Author: Christopher Yukins

Professor Christopher Yukins teaches in the government procurement law program (founded in 1960) at The George Washington University Law School in Washington, D.C.

The Revolutionary FAR Overhaul: A First Step

The Trump administration has published the first tranche of reforms to the Federal Acquisition Regulation (FAR), part of the “Revolutionary FAR Overhaul” called for by Executive Order and direction from the Office of Management and Budget (OMB). The first tranche of completed rewrites go to FAR Part 1 (which describes how the FAR system is run), Part 34 (major systems acquisitions), and Part 52 (contract clauses). These first proposed changes are true to the direction from President Trump and OMB – they streamline the FAR — but they are, at least for now, relatively modest.

For updates see the GW Law “tracker“

Background

The FAR is the product of 250 years of regulatory development in the United States. As Jim Nagle explained in his landmark history of the U.S. government procurement system, the earliest U.S. law on procurement in 1775 drew on lessons from Europe and was used to support the Continental Army. The U.S. procurement system evolved over time (see C. Yukins, The U.S. Federal Procurement System: An Introduction) but the federal government’s procurement rules were not unified for over two centuries, until the FAR came into effect on April 1, 1984.

Click here for a very interesting webcast on this initiative with Ralph Nash, Jim Nagle, Vern Edwards and Don Mansfield

The FAR and its agency-specific supplements have become an extraordinary “operating manual” for the federal procurement community. While the FAR is dense (it is several thousand pages long), it reflects the accumulated learning of over two centuries of public procurement, almost certainly the longest unbroken commitment in modern times to the rule of law and a well-ordered procurement system. The FAR serves as the backbone to what many believe is the world’s most sophisticated procurement system, and dismembering the FAR could have serious implications for our nation’s security and well-being.

At the same time, however, President Trump was elected on a strongly anti-regulatory platform. In his first days in office he called for the elimination of ten old regulations for every new one (EO 14192), and on April 15, 2025 he issued Executive Order 14275, Restoring Common Sense to Federal Procurement, which mandated a comprehensive overhaul of the FAR.

The executive order said that, within 180 days (i.e., by mid-October), the Federal Acquisition Regulation Council (FAR Council), working with the Administrator of the Office of Federal Procurement Policy, heads of agencies, and senior procurement officials, “shall take appropriate actions to amend the FAR to ensure that it contains only provisions that are required by statute or that are otherwise necessary to support simplicity and usability, strengthen the efficacy of the procurement system, or protect economic or national security interests.”

In a May 6, 2025 press release regarding the FAR overhaul process, the General Services Administration said, besides eliminating non-statutory and duplicative regulations and replacing burdensome requirements with straightforward buyer guides, the overhaul effort will “[r]emove DEI [Diversity, Equity and Inclusion] and wokeness.”

Sunset Requirement

Where the FAR overhaul process leaves provisions in place, under the Executive Order the OFFP Administrator and the FAR Council are to consider whether to set those regulations (or any new FAR provisions not required by statute) to “sunset” (expire) automatically within four years, unless renewed by the FAR Council.

Consistent with the Executive Order, the proposed rewrite would create a global requirement, under a new FAR 1.109, that all “FAR sections that are not required by statute must expire 4 years after the effective date of the sections,” unless approved by the FAR Council. The guiding OMB memorandum, discussed below, emphasized that “all FAR requirements not directed by statute that remain in the FAR [after the overhaul] will expire four years after the effective date of the rule unless renewed by the FAR Council.”

This appears to mean that, if provisions of the FAR remain in place once the overhaul is done, those provisions of the FAR will automatically implode after four years unless the FAR Council saves them. Because the rulemaking resulting in a revised FAR may last until 2026-2027, the FAR could collapse in the early 2030s. For the reasons outlined above, this could prove enormously disruptive to the federal procurement system.

OMB’s Plan To Overhaul the FAR

Pursuant to President Trump’s Executive Order, on May 2, 2025 OMB Director Russell Vought issued a memorandum calling for a “revolutionary” overhaul of the FAR.

The OMB memorandum emphasized that the “FAR will be refocused on its statutory roots.”  Most regulations not based on statute, the memorandum said, “will be replaced with OFPP-endorsed buying guides that highlight proven innovative buying techniques for different phases of the acquisition lifecycle as well solutions and manageable procurement pathways for different types of common goods and services recognized by category management.” This embrace of new buying techniques echoes President Trump’s executive order on defense acquisition, and the procurement reforms proposed by Senate Armed Services Committee Chairman Roger Wicker.

The OMB memorandum explained that the “streamlined FAR and buying guides . . . will collectively be referred to as the Strategic Acquisition Guidance (SAG).” The Guidance is to “increasingly leverage technology over time,” to “provide a common-sense authoritative foundation for nimble response and delivery of mission capability.”

The OMB memorandum noted (and the overhaul website now confirms) that the public will be allowed to submit “informal” comments on the proposed changes; though those public comments will be considered, there will be no response from the FAR Council.

According to the OMB memorandum, after “the FAR Council has posted model deviation guidance for all FAR parts, it will turn to formal rulemaking” to overhaul the FAR. The rulemaking (discussed below) “will be informed by the model deviation text, public input on the text . . . , operational experience with agency deviations, recommendations from agency points of contact . . ., testing of the buying guides, and other appropriate inputs.”

How the Revolution Is Unfolding

The FAR overhaul team has now published the first tranche of reforms. The “Revolutionary FAR Overhaul” (or “RFO”) team is led by the Office of Federal Procurement Policy (OFPP) and the Federal Acquisition Regulatory Council (FAR Council). The team has published proposed revisions to FAR Parts 1, 34 and 52. For each overhauled FAR part, and in accordance with the OMB memorandum, the team has presented:

  • proposed revised FAR text;
  • a “lineout” showing deletions from the current FAR; and,
  • model FAR deviations (individual (a deviation applicable to only one contract) or class (deviations which affect more than one contract)) that agencies can use to issue their own deviations to fill the regulatory gap until a rewritten FAR can be formally approved by the FAR Council after public review and comment.

