The Trump admin redlines the FAR (Part 1)

The Trump administration is out with the beginning of its FAR rewrite, starting with parts 1 and 34. We begin our analysis with part 1.

FAR Part 1, the as-is state

FAR Part 1 establishes the Federal Acquisition Regulations System, which harmonizes, codifies, and publishes a set of uniform policies and procedures governing federal acquisition by most executive-branch agencies (see, FAA). Part 1 makes clear the FAR system includes agency supplements and excludes internal agency policies [see FAR 1.301(a)(2)].

The FAR is managed by the FAR council, comprising the Secretary of Defense, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration (NASA), and it governs federal acquisition activity as defined in FAR Part 2, unless an explicit exclusion is provided.

Guiding principles

The current FAR 1.102 articulates a comprehensive set of guiding principles for the FAR:

• Vision: To deliver the best value product or service to the customer on a timely basis, while concurrently maintaining the public's trust and fulfilling public policy objectives. [see 1.102(a)].
• Core principles: Several core principles underpin this vision:
  • Customer satisfaction: Satisfying the customer in terms of cost, quality, and timeliness [1.102(b)(1)].
  • Minimizing administrative costs: Rules, regulations, and policies should be promulgated only when their benefits clearly outweigh the costs associated with their development, implementation, administration, and enforcement [1.102(b)(2), 1.102-2(b)].
  • Integrity, Fairness, and openness: Conducting business with integrity, fairness, and openness is paramount, critical to maintaining the public's trust [1.102(b)(3), 1.102-2(c)].
  • Fulfilling Public Policy Objectives: The system must support the attainment of public policy objectives in an efficient manner [1.102(b)(4), 1.102-2(d)].

Acquisition team and empowerment

The "Acquisition Team" is broadly defined to include all participants in Government acquisition, encompassing representatives from technical, supply, and procurement communities, the customers they support, and the contractors who deliver the products and services [1.102(c), 1.102-4]. Members of this team are expected to exercise personal initiative and sound business judgment. What the FAR doesn’t prohibit is allowed. [1.102(d), 1.102-5(e)].

There is an explicit emphasis on shifting from "risk avoidance" to "risk management," empowering local procurement officials to take independent action based on their professional judgment, recognizing that the cost of attempting to eliminate all risk is prohibitive [1.102-2(c)(2)].

Administration

Administrative aspects of the FAR System are detailed in several subparts, including maintenance (subpart 1.2), agency regulations (subpart 1.3), and public participation (subpart 1.5).

Deviations, career development, and D&Fs (current subparts 1.4, 1.6, 1.7)

FAR Part 1 also addresses deviations, career development for acquisition personnel, and the use of determinations and findings (D&Fs).

• Deviations (subpart 1.4): Deviations from the FAR may be granted when necessary to meet the specific needs and requirements of an agency, provided they are not prohibited by law, executive order, or regulation. The subpart distinguishes between individual deviations (affecting a single contract action) and class deviations (affecting more than one contract action).
• Career Development (subpart 1.6): This subpart addresses the authority and responsibilities of contracting officers (KOs) and contracting officer's representatives (CORs) [1.602-2(d), 1.604].
• Determinations and Findings (D&Fs) (subpart 1.7): A D&F is a special form of written approval by an authorized official, required by statute or regulation as a prerequisite to taking certain contract actions.

Changes to FAR Part 1

We now examine proposed changes to FAR Part 1 by subpart.

