Industry Holds Its Breath on Impact of Trump Diversity Training Order

 In U.S. Air Force, Industry, Acquisition, & Innovation, Defense

The DoD Reporter’s Notebook is a weekly sum­ma­ry of per­son­nel, acqui­si­tion, tech­nol­o­gy and man­age­ment sto­ries that may have fallen below your radar during the past week, but are nonethe­less impor­tant. It’s com­piled and pub­lished each Monday by Federal News Network DoD reporters Jared Serbu and Scott Maucione.

How will Trump administration’s new restrictions on diversity and inclusion training affect contractors? Unsure

The executive order President Donald Trump signed last week to ban cer­tain types of diver­si­ty train­ing car­ries enor­mous poten­tial penal­ties for fed­er­al con­trac­tors. But at least for the time being, the vendor com­mu­ni­ty appears to be hold­ing its breath while it fig­ures out exact­ly what the EO means.

Starting Nov. 21, with few excep­tions, every fed­er­al con­tract will include a clause that bars com­pa­nies from con­duct­ing train­ing that runs afoul of a list of cri­te­ria the White House objects to (see below for the list). Companies who are deemed to have vio­lat­ed the restric­tions also face can­cel­la­tion of all their exist­ing con­tracts, plus sus­pen­sion or debar­ment from future awards. Similar restric­tions apply to fed­er­al grantees.

Firms who do busi­ness with the gov­ern­ment will also have to impose the same train­ing restric­tions on their sub­con­trac­tors, and the rules apply whether a com­pa­ny has thou­sands of gov­ern­ment con­tracts or it’s fill­ing a single order. To spot vio­la­tors, the EO also orders the Labor Department to set up a spe­cial hot­line to gather com­plaints and inves­ti­gate com­pa­nies with sus­pect train­ing pro­grams.

Three large indus­try asso­ci­a­tions Federal News Network con­tact­ed for this story declined to com­ment or did not respond. The one excep­tion, so far, is the Information Technology Industry Council (ITI), which issued a strong denunciation of the order last week, mostly on policy grounds.

But even ITI says it’s impos­si­ble, for now, to know the extent to which the pro­hi­bi­tions laid out in the EO will have an impact on com­pa­nies’ train­ing pro­grams in the real world, con­sid­er­ing the way the order was draft­ed.

“And that’s part of the reason that we’ve raised con­cerns about this exec­u­tive order. It could be the case that hun­dreds of thou­sands of fed­er­al gov­ern­ment con­trac­tors will have to submit their train­ing and edu­ca­tion pro­grams to the fed­er­al gov­ern­ment for review,” Jason Oxman, ITI’s pres­i­dent and CEO said in an inter­view. “What we have here is an exec­u­tive order that impos­es — with­out any con­gres­sion­al input, with­out any input from agen­cies, with­out any rule­mak­ing process­es or pro­ce­dures — a brand new require­ment on all fed­er­al con­tracts that says you have to do a train­ing pro­gram in a par­tic­u­lar way. And if you do a train­ing pro­gram in a dif­fer­ent way, you’re going to lose your fed­er­al con­tracts. That’s unheard of.”

The order doesn’t offer any indi­ca­tion as to whether the Trump admin­is­tra­tion believes the “race and sex stereo­typ­ing” train­ing it objects to is wide­spread among gov­ern­ment con­trac­tors. It’s also not clear whether the White House has gath­ered any data on the sub­ject thus far; indeed, the EO includes a pro­vi­sion telling the Office of Management and Budget to send ven­dors a request for infor­ma­tion on their diver­si­ty and inclu­sion train­ing within the next 30 days.

Oxman said it’s too early to pre­dict whether indus­try groups will launch a lob­by­ing effort to block the new require­ments in Congress or chal­lenge them in court. But he said the order pre­sent­ed seri­ous legal and con­sti­tu­tion­al ques­tions.

In a note to clients on Friday, the law firm Venable also said the order could vio­late com­pa­nies’ First Amendment rights and create “ten­sion” with exist­ing fed­er­al laws that encour­age diverse work­forces among fed­er­al con­trac­tors.

“The EO is no doubt a reac­tion by the admin­is­tra­tion to quell per­ceived anx­i­eties over var­i­ous train­ing and communication/discussion pro­grams imple­ment­ed by many com­pa­nies and orga­ni­za­tions as a result of recent social and racial jus­tice con­cerns sweep­ing the coun­try,” attor­neys Dismas Locaria and Krista A. Nunez wrote. “The legal under­pin­nings of the EO raise seri­ous ques­tions and may be sub­ject to chal­lenge, but, as imple­ment­ed in its cur­rent form, it impos­es broad restric­tions with dire con­se­quences on how com­pa­nies and orga­ni­za­tions con­duct them­selves in rela­tion to these impor­tant issues, even with their own pri­vate fund­ing.”

