The Federal Acquisition Regulation (FAR) Overhaul (RFO) initiative has taken an unconventional approach to revise the federal procurement regulations. Instead of issuing new rules through the traditional notice-and-comment process, the FAR Council adopted model deviations; a move that has sparked debate among legal and procurement professionals.
So why did the FAR Council adopt this type of strategy, and does it mark a bold step toward innovation or simply a procedural shortcut?
By issuing deviations rather than permanent rules, the FAR Council achieved several objectives:
- Speed and Flexibility: Agencies can implement changes quickly without waiting for lengthy rulemaking.
- Testing Before Commitment: Deviations allow agencies to experiment with new procurement approaches and identify practical challenges before these changes become permanent.
- Agency Choice: Different agencies have different needs. Deviations let them opt in or out, avoiding a one-size-fits-all mandate.
In essence, these deviations function as draft regulations in practice, enabling real-world trials without the legal weight of formal FAR revisions, at least for now. For example, the General Services Administration (GSA) and the Department of Transportation (DOT) have embraced most deviations, while the Department of Defense (DoD) and the Small Business Administration (SBA) have taken a wait-and-see approach.
This testing phase is designed to generate insights into how the proposed changes work in practice, informing future rulemaking and helping the FAR Council refine its approach before formal adoption.
Small businesses, in particular, should closely monitor these developments. The Regulatory Flexibility Act requires agencies to analyze the impact of proposed rules on small entities, and FAR revisions often have significant implications for small-business contracting. From required-use contracts to changes in 8(a) preferences, these deviations could reshape opportunities for small firms in federal procurement.
The FAR Council’s deviate-and-test approach represents a major shift in how procurement policy evolves. Whether viewed as a bold experiment or a procedural shortcut, one thing is clear: these model deviations will influence the future of federal contracting. For contractors, legal professionals, and industry stakeholders, now is the time to engage, observe, and prepare for the formal rulemaking process that lies ahead.
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