FAR Overhaul Watch: Tracking the Rewrite of Federal Contracting & Its Impact
The Process Explained | Key Definitions | Deep Dive Index | LIVE TRACKING TABLE | Why APA Matters | Take Action
They Didn't Change the Law. They Are Erasing the Rules.
The federal government is rapidly rewriting the Federal Acquisition Regulation (FAR) using an unprecedented fast-track 'class deviation' process. This method, primarily intended for temporary, limited exceptions or legitimate experimentation, is now being improperly used for a wholesale overhaul of procurement rules. This approach systematically circumvents the legally required transparency, public input, and Congressional oversight mandated by the Administrative Procedure Act (APA).
This page tracks these ongoing actions in real-time, explains the unlawful process being used, defines key terms, details the impact on small businesses, and highlights why this approach is a critical concern for legal compliance and fair competition. Our goal is to provide a clear, up-to-date understanding of these changes so that small businesses, associations, policymakers, and the public can effectively advocate for a return to lawful, transparent, and accountable federal procurement.
Section 1: The Overhaul Process Explained – A Cascade of Actions Bypassing Legally Required Processes
Understanding the Government's Playbook: From Executive Order to Agency Deviations
The current FAR overhaul is not a single event but a calculated cascade of administrative actions designed to reshape federal procurement outside the normal legal framework. Each step, while presented as a move towards 'efficiency' or 'modernization,' contributes to a system that lacks transparency and sidesteps fundamental legal requirements. This "deviate first, rulemake later" approach inverts the APA's legally required process for regulatory change, which demands public consultation before rules take effect. Here's how the process is unfolding:
- Executive Orders (EOs) Set the Stage: E.O. 14275 ("Restoring Common Sense to Federal Procurement" - April 15, 2025) mandated a "regulatory purge" of the FAR and authorized interim deviations.
- OMB/OFPP Guidance (M-25-25) Outlines the Two-Phase Strategy: Issued May 2, 2025, it detailed a two-phase FAR overhaul: Phase I uses agency class deviations for immediate implementation; Phase II involves future formal APA rulemaking. Informal feedback is solicited via Acquisition.gov without formal response.
- FAR Council Deviation Guidance Formalizes the Bypass: Issued May 2, 2025, this instructs agencies to adopt FAR Council model deviation texts (usually within 30 days) with limited public disclosure requirements.
- "Revolutionary FAR Overhaul" (RFO) Portal on Acquisition.gov: This website is the hub for model deviation texts and redlines, but it is not a substitute for the Federal Register and lacks formal APA docketing.
- Strategic Acquisition Guidance (SAG) & "Buying Guides" Emerge: Non-regulatory "Buying Guides" and "Practitioner Albums" are intended to replace detailed FAR content, reducing enforceable rules and leading to inconsistency.
- FAR Part Redlines & Model Texts Issued: Revised texts for FAR Parts (e.g., 1, 10, 34) are stripped of procedural language, especially details triggering small business considerations, without prior APA public notice and comment.
- Agency Class Deviations Implement Changes Government-Wide: Individual agencies issue class deviations, often verbatim from FAR Council models, without agency-specific justification beyond citing the Council's directive, further cementing the APA bypass.
Overall Critique: This entire multi-step process, orchestrated from the top down, largely circumvents the APA's requirements for public notice, meaningful opportunity for comment, and reasoned agency decision-making before significant regulatory changes take effect. It also lacks substantive Congressional oversight, effectively allowing the Executive Branch to rewrite vast sections of procurement law through administrative fiat.
Section 2: Key Terms & Definitions You Need to Know
Understanding the terminology is crucial to grasping the full implications of these changes.
- Revolutionary FAR Overhaul (RFO): The administration's initiative to comprehensively rewrite the FAR, aiming to 'return it to its statutory roots' by eliminating most non-statutory regulations.
- FAR (Federal Acquisition Regulation): The primary rulebook governing how all federal executive agencies acquire goods and services.
- FAR Parts: The Federal Acquisition Regulation is divided into 53 distinct Parts, each covering a different aspect of procurement. View the official list and overhaul status at: acquisition.gov/far-overhaul/far-part-deviation-guide.