But Larry Allen, the pres­i­dent of Allen Federal Business Partners, said he believes the over­all impact of the exec­u­tive order will be fairly minor.

“I think the exec­u­tive order points out that in the United States we have a slew of anti-dis­crim­i­na­tion rules — you’re not allowed to dis­crim­i­nate against somebody’s race or gender — and to the extent you have train­ing mate­ri­als that are incon­sis­tent with those pro­tec­tions, they’re going to have to be mod­i­fied,” he said. “But I don’t believe that’s a real sig­nif­i­cant number.”

Indeed, the order frames the train­ing the White House finds objec­tion­able in anti-dis­crim­i­na­tion lan­guage — alleg­ing that “many people” are advo­cat­ing a “per­ni­cious and false belief that America is an irre­deemably racist and sexist coun­try; that some people, simply on account of their race or sex, are oppres­sors.” It adds that no train­ing mate­ri­als should cause people to “feel dis­com­fort, guilt, anguish, or any other form of psy­cho­log­i­cal dis­tress on account of his or her race or sex.”

For con­trac­tors, it for­bids train­ing that “incul­cates” in their employ­ees the con­cepts that:

  • One race or sex is inher­ent­ly supe­ri­or to anoth­er race or sex
  • An indi­vid­ual, by virtue of his or her race or sex, is inher­ent­ly racist, sexist, or oppres­sive, whether con­scious­ly or uncon­scious­ly
  • An indi­vid­ual should be dis­crim­i­nat­ed against or receive adverse treat­ment solely or partly because of his or her race or sex
  • Members of one race or sex cannot and should not attempt to treat others with­out respect due to race or sex
  • An individual’s moral char­ac­ter is nec­es­sar­i­ly deter­mined by his or her race or sex
  • An indi­vid­ual, by virtue of his or her race or sex, bears respon­si­bil­i­ty for actions com­mit­ted in the past by other mem­bers of the same race or sex
  • Any indi­vid­ual should feel dis­com­fort, guilt, anguish, or any other form of psy­cho­log­i­cal dis­tress on account of his or her race or sex
  • Meritocracy or traits such as a hard work ethic are racist or sexist, or were cre­at­ed by a par­tic­u­lar race to oppress anoth­er race

And although the admin­is­tra­tion has not yet pro­vid­ed exam­ples of con­trac­tor train­ing pro­grams that it believes would vio­late those rules, they’re writ­ten broad­ly enough that they could be inter­pret­ed to apply to a wide vari­ety of exist­ing pro­grams in and out­side the gov­ern­ment, said Lynne Bernabei, an employ­ment dis­crim­i­na­tion and civil rights attor­ney with the firm Bernabei & Kabat.

“They’re for­bid­ding cer­tain kinds of train­ing that have been used to erad­i­cate dis­crim­i­na­tion in the fed­er­al gov­ern­ment, and that’s large­ly dis­crim­i­na­tion on the basis of race, eth­nic­i­ty and gender. What they’re saying here is that you can’t do that any­more,” she said. “You have to assume everybody’s equal, and we’re going to with­draw fed­er­al con­tracts or punish you if you try train people on how not to dis­crim­i­nate. Basically they’re saying the assump­tion is nobody ever dis­crim­i­nates, and if you have any train­ing that tries to teach people that there are ways, overt and subtle, in which people dis­crim­i­nate … then you’re going to get your fed­er­al funds or your grants or job taken away.”

Allen’s inter­pre­ta­tion was much nar­row­er.

“This is prob­a­bly going to affect only a hand­ful of com­pa­nies, but now that they know what the rules are, I think they’re going to have an oppor­tu­ni­ty to amend their train­ing,” he said. “It doesn’t say you can’t teach diver­si­ty train­ing — you can still do that. I’m sure most com­pa­nies will do some due dili­gence and review their train­ing mate­ri­als and their slides, but I’m not sure this going to cause a wave of updates of things. I think it’s going to be at the mar­gins.”

But whether the impact is mar­gin­al or impli­cates hun­dreds of thou­sands of firms, as Oxman fears, the ways in which the order attempts to reg­u­late pri­vate busi­ness­es by exec­u­tive fiat is a major cause for con­cern in and of itself, he said.