Per the guiding OMB memorandum, agencies are expected to publish deviations within 30 days of publication of the proposed revisions by the overhaul team. By using stopgap FAR deviations and undertaking a full notice and comment process, the FAR overhaul team has reduced the risk of lawsuits challenging abrupt changes to the FAR without the full public process and review called for by 41 U.S.C. § 1707.

Proposed Rewrites: The First Step

The proposed new language for FAR Parts 1, 34 and 52 is relatively spare, which may be due to time constraints – per the Executive Order, as noted, the overhaul process must be completed within 180 days.

The rewrite team is not addressing the FAR parts in strictly numerical order, but has instead first published changes to scattered parts of the FAR. Beyond first streamlining FAR Part 1, which governs the regulators’ own work, it is not clear why the rewrite team leapt ahead to FAR Parts 34 and 52. Doing so, however, has offered important clues to how they might approach other parts of the FAR.

FAR Part 1 – The FAR System

The most thoroughgoing proposed changes are to FAR Part 1, which governs how the FAR is produced, administered and read. The accompanying “lineout” document (though it is not completely accurate) is one way to identify proposed changes to FAR Part 1, which include the following:

  • Vision Erased: The overhaul would delete the statement of the FAR’s vision which was quoted in the President’s executive order, “for the Federal Acquisition System . . . to deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives.” This focus on best value (as opposed to low price) and the emphases on integrity and integrating policy objectives (such as socioeconomic requirements) into procurement have long been hallmarks of the U.S. procurement system. As with other deleted provisions, this statement may be moved to a “buying guide” – the rewrite team did not provide explanations for any of the proposed changes, or indicate what the next steps may be regarding deleted provisions.
  • Risk Management Retained: Notably, though many of the guiding principles set forth in current FAR 1.101-2 would be gutted, the revised section would still call for focus on risk management, not risk avoidance. Globally, other leaders in procurement (such as the OECD (2023)) have also stressed that modern procurement is, at its core, an exercise in risk management.
  • FAR Rulemaking Process Erased: The proposed rewrite would delete current FAR Subpart 1.2, which describes the role of the FAR Council and other stakeholders in maintaining the FAR, and FAR Subpart 1.5, which governs public participation in rulemaking under the FAR. It is not clear why these provisions were deleted, or whether these important topics (see Sandeep Kathuria’s analysis of the loss of public comments) would be addressed elsewhere, for example in non-binding guidance.

An Example of Legal Questions Raised by the Overhaul

As noted, the overhaul would delete the statement of the FAR’s vision, FAR 1.102 — which was endorsed in the President’s executive order directing the overhaul — “for the Federal Acquisition System . . . to deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives.” Because there are no accompanying statements of explanation from the overhaul team, it is not clear whether:

  • The rewrite team has exceeded its authority, because President Trump, by executive order, has ultimate say over all issues of law in the Executive Branch?
  • The rewrite team has considered the case law which rests on this FAR language, such as AvKare, Inc. v. United States (COFC 2016) (a general point that Ralph Nash and Jim Nagle raised in their webcast (above))?
  • The rewrite team has the authority under Kisor v. Wilkie (U.S. Supreme Court 2019) to change course dramatically on a longstanding regulation (issued in January 1995)? Kisor (which discussed limits on agencies’ interpretations of their own regulations) was amplified by Loper Bright Enterprises  (U.S. Supreme Court 2024) (where the Court said that agencies are not automatically entitled to deference in implementing statutes through regulations); Loper Bright in turn was embraced by President Trump’s recent executive order on unlawful regulation.  
  • If, as OMB strongly recommends, within 30 days other agencies uniformly adopt their own class deviations that match the “model” GSA class deviation erasing this provision, are the other agencies’ class deviations legally authorized by FAR 1.402, which allows only for “deviations . . . when necessary to meet the specific needs and requirements of each agency“? (Emphasis added.) (The proposed overhauled provision, new FAR 1.304, would by amending the regulation arguably expand agencies’ authorities to issue class deviations — which again triggers the question of authority.) 
  • The abrupt regulatory change may launch litigation which could delay the final rulemaking (due to begin in October 2025), and whether that in turn will delay the four-year “sunset” provision which is timed to implode the FAR in the early 2030s (see above)?
  • This substantive change in rules to be effective must go through the notice-and-comment required by 41 USC 1707?
  • Per a GSA press release of May 6, 2025 (see above), this change (1) is to erase non-statutory and duplicative regulations, (2) will be resolved by replacement with a buyer guide, and/or (3) is to “[r]emove DEI and wokeness“? Judicial review of the change could take very different pathways, depending on the purpose of the change.

FAR Part 34 – Major Systems Acquisition

The Trump administration overhaul also would delete FAR Subpart 34.1, which calls for full and open competition in major systems acquisitions. It is not clear why; again, no explanation was provided.

The subpart may have been deleted because current FAR 34.000 states that the subpart was based upon OMB Circular A-109 (see 1979 GAO report), and that OMB Circular was rescinded years ago (see OMB explanation). In fact, however, FAR Subpart 34.1 has a statutory basis as well, because it was updated to conform to the competition requirements of the Competition in Contracting Act of 1984, see 50 Fed. Reg. 1726, 1744 (1985).

Alternatively, Subpart 34.1 may have been deleted because the FAR overhaul team felt that its requirements were redundant to the full-and-open competition requirements in FAR Subpart 6.1.

