The Illegality of the Revolutionary FAR Overhaul

From the Essential Guide to the FAR Overhaul Crisis

The Government's Current Process is an Unlawful Circumvention of Established Law

The "Revolutionary FAR Overhaul" initiated by Executive Order 14275 is being executed in a manner that fundamentally violates the Administrative Procedure Act (APA) and the legal framework governing federal procurement. This is not a good-faith effort at reform; it is a deliberate dismantling of regulatory protections through a process that lacks transparency, public accountability, and legal authority.

The Administrative Procedure Act (APA): A Mandate for Transparency and Public Participation

The APA is a landmark law that governs how federal agencies develop and issue regulations. It was enacted to ensure that the rulemaking process is fair, transparent, and provides opportunities for public participation. Key requirements of the APA include:

  • Public Notice: Agencies must publish a notice of proposed rulemaking in the Federal Register.
  • Opportunity for Comment: The public must be given an opportunity to submit written comments on the proposed rule.
  • Agency Response: The agency must consider and respond to the public comments it receives.

These are not mere procedural hurdles; they are fundamental safeguards of our democratic process, ensuring that the government is accountable to the governed.

This is what acquisition experts Ralph Nash and Vern Edwards have called "legislative rulemaking without legislation."

The "Deviation Doctrine": A Strategy to Bypass the Law

The current FAR overhaul blatantly sidesteps these APA requirements. Instead of following the established notice-and-comment process, the administration is using a combination of executive memoranda and "class deviations" to enact sweeping changes to procurement regulations. This strategy, which Restore Fair Access™ has termed the "Deviation Doctrine," involves the following illegal actions:

  • Purging Regulations without Public Input: Executive Order 14275 directs agencies to eliminate any regulations that are not explicitly required by statute, a move being carried out without the legally required public comment period.
  • Elimination of Transparency Requirements: Key FAR provisions that mandate transparency have been erased. FAR 1.404, which required public documentation of deviations, and FAR Subpart 1.5, which mandated public notice and comment for FAR changes, have been eliminated, creating a "regulatory black box."
  • Unlawful Use of Class Deviations: Class deviations are intended for temporary and specific circumstances. They are being misused to implement a permanent and comprehensive overhaul of the FAR, a purpose for which they are not legally suited. This is what acquisition experts Ralph Nash and Vern Edwards have called "legislative rulemaking without legislation."

Constitutional Overreach

The circumvention of the APA is not just a statutory violation; it is an overreach of executive power that undermines the constitutional principle of separation of powers. The APA exists to ensure that the executive branch, in carrying out its duty to implement the law, does not overstep its authority and encroach on the legislative power of Congress. By bypassing the APA, the administration is essentially creating new law without the consent of the legislature, a clear violation of constitutional norms.

The Devastating Impact on Small Business and Fair Competition

This illegal process has immediate and severe consequences for the American economy:

  • Dismantling the "Rule of Two": The "Rule of Two," a critical protection that requires federal agencies to set aside contracts for small businesses, is being systematically eroded. This is achieved by removing the market research requirements in FAR Part 10 that trigger the rule's application.
  • Economic Harm to Communities: The loss of small business set-asides will have a devastating impact on local economies across the country. Billions of dollars in federal contracts are at risk, threatening jobs and economic stability.
  • Reduced Competition and Innovation: A decline in small business participation will lead to a more concentrated market, with fewer competitors and less innovation. This ultimately results in higher costs for taxpayers and a less resilient national supply chain.

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