OutSolve has invited John C. Fox, Esq. as a guest blogger providing legal insights on EEO and compliance issues. The views expressed in his posts are his and do not reflect the viewpoint of OutSolve or its employees.
- No one knows when the Federal Acquisition Counsel will publish the coming two new certifications it is planning to require federal government contractors to make when submitting federal contract bids. Pending litigation in one court is momentarily delaying their implementation, as noted below.
- Quick Background: These certification requirements sprang up in President Trump’s January 20, 2025, Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) and January 21, 2025, Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity). See my March 24, 2025, Previous blog HERE describing the two pre-contract certifications and their status at that time.
That blog reported a major Trump (interim) injunction a potentially quizzical 3-Judge panel of the Fourth Circuit Court of Appeals (Richmond) issued in his favor. The injunction greenlighted President Trump’s use of the two certifications pending a later full review of the competing claims of the parties on the merits. Significantly, however, the three Judges found, in support of their interim Order, that the President’s legal arguments enjoyed a high likelihood to prevail on the merits upon the later full review of the case. And, of course, it would be these same three Judges who would make that final decision on the merits.
So, things were looking up for the President to require federal contractors to certify that they had no unlawfully discriminatory policies or practices when they bid federal contracts.
- Since then, however, Judge Matthew Kennelly of the United States District Court for the Northern District of Illinois also weighed in on the certifications, among other things, in an unrelated lawsuit the Chicago Women in Trades (CWIT) brought to stop both of President Trump’s above-referenced Executive Orders.
On March 27, 2025, Judge Kennelly issued a Temporary Restraining Order prohibiting USDOL from enforcing certain provisions of both Executive Orders 14151 and 14173, including the two federal contract bid certifications. The case is Chicago Women in Trades (CWIT) v. Trump, et al No. 1:2025-cv-02005 (N.D. Ill. 2025).
On April 14, 2025, Judge Kennelly then issued a Preliminary Injunction stopping the use of both Trump federal contract bid Certifications, among other things, as they applied (ONLY) to CWIT until a full trial on the merits of CWIT’s claims. Significantly, Judge Kennelly’s Order operates only on behalf the Plaintiff CWIT and is not a nationwide injunction stopping the two Trump Executive Orders. The parties in this case now await a full trial on the merits of the CWIT’s claims. Judge Kennelly has not yet set a trial date.
CONCLUSION
The momentary pause in the federal government’s imposition of the two federal contract bid non-discrimination certifications continues to help federal contractors and grantees properly prepare to certify and do so with confidence and without fear of a False Claims Act lawsuit.
Use this momentary respite wisely. See below.
Contractor Lifelines from John C. Fox
Part 1: Actions Federal Contractors and Grantees Should Take Now to Certify Their Federal Contracts & Grants
Part 2: Actions Federal Contractors and Grantees Should Take Now to Certify Their Federal Contracts & Grants