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Deep Dive: Analysis of the Overhaul of FAR Part 52

This page provides a detailed analysis of the RFO changes to FAR Part 52 - Solicitation Provisions and Contract Clauses.

Executive Summary

The changes to FAR Part 52 are a clear example of the FAR Overhaul's strategy to weaken policy enforcement by removing the specific, contractual language that turns policy goals into binding obligations. Analysis of the government's new "conformed text" confirms the removal of key feedback and EVMS clauses and the revision of others, like the Market Research clause, to strip out any mention of small business considerations. By replacing uniform, enforceable contract terms with weaker, discretionary language, the overhaul makes it harder to hold contractors and agencies accountable to public policy goals.

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 FAR 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

While the changes to FAR Part 52 do not target a specific small business set-aside rule, they damage the overall contracting ecosystem in ways that disproportionately harm smaller contractors.

Erosion of a Level Playing Field: Many of the removed non-statutory clauses related to public policies like Equal Employment Opportunity (EEO) and sustainability. While these apply to all businesses, they help create a fair, predictable, and accountable environment. Removing them signals that these values are no longer a priority, which can foster a contracting culture less focused on fairness and equity—an environment where small and disadvantaged businesses have historically struggled.
Removal of Feedback Mechanisms: The deletion of the "Acquisition 360" voluntary survey clause (52.201-1) removes a formal, government-wide channel for contractors, including small businesses, to provide structured feedback on the acquisition process. This reduces agency accountability and makes it harder for agencies to identify and correct systemic issues that may be harming small business participation.
Increased Complexity and Risk: A key function of FAR Part 52 is to provide standard, uniform contract language. When the government begins deleting these standard clauses, it can lead to a patchwork of inconsistent, contract-specific, or agency-specific requirements. This increases the legal review burden and risk for small businesses, which often lack the large in-house legal teams that major contractors use to vet every solicitation.

APA & Procedural Compliance Failures

The changes to the standard clauses in FAR Part 52, which alter the contractual obligations for potentially every federal contractor, undoubtedly have a "significant cost or administrative impact on contractors." Therefore, under 41 U.S.C. §1707, these changes legally required a formal notice-and-comment period before they could take effect. Implementing such substantive changes to standard contractual terms via unpublicized class deviations represents a clear failure to follow the legally mandated process for transparent rulemaking.

Agency Implementation Tracker

While agencies have not issued standalone deviation memos dedicated solely to FAR Part 52, many have implemented the RFO's changes to specific Part 52 clauses within their deviation memos for other FAR Parts. This confirms that the changes are being rolled out government-wide. Agencies confirmed to have implemented changes to clauses in FAR Part 52 include:

Department of Commerce (DOC)
Department of Health and Human Services (HHS)
Department of State (DOS)
Millennium Challenge Corporation (MCC)
National Aeronautics and Space Administration (NASA)

External Commentary & Expert Analysis

While legal and policy experts have focused primarily on the significant changes to FAR Parts 1 and 10, the revisions to Part 52 are a clear example of the broader concerns they've raised: the replacement of enforceable rules with non-binding guidance.

"These new buying guides they're proposing aren't regulations. They don't have the force of law and will vary agency to agency, causing real confusion."
— Don Mansfield, Professor of Contract Management, Defense Acquisition University

The removal of standard, government-wide clauses from FAR Part 52 is a primary example of this shift. It replaces uniform, enforceable contract terms with a fragmented and discretionary approach that creates the exact inconsistency and ambiguity experts have warned about.