NAMC Call to Action 06/14/26 | NAMC Coalition Challenges EO 14398

By Editorial Team | August 5, 2026

June 14, 2026

NAMC Call to Action

NAMC Coalition Challenges EO 14398

AG Aaron Ford of Nevada and 20 Attorneys General Also Challenge APA Act Implementation

Maryland Attorney General Anthony Brown and Illinois Attorney General Kwame Raoul are co-leading a coalition of attorneys general from 20 states, including California, Colorado, Connecticut, the District of Columbia, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

The coalition has filed a lawsuit challenging the implementation of Executive Order 14398 and raising concerns regarding Administrative Procedure Act (APA) compliance, including whether required review procedures were followed before implementation and how contractors should respond to FAR 52.222-90.

This requirement applies broadly to all government contractors, including subcontractors and providers of commercial products and services—in fact, any company holding a contract with a place of delivery or performance within the United States. While specific actions will vary based on the type and size of the contractor, and consultation with legal counsel is strongly encouraged, the following considerations and potential actions should be evaluated now.
First, contractors should assess their current activities and consider engaging legal counsel to conduct a privileged review. The Executive Order may affect many longstanding corporate initiatives that promote diversity. The explicit inclusion of recruitment activities is particularly significant because it aligns with Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) enforcement positions that diverse-slate requirements may constitute unlawful discrimination. This review should encompass any program, policy, or practice in which race or ethnicity plays a role—from recruiting and hiring to mentoring, employee resource groups, supplier diversity initiatives, and resource allocation decisions. It should also include practices not formally labeled as “DEI,” such as performance metrics and supplier diversity targets.

Second, contractors should consider whether they are willing or able to accept the clause in new solicitations and existing contracts, or whether they wish to pursue a legal challenge to the Executive Order and its implementation based on arguments already raised in the Maryland litigation. These challenges include constitutional claims, substantive APA claims, and procedural claims, such as the alleged failure to follow required notice-and-comment rulemaking procedures.

Third, contractors that choose to accept the clause should take steps to achieve compliance and mitigate risk. This begins with evaluating and, where necessary, modifying DEI-related activities to comply with the restrictions imposed under Executive Order 14398. Contractors should also maintain documentation demonstrating that any remaining activities are lawful. The Executive Order and implementing clause further make prime contractors responsible for ensuring subcontractor compliance. As a result, contractors will need to flow down these requirements and determine the appropriate level of representations, certifications, and oversight necessary to satisfy their obligations.

Fourth, contractors should update internal guidance and training across relevant functions to ensure that eligibility for programs, opportunities, and advancement does not involve disparate treatment based on race or ethnicity.

Taking these steps now will help contractors prepare for the implementation of Executive Order 14398 before receiving a solicitation, contract award, or contract modification incorporating FAR 52.222-90.

Please contact the NAMC national office with questions or comments.

Respectfully,
Wendell R. Stemley, CMAA NAMC National President

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