Sneak Preview: Many Groups Condemn GSA’s Certification Proposal
(The following was excerpted from a recent Thompson Grants Compliance Expert article.)
The General Services Administration (GSA) received more than 2,300 public comment submissions to its proposed additional certification provisions that would require applicants and recipients of federal financial assistance to comply with key priorities under the Trump administration when registering with SAM.gov, with certain respondents contending that the proposal was “contrary to federal law.”
In January, GSA proposed to insert new pre-award registration requirements for SAM.gov (see ¶210 in the Federal Grants Management Module), as an update to the financial assistance general representations and certifications “to align with updated executive branch guidance,” including the Department of Justice’ Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination, and the Trump administration’s Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.
The proposal sought to add new provisions under SAM.gov Appendix I for representations and certifications requiring entities to certify that they:
“Will comply with the U.S. Constitution, all federal laws, and relevant executive orders prohibiting unlawful discrimination on the basis of race or color in the administration of federally funded programs (see Titles VI and VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment and §200.303, Internal controls). 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) programs. Entities that receive federal funds, like all other entities subject to federal antidiscrimination laws, must ensure that their programs and activities comply with federal law and do not discriminate on the basis of race or color. Examples of practices that may violate applicable federal antidiscrimination laws include:
- Granting preferential treatment based on race or color, such as race-based scholarships or programs, preferential hiring or promotion practices, or access to facilities or resources based on race or ethnicity, including through the use of “cultural competence” requirements, “overcoming obstacles” narratives or “diversity statements”;
- Segregation based on race or color, such as race-based training sessions, segregation in facilities or resources, or implicit segregation through program eligibility;
- Other unlawful use of race or color as criteria, such as race-based “diverse slate” policies in hiring, race-based selection for contracts or race-based program participation or resource allocation;
- Training programs that stereotype, exclude or single out individuals based on protected characteristics or create a hostile environment; or
- Retaliation by taking adverse actions against employees, participants or beneficiaries because they engage in protected activities related to opposing DEI practices they reasonably believe violate federal antidiscrimination laws. Protected activities include raising concerns or filing complaints about, or objecting to or refusing to participate in, discriminatory programs, trainings or policies.”
It also would newly require entities to certify that they will not: (1) knowingly bring or attempt to bring to the U.S., 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 U.S. with reckless disregard of the fact that the alien is illegal; and (2) fund, subsidize or facilitate violence, terrorism or other illegal activities that threaten public safety or national security.
The National Council for Nonprofits (NCN) and NAACP Legal Defense and Education Fund Inc. jointly submitted a comment letter criticizing the proposal, which was also signed by 1,300 other organizations. The letter contended that the executive branch does not have the authority to impose additional across-the-board terms and conditions on a potential applicant, nor does it have the authority to add terms to an application that go beyond what Congress has authorized by federal law. “In this case, the administration is attempting to use the certification process to add terms and conditions that it cannot lawfully impose,” the letter noted. “Similar actions by other federal agencies have been blocked by federal judges as violating federal law or the U.S. Constitution.”
(The full version of this story has now been made available to all for a limited time here.)
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