR 1252.232-70

I. Purpose: This class deviation (CD) is issued in accordance with Transportation Acquisition Regulation (TAR) 1201.404 to revise the following TAR subpart. This CD provides procurement guidance to implement Executive Order (E.O.) 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.

TAR Parts impacted: 1252

a. TAR Part 1252 - Solicitation Provisions and Contract Clauses

Clause 1252.232-70 - Electronic Submission of Payment Requests o Status: Revised to comply with the E.O.

III. Background: On January 20, 2025, President Trump issued E.O 14173, Ending Illegal

Discrimination and Restoring Merit-Based Opportunity. This E.O. directs all executive departments and agencies to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” and to enforce civil rights laws by ending illegal diversity, equity, and inclusion (DEI) or diversity, equity, inclusion, and accessibility (DEIA) activities across both the Federal Government and the private sector. The order revokes several prior DEI- and affirmative action–related executive orders and includes specific requirements affecting Federal acquisition and financial assistance practices.

Section 3(b)(iv) of E.O. 14173 states that:

“The head of each agency shall include in every contract or grant award:

o (A) ‘A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws

CHRISHAUN

PATRICE JONES

Digitally signed by

CHRISHAUN PATRICE JONES

Date: 2025.08.26 16:33:41 is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code;’ and o (B) ‘A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.’”

As a result of the issuance of E.O. 14173, DOT is revising TAR Part 1252 by deviating the currently published clause at TAR 1252.232-70, Electronic Submission of Payment Requests, to incorporate these new terms and ensure that DOT contracting and financial assistance actions align with the order’s requirements.

IV. Required Action: Contracting Officers shall insert the TAR Deviation text in Attachment A in solicitations and contracts exceeding the micro-purchase threshold, except those for which the contracting officer has directed or approved otherwise under 1232.7002, and those paid with a Governmentwide commercial purchase card. Please refer to DOT DASH 2025-03 for certification instructions applicable to purchase card transactions, classified contracts, and paper payment requests, which are excluded from this TAR Deviation.

V. Applicability: This CD applies to all DOT Operating Administrations (OAs), the Office of the Secretary of Transportation (OST), and the Office of the Inspector General (OIG), excluding the Federal Aviation Administration (FAA) per TAR 1201.104(d), and applies to all DOT solicitations and contracts, as appropriate.

VI. Expiration Date: This CD remains in effect until the requirements are incorporated into the TAR, or are otherwise rescinded, whichever occurs first.

VII. Point of Contact: Questions or comments regarding this CD may be directed to DOTAcquisitionPolicy@dot.gov.

A. TAR Deviation Text

Attachment A: TAR Deviation Text

Transportation Acquisition Regulation (TAR) Class Deviation (CD) No. 2025-02

– TAR Part 1252, 1252.232-70

(DEVIATION) (AUG 2025)

CLASS DEVIATION

TAR Text Baseline is 48 CFR chapter 12 dated July 7, 2025.

Additions are shown as [bolded and bracketed] and deletions are shown in strikethrough deletions. TAR Text unchanged shown as asterisks.

PART 1252 -- SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 1252.2—Text of Provisions and Clauses 1252.232-70 Electronic Submission of Payment Requests. [(DEVIATION)(AUG 2025)] As prescribed in 1232.7005, insert the following clause:

(d) Invoice requirements. To receive payment and in accordance with the Prompt Payment Act, all invoices submitted as attachments in iSupplier (DELPHI) shall contain the following:

(1) Invoice number and invoice date.

(2) Period of performance covered by invoice.

(3) Contract number and title.

(4) Task/Delivery Order number and title (if applicable).

(5) Amount billed (by CLIN), current and cumulative.

(6) Total ($) of billing.

(7) Cumulative total billed for all contract work to date.

(8) Name, title, phone number, and mailing address of person to be contacted in the event of a defective invoice.

(9) Travel. If the contract includes allowances for travel, all invoices which include charges pertaining to travel expenses will catalog a breakdown of reimbursable expenses with the appropriate receipts to substantiate the travel expenses.

[(10) The following statement “The Contractor certifies that, by submitting this invoice to the Government, the supplies and/or services billed have been shipped, rendered, or delivered in accordance with instructions issued by the ordering officer; that they are reflected in the quantities and/or period of performance stated on the invoice; and that such supplies and/or services conform to the quantity and quality requirements specified in the applicable contract, order, or blanket purchase agreement.

Furthermore, pursuant to Executive Order 14173, Ending Illegal Discrimination And Restoring Merit-Based Opportunity, the Contractor

[(10) The following statement “The Contractor certifies that, by submitting this invoice to the Government, the supplies and/or services billed have been shipped, rendered, or delivered in accordance with instructions issued by the ordering officer; that they are reflected in the quantities and/or period of performance stated on the invoice; and that such supplies and/or services conform to the quantity and quality requirements specified in the applicable contract, order, or blanket purchase agreement.