Subpart 1.1—Framework: Redefining the acquisition landscape

Restructured acquisition system guiding principles (proposed 1.102)

The guiding principles for the Federal Acquisition System are substantially rephrased and reordered in the proposed FAR 1.102(a), reflecting new points of emphasis [1.102(a)]:

• The System will meet an agency's mission efficiently and effectively first.
• It will ensure the most effective use of taxpayer dollars by recognizing the value of time, encouraging innovation, promoting merit, satisfying the customer, and balancing these interests and objectives.
• It will maximize the buying of commercial products or commercial services rather than requiring Government-unique solutions.
• It will award contracts to contractors who demonstrate a superior ability to perform.
• It will promote competition and fair opportunity.
• It will conduct business with integrity, fairness, and openness.
• It will delegate the authority to make decisions and the accountability for those decisions to the lowest level within the System, consistent with law. Critically, the contracting officer must have the authority, to the maximum extent practicable and consistent with law, to determine how and when to apply rules, regulations, and policies on a specific contract.

Agency mission quite clearly now comes first. Two points ahead of the maximization of commercial procurement makes me think cost-type contracts will be sticking around.

The acquisition team [proposed 1.102(b)]

The proposed changes significantly bolster the role and empowerment of the acquisition team:

• The composition of the acquisition team, including Government representatives and contractors, is reiterated.
• A key responsibility for each team member is to exercise personal initiative and sound business judgment to meet the agency's mission and, notably, to manage risk [1.102(b)(2)]. The formal introduction of "risk management" into the acquisition team's role description is a new element.
• Team members are encouraged to continually promote innovation by pursuing new approaches and documenting successes and lessons learned.
• A crucial provision formally states that acquisition team members may assume that if a specific strategy, practice, policy, or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, then they are allowed to use that strategy [1.102(b)(4)]. Perhaps the rewrite will remind practitioners this has always been true.
• Furthermore, acquisition team members can propose deviations from FAR regulations should the deviation would promote economy, efficiency, or innovation [1.102(b)(6)].

The rewrite’s encouragement to "pursue new approaches" and "document successes and lessons learned,” combined with a stronger statement authorizing unaddressed strategies, aim to cultivate innovation within a dynamic, learning-oriented system. Hope springs eternal. Still, the Horizon has seen exceptional acquisition execution using novel techniques, such as those from DHS’s Procurement Innovation Lab (PIL).

New FAR conventions and guiding principles

Several new or revised conventions and provisions are introduced

• Regulatory sunset: FAR sections not mandated by statute will be subject to a sunset provision, meaning they will expire after a defined period (four years after the effective date of the rule, unless renewed by the FAR Council). This is a powerful, self-enforcing mechanism for continuous deregulation and sustained alignment with statutory requirements. Both industry and government agencies will need to be vigilant in monitoring potential sunsets and their implications.
• No certifications unless allowed by law: The proposed FAR will stipulate that it must not require certifications from offerors or contractors unless such certifications are specifically allowed by law. The current FAR 1.107 contains a similar provision but allows for nonstatutory certifications where a written justification is provided by the FAR council and approved by the Administrator for Federal Procurement Policy. The proposed change appears more restrictive.

Subpart 1.2—Agency acquisition regulations: Maintaining consistency

The proposed changes to Subpart 1.2, which addresses agency acquisition regulations (currently covered in subpart 1.3 of the FAR 2), largely appear to reaffirm and slightly restructure existing principles rather than introduce radical departures.

Subpart 1.3—Deviations from the FAR: Centralizing control

The subpart governing deviations from the FAR (currently subpart 1.4, proposed as subpart 1.3) sees significant procedural changes, particularly concerning class deviations.

While the process for individual deviations remains largely unchanged, the process for class deviations is substantially revised.

• Individual deviations (Proposed 1.303): These deviations affect only one contract action and may be authorized by the agency head. This is consistent with the current FAR 1.403.
• Class deviations: Class deviations affect more than one contract action. Notably, any solicitation that will result in multiple contract awards will require a class deviation [1.304(a)].
  • Agency heads may authorize class deviations. However, a critical change is that agency-specific class deviations must be approved by the FAR Council, unless the deviation is required to implement agency-specific executive or statutory direction [ at 1.304(b)].
  • Agencies requesting such approval must send the proposed class deviation to the FAR Secretariat (GSARegSec@gsa.gov) [1.304(b)].
  • The FAR Council is expected to review and provide a decision to the requesting agency within five business days (or 24 hours for urgent requests). [1.304(c)].
  • Agencies are required to email a copy of each agency-approved class deviation (presumably those not requiring FAR Council approval or those approved by the Council) to the FAR secretariat [1.304(d)].
  • The administrator for Federal Procurement Policy (OFPP) may require the FAR Council to issue deviation guidance to promote uniformity across agencies [1.304(e)].

