“VERIFY BEFORE YOU CERTIFY” — 3-MINUTE BRIEF, PART 2 OF 4
Part 1 covered what changed. This brief: the three layers contractors certify today.
Recap: Executive Orders 14173 and 14398 replaced the old EO 11246 affirmative-action framework with a certification-based model, enforceable through the False Claims Act. Here’s how that model actually works, layer by layer.
Layer 1 – SAM.gov Representations & Certifications
Every contractor doing business with the federal government must be registered in the System for Award Management (SAM.gov), which requires completing standard Representations and Certifications. This is the baseline, made at registration and renewed periodically, confirming the contractor’s eligibility to hold federal contracts, including nondiscrimination-related representations.
Layer 2 – The EO 14173 Certification (Material to Payment, Enforceable via FCA)
EO 14173 directs agencies to include two terms in every covered contract or grant award:
- A materiality term – The contractor agrees that its compliance in all respects with applicable federal anti-discrimination laws is material to the government’s decision to pay under the contract, which is what makes a false certification enforceable under the False Claims Act.
- A certification term –The contractor certifies that it does not operate any programs promoting DEI that violate applicable federal anti-discrimination laws.
This is the certification language directly at issue in the IBM and Deloitte settlements.
Layer 3 – FAR 52.222-90, Addressing DEI Discrimination by Federal Contractors
FAR 52.222-90 Addressing DEI Discrimination by Federal Contractors (implementing EO 14398)
This newer, more specific clause is being incorporated into covered contracts and must flow down through subcontracts at any tier. Under this clause, “the contractor agrees to not engage in racially discriminatory DEI activities, furnish records to verify compliance, and report known subcontractor violations. Noncompliance can lead to contract suspension, cancellation, or debarment.”
Next: Part 3 — What This Means in Practice, A Compliance Checklist
This brief reflects publicly available regulatory information as of August 2026 and is provided for informational purposes only. Executive Orders 14173 and 14398 remain subject to ongoing litigation and rulemaking, and requirements may change. This does not constitute legal advice. Contractors should consult qualified counsel regarding their specific certification obligations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