Regardless of why it was deleted, the unexplained elimination of FAR Subpart 34.1 might be read by some to open the door to noncompetitive procurements of major systems – a potential challenge to the integrity of the procurement system which the FAR overhaul team may address when, in the forthcoming formal rulemaking, they explain why the subpart was deleted.

FAR Part 52 – Contract Clauses

The potential rewrite of FAR Part 52 raised serious concerns across the federal procurement community because the standard contract clauses in Part 52 reflect decades – sometimes centuries — of careful balancing of contractual risks between the government and its contractors. The standard clauses are especially vulnerable because the Trump administration is bent on removing regulations which are not based on statute, and many long-established clauses (such as the Default clause, which can be traced back to procurement imbroglios of the early 1800s) lack any statutory basis. But a wholesale elimination of FAR Part 52 and its hundreds of standard clauses would mean throwing away centuries of learning, and potentially upending thousands of contracts (and subcontracts, which often rest upon the same clauses).

The proposed overhaul of FAR Part 52 appears to be much more modest. The overhaul team has identified only two clauses which would be amended as a collateral consequence of the reforms to FAR Part 34, discussed above. The overhaul team has not, however, proposed class deviations which agencies might use to implement these changed clauses.

This leaves at least three possibilities:

  • Because the overhaul materials are not clearly drafted, one reading is that all of the rest of FAR Part 52 is to be removed to a “Buying Guide.” This would be enormously disruptive, for the reasons outlined above.
  • Alternatively – and more likely – the overhaul of FAR Part 52’s standard clauses may continue to unfold as other parts of the FAR (and their accompanying clauses) are revised.
  • Finally – and least likely – it is possible that no other standard clauses will be touched by the FAR overhaul.

Conclusion

The Trump administration’s “revolutionary overhaul” of the FAR has begun. Perhaps because of the short time allowed for this complex process, the first handful of proposed changes seem modest, at least on their face. The first proposed changes have clarified the process that the FAR overhaul team will be following, in accordance with President Trump’s executive order and OMB’s direction. The initial overhaul process is to be completed by mid-October, and formal rulemaking to make the changes permanent (with public notice and comment) probably will follow for some time after that. In the meantime, the federal procurement community (see Daniel Ramish’s analysis) is likely to follow these changes closely because of the profound structural importance of the FAR, the centerpiece to the United States’ highly advanced procurement system.

The Defense Department Acquisition Executive Order

On April 9, 2025 President Trump issued an executive order on Department of Defense (DoD) acquisition, “Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base.”

While the executive order recognized the importance of the defense acquisition workforce, the order also called for the Defense Department to “right-size” that workforce. The order called for streamlined procurement methods, for example under FAR Part 12 (commercial goods and services) and Other Transactions Authority. Finally, the order called for reviews of major weapon systems and processes, to cull overdue and over-budget systems and to reform the processes used to purchase major systems.

Source: RAND Corporation

Introduction

The executive order called for enhancements in Defense Department procurement and in the defense acquisition workforce, which the President termed “a national strategic asset that will be decisive in any conflict.” The order called on the Department to “modernize the duties and composition of the defense acquisition workforce,” and to “incentivize and reward risk-taking and innovation from these personnel.” The order also called for accelerating defense procurement and revitalizing the defense industrial base.

For updates on Administration actions which affect procurement, see the GW Law “tracker“

Acquisition Process Reform

The order called for a plan from the Department of Defense, within 60 days, to reform the Department’s acquisition processes, including:

Adaptive Acquisition Pathways
  • Use of existing authorities to expedite acquisitions, including (1) giving a first preference to commercial solutions (including commercial products and services under FAR Part 12 and DFARS 212.2, commercial solutions opening (DFARS 212.70), and “other industry solutions funded by private investment”); (2) giving a general preference to Other Transactions Authority, Rapid Capabilities Offices’ policies (Air Force, Space Force, Army, Marines, Navy) “or any other authorities or pathways to promote streamlined acquisitions under the [Adaptive] Acquisition Framework.” In his memorandum of March 6, 2025 on software acquisition reform, Secretary of Defense Hegseth called for similar approaches when the Defense Department purchases software.
  • While the plan is being formulated the DoD is to prioritize use of these authorities in all pending Department of Defense contracting actions and, where appropriate and lawful, require their application. (See chart below comparing Commercial Solutions Opening vs. Other Transactions Authority.) In the bill that he introduced in the last days of the prior Congress, S. 5618, the FoRGED Act (Fostering Reform and Government Efficiency in Defense), and in his accompanying report (Restoring Freedom’s Forge), now-Chairman of the Senate Armed Services Committee Roger Wicker called for a similar emphasis on commercial solutions and streamlined acquisition methods. In many ways, this executive order aligned the Trump administration with Senator Wicker’s agenda for reform. More broadly, these efforts parallel efforts in the European Union to encourage “procurement for innovation,” though in the EU the focus is on civilian acquisition, not defense.
  • A detailed review of the acquisition process and personnel to eliminate unnecessary or redundant tasks and approvals, and to centralize decision-making.
  • Developing a process by which the Under Secretary of Defense for Acquisition and Sustainment, Service Acquisition Executives, and Component Acquisition Executives can manage risk for all acquisition programs through the Configuration Steering Board, a formal steering board which would undertake an annual review of potential requirements changes, critical intelligence parameter changes, and any significant technical configuration changes per Department of Defense Instruction 5000.85.
  • Undertaking a review to streamline DoD regulations and guidance and to promote faster acquisition (with any new regulations or guidance subject to the ten-for-one rule which requires ten deleted regulations for every new one, per EO 14192, “Unleashing Prosperity Through Deregulation” (Jan. 31, 2025)).
Commercial Solutions Opening vs. Other Transactions Authority

Acquisition Workforce Reform

Within 120 days, the Defense Department is to submit a plan to “reform, right-size, and train the acquisition workforce.” The plan is to include performance metrics to encourage acquisition officials to give first consideration to commercial solutions (defined above). The plan is also to review appropriate staffing levels. The plan is to establish “field training teams,” led by senior managers, to train on innovative acquisition authorities and commercial solutions. Finally, the plan is to produce policies and procedures to incentivize acquisition officials to use innovative acquisition authorities and to “take measured and calculated risks.” Senator Wicker’s “Restoring Freedom’s Forge” report (see above) called for similar reforms to the Defense Department’s procurement structure.

