White House plans to fast-track restrictions on contractor diversity training

The Federal Acquisition Council is working on a "deviation clause" to implement President Donald Trump's executive order cracking down on diversity and inclusion training for federal contractors.

Officials in the White House-based Office of Federal Procurement Policy told contractors and trade association representatives about the planned approach on a Oct. 22 conference call. OFPP executives said the deviation clause was needed because the FAR Council won't have time for a traditional comment period; Trump's executive order sets a 60-day deadline for putting the new and highly controversial rules into effect. The regulation is due to take effect on Nov. 21.

The fast-track deviation clause memorandum is likely to be followed up by a Federal Acquisition Regulation rulemaking case, officials said, which would include a comment period. Typically a FAR Council deviation clause would be mirrored by a similar document in the Defense Federal Acquisition Regulation Supplement.

FCW was able to confirm some elements of the discussion from multiple sources familiar with the contents of the call, which was billed as a listening session to obtain feedback from the federal contracting community.

Contractors voiced their concerns about the scope and impact of the executive order, which looks to remove concepts like "white privilege" and "critical race theory" from diversity and inclusion training curricula, as well as problems of implementation.

Participants were concerned that the order could affect the recruitment and retention of employees, and pose particular problems for contractors based abroad or who have a global workforce. First Amendment issues are also in play – contractors are concerned the crackdown on training could reach into protected speech on the part of employees. There are also questions about enforcement mechanism and the criteria used to tag training as out of sync with the terms of the executive order.

Many business groups have expressed similar concerns publicly in open letters to the Trump Administration about new policy.

The same day as the call, the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) issued a request for information seeking details from federal contractors, subcontractors and employees about "workplace trainings that involve race or sex stereotyping or scapegoating" including information on the source of diversity training, whether such training is mandatory, how much it costs, whether such training has generated objections among workers and whether those objections have resulted in employee discipline.

The RFI also offers a phone and email "hotline" for reporting "potentially unlawful" training materials. The Labor Department pledged to protect the confidentiality of tipsters and to treat materials submitted under the request for comments as trade secrets or privileged commercial information and exempt from release under the Freedom of Information Act.

The Labor Department RFI indicated that the OFCCP will provide compliance assistance for contractors and subcontractors who submit curriculum materials voluntarily for vetting and correct the infractions that are identified. However, the RFI said that enforcement actions – debarment from federal contracting is listed as a possible consequence in the executive order – may be triggered if violations are discovered via informants or if companies refuse to correct violations.