Furthermore, pursuant to Executive Order 14173, Ending Illegal Discrimination And Restoring Merit-Based Opportunity, the Contractor certifies that it is in compliance with the Equal Protection principles of the Constitution and all applicable Federal anti-discrimination laws, and acknowledges that such compliance is material to the Government’s payment decision under the False Claims Act (31 U.S.C. § 3729(b)(4)). The Contractor also affirms that it does not operate any diversity, equity, and inclusion (DEI) initiatives that are inconsistent with the Equal Protection principles of the Constitution and the non-discrimination requirements of Federal law, as interpreted by the Supreme Court in Students for Fair Admissions v.

Harvard, 600 U.S. 181 (2023).”

certifies that it is in compliance with the Equal Protection principles of the Constitution and all applicable Federal anti-discrimination laws, and acknowledges that such compliance is material to the Government’s payment decision under the False Claims Act (31 U.S.C. § 3729(b)(4)). The Contractor also affirms that it does not operate any diversity, equity, and inclusion (DEI) initiatives that are inconsistent with the Equal Protection principles of the Constitution and the non-discrimination requirements of Federal law, as interpreted by the Supreme Court in Students for Fair Admissions v.

Harvard, 600 U.S. 181 (2023).”

Office of the Secretary of Transportation

SUBJECT: Class Deviation No. 2026-24, Supplement to the FAR Class Deviations for FAR

Parts 9, 12, and 22 in Support of Executive Order 14398, Addressing DEI Discrimination by Federal Contractors

FROM: Chrishaun Jones

TO: Department of Transportation Chiefs of the Contracting Offices

I. Purpose: This class deviation (CD) supplement is issued under Federal Acquisition Regulation (FAR) part 1 and Transportation Acquisition Regulation (TAR) part 1201 and authorizes a class deviation to FAR parts 9, 12, 22 and 52 for purposes of implementing the FAR Council’s (the Council’s) updates to the model deviation text to the aforementioned FAR parts.

III. Background: On March 26, 2026, Executive (E.O.) 14398 on Addressing DEI Discrimination by Federal Contractors was signed. Section 3 of the E.O. establishes the policy that agencies should not do business with contractors that engage in any racially discriminatory diversity, equity, and inclusion (DEI) activities (91 FR 16147, March 31, 2026).

On April 20, the FAR Council issued model FAR deviation text to implement the changes required by E.O. 14398 and directed agencies to update their Revolutionary FAR Overhaul (RFO) Class Deviations for Parts 9, 12, 22, and 52 in accordance with the model text.

Contracting Officers are directed to use the new clause at 52.222-90 in all new solicitations and contracts performed in the United States, to amend open solicitations to incorporate the clause, and to make every effort to bilaterally modify existing contracts over the micro-purchase threshold to incorporate new clause FAR 52.222-90. Further details are below.

IV. Summary of Changes:

Updates to DOT’s FAR Deviations implementing the RFO (“Supplements”) are as follows-

RFO FAR part 9 Supplement Update

Section III. “Background” is updated as follows:

CHRISHAUN

PATRICE JONES

Digitally signed by CHRISHAUN

PATRICE JONES

Date: 2026.04.24 16:11:37

Update to Subpart 9.4, Debarment, Suspension, and Ineligibility, for a contractor's failure to comply with the requirements of clause 52.222-90, Addressing DEI Discrimination by Federal Contractors:

Debarment (9.406-2 (b)(1)(viii)) Suspension (9.407-2(a)(11))

Note: A bold and bracketed version of the RFO model deviation text can be found in Attachment A. All other content remains the same from the existing RFO FAR part 9 CD of January 12, 2026: Class Deviation No. 2026-22, Supplement to Certain Federal Acquisition Regulation (FAR) Deviations (Part 5, 8, 9, 12, 13, and 23), in Support of Executive Order 14275 on Restoring Common Sense to Federal Procurement.

RFO FAR part 12 Supplement Update

Section III. “Background” is updated as follows:

FAR part 12 includes an update to 12.205, Solicitation provisions and contract clauses (12.205(b)(2), Table 12-3 – Clauses to include as prescribed:

52.222-90, Addressing DEI Discrimination by Federal Contractors.

Note: A bold and bracketed version of the RFO model deviation text can be found in Attachment A. All other content remains the same from the existing RFO FAR part 12 CD of January 12, 2026: Class Deviation No. 2026-22, Supplement to Certain Federal Acquisition Regulation (FAR) Deviations (Part 5, 8, 9, 12, 13, and 23), in Support of Executive Order 14275 on Restoring Common Sense to Federal Procurement.

