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.
Procurement, Anti-Corruption and Professionalism Training in Argentina
On October 16, 2025, GW Law’s Professor Christopher Yukins took part online in a program for Argentine judges coordinated by distinguished GW alumna Genoveva Ferrero of the General Secretariat of Administration and Budget of the Judiciary of the City of Buenos Aires, “Programa Intensivo de Perspectivas Comparadas en Derechos Humanos, Justicia Penal y Contratación Pública,” an intensive program on comparative approaches to human rights, criminal law and public procurement. Professor Yukins spoke on “Lucha contra la corrupción y transparencia en la contratación pública” — the fight against corruption in public procurement. Slides
Genoveva Ferrero also helped lead the 3-4 November 2025 Public Procurement Congress held at the Faculty of Law, University of Buenos Aires.
Victoria Christoff, professorial lecturer in law at GW, participated in the Congress, presenting on the current reforms of the U.S. federal procurement system. The panel, moderated by Barbara Fernandez Villa, the sub-secretary of the Cabinet of Ministers for the Republic of Argentina, also included Professor Andrea Sundstrand, professor of public procurement at the University of Stockholm, and a representative from the Office of Economics and Commerce from the European Union delegation in Buenos Aires. Ms. Christoff’s slides (in Spanish) are here.
The Buenos Aires Congress was very much a meeting of procurement professors from around the world. In the photo at left: Andrea Sundstrand (Stockholm University), Sope Williams (Stellenbosch University), Annamaria La Chimia (U. Nottingham), Gabriella Racca (U. Turin), Genoveva Ferrero (organizer), Patricia Valcárcel (U. Vigo), Tünde Tátrai (Corvinus U.) and Victoria Christoff (GW Law).
Appearing by video recording (to facilitate translation), Professor Yukins contributed an online lecture at the Congress in which he assessed the United Kingdom’s Public Sector Fraud Authority — a unique initiative internationally to use classic compliance measures to reduce the risks of fraud and corruption in the public sector.
The panel, moderated by Paola Laurenzano, Procurement Coordinator, United Nations Development Programme (UNDP) Argentina, also included Viviana Mora, Head of the User Management Division of the Public Procurement and Contracting Directorate, ChileCompra, GW Law alumnus Jean-Jacques Verdeaux, Procurement Manager, Latin America and Caribbean Region, The World Bank, and Javier Dávila Pérez, Chief of the Financial Management and Procurement Division, Inter-American Development Bank (IDB). Professor Yukins’ recorded presentation appears below.
Open Contracting in ASEAN Nations: Conference and Report
Shortly after GW Law’s worldwide webinar on open contracting, GW Law’s Professor Christopher Yukins joined a regional conference in Borneo, held in Kuching, the capital of the Malaysian state of Sarawak. That conference helped launch a report, prepared by Professor Yukins and GW Law students Anisley Sanchez and Ellen Rolda for the UN Office of Drugs and Crime (UNODC), on legal issues in open contracting in the ASEAN member states.
ASEAN was established in 1967 with the signing of the ASEAN Declaration by Indonesia, Malaysia, Philippines, Singapore and Thailand. Since then, Brunei Darussalam, Viet Nam, Lao PDR, Myanmar and Cambodia have joined, to make up what is today the ten member states of ASEAN. (Timor-Leste, the newest Member State, had not formally joined ASEAN at the time the study launched.)
At a September 2025 regional conference in Kuching, Malaysia which helped launch the study, experts from around the world discussed the prospects for open contracting as an anti-corruption tool in the ASEAN nations. The conference outcomes document called for a strengthening of legal and policy frameworks, aligned with core open contracting principles of disclosure, participation, and accountability.
The forthcoming UNODC report is the next step – an in-depth look at what is needed, from a legal and regulatory perspective, to bring open contracting to the ASEAN member states.
