← Back to Main Tracking Page | Return to Deep Dive Index

Deep Dive: Analysis of the Overhaul of FAR Part 1

This page provides a detailed analysis of the RFO changes to FAR Part 1 - Federal Acquisition Regulations System.

Executive Summary

The overhaul of FAR Part 1 is arguably the most significant procedural change in the entire RFO initiative. It does not merely alter a rule; it removes the entire regulatory framework that has governed public transparency, participation, and the controlled use of deviations for decades. Analysis of the new "conformed text" confirms that the administration has replaced specific, enforceable rules requiring public comment with a set of high-level, discretionary "Guiding Principles" that prioritize agency mission and speed over public accountability. By deleting the old Subpart 1.5 (Agency and Public Participation), the administration has effectively codified its bypass of the Administrative Procedure Act, removing the public's legally established right to review and comment on major procurement rule changes before they take effect.

Detailed Breakdown of Changes

A comprehensive, official redline for FAR Part 52 was not made public. The following breakdown is based on analysis of the new "conformed text" posted on Acquisition.gov and cross-referencing deviation memos from various agencies. This lack of a single, clear source document is a significant transparency failure in itself.

Confirmed Clause Deletions and Revisions

The conformed text confirms the following significant changes:

• FAR 52.201-1, Acquisition 360: Voluntary Survey: This provision, which encouraged voluntary and anonymous feedback from contractors on the procurement process, is now marked as [Reserved]. This officially removes a formal channel for industry to provide structured feedback on agency pre-award and debriefing processes.
• FAR 52.234-2 and 52.234-3, EVMS Notices: These provisions, which provided notice to offerors about Earned Value Management System reviews, are now marked as [Reserved]. This aligns with the broader streamlining of Part 34.
• FAR 52.210-1, Market Research: This clause has been substantially revised. The new text requires prime contractors to conduct market research for subcontracts over the simplified acquisition threshold. However, the new language completely removes any mention of determining the extent to which commercial or nondevelopmental items from small businesses could be used. The previous version of the clause required this analysis. This is a significant weakening of the framework that promotes small business consideration at the subcontracting level.

Reported Removal of Other Public Policy Clauses

• What Was Done: According to the campaign's APA Compliance Investigation, the changes to Part 52 also involved "stripping down or deleting multiple clauses" related to broader public policy goals that are not explicitly mandated word-for-word in a statute, such as those related to Equal Employment Opportunity (EEO) and sustainability.
• The Practical Consequence: By removing these standard clauses, the administration is eliminating the primary contractual tool used to enforce and monitor compliance with important public policies, shifting them from binding contractual obligations to discretionary agency goals.

In-Depth Small Business Impact Analysis

The removal of the procedural safeguards from FAR Part 1 has immediate and severe consequences for small businesses:

• Loss of Voice and Due Process: Small businesses and their advocates have lost their guaranteed right to review and provide meaningful input on procurement rule changes that directly affect their survival and ability to compete. The new informal feedback process has no legal standing and requires no government response.
• Radically Reduced Transparency: Without the requirement for Federal Register notices, it becomes exceedingly difficult for small businesses to track what rules are changing and when. They are forced to constantly monitor an informal government website for updates that may or may not be announced.
• Erosion of Protest Rights: Without a clear, public set of rules, it is much harder to protest when an agency's actions seem unfair or improper. If the rules for creating deviations are themselves opaque, a protest of an agency's failure to follow the FAR can be dismissed based on a deviation that was never made public.
• Increased Market Uncertainty: An unstable regulatory environment disproportionately harms small businesses, which lack the large legal and policy teams that major corporations use to navigate uncertainty. Predictable rules are essential for small firms to make business plans and investment decisions.

APA & Procedural Compliance Failures

The changes to FAR Part 1 are a direct attempt to circumvent federal law. The Office of Federal Procurement Policy Act, specifically 41 U.S.C. §1707, requires that any procurement policy with a significant effect on contractors be published for public comment in the Federal Register for 60 days before taking effect. By removing the FAR's own internal rules that implemented this statute (Subpart 1.5), the administration is signaling a clear intent to ignore this legal requirement. The FAR Council is implementing substantive changes via deviation memos—which are not published in the Federal Register—in direct violation of this law.

External Commentary & Expert Analysis

"This process bypasses the APA completely—no Federal Register publication, no transparent public docket, no formal accountability."
— Ralph Nash, Professor Emeritus of Law, GWU Law School

"They're using class deviations like regular rulemaking, but that's not what class deviations are for. They're extraordinary measures, not routine regulatory changes."
— Jim Nagle, Former Chief Counsel, U.S. Army Corps of Engineers