- Class Deviation: Legally, an authorization for agencies to depart from FAR provisions for a *class* of acquisitions, typically intended for temporary, limited-scope exceptions or legitimate experimentation. The current FAR rewrite via deviations is neither temporary nor limited in scope, representing an improper application of this authority for wholesale regulatory change.
- Administrative Procedure Act (APA): Federal law (5 U.S.C. §§ 551–559) requiring transparent and accountable regulatory rulemaking, including public notice, meaningful opportunity for public comment, agency consideration of and response to comments, and publication of a final rule with clear justification.
- Correct FAR Change Process (APA Compliant): Changes must be proposed publicly via the Federal Register, include transparent public comment opportunities, require detailed agency review and public response to comments, with clearly stated justification, prior to enactment of a final rule.
- Office of Federal Procurement Policy (OFPP): The OMB office providing overall direction for government-wide procurement policies.
- FAR Council: Comprised of GSA, DoD, and NASA representatives, chaired by OFPP. Responsible for issuing and maintaining the FAR. (See members at: acquisition.gov/far-council). Crucially, there is no statutory small business representation on the FAR Council.
Section 3: Live FAR Part & Agency Deviation Tracking Table
Tracking the Changes and Their Implications in Real-Time
For a more detailed analysis of each major action, please visit our Deep Dive Index.
Last Updated: June 6, 2025
| Date | Action & Source | The "Lawful Process" | Summary of Key Changes | Small Business Impact | APA Compliance Commentary |
|---|---|---|---|---|---|
| Apr 15 2025 |
Executive Order Issued: E.O. 14275, Restoring Common Sense... [View Document] |
N/A | Orders "regulatory purge" of non-statutory FAR provisions. Authorizes immediate implementation via deviations. | Targets regulatory small business protections for removal. Establishes the "deviate first" framework, shutting out public input. | N/A (Presidential Policy). Directly commands agencies to use a process that subsequently bypasses the APA. |
| May 2 2025 |
Policy Memos Issued: OMB M-25-25 & FAR Council Guidance [View OMB Memo] |
Required a Notice of Proposed Rulemaking in the Federal Register with a 60-day public comment period before implementation. | Outlines the two-phase overhaul (deviations now, rules later). Makes public comment informal and optional. Makes public disclosure of deviations discretionary ("should" not "must"). | Removes the legal pathway for SB input. Creates an opaque system where rules can change without notice, gutting protest rights. | Direct violation of 41 U.S.C. §1707. Makes impactful changes without Federal Register publication or a formal comment period. |
| May 2 2025 |
FAR Part 1 Model Text Released [Explore Impact Details] |
The proposal to remove Subpart 1.5 should have itself been published for public comment before being enacted. | Removes Subpart 1.5 (Public Participation) and Section 1.404 (Class Deviation Controls). Replaces them with high-level, abstract "Guiding Principles." | Eliminates the procedural framework that ensured stakeholders could comment on changes impacting their ability to compete. | Codifies the APA bypass into the FAR system by removing the regulations that ensure transparency. |
| ↳ Agencies Adopting Part 1 Deviation: CFTC, CPSC, DHS, DOC, DOL, DOS, ED, GSA, HHS, MCC, MSPB, NASA, PC, USDA, SEC. |
Agency-level rule changes with significant external impact require notice and comment. | These agencies issued class deviations adopting the model text verbatim, applying the removal of transparency rules to their procurements without prior public comment. | |||
| May 2 2025 |
FAR Part 34 Model Text Released (Major System Acquisition) [Explore Impact Details] |
Proposed changes should have been published for comment and analyzed for their impact on the defense industrial base. | Removes the entire pre-award procedural framework (old 34.001-34.005), including rules on competition and phased development. | Eliminates structured "on-ramps" for small, innovative firms to participate in the early stages of major programs. | Removes established procedures that ensured competition and transparency in the government's largest acquisitions. |
| ↳ Agencies Adopting Part 34 Deviation: CFTC, CPSC, DHS, DOC, DOL, DOS, ED, GSA, HHS, MCC, MSPB, NASA, USDA, SEC. |
Agency-level rule changes with significant external impact require notice and comment. | These agencies issued class deviations adopting the model text verbatim, applying the removal of procedural guardrails to their procurements. | |||
| May 22 2025 |
FAR Part 10 Model Text Released (Market Research) [Explore Impact Details] |