Major Reviews

Under the executive order, the Defense Department is to undertake a comprehensive review of all major defense acquisition programs (MDAPs), to identify those over budget, behind schedule or inconsistent with current policy — and those will be considered for cancellation. After the MDAP review, the Defense Department is to review other major systems. Finally, the Department is to review the Joint Capabilities Integration and Development System “with the goal of streamlining and accelerating acquisition.”

Editor’s Note: This summary was prepared for the Procurement Reform seminar taught as part of George Washington University Law School’s Government Procurement Law Program.

President Trump and Buy American — The Overlooked Report

Introduction

In the midst of the uproar which surrounded “Liberation Day” and a wave of Trump administration tariffs, on April 3, 2025 the White House quietly released an executive summary of a (non-public) comprehensive report to the President on trade policy, including on “Buy American” policies in procurement. The White House report received little attention in the press, perhaps because it was so technical.

To put the White House report in context, the discussion below first reviews the historical background to the current protectionism in U.S. procurement policy. While “Buy American” policies seem “common sense” to the Trump administration (as they were to the Biden administration), protectionism in procurement marks a sharp departure from postwar U.S. trade policy.

The discussion then turns to the WTO Government Procurement Agreement (GPA). Although the White House report raises concerns about the GPA, for the practical reasons reviewed below it appears — at least at this point — unlikely that the United States will withdraw abruptly from the GPA without at least first attempting to renegotiate its terms.

The White House report also expressed concerns about reciprocal defense procurement agreements (free trade agreements for the defense sector). The White House report cited potential damage to the U.S. industrial base in defense markets opened by these agreements. Because transactions in those defense markets often carry “offset” requirements — a requirement to subcontract with companies in the purchasing country, for example, or a forced technology transfer to the purchasing country — the Trump administration may review reciprocal defense procurement agreements with an eye to limiting arrangements that could undermine the U.S. industrial base.

For updates on Administration actions which affect procurement, see the GW Law “tracker“

Finally, the discussion below turns to a separate review by the Office of Management and Budget (OMB), regarding foreign subsidies which may distort procurement markets in the United States. This focus on foreign subsidies echoes the EU Foreign Subsidies Regulation, which allows the EU to take action if a foreign vendor receives unfair and distorting advantages through foreign government subsidies. The White House report signaled that the United States may take a similar approach against foreign subsidies.

For commentary on the White House report by Jean Heilman Grier (Djaghe LLC), please click here

Background

The White House report was delivered in response to President Trump’s “America First Trade Policy,” issued in his first hours in office, directing his administration to “review the impact of all trade agreements,” including the WTO Government Procurement Agreement, on the volume of federal procurement covered by Trump’s 2017 executive order (“Buy American and Hire American“) and to make “recommendations to ensure that such agreements are being implemented in a manner that favors domestic workers and manufacturers, not foreign nations” (Chapter 11). The White House report also responded to President Trump’s direction, per the “America First Trade Policy,” that the Office of Management and Budget (an office in the White House) “assess any distorting impact of foreign government financial contributions or subsidies on United States Federal procurement programs and propose guidance, regulations, or legislation to combat such distortion” (Chapter 22).

Only the executive summary of the report was published by the White House; the rest of the report was withheld from the public.

Many elements of the comprehensive report were delivered ahead of schedule. This suggests that the elements that relate to procurement, discussed below, may be referenced by the United States in ongoing bilateral or regional negotiations regarding the comprehensive reciprocal tariffs announced on April 2, 2025 (“Liberation Day”).

For information on how the sweeping tariffs announced on April 2, 2025 (“Liberation Day”) may impact procurement, see “Trump and Tariffs — The Procurement Exception“

Below, each element of the White House report regarding procurement is reviewed. The key language from the executive summary of the report is set forth in blue, and then discussed in detail.

White House: Buy American Is Common Sense

“Buy American is the epitome of common-sense public policy.” – White House Report

After nearly a decade of protectionism under the Trump and Biden administrations, the argument that Buy American policies are “common sense” seems uncontroversial. But protectionism in procurement marks a sharp change from the history of U.S. trade policy since World War II.

Source: BBC

In the years before World War II, many governments looked to protectionism in procurement as a solution for the economic catastrophes of the Great Depression. The Buy American Act was put in place in 1933, a few years after the financial crash of 1929 and after the steep Smoot-Hawley tariffs of 1930. At the same time, governments were using protectionism to stoke nationalism and xenophobia, which helped launch World War II. The poster at left, which says (in rough translation) “Hitler builds up — help him — buy German goods,” is an example of this sort of pre-war nationalism intertwined with protectionism.

In part because of this history of protectionism, nationalism and conflict, after World War II many U.S. policymakers hoped to include public procurement as part of a broader effort to open world markets so as to reduce the risks of war. For example, the suggested charter for what was to be the International Trade Organization (what eventually became the World Trade Organization), published shortly after the war in September 1946 by the U.S. State Department, in Article 8 would have included public procurement in a broader framework of free trade.

Source: Heritage Foundation (2017)

At the same time, there was a growing recognition that “Buy American” protectionism could carry real costs. A landmark study by Victoria University (Australia), for example, used macroeconomic data regularly relied upon by the U.S. government to conclude (as the Heritage Foundation reported in 2017) that “eliminating all existing domestic content requirements would provide immense benefits to U.S. producers and taxpayers, as well as contribute to significant job growth across the economy.” A 2024 study by international economists similarly concluded that, while “Buy American” laws can increase U.S. domestic employment, they do so at very steep social costs to the U.S. economy.