“We have an exec­u­tive order that essen­tial­ly says you prob­a­bly shouldn’t do any train­ing that address­es racial dis­par­i­ties and a his­to­ry of oppres­sion of minori­ties in the United States. We don’t want you to do that train­ing, and if you do, we will sus­pend or debar you in 60 days. And the ques­tion is, is that some­thing as a matter of policy and process that should be done in an exec­u­tive order? Our answer is defin­i­tive­ly no,” Oxman said. “That’s not to say that gov­ern­ment can’t coerce behav­ior by com­pa­nies through the con­tract­ing process. It can. But that’s not some­thing that’s ever done by exec­u­tive order, it’s not some­thing the law would allow to be done by exec­u­tive order, and why we’re rais­ing some con­cerns here.” —JS


Schism brewing in Congress over CMO position

Thirteen sen­a­tors and rep­re­sen­ta­tives are call­ing on the Congressional armed ser­vices com­mit­tees to recon­sid­er getting rid of the Defense Department’s third high­est posi­tion.

In a letter signed by Sens. Joe Manchin (D‑W.V.), Elizabeth Warren (D‑Mass.) and Joni Ernst (R‑Iowa), the leg­is­la­tors make the case that the Pentagon’s chief man­age­ment offi­cer posi­tion deserves a second shot.

“Alarmingly, both the House-and Senate-passed 2021 defense autho­riza­tion bills would abrupt­ly ter­mi­nate the CMO posi­tion and trans­fer those respon­si­bil­i­ties back to the deputy sec­re­tary of defense. We already tried that in 2007. It did not work,” the law­mak­ers wrote. “The fun­da­men­tal prob­lem plagu­ing the CMO posi­tion is a lack of author­i­ty and resources. Rather than fur­ther erod­ing the lim­it­ed author­i­ty that cur­rent­ly exists, we should come togeth­er to demon­strate the broad, bipar­ti­san sup­port that exists for this impor­tant posi­tion.”

The sen­a­tors noted the cur­rent CMO, Lisa Hershman, has only been in the job since last December and that a Government Accountability Office report sug­gest­ed a tenure of five to seven years.

The CMO is tasked with saving the depart­ment money and help­ing stream­line prac­tices to help DoD run better.

“Let us at least give Ms. Hershman a fight­ing chance, and come togeth­er to adopt the changes needed to make this posi­tion work. The U.S. tax­pay­ers that we rep­re­sent deserve that,” they wrote.

Congress start­ed con­sid­er­ing get­ting rid of the CMO posi­tion back in May when a Defense Business Board report found the CMO didn’t deliv­er on its mis­sion of busi­ness trans­for­ma­tion, not because of the fail­ings of any of its lead­ers but because it lacked the author­i­ty to drive change.

The board offered a few other alter­na­tives to the CMO, which the NDAA seems to sup­port. — SM


After e‑planes, are e‑satellites next?

The Air Force is starting to design its future air­craft with dig­i­tal engi­neer­ing, a process that uses dig­i­tal models instead of pro­to­types to save money. But what about satel­lites?

The Air Force and Space Force are heav­i­ly invest­ed in tech­nol­o­gy orbit­ing the Earth. Air Force acqui­si­tion chief Will Roper said the ser­vice is embark­ing on two clas­si­fied pro­grams that may be the first dig­i­tal­ly designed satel­lites.

However, they won’t follow the same tra­jec­to­ry as air­craft.

“It’s going to take a little longer than where we are with avi­a­tion, because it’s just at the begin­ning,” Roper told reporters last week. “What I encoun­tered with dig­i­tal engi­neer­ing is a lot of people saying ‘We’re already doing it.’ But, using a com­put­er to design some­thing and equat­ing it to dig­i­tal engi­neer­ing and the magic I’ve seen from it would be like pre­sum­ing that all sculp­tures that are made with ham­mers and chis­els would all turn out to be Michelangelos.”

Roper said there are a number of bar­ri­ers keep­ing e‑satellites from get­ting in the air as fast as e‑planes.

“The supply base isn’t there,” Roper said. When you go to dig­i­tal engi­neer­ing, I have won­der­ful models that inte­grate design and assem­bly, and even oper­a­tions. If my supply base doesn’t build parts that align with those models, espe­cial­ly their tol­er­ances, then I actu­al­ly don’t have a dig­i­tal thread, because I cut it at the begin­ning. Step one is pro­grams build­ing up their dig­i­tal thread and then work­ing with ven­dors to tight­en up their supply base to meet those tol­er­ances.”

Roper said that process will take a couple of years.

From there, the Air Force and Space Force need to change the way they look at design. Roper said the point of a dig­i­tal thread moving through the process is to fun­da­men­tal­ly change how satel­lites are built and how they oper­ate.

Roper is asking his e‑satellite pro­grams to cut out dif­fi­cult and expen­sive process­es.

“Let’s get rid of the high tol­er­ance clean­rooms the expen­sive tool­ing, the highly expe­ri­enced work­force, the rig­ging and har­ness­ing the things that makes satel­lites expen­sive,” Roper said. “Let’s see if we can design them out and get some­thing that’s more like a Toyota SAP.”