The new requirement for FAR Council approval of most agency-specific class deviations represents a significant centralization of control over systemic regulatory flexibility. While the RFO generally promotes empowerment at the CO level for individual contract actions, this particular change suggests a strategic effort to ensure that broader, more impactful deviations align with the overhaul's overarching goals of simplification and uniformity. This aims to prevent the emergence of a patchwork of divergent agency-specific rules that could undermine the integrity and consistency of the streamlined FAR.

Subpart 1.4—Career development, contracting authority, and responsibilities

The proposed changes to the COR role—particularly the mandatory appointment for non-FFP contracts and the requirement for mandatory certification—represent a significant move towards professionalizing a critical contract administration function. These changes appear to address long-standing concerns regarding inconsistent COR performance and the lack of standardized qualifications, which can contribute to suboptimal contract outcomes and increased risk for the government. Effective contract administration is crucial for achieving "best value", and ensuring that "contractors who demonstrate a superior ability to perform" actually deliver on their commitments. CORs function as the CO's primary interface for monitoring technical performance. If CORs are not consistently appointed, adequately qualified, or clear on their roles and limitations, oversight can suffer, especially on complex, non-FFP contracts where performance criteria may be less definitive and more challenging to measure. The proposed changes 1 directly address these potential weaknesses by: (1) Mandating COR appointments for contract types where robust oversight is most critical (i.e., non-FFP). (2) Mandating certification (e.g., FAC-COR), thereby ensuring a baseline level of competence. (3) Clearly defining the scope of authority and its limitations, including explicit warnings about potential personal liability for unauthorized actions. This structured approach aims to improve contract outcomes by strengthening the COR function.

These changes imply that agencies will need to make significant investments in training and certification programs to support what could be a larger pool of CORs. This might create an initial capacity challenge for some agencies. The explicit mention of potential personal liability for CORs 1 may also make some individuals hesitant to assume these responsibilities without adequate training, resources, and support from their agencies. However, in the long term, these measures are expected to lead to improved contract management, better performance monitoring, and a reduction in the risk of waste, fraud, and abuse.

Subpart 1.5—D&Fs: Clarifying requirements

The proposed FAR Part 1 renumbers the current subpart 1.7, which covers D&Fs, to subpart 1.5.1. The proposed changes to the subpart on D&Fs appear to be primarily for reorganization and updating language for clarity, while substantially maintaining the existing procedural requirements. The RFO's broader focus on streamlining regulations might lead to a re-evaluation of when D&Fs are statutorily required versus when they are imposed by non-statutory regulation. However, FAR Part 1 itself primarily describes how D&Fs are to be prepared and processed, not the specific circumstances under which they are required (these are typically found in other FAR parts).

Summary

The proposed revisions to FAR Part 1, driven by the Revolutionary FAR Overhaul initiative, introduce several changes intended to reshape the foundational elements of the Federal Acquisition System. Key among these are:

• The formal inclusion of "acquisition guides" within the defined framework of the Federal Acquisition System, signaling a new architecture for disseminating practical, noregulatory guidance.
• A significant refinement and reprioritization of the Guiding Principles for the System, with a pronounced emphasis on achieving agency mission objectives first.
• The introduction of a regulatory sunset provision for non-statutory FAR sections, creating a mechanism for continuous review and streamlining of the regulation.
• A notable centralization of authority through the requirement for FAR council approval for most agency-specific class deviations, aimed at promoting uniformity and consistency across the government.