These political, diplomatic and economic concerns explain why the United States played a leading role into the 21st century in negotiating what eventually became the WTO Agreement on Government Procurement (GPA), which was most recently revised in 2012. (See history) The GPA is a plurilateral agreement (only some, not all, WTO members apply successfully to join), which generally opens member nations’ procurement markets (especially for civilian procurement).

Parties and Observers to the GPA (Source: WTO)

WTO Government Procurement Agreement

“In recent decades, the United States has weakened domestic procurement preferences by opening up our procurement market pursuant to the World Trade Organization’s (WTO) Agreement on Government Procurement (GPA). Unfortunately, this market access is lopsided. A 2019 report by the Government Accountability Office (GAO) on the GPA found that in 2010, the United States reported $837 billion in GPA coverage. This was twice as much as the $381 billion reported by the next five largest GPA parties (the EU, Japan, South Korea, Norway, and Canada), despite the fact that total U.S. procurement was less than that of these five partners combined.” – White House Report

Debate over “reciprocal” access: The debate over whether procurement trade is fair and “reciprocal” ultimately may be unresolvable. While the White House report (cited above) cites a 2019 GAO report to argue that the United States offers foreign vendors much broader potential access to the federal procurement market (“coverage”), the same GAO report acknowledged that only a very small portion of total federal procurement (roughly US$430 billion) actually went to foreign vendors in 2015, the year studied — only roughly $12 billion (less than 3 percent).

Estimated Bilateral Procurement Flows between Central Governments of the United States and the Other Six Main Parties to Selected International Procurement Agreements, 2015 (Source: GAO)

The European Commission has argued for a different approach to measuring access to procurement markets. The Commission has urged that the negotiating parties look to the access enjoyed by their vendors to both direct (through prime contracts) and indirect public purchases (through resellers in the foreign market, for example). Taking this approach, in Section 2.1 of a 2021 study the Commission concluded that (compared to foreign firms’ access to U.S. procurement), U.S. firms enjoyed much higher shares of the EU Member States’ public procurement markets, directly and indirectly.

The debate remains open, therefore, about whether there is fair “reciprocity” — however defined — between the GPA member nations.

“Moreover, some GPA partners open their procurement markets to third countries who are not parties, forcing U.S. suppliers to compete for the preferential market access they are entitled to under the agreement. To address this lack of reciprocity and unfair competition, the United States should modify or renegotiate the GPA, and if unsuccessful, withdraw.” – White House Report

The White House report here touches on at least three important issues regarding the GPA:

  • The GPA should be renegotiated — and that may prove difficult: Renegotiation of the GPA is not simply an option– it’s built into the agreement itself. Article XXII of the agreement contemplates that the parties “will continue improving the GPA,” the WTO notes. “The GPA 2012 sets out that the parties shall undertake further negotiations to progressively reduce and eliminate discriminatory measures and to achieve the greatest possible extension of the coverage.” In this regard, the WTO points out, “the GPA parties have also agreed to undertake a number of work programmes which will influence the future evolution of the Agreement,” such as in environmental sustainability, and regarding preferences for small- and medium-sized enterprises (SMEs). Some of these “work program” topics may prove very controversial among the GPA parties, and so renegotiations — if they follow this previously agreed path — could take years to complete.
  • Abandoning the GPA could be very difficult: Shortly before the end of the first Trump administration in 2021, senior policymakers signaled that the United States might withdraw from the GPA. Withdrawing then would have been difficult, and remains so: among other things, because Canada never joined the government procurement chapter to the regional U.S.-Mexico-Canada Agreement (USMCA), it is not clear how U.S. vendors could gain free access to Canadian public procurement markets (where the United States reportedly enjoys a trade surplus) if the United States withdrew from the GPA.
  • Barring third-party access to GPA markets is not (yet) part of the GPA: The White House report suggests that the United States is facing unfair competition because vendors from third parties — such as China, which is not a GPA member — are allowed to compete in GPA markets, such as in the Member States of the European Union. But nothing in the GPA bars the parties from opening their markets to third parties; as a matter of law and practice, a few EU Member States prohibit third-party vendors, as does the United States under the Trade Agreements Act (implemented through FAR 25.403). Barring third-party vendors generally would require a very new (and potentially very controversial) approach to the GPA. If GPA parties were required to exclude non-parties (such as China and Russia) from public procurements, the GPA might become a “friends” club limited to nations loosely aligned with the United States — akin to the “friend-shoring” advocated by the Biden administration. (For context, see the map of GPA members, above.)

For a discussion of EU efforts to block unfair competition from China and other nations click here

Defense Procurement Trade

“An additional challenge is that, although defense procurement is closed to GPA partners, the Department of Defense still gives countries access to our huge defense procurement market by negotiating Reciprocal Defense Procurement (RDP) agreements. Shockingly, these RDPs not only open our market to foreign suppliers, but also require U.S. firms to move industrial capacity offshore as a condition of access to the markets of partner countries. These RDPs must be reviewed to ensure they put America First.“ – White House Report

Assessing the reciprocal defense procurement agreements: The White House report also addressed reciprocal defense procurement agreements. Under these bilateral agreements between the U.S. Department of Defense and allies’ ministries of defense, the parties typically agree to open their markets for defense supplies, services, and research and development. See, e.g., Drew Miller, Is It Time to Reform Reciprocal Defense Procurement Agreements?, 39 Pub. Cont. L.J. 93 (2009).