Open contracting is a simple concept: it means making public procurement data both accessible (typically by posting it online) and machine-readable (so that the data can be readily scanned and assessed). As the Open Contracting Partnership explains, open contracting “consists of disclosure and citizen engagement throughout the entire procurement process,” which “increases competition, improves public service delivery, creates better feedback loops, and ensures better value for money.”
The report will assess the prospects for open contracting in the ASEAN nations by looking to ten factors highlighted in a landmark report, How can we legislate for open contracting? (2021), published by the Open Contracting Partnership:
- Set out clear principles for all public procurement procedures in a single piece of overarching legislation.
- Establish strong anti-corruption and conflict of interest provisions.
- Promote competition and provide clear safeguards in non-competitive procedures, such as those used in emergency procurement.
- Ensure clear requirements to publish information at all stages of the procurement process, and maintain a complete record in one location.
- Use digital platforms and open data standards to foster and increase transparency and accessibility to information about public procurement procedures.
- Enforce publication requirements, deadlines, and clearly manage exemptions.
- Create procedures for public participation and monitoring across the entire procurement cycle.
- Support an accessible and effective complaints procedure.
- Empower oversight authorities.
- Provide effective guidance and guidelines to make procurement processes accessible and user-friendly to government, private sector, and civic users or observers of the system.
Tariff Exemption: Defense Items
In largely unnoticed developments, both the U.S. Department of Defense and the Senate Armed Services Committee have signaled that, consistent with current law, items purchased by the Department of Defense (called the “Department of War” by the Trump administration) should be exempt from tariffs. Although the Senate legislative provision was ultimately eliminated from the National Defense Authorization Act (see House Rules Committee final text of the NDAA), the tariff exemption remains in the Defense Federal Acquisition Regulation Supplement (DFARS). If rigorously exercised, the exemption could vastly simplify tariff issues for both the Defense Department and its contractors.
Editor’s note: An April 2026 update on the Defense Department’s exception from tariffs, published by Lexxion, is linked above.
The Trump Tariffs
The Trump administration’s tariffs have been controversial worldwide. One open issue for the U.S. procurement community has been whether those tariffs would be applied to items purchased from abroad by the U.S. government — in essence, whether the government would have to pay higher prices due to its own tariffs.
An earlier posting explained the various federal procurement exceptions from tariffs built into U.S. law. Those exceptions have sometimes been difficult and uncertain to administer, however, which left open the risk that the Trump administration tariffs would drain resources from federal government procurement. The initiatives outlined below make it less likely that — at least with regard to Defense Department purchases — the Trump tariffs will apply to federal purchases.
Procedures for Defense Department Tariff Exemption
The procedures for duty-free entry of Defense Department supplies are explained in a July 2025 Defense Contract Management Agency (DCMA) presentation to the Defense Acquisition University (DAU), which included the following process chart:
The process is spelled out in the Defense Federal Acquisition Regulation Supplement (DFARS) clause DFARS 252.225-7013, in DFARS Subpart 225.9, and in DFARS Procedures, Guidance and Implementation (PGI) Subpart 225.9. The process, as the diagram above reflects, results in a certification from the Department of War that the supplies are entitled to duty-free entry under Section XXII, Chapter 98, Subchapter VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of the United States, which covers “Materials certified to the Commissioner of Customs by the authorized procuring agencies to be emergency war material purchased abroad.” Customs rulings under Item 9808.00.30 are here.
Defense Department Memo Confirming Exemption
In an August 25, 2025 Defense Department-wide memorandum, John Tenaglia, the Principal Director, Defense Pricing, Contracting, and Acquisition Policy, emphasized that existing Defense Federal Acquisition Regulation Supplement 225.901 (DFARS 225.901) exempts many Defense Department purchases of foreign supplies. “In accordance with DFARS 225.901,” noted the memorandum, “unless the supplies are entitled to duty-free treatment under a special category in the Harmonized Tariff Schedule,” or the contractor has already paid the duty, per DFARS 225.901 the Defense Department will issue duty-free entry certificates for:
- End products and components from “qualifying” countries (which have reciprocal defense procurement agreements with the U.S. Department of Defense), and
- End products (but not components) that are “eligible products,” i.e., come from nations that have free trade agreements with the United States (such as the WTO Government Procurement Agreement), and
- “Other foreign supplies for which the contractor estimates that duty will exceed $300 per shipment into the customs territory of the United States.”
