The Trump administration’s “Revolutionary FAR Overhaul” (RFO) initiative has released its second tranche of proposed changes to the Federal Acquisition Regulation (FAR), this time to FAR Part 10, Market Research. The proposed changes are again generally relatively modest, perhaps because the existing FAR Part 10 was already very short.
What the latest changes do help clarify is how the FAR overhaul will proceed from here. The latest round of changes emphasizes training for the acquisition workforce on the overhauled parts of the FAR, and makes that training interesting and accessible.
But the latest round (and the implementing agencies’ follow-up to the prior round) also confirm how these sudden changes to the FAR will be implemented until formal rulemaking can begin, likely in October 2025: the participating agencies probably will issue class deviations adopting the “model” deviations — the stopgap changes — which have been approved by the FAR Council. As the discussion below explains, this leaves open questions over whether the “revolutionary” overhaul is bypassing the normal publication and comment required by law for changes to the FAR.
Editor’s note: For background on the “Revolutionary FAR overhaul” published in conjunction with the first tranche of changes (to FAR Parts 1 and 34), please click the image below.
FAR Part 10: Market Research – Proposed Changes
Current FAR Part 10 explains how market research should be performed. The current FAR language largely follow mandates from other statutes and regulations: per statutory requirements, for example, FAR Part 10 encourages agencies to do research to enable the use of commercial products, and per title 15, U.S. Code, FAR Part 10 directs agencies to do research so that they can purchase from small businesses where possible. These provisions largely replicate parallel requirements in FAR Parts 7 and 19, and so were deleted in the proposed overhaul.
The proposed new streamlined version of FAR Part 10 shifts much of the direction and encouragement to an informal “Practitioner Album” — a slick, well-designed series of lessons on new approaches to market research, including links to automated tools and resources. The overhaul also promises a future “FAR Companion Guide” which is to include guidance removed from the FAR itself, and which is to afford “acquisition teams greater flexibility and discretion to consider techniques which are most appropriate to their acquisition.”
Emerging Issues with Class Deviations
Potentially more controversial are the class deviations that are being used to implement the FAR overhaul, pending a formal rulemaking process. Without publication or allowing for public comment, the FAR Council has approved class deviations to implement the FAR “overhaul,” class deviations which have simply been adopted by individual agencies (listed in the table below). Direction issued on May 2, 2025 by the FAR Council strongly encouraged the agencies to simply adopt the “model” class deviations prepared by the FAR Council.
Kara Sacilotto, a partner at the Wiley law firm, has published an outstanding overview of the FAR overhaul initiative through Thomson Reuters’ Briefing Papers. Her firm is tracking the FAR Overhaul changes at their “Decoding the FAR Rewrite” page
These class deviations implement the “overhaul” pending a more formal rulemaking process that is to begin once the initial phase of the “overhaul” is complete, probably in October 2025.
Both the first tranche (to FAR Parts 1 and 34) and the second tranche (FAR Part 10) of “revolutionary overhaul” changes have been adopted through class deviations by the same group of civilian agencies (see table below) – as of this writing, no unit of the Defense Department has put a class deviation in place to implement the overhaul.
| FAR Parts Proposed for “Overhaul”: Agencies Which Have Issued Class Deviations (as of 27 May 2025) | ||
| FAR Part 1 | FAR Part 10 | FAR Part 34 |
| Securities & Exchange Commission (SEC) (May 27, 2025) | SEC (May 27, 2025) | |
| Department of Commerce (DOC) (May 22, 2025) | DOC (May 22, 2025) | |
| Department of Labor (DOL) (May 21, 2025) | DOL (May 21, 2025) | |
| Millennium Challenge Corporation (MCC) (May 8, 2025) | MCC (May 23, 2025) | MCC (May 8, 2025) |
| Consumer Product Safety Commission (CPSC) (May 16, 2025) | CPSC (May 27, 2025) | CPSC (May 16, 2025) |
| General Services Administration (GSA) (April 21, 2025) | GSA (May 22, 2025) | GSA (April 21, 2025) |
None of these class deviations has included an explanation for why the class deviation at issue was being adopted, other than to note that the FAR Council had approved the model deviation. None of the deviations has explained why they were “necessary to meet [the issuing] agency’s specific needs.” FAR 1.302(a). Nor were any of these class deviations published in the Federal Register.