Source: U.S. Government Accountability Office

Year after year, the United States enjoys a substantial trade surplus in the defense sector (see chart below). This defense trade, facilitated by the reciprocal defense procurement agreements, both helps strengthen the U.S. defense industrial base and reinforces the United States’ ties with its international partners. It is unlikely, therefore, that the United States would abandon these defense agreements.

Source: U.S. Government Accountability Office

The White House report released on April 3 suggests, though, that the United States might revisit the reciprocal defense procurement agreements because of concerns about the agreements’ impact on the defense industrial base (a recurring concern raised in a recent GAO report on reciprocal defense procurement agreements).

Those concerns about impacts on the defense industrial base may stem from “offsets“ — offsetting concessions that a contractor must make to a foreign government in order to win a contract (typically a defense contract).

Although the executive summary released by the White House does not reference offsets explicitly, the reference to reciprocal defense procurement agreements which “require U.S. firms to move industrial capacity offshore as a condition of access to the markets of partner countries” seems to be a reference to offsets because the reciprocal defense procurement agreements themselves do not require U.S. firms to move industrial capacity offshore. Offset agreements, in contrast, often do demand that a successful contractor move industrial capacity to the purchasing country, which suggests that the White House report was in fact targeting offsets.

While the GPA (discussed above) bans offsets from civilian agency procurements covered by the agreement (see Congressional Research Service report), it is not clear that the Trump administration intends to ban offsets from all defense procurements done under reciprocal defense procurement agreements. An important 2009 study done on the transatlantic defense trade, Fortresses and Icebergs, noted, for example, that U.S. firms were very successful in competing in defense markets that demanded offsets. Id. at 27.

It is more likely, therefore, that the Trump administration will focus on offset arrangements which hurt the U.S. defense industrial base, for example by requiring U.S. firms to subcontract some portion of their work abroad, or by forcing U.S. firms to deliver technical know-how that similarly weakens the U.S. defense industrial base. See, e.g., U.S. Department of Commerce, Bureau of Industry and Security, Offsets in Defense Trade — Twenty-Eighth Study, at 13 (2024); U.S. Government Accountability Office, Agencies Should Improve Oversight of Reciprocal Defense Procurement Agreements (2024). The chart below illustrates how common these types of arrangements — mandatory subcontracting, for example, or required technology transfers — are in offsets.

Source: U.S. Department of Commerce

Whether reciprocal defense procurement agreements could be modified to mitigate these impacts of offsets on the U.S. defense industrial base is, however, an open question.

Foreign Subsidies: Impact on Federal Procurement

“Foreign subsidies can disadvantage domestic products in a country’s government procurement market. The EU has recognized this problem and introduced the Foreign Subsidies Regulation (FSR) to address distortions caused by foreign subsidies for public procurement. OMB assessed the value of the FSR and other policies to tilt the playing field in favor U.S. producers by strengthening domestic procurement preferences and closing loopholes.” – White House report

In Chapter 22, the White House report summarized OMB’s findings regarding foreign subsidies’ potential impact on federal procurement. The January 20, 2025 direction from President Trump had called for an OMB report on “any distorting impact of foreign government financial contributions or subsidies on United States Federal procurement programs,” and to “propose guidance, regulations, or legislation to combat such distortion” — an echo of the EU’s Foreign Subsidies Regulation, which bars government subsidies which may give foreign vendors an advantage in EU procurements. (Background information on the EU Foreign Subsidies Regulation is linked below; see also Pascal Friton, Max Klasse & Christopher Yukins, The EU Foreign Subsidies Regulation: Implications for Public Procurement and Some Collateral Damage, 65 Government Contractor ¶ 63 (Mar. 22, 2023).)

As expected, the April 3, 2025 White House report did indeed follow the pathway of EU Foreign Subsidies Regulation. The White House report acknowledged the EU Foreign Subsidies Regulation (FSR) as a means “to address distortions caused by foreign subsidies for public procurement,” and noted that OMB had “assessed the value of the FSR and other policies to tilt the playing field in favor U.S. producers by strengthening domestic procurement preferences and closing loopholes.” The report did not explain how, exactly, the European Union’s strategy might be deployed by the United States.

Research Resources: EU Foreign Subsidies Regulation

A New Barrier to Transatlantic Procurement: The EU’s Foreign Subsidies Regulation

Editor’s Note: This summary was prepared for GW Law School’s seminar on comparative and international public procurement law.

President Trump’s Reciprocal Tariffs — and the Procurement Exception

President Trump has announced sweeping tariffs against most of the United States’ leading trading partners. Many nations have indicated that they will retaliate (see running updates compiled by the Global Trade Alert), and international trade flows may be severely disrupted.

The Procurement Exception

There is, however, an important tariff exception for federal procurement. When foreign goods are imported for sale to the U.S. government, if proper procedures are followed, the goods may be free from tariffs, per longstanding U.S. regulations. For information on U.S. agencies’ exemptions from tariffs in their procurements, see the analysis compiled here.

Were the Tariffs Properly Calculated?

Source: USTR

Were the U.S. tariffs improperly calculated? The U.S. Trade Representative (USTR) has published the formula (at left) used to calculate the tariffs announced on “Liberation Day,” April 2, 2025. (The vast popular importance of this formula was confirmed when it became the subject of a Saturday Night Live comedy sketch on April 5, 2025.) The formula, described in the box below, was used (according to the USTR) to calculate tariff rates at the rate necessary to “zero-out” persistent trade deficits.

The USTR calculated the tariff rates as follows, referencing the formula below: “Consider an environment in which the U.S. levies a tariff of rate τ_i on country i and ∆τ_i reflects the change in the tariff rate. Let ε<0 represent the elasticity of imports with respect to import prices, let φ>0 represent the passthrough from tariffs to import prices, let m_i>0 represent total imports from country i, and let x_i>0 represent total exports. Then the decrease in imports due to a change in tariffs equals ∆τ_i*ε*φ*m_i<0. Assuming that offsetting exchange rate and general equilibrium effects are small enough to be ignored, the reciprocal tariff that results in a bilateral trade balance of zero satisfies.”

