Did Phase I of the Revolutionary FAR Overhaul Go Too Far?
Donald E. Mansfield’s article, “Phase 1 of the Revolutionary FAR Overhaul: Did It Comply With Public Notice and Comment Requirements?,” raises an important administrative-law question for the federal procurement community: whether agencies implementing the Revolutionary FAR Overhaul through immediate class deviations complied with the statutory notice-and-comment requirements that govern procurement rules. Mansfield explains that OMB Memorandum M-25-26 directed a two-phase overhaul of the Federal Acquisition Regulation, beginning with FAR Council deviation guidance and followed later by formal rulemaking under 41 U.S.C. § 1707. The problem, as Mansfield frames it, is that many agency class deviations became “effective immediately,” even though Phase II formal rulemaking had not yet begun.
Mansfield’s central point is careful and measured. He does not argue that every Phase I deviation necessarily violated procurement rulemaking requirements. Much of the Phase I effort, he notes, involved removing guidance, simplifying text, and rewriting provisions in plain language. Those types of changes may not have a significant effect beyond agency internal procedures or impose meaningful cost or administrative burdens on contractors. But some deviations arguably did more than edit or simplify. Where a class deviation materially changes contractor rights, competitive opportunity, or socioeconomic program rules, Mansfield argues that the notice-and-comment requirements of 41 U.S.C. § 1707 may be triggered.
Two examples illustrate the concern. First, Mansfield discusses new deviation language concerning blanket purchase agreements under multiple-award contracts. The guidance appears to permit fair opportunity at the BPA level, with later orders competed only among BPA holders rather than all multiple-award contract holders. Mansfield questions whether this effectively creates a new fair opportunity exception not found in the governing statute. Second, he examines deviation language affecting the longstanding “once an 8(a), always an 8(a)” principle. The deviation appears to allow certain follow-on requirements to move from the 8(a) program to HUBZone, SDVOSB, or WOSB set-asides without SBA release, a departure Mansfield suggests may conflict with SBA regulations.
For contractors, the significance is practical. FAR modernization may reduce friction, simplify compliance, and improve acquisition efficiency. But deregulation by class deviation can also create legal uncertainty when agencies “test” rules before the public rulemaking process occurs. Contractors may face changed competition rules, altered small-business expectations, or revised ordering procedures without the procedural safeguards Congress required for procurement rules with significant external effects.
Mansfield’s article is therefore a useful reminder that procurement reform must still operate within procurement law. Speed, simplification, and innovation are legitimate goals, but they do not eliminate statutory process. For federal contractors, the lesson is to monitor RFO deviations closely, compare them against statutes and existing regulations, and preserve objections where a deviation appears to change substantive rights without proper notice and comment.
Disclaimer:
This post is for informational purposes only and does not constitute legal advice. Contractors should consult qualified counsel regarding specific FAR deviations, procurement strategies, or protest issues.