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On January 20, 2025, the White House issued an Executive Order (EO) that revoked 78 executive orders and presidential memorandums issued by President Biden between January 21, 2021 and January 19, 2025 that do not align with Trump Administration policies.  Of those revoked by the EO, several impact government contracts and federal procurement, including, but not limited to:

  • EO 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government);
  • EO 13989 of January 20, 2021 (Ethics Commitments by Executive Branch Personnel);
  • EO 14008 of January 27, 2021 (Tackling the Climate Crisis at Home and Abroad);
  • EO 14030 of May 20, 2021 (Climate-Related Financial Risk);
  • EO 14055 of November 18, 2021 (Nondisplacement of Qualified Workers Under Service Contracts);
  • EO 14057 of December 8, 2021 (Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability);
  • EO 14069 of March 15, 2022 (Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency);
  • EO 14110 of October 30, 2023 (Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence); and
  • Presidential Memorandum of January 14, 2025 (Revocation of National Security Memorandum 5, Strengthening the Policy of the United States Toward Cuba).

To effectuate the revocations, the EO directs the heads of each agency to take immediate steps to end implementation of diversity, equity, and inclusion programs and policies.  Similarly, the Director of the Domestic Policy Council (DPC) and the Director of the National Economic Council (NEC) must review all government actions taken pursuant to the revoked orders, memoranda, and proclamations listed in the EO and take necessary steps to rescind, replace, or amend such actions as appropriate.  Finally, within 45 days of the EO, the DPC Director, the NEC Director, and the National Security Advisor must submit a list of additional orders, memoranda, proclamations, and National Security Memoranda issued by the Biden Administration to identify additional rescissions.

A common question from government contractors is: What happens when an executive order is revoked but the implementing regulations still exist and/or the implementing FAR clauses are still in contracts?

The impact of the revocations will not be entirely known until agencies begin taking actions such as rescinding any rules, regulations, guidelines, or policies, implementing or enforcing the revoked executive orders.  Importantly, the EO directs agency heads to take immediate action on executive orders related to DEI programs and policies, whereas other executive orders generally undergo agency review to determine next steps to rescind, replace, or amend implemented rules, regulations, guidelines, or policies. 

While contractors might expect agencies to take immediate regulatory actions in response to executive orders, such implementation historically has taken months or years to complete in some cases.  

To amend the FAR, the DoD, GSA, and NASA, acting on behalf of the FAR Council, or the Administrator of the Office of Federal Procurement Policy (OFPP), issue proposed and final rules under the “notice-and-comment” procedures of the Administrative Procedure Act (APA).  The APA typically requires four steps: (1) submission of the proposed rule; (2) an open comment period; (3) publication of the final rule; and (4) a 30-day wait for the rule to take effect.  Agencies can invoke the “good cause” exception and use interim final rulemaking if the agency finds notice and comment will be “impracticable, unnecessary, or contrary to the public interest” and instead take post-promulgation comments.  Contractors will be notified if interim final rulemaking is used, in which case the rules are effective immediately.  Most commonly, amendments to the FAR are applied to contracts entered into on or after the date on which the amendment goes into effect, and not to preexisting contracts, unless there is clear congressional intent to the contrary.  In accordance with FAR 1.108, if Congress wants to apply a newly enacted statute to alter the obligations under preexisting contracts, it should do so clearly and unambiguously, with the understanding that any such retrospective changes could require the government to provide financial compensation to affected contractors.

Contractors can ask for guidance from their contracting officers on how to proceed with the impacted FAR clauses in their contracts.  In addition, while contracting officers may be unable to take certain steps until actions are taken by the agencies to rescind inconsistent rules, as appropriate and consistent with applicable law, contractors should be on the lookout for further agency guidance, directives, or contract modifications.

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Photo of Peter J. Eyre Peter J. Eyre

Peter J. Eyre is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He is also a member of the firm’s Management Board. Peter was named to BTI Consulting Group’s list of “Client Service All-Stars” in 2016, 2017, and 2019 and…

Peter J. Eyre is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He is also a member of the firm’s Management Board. Peter was named to BTI Consulting Group’s list of “Client Service All-Stars” in 2016, 2017, and 2019 and has been named an Acritas Star, Acritas Stars Independently Rated Lawyers (2016, 2017, 2019). He is nationally ranked by Chambers USA in Government Contracts since 2014, and by Super Lawyers since 2017.

Photo of Laura J. Mitchell Baker Laura J. Mitchell Baker

Laura J. Mitchell Baker is a counsel with Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office.

Laura represents government contractors in litigation and administrative matters, including contract disputes with state and federal entities, suspension and debarment proceedings, mandatory disclosures…

Laura J. Mitchell Baker is a counsel with Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office.

Laura represents government contractors in litigation and administrative matters, including contract disputes with state and federal entities, suspension and debarment proceedings, mandatory disclosures to the government, prime-sub disputes, and False Claims Act investigations. Her practice also includes counseling on federal, state, and local government contracts, government contracts due diligence, and regulatory and compliance matters, as well as conducting internal investigations.

Photo of M.Yuan Zhou M.Yuan Zhou

M. Yuan Zhou is a counsel in the Washington, D.C. office of Crowell & Moring, where she is a member of the firm’s Government Contracts Group.

Yuan’s practice includes a wide range of investigatory, counseling, and transactional capabilities, including: internal investigations related to…

M. Yuan Zhou is a counsel in the Washington, D.C. office of Crowell & Moring, where she is a member of the firm’s Government Contracts Group.

Yuan’s practice includes a wide range of investigatory, counseling, and transactional capabilities, including: internal investigations related to the False Claims Act, the Procurement Integrity Act, and other civil and criminal matters; compliance reviews and enhancing contractor compliance programs; representing clients in suspension and debarment proceedings; counseling on data rights issues, challenges, and disputes; mandatory disclosures; and providing government contracts due diligence in transactional matters. As part of the firm’s State and Local Practice, Yuan also counsels clients on state and local procurement issues, ranging from bid protests to contract negotiations with state agencies, and advises prime contractors and subcontractors on a variety of issues including prime/sub contract formation, disputes, and other government contracts issues.