A number of experts from around the world have criticized the formula and the values used in the formula:

  • As the graphic from USA Today/AFP below shows, because the Trump administration assumed the value of “ε” (the elasticity of imports with respect to import prices) was 4, and the value of “φ” (the passthrough of tariffs to consumer prices) was set at .25, the equation neutralized those elements — essentially leaving the equation one of dividing the trade balance (“x” (exports) minus “m” (imports) divided by “m” (imports)), and dividing the quotient by 2.
  • As CNN noted, quoting Mike O’Rourke from Jones Trading, “‘While these new tariff measures have been framed as “reciprocal” tariffs, it turns out the policy is actually one of surplus targeting [i.e., aiming to “zero out” trade deficits]. . . . ‘There does not appear to have been any tariffs used in the calculation of the rate. The Trump administration is specifically targeting nations with large trade surpluses with the United States relative to their exports to the United States.'”
  • Senior economists Kevin Corinth and Stan Veuger at the American Enterprise Institute offered the following example to explain how the Trump reciprocal tariffs were calculated: “As an example, if the US imports $100 million worth of goods and services while exporting $50 million to a country, then the Trump Administration alleges that country levies a 50 percent tariff on the United States (the difference between $100 million and $50 million, divided by $100 million). The ‘reciprocal’ tariff put into effect by President Trump . . . would be half of that, 25 percent.”
  • The AEI economists argued that the formula used by the Trump administration was incorrect in assuming that “φ” (the passthrough from tariffs to import prices) was .25. They noted that “the elasticity of import prices with respect to tariffs should be about one (actually 0.945), not 0.25 as the Trump Administration states.” The Trump administration officials’ mistake, the economists said, “is that they base the elasticity on the response of retail prices to tariffs, as opposed to import prices as they should have done. . . . It is inconsistent to multiply the elasticity of import demand with respect to import prices by the elasticity of retail prices with respect to tariffs.” If the tariff rates were corrected, the AEI economists wrote, the corrected rates (assuming the 10 percent floor imposed by President Trump) would (for example) top out at 13.2% for Lesotho (compared to the current top rate of 50%); the rate for China would drop from 34% (which triggered massive retaliation from China) to 10% (the lowest rate allowed by the Trump policy).

Could Tariffs Replace Income Taxes?

One of the open questions surrounding the Trump tariffs is whether tariffs, if raised high enough, could replace U.S. income taxes. Economists Simon Evenett and Marc-Andreas Muendler concluded the answer is no: “Until the late 19th century, states raised most of their government revenues from import tariffs. Could the practice work today? A side effect of taxes is that they discourage the economic activity that they are assessed on. Tariffs are taxes on imports and no different: they shrink trade. [In their study they] allow tariff revenues to change an economy’s savings and therefore the trade balance, as the U.S. administration intends. Then the displacement effect of import tariffs is so strong that tariff revenues cannot plausibly fund more than a few days of annual U.S. government spending.“

Tariffs on U.S. Services Exports

Another open issue is whether U.S. services — which normally enjoy a substantial trade surplus — might be subject to reciprocal and severe tariffs abroad. A study published by Simon Evenett and Fernando Martín Espejo shows that the U.S. Trade Representative’s formula for reciprocal tariffs, if turned about and applied by foreign nations to U.S. services exports, might result in much steeper tariffs against U.S.-based firms, if the practical barriers to imposing tariffs on services could be resolved.

On February 21, 2025, GW Law’s Government Procurement Law Program held a webinar on rising U.S. and EU protectionism, which discussed recent caselaw in the EU Court of Justice and the Trump tariffs.

Click for information on Trump tariffs and u.s. Procurement

International Public Procurement Workshop 2025 – South Korea

From 5-7 March 2025, South Korea’s Public Procurement Service hosted an extraordinary conference featuring centralized purchasing agencies from over half of the Organisation for Economic Co-operation and Development (OECD) member states, from North America, Europe and Asia. The conference presentations, available for download here, addressed next steps for central purchasing bodies, including in sustainability, procurement-for-innovation and artificial intelligence (AI). The program was kindly coordinated by Paulo Magina and Erika Bozzay of the OECD, and was led by Korean Public Procurement Service (PPS) Administrator Lim Ki-keun (left center front in photo below).

EU Anti-Coercion Instrument: Impact on Public Procurement

In response to President Trump’s threats to impose severe, across-the-board tariffs on goods from the European Union (EU), EU policymakers have warned that the EU may respond by deploying its “trade bazooka,” the EU Anti-Coercion Instrument. This could have an important impact on U.S. vendors in EU public procurement markets.

The EU Anti-Coercion Instrument is an EU regulation, formally Regulation (EU) 2023/2675 of the European Parliament and of the Council of 22 November 2023 on the protection of the Union and its Member States from economic coercion by third countries, which provides the EU with a range of remedies to deploy in the face of international trade “coercion.”

The European Commission describes the Anti-Coercion Instrument “first and foremost” as “a deterrent against economic coercion.” Where “coercion” occurs, the tool provides EU policymakers with a “structure to respond in a well-calibrated way to stop the coercion,” through a “a wide range of possible countermeasures when a country refuses to remove the coercion.” Besides tariffs, those counter-measures can include “restrictions on access to . . . public procurement.” The Anti-Coercion Instrument “provides a legal framework for responding to coercion and sets down the means for the EU to investigate and take decisions.” It includes timeframes and procedures for stakeholders to work with the Commission before the EU launches countermeasures, and “provides a framework for the EU to request a third country to repair the injury caused by its economic coercion.”