RFO FAR part 22 Supplement Update

Section III. “Background” is updated as follows:

Update to FAR part 22 includes:

Added Subpart 22.22, Addressing DEI Discrimination by Federal Contractors to implement E.O. 14398.

o Section 22.2101, Definitions, added to include definitions for "program participation" and "racially discriminatory DEI activities".

o As prescribed in section 22.2203, new clause 52.222-90, Addressing DEI Discrimination by Federal Contractors, was added for contracts and subcontracts valued over the micro-purchase threshold, including those for commercial products and commercial services, and for which the place of delivery or performance is in the United States.

Attachment A. All other content remains the same from the existing RFO FAR part 22 CD of October 27, 2025: Class Deviation No. 2026-17 from the Federal Acquisition

Regulation for FAR Part 22 in Support of Executive Order 14275 on Restoring Common Sense to Federal Procurement.

RFO FAR part 52 Supplement Update

Update to FAR part 52 includes:

As prescribed in section 22.2203, new clause 52.222-90, Addressing DEI Discrimination by Federal Contractors, was added.

52.222-90, Addressing DEI Discrimination by Federal Contractors (APR

2026) was added to the clause table for 52.244-6(b)(2), Requirements, 52.244-6, Subcontracts for Commercial Products and Commercial Services.

Attachment A.

V. Required Actions: All DOT Operating Administrations (OAs), the Office of the Secretary of Transportation (OST), and the Office of the Inspector General (OIG), excluding the Federal Aviation Administration (FAA) per RFO TAR 1201.104(d) shall follow the RFO model deviation text instead of the FAR parts codified at 48 CFR chapter 1. The Council’s RFO FAR parts model deviation text is available at Acquisition.gov/far-overhaul and is incorporated by reference into this CD. A line-out version of the changes may also be found in each RFO FAR parts Practitioner’s Album for reference.

Chief of the Contracting Offices (COCOs) must ensure this deviation is disseminated to the acquisition workforce and ensure compliance with the requirements in the revised FAR parts guidance.

For new solicitations and resulting contracts:

Insert the clause at FAR 52.222-90 in new solicitations and resulting contracts valued over the micro-purchase threshold, including those for commercial products and commercial services, except those that result in contracts for which the place of delivery or performance is outside the United States. In accordance with FAR 1.107(d), amend any open solicitations to incorporate the clause.

The clause flows down to subcontracts at any tier, including those for commercial products and commercial services, for which the place of delivery or performance is in the United States.

It is not necessary to include the clause in new orders under existing GSA governmentwide contracts (FSS, GWACs, other GSA managed multi-agency contracts).

The instructions regarding these contracts and orders thereunder are described below.

For existing contracts:

Insert the clause at FAR 52.222-90 in all existing contracts (i.e., definitive contracts and indefinite-delivery contracts) valued over the micro-purchase threshold, including those for commercial products and commercial services, and for which the place of delivery or performance is in the United States. In accordance with FAR 1.107(d) (May 2, 2025 deviation), contracting officers must make every effort to bilaterally modify existing contracts by July 24, 2026. If a contractor refuses to agree to a bilateral modification, the contracting officer should consider whether, absent the modification, the contract no longer meets the agency’s needs and should therefore be terminated for convenience.

Existing orders under GSA government-wide contracts (FSS, GWACs, other GSA managed multi-agency contracts) do not need to be modified.

Modification of contracts with a final expiration no later than December 31, 2026, is at the contracting officer’s discretion.

FAR 52.222-90 Information Collection. The FAR Council is seeking clearance from the Office of Management and Budget (OMB) for information collections related to the FAR clause 52.222-90. The clearance will provide coverage for all agencies using the clause. The clause requires that contractors must—

Furnish all information and reports, including providing access to books, records, and accounts, as required by the contracting officer, for purposes of ascertaining compliance with the clause (FAR 52.222-90(b)(2));

Report any subcontractor's known or reasonably knowable conduct, that may violate the clause, to the contracting officer and take any appropriate remedial actions directed by the contracting officer (FAR 52.222-90(b)(4)); and

Inform the contracting officer if a subcontractor sues the contractor and the suit puts at issue, in any way, the validity of the clause (FAR 52.222-90(b)(5)).

Until clearance is received, you may still enforce the requirement for contractors to submit existing records regarding compliance with the requirements of the clause in connection with individual investigations, such as records that may be requested by the Equal Employment Opportunity Commission or the Department of Justice as part of an investigation of an alleged violation of the clause.

You should further expect that contractors will alert the appropriate contracting officer of potential violations of the clause or lawsuits relating to the clause.

Once clearance is received, the Office of the Senior Procurement Executive (OSPE) will communicate to the workforce that you can begin to enforce full compliance with FAR clause 52.222-90 requirements.