The class deviations may draw a challenge in court, for example for the agencies’ failure to publish the class deviations in the Federal Register for public comment. In La Gloria Oil & Gas Co. v. United States, 56 Fed. Cl. 211, 220 (2003), abrogated on other grounds by Tesoro Hawaii Corp. v. United States, 405 F.3d 1339, 1349 (Fed. Cir. 2005), Judge Hewitt of the Court of Federal Claims explained that Section 22 of the Office of Federal Procurement Policy Act (now codified at 41 U.S.C. § 1707) requires that an agency publish in the Federal Register proposed changes in “procurement policy, regulation, procedure or form” – including, the court said, the class deviations at issue in that case. See 41 U.S.C. § 1707(a) (“a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it— (A) relates to the expenditure of appropriated funds; and (B) (i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or (ii) has a significant cost or administrative impact on contractors or offerors.”); FAR 1.301(b) (“Agency heads shall establish procedures to ensure that agency acquisition regulations are published for comment in the Federal Register . . . as required by 41 U.S.C. 1707, and other applicable statutes, when they have a significant effect beyond the internal operating procedures of the agency or have a significant cost or administrative impact on contractors or offerors.”); see also Sunoco, Inc. v. United States, 59 Fed. Cl. 390, 396 (2004) (class deviation must be published to notify “the public of an immediate and nonpermanent change to the particular regulation”), abrogated on other grounds by Tesoro Hawaii Corp., 405 F.3d at 1349 (Fed. Cir. 2005).
A challenging party may argue that, without publication and an opportunity to comment, affected parties may not have a meaningful opportunity to challenge the class deviations as “precluded by law.” See, e.g., Serv. Emps. Int’l Union, AFL-CIO v. Gen. Servs. Admin., 830 F. Supp. 5, 10 & n.4 (D.D.C. 1993). A challenging party may argue that the class deviations, because issued in violation of publication and other requirements, are therefore invalid and without force. See Aerolease Long Beach v. United States, 31 Fed. Cl. 342, 367, aff’d, 39 F.3d 1198 (Fed. Cir. 1994).
Under FAR 1.301, no publication in the Federal Register would be “required for issuances that merely implement or supplement higher level issuances that have previously undergone the public comment process” – but no public comment process has occurred here, and so that exception from publication would not apply.
It is possible that no Defense Department units have adopted the class deviations because of more stringent requirements under the DoD rules. Defense Federal Acquisition Regulation Supplement (DFARS) 201.402 says that a request for a deviation must include a “detailed rationale for the request,” including a statement of “what problem or situation will be avoided, corrected, or improved if request is approved.” That rationale under the DoD rules would have to explain, as noted, why the DoD class deviation was “necessary to meet [the issuing] agency’s specific needs,” FAR 1.302(a) (emphasis added) – which could be difficult, because the class deviations are clearly being issued to meet a governmentwide goal of streamlining the FAR. Cf. Serv. Emps. Int’l Union, AFL-CIO v. Gen. Servs. Admin., 830 F. Supp. 5, 10 (D.D.C. 1993) (finding agency-specific deviating regulation unlawful under the Administrative Procedure Act (APA) because it was a general cost-cutting measure, and was “not designed to ‘satisfy the specific need of the agency,’” and nothing in the administrative record showed “how this need for cost savings [was] specific or unique to” the issuing agency).
Conclusion
The second round of changes under the “Revolutionary FAR Overhaul,” to FAR Part 10 (Market Research), was not in fact enormously revolutionary. These latest changes do, though, deepen possible concerns about how the overhaul initiative is being undertaken: the FAR Council is simply approving model class deviations, which are in turn being adopted by agencies without the publication and public comment normally required by law for class deviations. This approach has not been terribly controversial so far because the regulations that have been “overhauled” — FAR Parts 1, 10 and 34 — are relatively obscure. The means being used to undertake this “revolutionary FAR overhaul” may, however, prove more controversial as the initiative moves on to more critical parts of the Federal Acquisition Regulation.
