President Biden's First Day Brings Changes for Contractors Through New Executive Actions
Whenever a new president takes office, particularly when there is a switch in party control of the executive branch, change comes soon after. The first day of the Biden Administration was no exception, with a flurry of new executive actions that will impact contractors in the years to come. Below is a summary of President Joe Biden's executive actions that impact contractors from the new administration's first day.
President Biden issued an Executive Order (EO) on Revocation of Certain Executive Orders Concerning Federal Regulation that, among other things, rescinded two Trump administration EOs. The first rescinded EO 13771, which had required the repeal of two regulations for every new regulation. The second rescinded EO 13777, which required each agency to appoint a Regulatory Reform Officer who was designated to oversee regulatory reform and a Regulatory Reform Task Force to evaluate existing regulations.
Beside EO 13771 and 13777, this EO also rescinded EOs 13891 and 13892. These twin EOs required that guidance documents go through a more rigorous approval process and prohibited the federal government from utilizing guidance documents as a basis for civil enforcement actions, respectively.
In addition, like other previous presidents, President Biden issued a regulatory freeze through Chief of Staff Ronald Klain for regulations that have not yet been published through the Federal Register. Most significantly, this memorandum freezes all pending rules until reviewed and approved by an agency or department head appointed by President Biden and applies to 1) final rules not yet published in the Federal Register, 2) rules published in the Federal Register that have not yet taken effect and 3) any pending or new proposed rules.
Present Biden also issued a memorandum requiring the director of Office of Management and Budget (OMB), Neera Tanden, to produce recommendations aimed at modernizing the regulatory review process.
Social Justice Initiatives
President Biden issued an EO on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government aimed at advancing racial equity and underserved communities through the federal government. As part of this EO, President Biden repealed EO 13950, which had prohibited certain types of diversity and inclusion training. In addition, Sec. 10(b) states: "The head of each agency shall, within 60 days of the date of this order, consider suspending, revising, or rescinding any proposed and existing agency actions related to or arising from Executive Order 13958, including all agency actions to terminate or restrict contracts or grants pursuant to Executive Order 13950, as appropriate and consistent with applicable law." The EO was already stayed by a federal court in response to a lawsuit and not being enforced.
Further, the EO requires that, within one year, each agency must produce a plan for addressing barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities.
President Biden also issued an EO on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation that will require agencies to review existing regulations to ensure they prohibit sex discrimination and other sex-based stereotypes described in the EO.
As part of a broader initiative to fight the COVID-19 pandemic, President Biden issued an EO on Protecting the Federal Workforce and Requiring Mask-Wearing that requires on-site federal contractor employees, as well as government employees and all others who enter federal property and buildings, to wear masks, social distance and adhere to other public health safety measures. The EO also requires the issuance of guidance that conforms with this requirement.
President Biden also issued a new EO on Ethic Commitments by Executive Branch Personnel that requires executive branch political appointees to abide by certain requirements. The ethics pledge prohibits gifts from lobbyists and restricts "revolving doors" and "golden parachutes." In one of his last acts as president, former President Donald Trump rescinded his January 2017 ethics pledge that had placed restrictions on the lobbying activities of certain former government employees.
While the first day brought about a number of changes, other significant changes are expected in the weeks ahead. Holland & Knight will continue to monitor additional changes and post updates when appropriate.