III. The Deviation Doctrine: Unlawful Bypass of APA, Transparency, and Statutory Requirements
The erosion of small business federal contracting protections described above is not an incidental regulatory update. It is a deliberate, coordinated strategy to dismantle the legal framework protecting fair competition, circumvent congressional intent, and undermine core principles of administrative transparency and accountability. This new regulatory paradigm is what we call the Deviation Doctrine.
How the Deviation Doctrine Operates
Under established federal law, regulatory changes impacting federal procurement must adhere strictly to the Administrative Procedure Act (APA), which mandates clear public notice, robust public participation through comment periods, and thorough documentation of changes.14 The APA is not merely procedural—it enforces transparency, accountability, and fairness in rulemaking, ensuring agencies cannot bypass Congress or public scrutiny when modifying regulatory frameworks.
However, current FAR revisions and recent Executive Orders (particularly EO 14275) explicitly sidestep these mandatory requirements. Instead, agencies are employing an opaque method termed “class deviations” to alter or erase critical regulatory protections without the required public input or transparent disclosure.1,2 Under the Deviation Doctrine, agencies are not only removing existing enforceable clauses and procedural safeguards but are also introducing entirely new regulatory directives without legal authority or the rigorous procedural steps mandated by APA.15
Extensive and Growing Scope of Damage
There are a total of 53 FAR Parts—each containing critical regulations governing federal procurement. The Deviation Doctrine's damage has just begun. Every week, additional FAR Parts are targeted, progressively eroding transparency, undermining open competition, and dismantling statutory protections intended specifically for small businesses—all carried out without adherence to the law or public accountability.
Non-Uniformity and Increasing Complexity
Under this new deviation-driven regime, each federal agency may issue its own class deviations, which affect multiple contract actions. Agency-specific class deviations are currently submitted to the FAR Council for approval, though this is not required by regulation to be publicly disclosed.17 Although the FAR Council is publishing these agency deviations voluntarily, there is no legal or regulatory mandate ensuring ongoing transparency. This voluntary disclosure could cease at any time, creating further opacity and complexity in procurement practices.
Congressional Intent Undermined: The Rule of Two
The bipartisan history and congressional intent behind the Rule of Two is clear and longstanding. Established as statutory law under the Small Business Act, the Rule of Two mandates federal agencies prioritize small businesses whenever at least two qualified firms can perform the required services at a fair price. This protection was enacted explicitly to ensure robust competition, equitable access, and sustained small business participation in federal contracting markets.16
Call to Action
The Deviation Doctrine’s systematic disregard for APA compliance, transparency, and statutory intent is not a mere bureaucratic shortcut—it is an illegal and unprecedented regulatory power grab that threatens the foundational fairness of federal procurement. Congress must immediately intervene to enforce compliance with the APA, restore mandatory transparency, and reestablish enforceable regulatory requirements to uphold both the letter and spirit of the law.
If allowed to continue unchecked, the Deviation Doctrine risks permanently reshaping federal procurement into an exclusionary and opaque environment, irreparably harming small businesses, competition, innovation, and public trust.