Under the Anti-Coercion Instrument, “economic coercion” occurs when another country “applies or threatens to apply a . . . measure affecting trade or investment” in order stop or curb an action by the EU or a Member State, “thereby interfering in the legitimate sovereign choices of the Union or a Member State.” Before deploying the Instrument, the EU is to take into account the “intensity, severity, frequency, duration, breadth and magnitude” of the other nation’s measures, whether the other nation “is engaging in a pattern of interference seeking to prevent or obtain particular acts” from the EU, its Member States or another nation, whether the “coercive” nation’s measures encroach “upon an area of the Union’s or a Member State’s sovereignty,” and whether the “coercive” nation has failed to make good-faith efforts to resolve the matter. European leaders and economists have argued that the Trump administration’s attacks against the EU meet all of those triggers.

The Anti-Coercion Instrument includes, in Annex I, potential countermeasures which would impact public procurement. Those countermeasures could be deployed despite potential violations of “applicable international obligations concerning the right to participate in tender procedures in the area of public procurement” — in other words, even if by taking those measures the EU risked violating the World Trade Organization (WTO) Government Procurement Agreement, which opens the EU and U.S. public procurement markets. (The Anti-Coercion Instrument does not explicitly address the bilateral reciprocal defense procurement agreements which are vital to open defense markets between the United States and its NATO allies.)

The Anti-Coercion Instrument says that, with regard to public procurement, “goods, services or suppliers” from a targeted “coercive” nation can be excluded from public procurements in the European Union. Alternatively, bids (tenders) that include goods or services from “coercive” nations can also be excluded, or the scoring evaluation of those bids can be adjusted.

If the EU deploys the Anti-Coercion Instrument against U.S.-based vendors, goods and services in EU Member State procurements, the consequences could be severe. European Commission data show that U.S. vendors, goods and services enjoy a substantial share of the EU public procurement markets, directly and indirectly. The coming weeks will be critical as the EU decides whether to use the Anti-Coercion Instrument to respond aggressively to perceived “coercion” from the Trump administration.

For further information:

Trump and Tariffs — the Procurement Exception

International Anti-Corruption Day — IACA’s Role in Anti-Corruption and Public Procurement

On December 9, 2024, in celebration of International Anti-Corruption Day, GW Law’s Christopher Yukins will join the International Anti-Corruption Academy (IACA) to discuss IACA’s future contributions to global efforts to fight corruption in public procurement.

Our work over the years with IACA has allowed us to explore how risk-based anti-corruption strategies complement – and strengthen – public procurement outcomes. Bid challenges (protests), for example, and contractor compliance, debarments and legislative oversight — all of these mitigate both the risks of failure in public procurement and the risks of corruption. The next step will be to integrate those risk-based anti-corruption strategies with international best practices, such as through the OECD and the European Union’s forthcoming revised procurement directives.

Invitation to IACA’s December 9, 2024 Webinar

ICAPP 2024 – Dublin

On November 10-12, 2024 academics and public procurement professionals from around the world gathered at Dublin City University for the inaugural International Conference for Advancing Public Procurement (ICAPP 2024), coordinated by colleagues from Florida Atlantic University and launched with the kind support of NIGP, The Institute for Public Procurement.

GW Law’s Christopher Yukins presented on issues of green procurement on the first day of the conference. The focus of this post is on several excellent presentations made during the second day, during the “legal issues” session chaired by Professor Tünde Tátrai of Corvinus University, Budapest.

Damages as a Legal Remedy in Bid Challenges (EU)

Alice Lea Nikolay, LL.M. of the University of Vienna (WU), from the Institute for Austrian and European Public Law, presented on “Damages as a Remedy –
Recent Developments and Future Perspectives.” She presented on damages that may be available in a bid challenge (a “bid protest” in the United States) under the European Union’s procurement directives, and suggested how damages may be dealt with in the future under the EU’s evolving procurement law.

Bid Challenges (Protests) in Croatia

Ema Menđušić Škugor, PhD, Co-Managing Partner of Divjak, Topić, Bahtijarević & Krka in Zagreb, Croatia, presented on “The Mess of Redress in the Croatian Public Procurement System.” She explained that the Croatian public procurement system is a complex one, even without considering the redress mechanisms available to its participants. But its redress segment remains a separate story. Several authorities are separately competent and offer varying degrees of protection. Some are widely used, in particular the appeals mechanism before the State Commission for Supervision of Public Procurement Procedures and the administrative dispute which can be initiated before the High Administrative Court. However, these mechanisms seemingly suffer from a continuous lack of governmental recognition regarding their practical significance – the administrative fees for initiating procedures before the State Commission are the highest in the country, while the High Administrative Court itself challenged the award of its exclusive competence in public procurement matters before the Croatian Constitutional Court. On the other hand, some mechanisms are (despite their importance) scarcely present on the market due to persistent lack of resources – this primarily concerns the ex-ante and ex-post inspection review procedure by the Ministry of Economy as the authority competent for overseeing the entire local public procurement system. In short, the environment denotes a concerning lack of consistency. Moreover, it lacks strategic, as well as expert vision and political will to, firstly, consider the public procurement system as a whole and, secondly, propose a redress system corresponding to its needs. Her slides, presented at the International Conference for Advancing Public Procurement (ICAPP) 2024, aim to shine a light on the current shortcomings of the redress system in Croatian public procurement legislation, with the purpose of opening up a discussion towards actions and solutions to overcome them.

Understanding Kolin and EU Protectionism

Marko Turudić, a professor in the University of Zagreb Faculty of Law, presented on “Exclusion of Third Country Economic Operators from EU Public Procurement — The Aftermath of the Kolin Judgement.” He led a spirited discussion of the Court of Justice for the European Union’s recent decision in Kolin, which (see post) may open the door to more aggressive protectionism in EU public procurement.