FAR 52.222-90 Anti-Discrimination Certification: Which Promise Applied When

A contractor anti-discrimination certification connects employment promises to federal payments. If you work in contracts, HR, compliance or procurement, you may know both what the company promised and how its hiring or promotion decisions actually worked. The award, the clause version and the signed modifications connect those decisions to the government’s money.

This page follows contractor equal-opportunity clauses through the changes that determine which promise applied when. Our broader coverage of false procurement certifications explains how a false assurance can become a claim for payment. Here, the starting point for a possible government procurement fraud case is the promise in the particular contract.

Which Promise Applied Before the 2025 Revocation?

Before the revocation, Executive Order 11246 and the older Equal Opportunity clause required covered contractors to avoid prohibited employment discrimination and undertake affirmative action. The older clause’s employment promises reached hiring, promotion, compensation and selection for training. It also carried reporting, records-access and subcontract terms.

The historical placement-goals regulation required selections to remain nondiscriminatory and expressly forbade rigid quotas. For someone who worked with a demographic dashboard, the useful comparison is between the goal, the instructions managers received and the final personnel decisions. A recruiting target and an instruction to change a promotion because of race tell different stories about how the employer applied its promise.

What Changed in the Contractor’s Promise in 2025?

Executive Order 14173 revoked the older order on January 21, 2025 and allowed a 90-day transition under the previous regulatory scheme. It also directed agencies to include terms making compliance with applicable federal anti-discrimination laws material to payment, along with a certification concerning DEI programs that violate those laws.

The General Services Administration’s February 15, 2025 deviation instructed its contracting activities to stop enforcing the revoked framework’s provisions. It preserved existing civil-rights laws and separate disability and protected-veteran requirements. For a contracts employee, that makes the agency’s instructions and the award’s modification history essential companions to the clause text still displayed online.

What Does the New Contractor DEI Clause Require?

Executive Order 14398, issued March 26, 2026, directed a new contractor promise concerning race- or ethnicity-based unequal treatment connected to contract performance. The FAR Council’s model clause covers recruiting, employment, contracting, participation in programs and allocation of resources. Program participation includes access to training, mentoring, leadership development, educational opportunities, clubs and associations sponsored by the contractor or subcontractor.

For an insider, the comparison begins with who could enter the program, who made the decision and how it connected to work under the contract. The model connects those decisions to the contracting officer and federal payment through these promises:

• Equal treatment: the contractor agrees to refrain from the racially discriminatory DEI activities the clause defines.
• Records: the contractor agrees to provide information, reports and access to books, records and accounts required by the contracting officer to assess compliance.
• Contract consequences: noncompliance can lead to cancellation, termination or suspension of the contract, or ineligibility for future government contracts.
• Subcontractor conduct: the contractor agrees to report known or reasonably knowable subcontractor conduct that may violate the clause and take corrective action directed by the contracting officer.
• Subcontractor lawsuits: the contractor agrees to notify the contracting officer when a subcontractor’s suit puts the clause’s validity at issue.
• Payment: the contractor recognizes compliance as material to the government’s payment decisions under the False Claims Act.

The April guidance tied full enforcement of the records and reporting duties to Office of Management and Budget approval, while permitting requests for existing compliance records in individual investigations. If you handled one of those requests, we examine it with you against the contract, the agency’s instructions and the clearance applicable at the time.

Does the New Clause Automatically Cover an Old Contract?

No. The FAR Council directed agencies to get contractors to sign changes adding the clause to existing covered contracts. Its April 17, 2026 guidance told contracting officers to make every effort to obtain those changes by July 24, 2026. The signed modification and its effective date show what happened to a particular award.

For new solicitations and resulting contracts, the guidance called for use of the clause beginning April 24, 2026, and amendments to open solicitations. It covered awards above the micro-purchase threshold with delivery or performance in the United States, including commercial products and services.

