How To “Flow Down” The EO 14398 Clause To Subcontractors

May 7, 2026

What's New

Consistent with recent guidance published by the White House Office of Management and Budget (OMB) and the Federal Acquisition Regulatory (FAR) Council, federal agencies have been incorporating FAR clause 52.222-90, Addressing DEI Discrimination by Federal Contractors, into new and existing contracts valued above $15,000. Agencies must “make every effort” to incorporate the clause by July 24, 2026. Prime contractors in turn must ensure the clause flows down to all subcontract tiers.

What It Means

There are two ways for contractors to ensure the clause is properly incorporated into covered subcontracts, purchase orders, and other instruments. The first (and most common) method is to incorporate the clause by reference, such as the following example: “In accordance with Executive Order (EO) 14398, the following FAR clause, FAR 52.222-90 Addressing DEI Discrimination by Federal Contractors (APR 2026), is hereby incorporated into this contract.” Some contractors elect to add an “if applicable” preface to this reference clause, which is generally acceptable. Alternatively, a contractor could opt to include the entirety of the clause, exactly as published by the FAR Council.

What You Should Do

Federal contractors and subcontractors should continue to alert their procurement and government affairs staff to monitor whether FAR 52.222-90 is being added to contract awards, modifications, and renewals, and be prepared to incorporate the same clause into covered subcontracts and purchase orders using one of the methods above. Please note that, contrary to recent speculation, prime contractors currently have no obligation to affirmatively collect “certifications” or other DEI-related information from subcontractors.

RELATED CONTENT

Subscribe to CWC's Updates and Events

CLICK TO SIGN UP