Federal Grantees Get Preview of Draft ‘Illegal DEI’ Statement and Other New Certifications

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On February 18, 2026, the U.S. General Services Administration (GSA) released a draft revised Supporting Statement providing the text of this proposed certification, which would be added to the registration process for the System for Award Management (SAM.gov), the federal database where entities must register to receive federal funding.

The certification requirement implements Executive Order (EO) No. 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and the U.S. attorney general’s July 2025 memorandum, “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” (AG Memo). While this proposal targets financial assistance recipients, a similar certification for federal contractors is expected in the near future. Public comments are due by March 30, 2026.

Quick Hits

• Organizations receiving federal financial assistance will likely be required to certify that their DEI-related programs do not violate federal antidiscrimination laws.
• The certification carries significant liability exposure, including False Claims Act liability for organizations and potential criminal liability under 18 U.S.C. § 1001 for authorized officials who sign.
• Public comments are due by March 30, 2026; federal contractors may also wish to monitor this proposal, given that a parallel certification requirement is expected.

Context

The draft statement provides a redline (see page 8) of the draft Financial Assistance General Certifications and Representations to be accepted by entities registering on the System for Award Management (SAM.gov) to receive federal financial assistance. The draft statement explains that the revisions to the Financial Assistance General Certifications and Representations are intended to align with updated executive branch guidance, including the AG Memo, and with EO 14173.

This alignment has practical implications, as agencies across the federal government would rely on a single set of baseline certifications in SAM.gov for assistance recipients, potentially reducing fragmentation in agency-specific terms. As we have noted previously, federal contractors are subjected to varying EO 14173 certifications. In addition, the draft statement also reaches beyond the antidiscrimination landscape—though that remains the most prominent piece.

The New DEI Certification

A central feature of the draft statement is the DEI-related certification. The text affirms that federal antidiscrimination laws apply to programs or initiatives that involve discriminatory practices, including those labeled as “diversity, equity, and inclusion” (DEI) or “diversity, equity, inclusion, and accessibility” (DEIA), and specifically references prohibitions on discrimination based on race or color. Notably, there is no reference to sex, age, disability, veteran status, or various other categories protected from discrimination.

The draft offers examples of practices that may violate federal antidiscrimination laws, including:

• preferential treatment based on race or color, such as race-based scholarships or preferential hiring or promotion practices;
• segregation by race or color in trainings, facilities, or program eligibility;
• the use of race or color as criteria, such as in “diverse slate” hiring policies, race-based contract selection, or allocation of program resources;
• training programs that stereotype, exclude, or single out individuals based on protected characteristics or that create a hostile environment; and
• retaliation against employees, participants, or beneficiaries who raise concerns or refuse to participate in programs they reasonably believe are discriminatory.

The examples do not import the AG Memo’s articulated focus on unlawful proxy discrimination. Yet, the examples do warn against “implicit segregation through program eligibility” and “resources based on race or ethnicity, including through the use of ‘cultural competence’ requirements, ‘overcoming obstacles’ narratives, or ‘diversity statements.’”

While the AG Memo acknowledges that not all initiatives characterized as “DEI” are unlawful, the inclusion of these examples at the certification level signals heightened federal scrutiny of practices that differentiate or allocate opportunities based on protected characteristics. Indeed, by embedding these examples within the SAM.gov certification itself, GSA would seemingly elevate what has been advisory guidance and enforcement criteria into a uniform, up-front grantee attestation.

However, the draft language may create confusion by focusing exclusively on race—rather than any other protected characteristics such as sex—and, even then, referring variously to “race or color,” “race-based,” and “race or ethnicity.”

Additional Certifications Beyond DEI

Beyond DEI, the draft adds certifications that recipients:

• “[w]ill not knowingly bring or attempt to bring to the United States, transport, conceal, harbor, shield, hire, or recruit for a fee an illegal alien, and will not induce an alien to enter or reside in the United States with reckless disregard [of unlawful status]”; and
• “[w]ill not fund, subsidize, or facilitate violence, terrorism, or other illegal activities that threaten public safety or national security.”

The draft also consolidates compliance attestations to a non-exhaustive list of federal statutes and regulations applicable to financial assistance, including the Trafficking Victims Protection Act of 2000; drug-free workplace requirements for federal grant recipients; whistleblower protections at 41 U.S.C. § 4712; the National Environmental Policy Act of 1969; 2 C.F.R. parts 25, 170, and 180; various false claims and false statement provisions; the Administrative False Claims Act of 2023; and key civil rights laws such as Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.

Important Framing Elements and Liability Exposure

The draft contains two notable framing elements. First, it states that to the extent any certification is the subject of an active court order or injunction that is legally binding on the recipient and the relevant awarding agency, and that prohibits enforcement of such requirements, the affected certification will be deemed inapplicable to that recipient while all other certifications remain in force.

Second, and critically for compliance officers and executives, the draft closes with an acknowledgement that the authorized official may face criminal liability under 18 U.S.C. § 1001 and civil liability under the False Claims Act for misrepresentations to the government. This creates significant personal exposure for individuals responsible for signing these certifications on behalf of their organizations.

Public Comments

To date, all comments have focused on the EO 14173 and DEI aspects of the proposed certification. In particular, comments are focused on the implications for grantees, particularly for healthcare-focused fields, including health, behavioral health, substance use, reentry, and social service programs, where grants and research often target particular populations and have defined performance outcomes.

Next Steps

Federal grantees may want to offer comments by the March 30, 2026, deadline. Further, they may want to conduct privileged EO 14173 reviews, policy audits, and privileged bias assessments to ensure a good-faith basis for certifying. All federal contractors will want to carefully monitor this proposal, as the proposed Federal Acquisition Regulation–related clauses may use similar language.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, and Workforce Analytics and Compliance practice groups will continue to monitor developments and provide updates on the Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, and Workforce Analytics and Compliance blogs as additional information becomes available.

For more on this topic, please join us for our upcoming webinar, “FAR Overhaul: Tips to Survive the Biggest Procurement Shake-Up in 40 Years,” which will take place on Tuesday, March 3, 2026, from 2:00 to 3:00 p.m. EST. The speakers, Joseph E. Ashman and T. Scott Kelly, will provide important information for employers doing business with the federal government. Register here.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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