For contracts expiring no later than December 31, 2026, the guidance left modification to the contracting officer’s discretion. The deadline alone does not tell you what the contractor signed.

How Does the Clause Reach Subcontractors?

The clause requires the contractor to include its substance in subcontracts at every tier with delivery or performance in the United States. Commercial products and services are included. A subcontract employee may see the promise in the subcontract while the prime’s contracts team holds the modification that introduced it upstream.

The separate subcontractor-conduct provision addresses conduct the contractor knows or reasonably should know may violate the clause. The relevant records include the flowdown language, communications about the conduct and any directions from the contracting officer. We connect those records to the entity making the promise and the government claims affected by it.

How Does an Employment Practice Become a False Government Claim?

An employment practice can become part of a False Claims Act case when a contractor knowingly misrepresents compliance with an applicable promise and that misrepresentation matters to government payment. The connection can run through the assurance used to obtain the award, a claim describing performance or costs charged to the government. When the allegation is that taxpayers funded discriminatory decisions, the harm reaches both the public purse and the employees or applicants denied an opportunity.

Federal contracting spreads those records across departments and sometimes across corporate entities. HR may operate the program, a contracts official may sign the assurance, and finance may allocate the cost to federal work. We follow that sequence from the particular decision to the statement made to the government and the payment it supported.

A whistleblower case under the False Claims Act can pay 15% to 30% of what the government recovers. Our whistleblower experts work with you to connect what you know inside the business to the contract and payment records that can support a case.

Whether the assurance mattered to payment turns on the contract and what the agency knew and did. We work through that question with you using the payment and agency-knowledge records, including renewal decisions and requests for corrective action.

Which Records Connect the Decision to the Contract?

The useful records identify the promise, the actual decision, who knew about the difference and where the government paid. Different employees can explain different parts of that connection through the work they already do.

The timing and context belong with the document. We examine the final selections alongside the promotion list, the population behind a dashboard and the actual program rules alongside the version circulated publicly. Your firsthand account helps explain what the records meant inside the business.

Contractor Settlements Show the Payment Connection

Accenture agreed to a $25 million settlement over the Justice Department’s allegations concerning its federal subsidiary’s hiring, promotion and development practices. In the settlement agreement, the Justice Department tied the subsidiary’s assurances to Title VII and the older Equal Opportunity clause. It alleged that the subsidiary allocated costs for those practices to federal contracts and sought reimbursement. That is a concrete connection between a personnel practice and the government’s bill.

IBM agreed to pay $17 million to resolve allegations involving compensation linked to demographic goals, hiring and promotion practices, and restricted development opportunities. In IBM’s settlement agreement, the Justice Department also alleged that related costs were charged to federal contracts. We see the same contradiction in both agreements: the assurance promised compliance, and the bill allegedly charged for the opposite.

Deloitte’s $21.5 million federal settlement resolved a whistleblower case brought by an organization. The whistleblower’s complaint described information from a former senior employee and alleged that demographic tracking, promotion spreadsheets and possible compensation consequences for leaders shaped personnel decisions. An insider could explain how the written policy became a decision about an actual candidate.

Grants Carry Their Own Assurances

A university, local government or healthcare organization’s grant conditions come from the assistance program and award. In the Westchester housing matter, the government alleged false fair-housing assurances used to obtain Department of Housing and Urban Development funds while the county allegedly failed to examine and address racial segregation and impediments to fair housing. The funding promise was specific to that grant program.

The proposed System for Award Management financial-assistance certification changes belong to that separate grant inquiry. For someone handling both contracts and grants, we examine each award’s assurance, the funded activity and the representation that accompanied the request for money.

When You Know What the Company Promised

If you know which assurance the company signed and how its decisions contradicted it, speak to one of our Whistleblower Experts about what the company certified and what it did. We build your strongest case with you from the contract history, internal decisions and payment evidence, bringing in whistleblower lawyers who know contractor certification cases. From the first conversation about reporting government procurement fraud through the case, we stay on your side of the table.