The Revolutionary FAR Overhaul and the Limits of Procurement Deregulation

This blog post is based on and gives credit to Donald E. Mansfield’s article, “Phase 1 of the Revolutionary FAR Overhaul: Did It Comply With Public Notice And Comment Requirements?”

The federal procurement community has spent considerable time discussing the Revolutionary FAR Overhaul as a major deregulatory effort intended to simplify acquisition rules and reduce unnecessary procedural burden. Yet simplification in procurement law is rarely only a drafting exercise. As Donald E. Mansfield explains, the more important question is not whether the Federal Acquisition Regulation can be rewritten in plainer language, but whether the government’s chosen method for doing so complies with the legal framework that governs procurement rulemaking. That question matters greatly for federal contractors because procurement efficiency, while desirable, does not displace statutory notice-and-comment requirements where contractor rights and competitive conditions may be materially affected.

Mansfield’s article focuses on Phase I of the overhaul, during which the FAR Council issued model deviation guidance for agencies to adopt through class deviations, often on an immediate basis. Phase II, by contrast, is intended to proceed through formal rulemaking under 41 U.S.C. § 1707. The article’s core concern is that the government may have reversed the ordinary order of operations. Instead of first publishing proposed rules for notice and comment and then implementing final rules, agencies were encouraged to begin operating under revised deviation text before the formal rulemaking process had run its course. From a contractor’s perspective, that sequencing is not merely technical. It raises the prospect that meaningful procurement changes could take effect before industry has been afforded the procedural protections Congress required.

The article is particularly valuable because it does not treat every Phase I change as equally problematic. Mansfield acknowledges that many of the revisions appear to involve simplification, removal of guidance, or stylistic rewriting that may not trigger statutory concern. The practical risk emerges where deviations move beyond housekeeping and begin to alter competitive rights or small business program expectations. His examples are highly relevant to contractors. One concerns blanket purchase agreements under multiple-award contracts and the possibility that the new approach narrows fair opportunity at the order level for firms that did not receive a BPA. Another concerns 8(a) follow-on work, where deviation guidance appears to create a broader path for moving requirements into other socioeconomic programs without SBA release. Both examples illustrate why contractors should resist assuming that “deregulation” is necessarily neutral in effect.

For federal government contractors, the significance of the article lies in its procedural and business message. Procedural shortcuts in acquisition reform can reshape access to opportunity, reorder competitive dynamics, and create uncertainty about whether existing statutes and regulations remain controlling. Contractors should therefore monitor not only the text of new FAR language, but also the legal vehicle used to implement it. When reforms are introduced through immediate deviations rather than completed rulemaking, contractors may need to scrutinize solicitations, ordering practices, and small business treatment more carefully than usual.

Mansfield’s analysis is a useful reminder that in federal procurement, process is not separate from substance. The integrity of the rulemaking process helps protect fairness, predictability, and confidence in the acquisition system. When that process is compressed, contractors have reason to pay attention.

Disclaimer: This blog post is provided for informational purposes only and does not constitute legal advice. It is a summary and commentary based on the cited source and should not be relied upon as a substitute for reviewing the underlying authorities, solicitation terms, agency deviations, or obtaining legal counsel for specific circumstances.