A new clause on a contract you already signed: can you say no?

If your customer is a public authority, or works for one, the contract that binds you today is not the text you read on the day you signed. A clause can be added afterwards, be called a bilateral modification, and leave you no choice other than losing the order. This year it has happened to thousands of US federal contracts: at least four of them involve the American subsidiary of a Milan group.

Zero dollars, one description

On 8 September 2023 contracting network 17 of the United States Department of Veterans Affairs (VA) awards Bracco Diagnostics Inc. order 36C25723P0718: rubidium-82 generators for PET diagnostics, and consumables. Obligated 327,517.90 dollars, 1,792,673.27 with all options.

On 30 June 2026 modification P00007 arrives. Amount: zero. Reason recorded: “SUPPLEMENTAL AGREEMENT FOR WORK WITHIN SCOPE”. Description filed: “EO 14398-PET RUBIDIUM-82 GENERATOR AND SUPPLIES OPTION YEAR 3”. The code before the hyphen has nothing to do with rubidium.

Bracco Diagnostics Inc. is based in Monroe Township, New Jersey, and in FPDS it is flagged as a foreign-owned business. It is, in the words of its own releases, “the U.S. subsidiary of Bracco Imaging S.p.A.”, whose parent sits in Milan. Between 14 May and 30 June the same code returns on three more of the company’s contracts. On one of them, the modification number itself is A14398.

What exactly went in

Executive Order 14398, Addressing DEI Discrimination by Federal Contractors, is signed on 26 March 2026 and published on 31 March (91 FR 16147). On 17 April the council that writes the federal procurement rules issues the implementation guidance and the model text, clause FAR 52.222-90.

The clause prohibits disparate treatment based on race or ethnicity “in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity’s resources”: hiring, promotion, suppliers, internal programmes, resources. Then it adds four operative duties.

Access: “The Contractor will furnish all information and reports, including providing access to books, records, and accounts, as required by the Contracting Officer”. Downstream surveillance: the firm must report its own subcontractors’ “known or reasonably knowable” conduct. Litigation: it must tell the buyer if a subcontractor challenges the validity of the clause in court. Penalty: compliance is “material to the Government’s payment decisions for purposes of 31 U.S.C. 3729(b)(4)”, that is, for the False Claims Act, which trebles damages. Failure becomes a cause for suspension and for debarment from federal contracts.

What “bilaterally” means

The point sits in two lines of the 17 April guidance: officials “must make every effort to bilaterally modify existing contracts by July 24, 2026. If a contractor refuses to agree to a bilateral modification, the contracting officer should consider whether, absent the modification, the contract no longer meets the agency’s needs and should therefore be terminated for convenience”.

In plain terms: the form is consent, and the alternative to consent is termination at the buyer’s convenience. There are two dates — the clause in new solicitations from 24 April, in running contracts by 24 July — and no negotiation on the substance.

How large it is, and how you count it

A search of the FPDS description field, on 24 September 2026, returns 8,175 contract actions carrying the string 52.222-90; of a hundred sampled descriptions, eighty-six contain it literally. That is an order of magnitude, not a census: many modifications never name the number. The one dated 10 September on the 26.9-billion VA–Oracle Health contract — the same one we wrote about on 22 September — has, as its entire description, two words and a number: “EO 14398”.

The 6 May 2026 paperwork notice estimates 1,365 respondents and 7,965 hours a year: it counts firms, not filings, but it says the burden was measured before anyone counted the modifications.

Where it reaches an Italian firm

The scope rule has a boundary: the clause goes into contracts “for which the place of delivery or performance is in the United States”, and it “flows down to subcontracts at any tier”. A service performed in Italy for an American base stays outside. A component, a reagent or a piece of software delivered in the United States inside a federal supplier’s chain does not: the clause descends tier by tier, and the Italian sub-supplier will never appear in FPDS. It reaches them from the customer, not from a register.

Here the two legal orders do not speak to each other. Legislative decree 215/2003, which implements Directive 2000/43/EC, gives the national anti-discrimination office, in Article 7(2)(c), the task of promoting the adoption by public and private bodies of specific measures — positive-action projects expressly included — designed to prevent or make up for disadvantages linked to race or ethnic origin; Article 4(4) leaves the judge the power to order a plan for the removal of the discrimination established. These are instruments of Italian law, whose absence the American clause turns into a condition of payment.

The third text arrives shortly. For AI systems used in recruitment and workforce management — Annex III, point 4 of the AI Act — Article 10 requires an “examination in view of possible biases” and “appropriate measures to detect, prevent and mitigate” those found, and in paragraph 5 it allows providers, exceptionally, to process special categories of personal data precisely in order to correct them. It applies from 2 December 2027, a date moved by the digital omnibus, Regulation (EU) 2026/1744, Article 1, point 40, letter (b): inside the life of a multi-year contract signed today.

The positions

The order states its own purpose: “to promote economy and efficiency in Federal contracting by preventing racial discrimination”. Two suits against its implementation are pending before the federal court in Maryland: National Association of Diversity Officers in Higher Education v. Trump, 8:26-cv-01532, of 20 April, with a hearing on the injunction on 5 August; and State of Maryland v. Hegseth, 1:26-cv-02322, of 10 June, where on 21 July nineteen states and the District of Columbia asked for early judgment. Party filings: what they assert is pleaded, not established. The public docket consulted today records no decision, and the last entry is dated 24 August. No statement by the company on the modification is known to us.

Why a closed system

Because the clause does not ask for an opinion: it asks for access to books, records and accounts. Whoever has to answer must be able to reconstruct, as at a date, who was hired and promoted, how suppliers were chosen, and how resources were allocated. That is not a document: it is an index that has to exist before the question.

Because those same records are, under Article 9 of the GDPR, special categories: racial and ethnic origin. The file you must be able to produce is exactly the one you cannot let circulate. Preparing it with a general-purpose assistant on the open web means handing a third party your personnel archive in order to answer a question about that archive.

Because the duty runs as far as your subcontractors’ reasonably knowable conduct: not a folder to keep updated, but a chain to watch.

The two axes, applied to this case

Complying. The control we put into service reads contracts and the modifications in force, isolates the clauses that entered after signature, matches them against the procedures you actually have in house, and produces the dated record to show a buyer or a judge.

Deciding. The same installation holds contracts, personnel, purchasing, quality and technical archives together in a single operating model, on which AI agents carry out decisions with an operator in command — for large firms, defence, healthcare and public administration. On-premise on standalone machines, or a dedicated cloud with a data centre in Italy staffed by us, always with shared management.

For the contracts you have running, could you say which clauses entered after signature, and who accepted them? Half an hour with one of our engineers is enough to start.

What we do not know

We do not know whether the modifications were negotiated or simply absorbed: FPDS records the reason code, not the bargaining. We do not know whether the clause reached Italian sub-suppliers: subcontracts are not filed in any public register. Of P00007 we have read the description filed, not the text. Nor do we know how the two cases will end.