As was discussed above, normally the procedures for applying duty-free treatment to Defense Department procurements are set forth in DoD guidance, PGI Subpart 225.9. The August 2025 memorandum went further, and said that “contracting officers shall include or modify contracts” to include DFARS 252.225-7013 – Duty Free Entry (as prescribed in DFARS 225.1101(4)) for any “contracts or orders that anticipate delivery of end products, components, or materials imported into the customs territory of the United States.” The referenced clause, DFARS 252.225-7013, says that the exception is to extend to subcontracts, as well.
To “maximize the Department’s budget to meet warfighter needs,” the Defense Department memorandum said, contracting officers are to note in soliciting and contract materials “that any subsequent contract action will include the duty-free entry clause,” and that the “contractor should use the clause to assure that appropriate shipping documentation is used to prevent incurring duties.”
The Defense Department memorandum thus leveraged existing exceptions to make it clear that Defense Department supplies from abroad should be exempt from tariffs.
Editor’s note: As is discussed below, the policy memorandum on the Defense Department tariff exemption appears to have been removed from the DoD website; a copy, however, is archived here, and the memorandum is still indexed among acquisition policies.
In practical terms, these exceptions should cover a very large percentage of foreign end products and components purchased by the Defense Department. Reciprocal defense procurement agreements and the WTO Government Procurement Agreement will cover a broad range of supplies from abroad. For those products not covered by agreements, with baseline tariffs internationally of 10 percent (see map), it is likely that many remaining Defense Department procurements will meet the trigger of $300 in duties for exempting “other” foreign supplies. And because Defense Department procurements make up by far the largest share of U.S. federal procurement (see below), this Defense Department exception is likely to play a prominent role in U.S. government procurement.
Senate’s Proposed NDAA Section 874: A Re-Exemption
Section 874 of the Senate version of the National Defense Authorization Act (NDAA) for FY 2026, S. 2296, would have reinforced the tariff exemptions for defense supplies. While it did not become law in the final version of the NDAA, Section 874 made clear the Senate’s ‘ support for the exemptions. Echoing the existing exemption under DFARS 225.901, the proposed NDAA Section 874 would have required the Defense Department to “issue a duty-free entry certificate” for covered supplies “imported pursuant to a procurement contract entered into by the Department of Defense.” The supplies would have to be (1) an end product or component imported from a country with which the United States has a memorandum of understanding for reciprocal procurement of defense items (commonly referred to as “reciprocal defense procurement agreements“), or (2) an “eligible product” under section 308 of the Trade Agreements Act of 1979 (19 U.S.C. 2518), i.e., an item covered by the WTO Government Procurement Agreement or other free trade agreements with the United States (list). Unlike the existing regulation, DFARS 225.901, Section 874 of the Senate NDAA would not have exempted other “foreign supplies for which the contractor estimates that duty will exceed $300 per shipment.”
Section 874’s exception would not have applied if the item was already duty-free under the Harmonized Tariff Schedule, or if the contractor had already paid U.S. duties on the product or component.
The Defense Department would be required to submit a report to Congress by January 30, 2026 on the impact of the Trump administration tariffs on the Defense Department, its contractors and its broader supply chain.
In the committee report which accompanied the Senate bill, the Senate Armed Services Committee (SASC) explained the concerns that underlay Section 874. The Committee “emphasize[d] that defense-related acquisitions from qualified sources under Reciprocal Defense Procurement Agreements should remain exempt from any tariffs or trade restrictions,” and “urge[d] the Department of Defense and relevant interagency stakeholdersto preserve existing exemptions and ensure that future trade actions do not hinder defense procurement or compromise national security priorities.”
