The federal contractor nondiscrimination landscape has evolved significantly.
Following recent federal procurement changes associated with Executive Orders 14173 and 14398, Addressing DEI Discrimination by Federal Contractors, the FAR Council introduced FAR 52.222-90, Addressing DEI Discrimination by Federal Contractors (APR 2026).
The significance for federal contractors is substantial: nondiscrimination requirements are now being incorporated directly into the federal procurement process.
Where Does FAR 52.222-90 Apply?
Under the April 2026 implementation, federal agencies have been directed to incorporate FAR 52.222-90 into covered:
- New federal solicitations;
- Open solicitations through amendments;
- Resulting federal contracts;
- Existing covered contracts through contract modifications; and
- Applicable subcontracts at any tier.
The clause generally applies to covered acquisitions above the micro-purchase threshold, including commercial products and commercial services, where the place of delivery or performance is in the United States.
The current general micro-purchase threshold is $15,000.
For federal contractors, this means the requirement may arise at multiple stages of the procurement process:
Solicitation → Award → Contract Performance → Payment → Subcontracting
What FAR 52.222-90 Requires
FAR 52.222-90 addresses “racially discriminatory DEI activities,” including disparate treatment based on race or ethnicity in areas such as:
- Recruitment and employment, including hiring and promotions;
- Contracting and vendor agreements;
- Training, mentoring and leadership development;
- Educational and similar opportunities; and
- Allocation or deployment of organizational resources.
In connection with performance of a covered contract, the contractor agrees that it will not engage in racially discriminatory DEI activities.
The clause also requires contractors to furnish information and reports and permit access to books, records and accounts when required by the Contracting Officer of the awarding agency to determine compliance.
Compliance Is Material to Government Payment Decisions
One of the most consequential provisions of FAR 52.222-90 is its connection to the Civil False Claims Act.
The clause expressly provides that the contractor recognizes compliance with its requirements as material to the Government’s payment decisions for purposes of 31 U.S.C. § 3729(b)(4).
This is important.
The government is not simply establishing a general nondiscrimination policy. It is expressly connecting compliance with the contractual requirement to government payment decisions.
For contractors, that elevates nondiscrimination from an internal HR consideration to a potential contract performance, payment and enforcement issue.
Noncompliance Can Have Serious Contracting Consequences
Under FAR 52.222-90, noncompliance can result in significant consequences, potentially including:
- Cancellation, termination or suspension of the contract;
- Ineligibility of future government contracts;
- Suspension or debarment; and
- Potential False Claims Act considerations depending on the facts and circumstances.
The Requirement Extends Down the Supply Chain
FAR 52.222-90 also contains significant subcontracting requirements.
The substance of the clause must be flowed down to covered subcontracts at any tier, including applicable subcontracts for commercial products and commercial services where performance or delivery occurs in the United States.
Prime contractors therefore need to consider not only their own practices, but also their responsibilities concerning covered subcontractors.
What Contractors Are Seeing in Federal Solicitations
A contractor reviewing a 2026 federal solicitation may now encounter language substantially addressing the following requirements:
FAR 52.222-90 — Addressing DEI Discrimination by Federal Contractors (APR 2026)
The contractor agrees that, in connection with performance of the contract, it will not engage in racially discriminatory DEI activities.
The contractor may be required to provide information, reports, books, records and accounts to the Contracting Officer to demonstrate compliance.
Compliance with the clause is recognized as material to the Government’s payment decisions for purposes of the Civil False Claims Act.
The substance of the requirement must also be incorporated into applicable subcontracts at any tier.
See It in Actual Federal Procurements
This is not simply regulatory guidance. FAR 52.222-90 is already appearing in actual federal procurement documents.
U.S. Army — Design-Build Construction Solicitation: Solicitation W912DR26RA034 was amended to incorporate FAR 52.222-90 into the solicitation by full text.
U.S. Army — Supply Solicitation: Solicitation W912CH-25-Q-0037 was amended to add FAR 52.222-90 and update the applicable subcontract flow-down provisions.
Department of Justice — Federal Procurement A July 2026 DOJ procurement expressly lists FAR 52.222-90 among the provisions and clauses applicable to the anticipated resulting purchase orders.
These examples demonstrate that the requirement has moved beyond Executive Orders and regulatory guidance and into the documents federal contractors actually encounter when competing for government business.
What This Means for Federal Contractors
The practical question for contractors is no longer simply:
“Do we have a nondiscrimination policy?”
A more important question is:
“Do our actual employment practices and workforce outcomes support the nondiscrimination obligations we are undertaking through our federal contracts?”
Written policies alone may not answer that question.
A contractor may have a well-written EEO policy while its actual workforce data reveals unexplained disparities in hiring, promotions, compensation, terminations, training, advancement or other employment opportunities.
That is where proactive workforce analysis becomes increasingly important.
Before You Certify, Verify.
If you’re ready to strengthen your compliance and equity efforts, contact us today to learn how we can support your EEO and non-discrimination goals.