Legal Alert

President Biden Prioritizes Racial Equity Interests in Federal Procurement

by Brian D. Pedrow, Dee Spagnuolo, Diana M. Joskowicz, and Elliot I. Griffin
January 21, 2021

Summary

The Executive Order signals the arrival of the anticipated Biden-Harris administration’s policy shift to focus on racial equity in management, training, and education. By prioritizing the Executive Order (signing it within the first few hours of his inauguration), President Biden emphasized his commitment to diversity, equity, and inclusion in federal procurement, as well as the telescopic lens federal agencies will be under while their internal policies are evaluated for discriminatory effect.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise and represent public and private employers on anti-discrimination and compliance issues, including keeping clients informed of pending and current legislation and legal trends. The Diversity, Equity, and Inclusion Counseling Team also advises employers in a range of industries on the development, enhancement, and implementation of their DE&I programs. 

The Upshot

  • Specifically, Sections 10(a) and (c) of the Executive Order repealed EO 13950 and EO 13958, respectively, and Section 10(b) directed: “The heads of agencies covered by Executive Order 13950 shall review and identify proposed and existing agency actions related to or arising from Executive Order 13950. The head of each agency shall, within 60 days of the date of this order, 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.”
  • President Biden outlined additional steps in the Executive Order intending to reinstate “[e]qual opportunity” as “the bedrock of American democracy” and highlighted his policy “that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

The Bottom Line

The Executive Order signals the arrival of the anticipated Biden-Harris administration’s policy shift to focus on racial equity in management, training, and education. By prioritizing the Executive Order (signing it within the first few hours of his inauguration), President Biden emphasized his commitment to diversity, equity, and inclusion in federal procurement, as well as the telescopic lens federal agencies will be under while their internal policies are evaluated for discriminatory effect.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise and represent public and private employers on anti-discrimination and compliance issues, including keeping clients informed of pending and current legislation and legal trends. The Diversity, Equity, and Inclusion Counseling Team also advises employers in a range of industries on the development, enhancement, and implementation of their DE&I programs. 

As one of his first official acts as the President of the United States, President Biden issued an Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (the Executive Order), which set in stone the social justice policies underpinning the Biden Administration and repealed two Executive Orders issued by former President Trump: 1) Executive Order 13950 on Combating Race and Sex Stereotyping (EO 13950) and 2) Executive Order 13958 on Establishing the President’s Advisory 1776 Commission (EO 13958). As we previously reported here and here, Trump issued EO 13950 in September 2020 in order to bar federal contractors and grant recipients from providing diversity and implicit bias training in various ways, which led to federal agencies—including the Office of Federal Contract Compliance Programs (OFCCP), part of the Department of Labor (DOL), and the Office of Management and Budget (OMB)—to quickly develop enforcement mechanisms and issue guidance to further the stated goals in EO 13950. The 1776 Commission established by EO 13958 purported to address patriotic education due to schools allegedly teaching children “to hate their own country, and to believe that the men and women who built it were not heroes, but rather villains . . .  Failing to identify, challenge, and correct this distorted perspective could fray and ultimately erase the bonds that knit our country and culture together.”

Specifically, Sections 10(a) and (c) of the Executive Order repealed EO 13950 and EO 13958, respectively, and Section 10(b) directed:

The heads of agencies covered by Executive Order 13950 shall review and identify proposed and existing agency actions related to or arising from Executive Order 13950.  The head of each agency shall, within 60 days of the date of this order, 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.

President Biden outlined additional steps in the Executive Order intending to reinstate “[e]qual opportunity” as “the bedrock of American democracy” and highlighted his policy “that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

To the end of promoting equity among underserved communities, the Executive Order looks to executive departments and agencies to “recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.” The Executive Order tasks the White House Domestic Policy Counsel (DPC) with spearheading an interagency process to “remove systemic barriers to and provide equal access to opportunities and benefits, identify communities the Federal Government has underserved, and develop policies designed to advance equity for those communities.” 

The Executive Order lays significant responsibility for promoting its objectives with the Director of OMB, who must work with agency heads to “study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals,” identify the best methods to assist agencies in assessing equity, consider recommending pilot programs for new tools, and provide President Biden with identified best practices within six months. Relatedly, within 200 days, Section 5 requires each agency to consult with the Director of OMB to select and review certain programs and policies for review to determine whether underserved communities face barriers in accessing the benefits provided by those programs and policies, including barriers to enrollment in access to the benefits, and to obtaining procurement and contracting opportunities. The Director of OMB also will be responsible for identifying opportunities in the President’s budget to “promote equity” and to allocate federal resources to investment in underserved communities.

Section 7 expands on the Executive Order’s eye towards equal opportunity procurement, and requires:

(a) Within 1 year of the date of this order, the head of each agency shall consult with the APDP and the Director of OMB to produce a plan for addressing: (i) any barriers to full and equal participation in programs identified pursuant to section 5(a) of this order; and (ii) any barriers to full and equal participation in agency procurement and contracting opportunities identified pursuant to section 5(b) of this order.

The Executive Order further mandates the Administrator of the U.S. Digital Service, the United States Chief Technology Officer, the Chief Information Officer of the United States, and the heads of other agencies to take “necessary actions, consistent with applicable law, to support agencies in developing” the plans identified in Section 7.  Agencies must also consult with members of the underserved communities in carrying out the objectives of the Executive Order.

And finally, the Executive Order establishes the Interagency Working Group on Equitable Data to “study and provide recommendations to the APDP identifying inadequacies in existing Federal data collection programs, policies, and infrastructure across agencies,” support agencies in implementing actions to further refine equity data available to the federal government, and receive administrative support from OMB.

The Executive Order signals the arrival of the anticipated Biden-Harris administration’s policy shift to focus on racial equity in management, training, and education. By prioritizing the Executive Order (signing it within the first few hours of his inauguration), President Biden emphasizes his commitment to diversity, equity, and inclusion in federal procurement, as well as the telescopic lens federal agencies will be under while their internal policies are evaluated for discriminatory effect.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise and represent public and private employers on anti-discrimination and compliance issues, including keeping clients informed of pending and current legislation and legal trends. The Diversity, Equity, and Inclusion Counseling Team also advises employers in a range of industries on the development, enhancement, and implementation of their DE&I programs.


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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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