The Senate NDAA bill differed from the House of Representatives’ version of the bill, HR 3838, which passed the House on September 10, 2025, and which did not contain a similar provision. (The Senate bill was again offered as an amendment in the nature of a substitute by SASC Chairman Roger Wicker and Ranking Member Jack Reed on September 4, 2025; that version also included Section 874.)
Finalized National Defense Authorization Act and the Tariff Exception
In an important development, the conference report to the National Defense Authorization Act for Fiscal Year 2026 (the final version of the bill which reflected compromises between the House and Senate) removed Section 874 of the Senate version of the legislation, a provision which the Trump administration had opposed because the Senate provision had endorsed the U.S. Defense Department’s exception from the Trump administration tariffs. (The Joint Explanatory Statement which accompanied the conference report noted Section 874’s removal, at page 193.) The conference report has been approved by both houses of Congress.
The Joint Explanatory Statement which accompanied the compromise legislation also called for a report on the impact of tariffs and trade agreements. The Statement said:
The Senate bill contained a provision (sec. 874) that would require the Secretary of Defense to issue duty-free entry certificates in certain circumstances and require supply chain tracking.
The House bill contained no similar provision. The agreement does not include the Senate provision.
We note that it will be increasingly important for the Department of Defense to track the impact of economic fluctuations, including tariffs, supply chain disruptions, and inflation, on all major prime contracts entered into by the Department. Therefore, we direct the Secretary of Defense to provide a briefing to the congressional defense committees, not later than March 1, 2026, on the impact of significant economic fluctuations on Defense programs. Such briefing shall include:
(1) An assessment of cost increases to both the Department and contractors as a result of tariffs imposed since February 1, 2025, under the International Emergency Economic Powers Act (50 U.S.C. 1701) and section 232 of the Trade Expansion Act of 1962 (19 U.S.C 1862);
(2) An assessment of the effects of such tariffs on supply chains and lead times for major defense platforms; and
(3) A summary of agreements entered into under section 4851 of title 10, United States Code, and an assessment of the application of those [reciprocal defense procurement] agreements to the defense supply chain.
Importantly, the underlying regulations and guidance discussed above, used to exempt many Defense Department purchases from tariffs, remain in place. But the implementing Defense Department memorandum, though it is still indexed among Defense Department procurement policies, appears to have disappeared from the Defense Department’s website.
Revolutionary FAR Overhaul and Tariffs
A longer-term question is whether the DFARS provisions which exempt Defense Department supplies from tariffs will be affected by the Trump administration’s “revolutionary” overhaul of the Federal Acquisition Regulation (FAR). The first step in the overhaul, now concluded, has been to issue proposed deviations from the FAR, part by part. The next step is to be a formal rulemaking to overhaul the FAR.
In that first step of the Revolutionary FAR Overhaul (RFO), the administration issued a revised version of FAR Part 25, which governs foreign acquisitions across all federal agencies. The overhauled FAR Subpart 25.9 would continue to recognize existing tariff exceptions, including the limited tariff exceptions afforded under the Harmonized Tariff Schedule of the United States (HTSUS). The RFO does not address the Defense Department’s exemption (see above), which falls under the Defense Department’s supplement to the FAR. Thus the RFO (so far) would leave the Defense Department, but not civilian agencies, with a clear exemption from tariffs.
Extending the Tariff Exception to Civilian Agencies
Another open question is whether a tariff exception should be extended to civilian agencies as well. A tariff exception for civilian agencies is especially important because President Trump’s Executive Order 14240, Eliminating Waste and Saving Taxpayer Dollars by Consolidating Procurement, centralizes the acquisition of common goods and services at the U.S. General Services Administration (GSA) — a civilian agency. If GSA is to serve as a lead purchaser for the Defense Department, a blanket governmentwide tariff exemption would be more efficient; otherwise, GSA (and other civilian agencies sponsoring governmentwide acquisition contracts) may need to distinguish between defense and civilian orders in managing tariffs, and civilian agencies may face much higher costs because of tariffs.