The proposal to remove these triggers should have been published for comment and analyzed for its specific impact on small business statutory goals. | Removes mandates to research small business capabilities. Establishes a new hierarchy at 10.001(f) prioritizing existing government-wide contracts. | Direct procedural attack on the **Rule of Two**. By removing the requirement to *look for* small businesses, it removes the primary trigger for set-asides. | Replaces mandatory, enforceable procedures with non-binding "Practitioner Albums," circumventing the legal force of the regulation. |
| ↳ Agencies Adopting Part 10 Deviation: CPSC, CFTC, GSA, MCC, MSPB. |
Agency-level rule changes with significant external impact require notice and comment. | These agencies have issued class deviations adopting the model text verbatim, applying the weakening of Rule of Two triggers to their procurements. | |||
| May 2 2025 |
FAR Part 52 Changes Released (Solicitation Provisions & Clauses) [Explore Impact Details] |
Changes to standard clauses that impact contractor responsibilities should be published for public comment. | Multiple non-statutory clauses related to EEO, sustainability, and contractor feedback were removed or replaced. Full redline not made public. | Removes contractual language that supports broader equity and public policy goals, impacting the entire federal contracting ecosystem. | Substantive changes to contractual obligations are made without a formal rulemaking process. |
Section 4: Why APA Compliance is Not Optional – It's the Law
The Administrative Procedure Act (APA), codified at 5 U.S.C. §§ 551–559, is not a set of optional guidelines; it is a binding federal law. Enacted to ensure fairness, transparency, and public participation in the creation of federal regulations, the APA establishes essential checks and balances on executive agency power. Its requirements for public notice, meaningful opportunity for comment, and reasoned agency justification for final rules are fundamental safeguards against arbitrary government action.
Bypassing the APA, as is occurring with the current FAR overhaul's reliance on class deviations for substantive rule changes, removes these vital protections. This circumvention means:
- Accountability is Lost: Without a public administrative record detailing the rationale for changes and responding to stakeholder input, agencies operate without the direct accountability APA was designed to ensure.
- The Public's Right to Be Heard is Denied: Small businesses and other affected parties are deprived of their legal right to provide meaningful input before rules that significantly impact them take effect. Informal feedback mechanisms do not replace the legal force of the APA's formal comment process.
- Legal Integrity is Compromised: The government's own statements acknowledge that formal rulemaking will occur later, implicitly conceding that the current deviation-led process is an interim measure. Replacing enforceable regulations with non-binding "Practitioner Albums" or "Buying Guides" further erodes legal certainty.
- Predictability Vanishes: When agencies can rewrite major regulations without adhering to the APA, it creates an unstable and unpredictable regulatory environment.
Simply put: APA compliance is legally required. It ensures that federal procurement operates with the fairness and transparency the American public and its businesses deserve.
Section 5: What This Overhaul Means for Small Businesses
The current FAR overhaul has immediate, tangible, and overwhelmingly negative consequences for America's small businesses. Here’s what this means for you:
- Reduced Transparency & Predictability in Contracting: With critical market research procedures removed from FAR Part 10 and details shifted to non-binding guidance, you face a more opaque and unpredictable procurement landscape.
- Significant Weakening of the Rule of Two & Set-Aside Opportunities: The removal of specific market research mandates from FAR Part 10 effectively erases the primary regulatory trigger for the Rule of Two for contracts above the SAT, meaning fewer prime contracting opportunities.
- Increased Difficulty in Protesting Unfair Treatment: With fewer explicit procedural rules, successfully protesting an agency's decision to bypass small business participation becomes significantly harder.
- Systemic Shift Favoring Consolidation & Large Businesses: The combined effects of prioritizing commercial items, encouraging large contract vehicles, and reducing small business consideration in market research accelerate the decline in the number of unique small business federal suppliers, favoring large incumbents.
In short, this FAR overhaul fundamentally alters the playing field, making it more challenging for small businesses to find, compete for, and win federal contracts.
Your Voice is Critical: Demand Accountability & Restore Fair Access
The integrity of federal procurement and the survival of small business opportunities depend on immediate and forceful action. Together, we can demand a return to transparent, accountable, and legally compliant rulemaking. Here’s how you can help: