head of each agency, by March 22, 2021, to “consider suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants pursuant to Executive Order 13950, as appropriate and consistent with applicable law.”[1]
As stated above, this Memorandum rescinds Memoranda M-20-37 and M-20-34. Therefore, agencies must cease performing the directives in these rescinded memoranda and return to the pre-E.O. 13950 status quo, including by ensuring the following additional steps have been, or are being, taken.
a. Federal Contracts. Agencies are not authorized to include the contractual language from E.O. 13950 in their solicitations or resulting contracts. Agency heads must take appropriate action, consistent with applicable law, to rescind, any FAR class deviations or similar directives agencies issued in order to implement E.O. 13950’s federal contracting requirements. To the extent that the contractual language from E.O. 13950 has already been inserted into contracts, agencies must take appropriate actions to ensure such provisions are not enforced, such as by continuing and making permanent the suspension put in place when the preliminary injunction was issued or modifying contracts to remove the clause. If the clause is not expressly removed from the contract, agencies shall, consistent with applicable law:
- waive enforcement of clauses added pursuant to section 4(a) of E.O. 13950;
- refrain from cancellation, termination, or suspension, in whole or in part, any contractor or subcontractors’ government contracts for purported noncompliance with E.O. 13950 or related agency action implementing sections 4 or 5 of that E.O.;
- refrain from declaring any contractor or subcontractor ineligible for further government contracts, nor impose any other sanctions, on the basis of purported noncompliance with E.O. 13950 or any agency action implementing sections 4 or 5 of that E.O.; and
- stop requiring contractors or subcontractors to provide notice of any commitments under E.O. 13950 or any contract term inserted pursuant to the E.O. to their respective labor unions or employee representatives.
Additionally, federal contractors, including subcontractors and vendors performing under government contracts, shall not be investigated, debarred, or otherwise penalized for purported violations of E.O. 13950. Agencies shall take all reasonable steps to notify any contractors who already have entered into contracts including the provisions described in section 4(a) of E.O. 13950, that those provisions are not operational, that the United States will not enforce those provisions, and that contractors should not enforce such provisions to the extent the
- ↑ On December 22, 2020, prior to the issuance of E.O. 13985, the United States District Court for the Northern District of California issued a preliminary injunction enjoining sections 4 and 5 of E.O. 13950, including OMB Memorandum M-20-34, OMB Memorandum M-20-37, Department of Labor FAQs dated October 7, 2020, and Department of Labor Request for Information dated October 22, 2020, as they pertain to such sections of the E.O. In response, OMB provided notice to agencies, in consultation with the Department of Justice, of actions required to be taken to ensure compliance with the preliminary injunction. The preliminary injunction prohibits enforcing the contractual language in sections 4 and 5 of E.O. 13950.