Extending the blanket tariffs exemption to GSA would also open the door to possible tariffs exemptions for state and local governments, through cooperative purchasing. For decades, GSA has taken the lead in opening its Multiple Award Schedule (MAS) contracts to state and local governments (and others) through cooperative purchasing. Because state and local governments procure using billions of dollars annually in federal grant funds, if those state and local governments enjoyed the same tariff exemption for cooperative purchases through the GSA contracts — at least for federally funded procurements — both the federal government and its state and local grantees could save substantially.
Conclusion
Existing regulations afford important tariff exceptions to Defense Department purchases from abroad. Those exceptions are intended to ensure that the Defense Department’s mission is not hampered by tariffs. A logical next question would be whether items purchased by civilian agencies — which are covered by free trade agreements, but not by reciprocal defense procurement agreements — would also be given a blanket exemption from the Trump administration tariffs. Another open question is whether state and local governments, if they purchased “cooperatively” through a federal contract, would also be able to take advantage of these tariff exceptions.
Related Resources
- Eric Boehm, Trump Says Tariffs Are About National Security. Pentagon Officials Say They Need a Tariff Exemption, Reason, Oct. 15, 2025
- Christopher R. Yukins & Allen Green, International Trade Agreements and U.S. Procurement Law (2018), Chapter 9 to The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.), https://ssrn.com/abstract=3443244
Bid Protest Reform — GW Law Webinar and Article
Congress is taking up various proposals for bid protest reform, the focus of a GW Law September 9, 2025 webinar (registration) and the article below from the Government Contractor.
The article, Bid Protests in the U.S. Procurement System: Assessing Proposed Reforms — Part I, reviewed some of the key reform proposals for the September 9 webinar:
Public Procurement Law Review Special Edition: International Trade
The Public Procurement Law Review (Sweet & Maxwell / UK), edited by Professor Luke Butler and his colleagues at the University of Nottingham, has published a special issue focused on international trade and procurement.
Four of the pieces from the special issue, discussed below, are available on the Social Sciences Research Network (ssrn.com) and below.
In their introductory editorial, “Procurement Trade Agreements and Their Discontents,” Robert Anderson (Honorary Professor at the University of Nottingham School of Law, and Senior Fellow, Competition and Innovation Lab, The George Washington University, and former team lead at the WTO on the Government Procurement Agreement) and Christopher Yukins (GW Law) put the accompanying articles into context. They noted that the GPA, as the premier trade agreement, “is currently under an unprecedented degree of scrutiny on the part of one of its founding Parties, . . . the United States,” which calls for a “spirited defence . . . of the GPA and other trade agreements embodying government procurement commitments and their contribution to international governance and prosperity.”
In her piece, “Expansion of International Procurement Commitments: WTO Procurement Agreement Versus Free Trade Agreements,” Jean Heilman Grier (Djaghe, LLC) (the author of The International Procurement System, a leading volume on the United States and international public procurement trade), argued that the large numbers of nations that have committed to open their government government markets to foreign suppliers “reflects the important role that government procurement plays in international trade.” She noted that while “the GPA will continue to add new members—albeit slowly, [free trade agreements (FTAs)] will provide the principal expansion of international procurement commitments, as they encompass both GPA parties and those outside the plurilateral agreement.” Although the GPA’s membership “may be outpaced by FTAs” which she described in detail, Jean Grier wrote that the GPA “will continue to serve as the international gold standard for government procurement provisions and the foundation for procurement rules across the globe.” She cautioned, though, that the “potential spoiler is the United States with President Trump’s America First trade policy undermining existing agreements and threatening withdrawal from the GPA and even the WTO.”