VI. Applicability: This supplement to applicable class deviations applies to all DOT OAs, OST, and OIG, excluding the FAA in accordance with TAR 1201.104(d).

VII. Expiration Date: This CD will remain in effect until it is incorporated into the FAR or is otherwise rescinded, whichever occurs first.

VIII. Point of Contact: Questions or comments regarding this deviation may be directed to DOTAcquisitionPolicy@dot.gov.

A. RFO Model Deviation Text

Attachment A

(DEVIATION APR 2026)

Executive Order 14398, Addressing DEI Discrimination by Federal Contractors

Baseline is the Revolutionary Federal Acquisition Regulation Overhaul as posted in Acquisition.gov on April 1, 2026.

Changes made in the proposed rule are shown by [additions] and deletions. Asterisks ***** or *** reflects text remains unchanged.

PART 9—CONTRACTOR QUALIFICATIONS

Subpart 9.4 - Debarment, Suspension, and Ineligibility

9.406 Debarment.

9.406-2 Causes for debarment.

The suspending and debarring official may debar-

(b)(1) * * *

[(viii) Failure to comply with the requirements of the clause at 52.222-90, Addressing

DEI Discrimination by Federal Contractors.]

9.407 Suspension.

9.407-2 Causes for suspension.

(a) The suspending and debarring official may suspend a contractor suspected, upon adequate evidence, of—

[(11) Failure to comply with the requirements of the clause at 52.222-90, Addressing

DEI Discrimination by Federal Contractors.]

PART 12—ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL

SERVICES

Subpart 12.2 - Solicitation, Evaluation, and Award

12.205 Solicitation provisions and contract clauses.

(b)(2) * * *

Table 12-3 — Clauses to include as prescribed.

Number

Title Source

[52.222-90

Addressing DEI Discrimination by Federal Contractors E.O.]

PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

[Subpart 22.22—Addressing DEI Discrimination by Federal Contractors

22.2200 Scope of subpart.

This subpart prescribes policies and procedures to implement Executive Order (E.O.)

14398, Addressing DEI Discrimination by Federal Contractors (91 FR 16147, March 31, 2026).

22.2201 Definitions.

As used in this subpart-

Program participation means membership or participation in, or access or admission to:

training, mentoring, or leadership development programs; educational opportunities;

clubs; associations; or similar opportunities that are sponsored or established by the contractor or subcontractor.

Racially discriminatory DEI activities means disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity's resources.

22.2202 Policy.

Executive Order 14398 requires measures to prevent contractors from engaging in any racially discriminatory DEI activities.

22.2203 Contract clause.

Insert the clause at 52.222-90, Addressing DEI Discrimination by Federal

Contractors, in solicitations and contracts, including those for commercial products and commercial services, and for which the place of delivery or performance is in the United

States.]

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2—Text of Provisions and Clauses

[52.222-90 Addressing DEI Discrimination by Federal Contractors

As prescribed in 22.2203, insert the following clause:

ADDRESSING DEI DISCRIMINATION BY FEDERAL CONTRACTORS

(DEVIATION APR 2026)

(a) Definitions. As used in this clause—

Program participation means membership or participation in, or access or admission to:

training, mentoring, or leadership development programs; educational opportunities;

clubs; associations; or similar opportunities that are sponsored or established by the contractor or subcontractor.

Racially discriminatory diversity, equity, and inclusion (DEI) activities means disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity's resources.

(b) In connection with the performance of work under this contract, the Contractor agrees as follows:

(1) The Contractor will not engage in any racially discriminatory DEI activities.

(2) The Contractor will furnish all information and reports, including providing access to books, records, and accounts, as required by the Contracting Officer, for purposes of ascertaining compliance with this clause.

(3) In the event of the Contractor's or a subcontractor's noncompliance with this clause, this contract may be canceled, terminated, or suspended in whole or in part, and the Contractor or subcontractor may be declared ineligible for further Government contracts.

(4) The Contractor will report any subcontractor's known or reasonably knowable conduct that may violate this clause to the Contracting Officer and take any appropriate remedial actions directed by the Contracting Officer.

(5) The Contractor will inform the Contracting Officer if a subcontractor sues the Contractor and the suit puts at issue, in any way, the validity of this clause.

(6) The Contractor recognizes that compliance with the requirements of this clause are material to the Government's payment decisions for purposes of 31 U.S.C.

3729(b)(4).

(c) The Contractor must include the substance of this clause, including this paragraph (c), in subcontracts at any tier, including those for commercial products and commercial services, for which the place of delivery or performance is in the United

States.

(End of clause)]

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

([DEVIATION APR 2026])

(b)(2) * * *

Number

Title Date

[52.222-90

Addressing DEI Discrimination by Federal Contractors APR 2026]