On May 6, 2026, Office of Federal Procurement Policy (OFPP); Office of Management and Budget (OMB); Department of Defense (DOD); General Services Administration (GSA); and National Aeronautics and Space Administration (NASA) jointly published a notice and request for comments under the Paperwork Reduction Act of 1995 concerning a new information collection tied to implementation of EO 14398, Addressing DEI Discrimination by Federal Contractors. The information collection covers what contractors will be required to provide under that clause.

We previously discussed EO 14398 and its potential impacts on federal contractors. As noted before, EO defines “racially discriminatory DEI activities” as disparate treatment based on race or ethnicity in recruitment, employment (hiring, promotions), contracting (vendor agreements), program participation, or allocation of an entity’s resources. It then requires federal agencies, within 30 days, to include a new mandatory contract clause in all federal contracts and subcontracts. Under that clause, contractors must agree to the following:

• Not engage in any racially discriminatory DEI activities.
• Furnish information, reports, and access to books and records for agency compliance reviews.
• Accept that noncompliance may result in contract cancellation, termination, or suspension, and potential debarment.
• Report any subcontractor conduct that may violate the clause.
• Notify the contracting agency if a subcontractor sues the contractor and the suit challenges the validity of the clause.
• Acknowledge that compliance is material to the Government’s payment decisions under the False Claims Act, 31 U.S.C. § 3729(b)(4)

The proposed FAR clause implementing EO 14398, FAR 52.222-90, will require federal contractors to

• Furnish all information and reports, and provide access to books, records, and accounts, as required by the contracting officer for the purpose of ascertaining compliance with the clause.
• Report any subcontractor’s known or reasonably knowable conduct that may violate the clause to the contracting officer, and take any remedial actions directed by the contracting officer.
• Notify the contracting officer if a subcontractor sues the contractor in any manner that places the validity of the clause at issue.

Federal agencies will use the information to enforce the EO, including the remedies established in EO 14398 for noncompliance.

The May 6^th notice solicits comments from federal contractors on four specific questions:

1. whether the proposed collection is necessary for the proper performance of federal acquisition functions, including its practical utility;
2. the accuracy of the burden estimate;
3. ways to enhance the quality, utility, and clarity of the information collected; and
4. ways to minimize the burden on respondents, including through automation.

The notice also confirms that the FAR Council intends to issue a separate rulemaking providing the public an opportunity to comment on the substantive policy implementation of EO 14398 in the FAR, including the EO 12866 impact analysis.

In other words, this May 6th notice is the first of two open comment opportunities; those who wish to push back on substance, scope, or definitions of the new clause itself should have a second window when the FAR rulemaking is published. Some may nevertheless consider using this PRA window to raise concerns specifically directed at the recordkeeping, reporting, and subcontractor-monitoring burdens, since those will not be revisited in the same way under the substantive rulemaking.

Some potential issues that Native-owned contractors may consider when evaluating this request for comment or submitting comments on the proposed recordkeeping obligations:

• The broad and undefined scope of what “all information and reports, and provide access to books, records, and accounts.”
• The ambiguity of “reasonably knowable” subcontractor conduct and the need for FAR Council guidance on what diligence is required and what safe harbors apply.
• The interaction between the new clause and existing Native employment preferences, statutory and regulatory frameworks (shareholder-hire preference under 43 U.S.C. § 1626(g), Tribal employment rights ordinances), each of which is rooted in federal Indian law, is legal and is not “DEI.”
• The undercount of total annual hours, particularly considering the litigation-notification obligation and the inevitable review time associated with each notification.
• Practical alternatives that would reduce burden, such as notification forms, an annual compliance certification model in lieu of event-driven reporting, and clear limits or thresholds for contracting officer information requests.

The deadline for submitting comments is July 6, 2026. Comments may be submitted at https://www.regulations.gov. All submissions should cite OMB Control No. 9000-XXXX, Addressing DEI Discrimination by Federal Contractors.

This article summarizes aspects of the law and contains opinions that are solely those of the authors. This article does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.