In their piece on bid protests and the trade agreements, “The GPA’s Domestic Review Procedures Through the Lens of North American Sub-Central Implementation: Flexibility or Incoherence?,” Derek McKee (Faculté de droit, Université de Montréal) and Daniel Schoeni (University of Dayton) noted that although the GPA “requires parties to give foreign suppliers access to independent and impartial fora where they can challenge public procurement decisions,” many U.S. states and Canadian provinces — though both countries are members of the GPA “have domestic review procedures that comply with some, but not all,” of the GPA’s requirements. They place part of the blame on ambiguities in Article XVIII of the GPA, and provide examples of North American sub-central review systems that embody these ambiguities.
The final piece, “An Empirical Study of Bid Protests by Disappointed Tenderers in US States,” by Daniel Schoeni (University of Dayton), was an extension of Professor Schoeni’s doctoral research at the University of Nottingham. In it, he reported on data he gathered on bid protests (challenges) in the states, and noted that bid protests are “at least as common at the state level as at the federal level.” Knowing that — that protests are a commonly available remedy for uncompetitive discrimination at the state level — could, Professor Schoeni noted, “foster confidence among foreign suppliers and thus encourage greater participation from abroad.”
Editor’s note: The pieces shared here were first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in 34 Pub. Proc. Law Rev., No. 4 (2025), and are reproduced by agreement with the publishers. For further details, please see the publishers’ website.
OECD Public Procurement Forum 2025
On July 1-2, 2025, the Organization for Economic Co-Operation and Development (OECD) held its Public Procurement Forum 2025, a major international conference to discuss cutting-edge developments in public procurement around the world.
Professor Christopher Yukins (GW Law) joined a panel (listed below) to discuss building public trust through public procurement.
In his presentation, Professor Yukins argued that the principal-agent theory, see, e.g., Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure (1976), broadly applied to public procurement for decades, see, e.g., Peter Trepte, Regulating Procurement (Oxford U. Press 2005); Christopher Yukins, A Versatile Prism: Assessing Procurement Law Through the Principal-Agent Model, 40 Pub. Cont. L.J. 63 (2010), offers a means of both predicting and mitigating losses of public trust in procurement.
Professor Yukins argued that the OECD can play a critical convening role, helping the key players in reinforcing public trust — vendors, enforcement officials, members of civil societies and other — address the agency and monitoring problems that can otherwise erode public trust in public procurement.
House Government Operations Subcommittee: Bid Protest Reform
On July 22, 2025, the U.S. House of Representatives’ Committee on Oversight and Government Reform, Subcommittee on Government Operations, held a hearing on “Bid Protest Reform: Understanding the Problem” (Congress.gov record of hearing).
The hearing was led by the Subcommittee’s chairman, Rep. Pete Sessions (TX), and ranking member Rep. Kweisi Mfume (MD). Rep. Eleanor Holmes Norton (DC) also offered opening remarks. The hearing (subcommittee record) was called to allow members of Congress to hear from experts about potential bid protest reforms.
Kenneth Patton, Managing Associate General Counsel at the Government Accountability Office (GAO) and a member of GW Law’s Government Procurement Law Program advisory board, was the lead witness. He presented GAO’s response to Section 885 of last year’s National Defense Authorization Act, which asked for input on proposed changes, such as charging costs to losing protesters. Ken Patton explained why GAO (and the Defense Department) believe radical changes to the protest system are not needed — that the bid protest system is fundamentally sound, after a century of development. (See ABA submission on Section 885.)
Professor Christopher Yukins (GW Law) and Zachary Prince (GW Law JD 2013 (with honors), partner at the law firm of Haynes & Boone and an adjunct professor at the Law School) agreed. In his testimony, Zach Prince urged members of Congress instead to expand agency debriefings to losing bidders, to reduce bid protests and expand transparency, and Chris Yukins did the same in his testimony. See, e.g., Nathaniel Castellano & Peter Camp, Postscript III: Enhanced Debriefings: A Simple Strategy for a More Manageable Protest Process, 35 Nash & Cibinic Rep. ¶ 46 (2021). (By coincidence, GW Law the same day hosted part of its global webinar series with the Open Contracting Partnership in Asia, on transparency in contracting.)
