Removing Traffic Signals: The Revolutionary FAR Overhaul Intends to Eliminate Decades-Old Protections for Contractors

The Revolutionary FAR Overhaul (RFO) is an Executive Order that seeks to reform the Federal Acquisition Regulation (FAR) to eliminate barriers to doing business with the Federal Government. This monumental change is akin to removing the traffic light at a four-way intersection and replacing it with a stop sign. So, will the government’s signal change improve efficiency, or will it cause more traffic and accidents? Let’s take a look.

What is the Revolutionary FAR Overhaul?

The White House intends for the RFO to streamline the procurement process. To achieve this goal, the FAR Council, the heads of agencies, and senior acquisition officials will amend the FAR so that it only contains provisions that are required by statute or “are otherwise necessary to support simplicity and usability, strengthen the efficacy of the procurement system, or protect economic or national security interests.” To date, little guidance has been issued to determine which regulations will be deemed “otherwise necessary.”

The changes to the FAR must be made by mid-October of this year. Until then, the Administrator of the Office of Federal Public Procurement Policy and the FAR Council are to issue deviation and interim guidance. The interim guidance will be rolled out on Acquistion.gov. So far, only four of the 53 FAR Parts have been revised. It is unknown when the next set of model text will be released or which FAR Parts it will affect.

A memorandum from the Office of Management and Budget (OMB) explained that most provisions of the FAR that are not mandated by a statute will be replaced with buying guides. These buying guides will incorporate innovative buying techniques that will apply to different phases of the acquisition lifecycle. The rewritten FAR and buying guides will be collectively called the Strategic Acquisition Guidance (SAG).

How Will These Changes Be Implemented?

The FAR will be pared down in two steps. During the first step, the FAR Council will issue model deviation text, released piecemeal by FAR Part, on its webpage. The webpage has instructions for emailing the OMB to make informal public comments on the model deviation text.

For the second step, the FAR Council will follow a formal rulemaking process that is required by statute. As part of this formal rulemaking process, the FAR Council will consider the informal comments it received about the model deviation text. Then, the FAR Council will publish the proposed changes in the Federal Register. The public will have at least 30 days to comment on the proposed changes. Once the FAR Council has considered public comments, the proposed changes can be finalized.

How Will the Revolutionary FAR Overhaul Change the Federal Procurement Process?

The FAR guides Federal agencies as they spend the nearly $1 trillion Congress allots to them each year. While lengthy, the FAR’s many regulations have been crafted over the past 40 years to fine-tune the procurement process. Each FAR Part serves a purpose in ensuring the Government minds the rules of the road that direct the fair and efficient procurement of goods and services. Notably, much of the FAR’s utility is in clarifying the operational gaps that statutes leave open.

The RFO process is likely to remove many of the operational clarifications the FAR provides. Elimination of these clarifications will introduce further ambiguity into a complicated system rather than simplify and streamline Federal procurement activities. Whether the SAG can compensate for these regulatory changes remains to be seen.

Without the procedures incorporated in the FAR, traveling Federal procurement roadways may get precarious. Here’s to hoping everyone remembers to brake at the intersections that had their stop signs removed.

How Can Contractors Weigh In?

If you share our concerns about the RFO, we encourage you to do the following to maintain the rules of the road for Federal procurements:

1. Submit feedback to the OMB as the FAR Council rolls out changes to each FAR Part.
2. Comment during the formal rulemaking phase.
3. Contact your Federal representatives to express your concerns about how the RFO could harm contractors.

The RFO Is on Our (Speed) Radar

We recognize that even small changes to the FAR can have huge consequences for government contractors. Without the guidance of the FAR, agencies and contractors alike could unintentionally speed through the stop signs that ensure fairness and efficiency. Since the RFO seeks to fundamentally change the FAR, we are keeping a close eye on the project, and we recommend that you do too.  In the coming weeks, expect more commentary from our firm on our concerns about these changes. Please contact us if you have questions about the RFO.