Toyota SAP is the data plat­form the car com­pa­ny uses to share infor­ma­tion and ana­lyze data. — SM


Air Force’s AFWERX gets bumped to major leagues

The Air Force’s inno­va­tion hub, AFWERX, is get­ting a pro­mo­tion and will be report­ing direct­ly to the service’s lead­er­ship at the Pentagon, much like a pro­gram exec­u­tive office.

“Given the daunt­ing chal­lenges we face against peer com­peti­tors, the oper­a­tive ques­tion is: ‘What are we doing to tip the scales?’” Air Force acqui­si­tion chief Will Roper wrote a Sept. 1 memo. “One answer is relaunch­ing AFWERX with expand­ed author­i­ty. “With so much of the bat­tle­field — over 80% — in com­mer­cial mar­kets having a front­line orga­ni­za­tion bridge back to our PEOs, research labs and major com­mands can lower our fence line, mul­ti­ply our part­ner­ships and pro­vide a plain-speak­ing menu for defense work where the first course isn’t acronym soup.”

The memo breaks AFWERX into three dif­fer­ent branch­es: AFVentures, Spark and Prime.

AFVentures will focus on court­ing com­mer­cial mar­kets to solve mil­i­tary prob­lems by part­ner­ing with star­tups and increas­ing the service’s aware­ness of tech­nolo­gies in the pri­vate sector.

“The fact that the AFVEntures process con­nects to the big ‘A’ acqui­si­tion system is what’s making pri­vate investors con­tin­ue to raise their hands and want to deter­mine how they bring more com­pa­nies through it,” Roper told reporters last week. “I do more engage­ments with ven­ture cap­i­tal­ists and pri­vate investors than any other group. I cannot fill my cal­en­dar up enough with it because they all want to under­stand how they tap this emerg­ing market for them that a market that’s been here a long time that has a very dif­fer­ent rule­set.”

The Spark branch is focused on empow­er­ing inno­va­tion at the oper­a­tional edge.

“Spark con­nects amaz­ing airmen and space pro­fes­sion­als to com­mer­cial inno­va­tors using vir­tu­al col­lab­o­ra­tion, immer­sive train­ing and net­work­ing oppor­tu­ni­ties that inspire ideas and cul­ti­vate cre­ative forces,” the memo states. “By con­nect­ing oper­a­tors closer to acqui­si­tion, Spark pro­vides both a voice and con­duit to turn pow­er­ful ideas into pow­er­ful oper­a­tional real­i­ties.”

The branch will also con­tin­ue to run AFWERX’s Spark Cells, Tanks and Challenges, which chal­lenge airmen to inno­va­tion and offer prizes.

The Prime branch will lever­age other unique gov­ern­ment resources by work­ing with other agen­cies, pro­grams and emerg­ing mar­kets. The Air Force’s Agility Prime program, which is trying to devel­op flying cars, falls under this branch.

Roper said Prime will have anoth­er project by the end of the year.

In the memo, Roper also left room for more branch­es as AFWERX grows. — SM


DoD wants new joint requirements for data

The Defense Department is plan­ning on pub­lish­ing new joint require­ments for data next year that will allow the Pentagon to manage it from a top capa­bil­i­ties and attrib­ut­es level.

Vice Chairman of the Joint Chiefs of Staff Gen. John Hyten said DoD wants to change the way it man­ages data so that by 2030 the loads of infor­ma­tion the Pentagon col­lects will be easily digestible.

The require­ments will come from the Joint Requirements Oversight Council and be pushed down to the ser­vices.

“They’re not going to be the tra­di­tion­al require­ments and capa­bil­i­ty descrip­tion doc­u­ments and capa­bil­i­ty pro­duc­tion doc­u­ments that you’ve looked at for years,” Hyten said. “They’re going to be capa­bil­i­ty attrib­ut­es that pro­grams have to have. If you don’t meet those, you don’t meet the job require­ments, and there­fore you don’t get through the gate and you don’t get money.”

The require­ments will not just be for data, they will also reach to soft­ware, con­test­ed logis­tics, all domain com­mand and con­trol and joint fires.

Hyten said this is dif­fer­ent from how JROC acts now.

“The way that process has worked is a ser­vice devel­ops a capa­bil­i­ty, it comes up through the var­i­ous coor­di­na­tion boards, even­tu­al­ly get­ting to the JROC,” he said. “We val­i­date a ser­vice con­cept and make sure it meets the joint inter­op­er­abil­i­ty require­ments.”

Hyten said the hard­est part of cre­at­ing the top down approach will be word­ing the require­ments to ensure they hold up and achieve the goals DoD is work­ing on for the next 10 years. — SM

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