Editor’s note: On August 14, 2025, Chris Yukins submitted his responses to follow-up questions from Chairman Pete Sessions, on potential pathways to bid protest reform.
After the hearing Chris Yukins and Zach Prince met with House staffers to discuss next steps, including a webinar that GW Law will be holding on September 9 on developments in bid protests — click above to register.
Related Webinar
Revolutionary FAR Overhaul: Third Round – FAR Parts 18 (Emergency Acquisitions), 39 (ICT Acquisitions) and 43 (Contract Modifications)
Introduction
The Trump administration on June 12, 2025 issued the third tranche of changes under the “Revolutionary Federal Acquisition Regulation (FAR) Overhaul,” which revamp FAR Part 18 (Emergency Acquisitions), Part 39 (Information and Communication Technology) and Part 43 (Contract Modifications) by proposed class deviations.
As with the first and second rounds of changes, this third group of changes is relatively modest. Those changes are detailed below, and reflected in the attached “redlines” which show how the class deviations would change the existing regulations (see redline for Part 18, redline for Part 39 and redline for Part 43).
The latest round of changes leaves a number of problems unresolved. As was discussed in an earlier post, the implementing class deviations – which are really just individual agencies adopting centrally dictated deviations — are being issued without the normally required notice and comment. Second, if the “overhauled” provisions do face legal challenge, it will be difficult for a tribunal to assess the soundness of the deviations because relatively few reasons are being published to support the deviations, other than the asserted desire to eliminate all regulations not required by statute. Third, although they are often uniform, the class deviations are being issued on an ad hoc basis, agency by agency, part by part, all on different dates – which will make implementation and enforcement remarkably difficult and complex. (As of June 16, 2025, notably no unit of the Department of Defense – which conducts the largest share of federal procurements — had issued any class deviations under the overhaul.)
FAR Part 18 – Emergency Acquisitions
FAR Part 18 was developed in the wake of Hurricane Katrina, as a “single reference to the acquisition flexibilities already available in the FAR to facilitate and expedite acquisitions of supplies and services during all types of emergencies.” 71 Fed. Reg. 38247 (2006). As the attached redlined document suggests, it appears that the class deviation to FAR Part 18 will simply move that reference list of emergency authorities from the FAR to an accompanying “practitioner’s guide” – though that guide is not yet available (see GSA class deviation; link to https://acquisition.gov/emergencyprocurement does not work).
Part of the problem here stems from the “line-outs” being produced by the FAR Council, for these and other changes. Comparing the attached unofficial redline to the official “line-out” document published by the FAR Council shows that the official “line-out” does not reflect all of the changes; the official “line-out” appears to concede this. Id. (“This document is not a crosswalk to the new proposed FAR Part 18.”)
It is also worth highlighting the “smart accelerators” published as part of the training to be used with the new rules. These “smart accelerators” offer suggestions on how to speed procurements (both emergency and not). The “smart accelerators” suggest, for example, that procurement officials save time by focusing their “documentation to clearly capture the decisions – not deliberations.” In other words, procurement officials are being urged to reduce the record of their deliberations in order to save time. While these approaches may make procurements work faster, it may prove difficult to defend procurement decisions (in a bid protest, for example) if those decisions are not sufficiently documented.
FAR Part 39 — Information and Communication Technology
The accompanying redline reflects the proposed changes to FAR Part 39, which addresses procurements of information and communication technology (ICT). These class deviations will delete or move references to Office of Management and Budget circulars and modular contracting. The FAR overhaul will make it discretionary (rather than mandatory) for agencies to mandate minimum experience or educational requirements in solicitations. The FAR overhaul also deletes provisions regarding special prohibitions (such as against Kaspersky Laboratory products) which are dealt with elsewhere in the FAR. The overhaul generally aims to update the acquisition guidance from the Clinger Cohen Act of 1996, to improve and accelerate the procurement of ICT.
As with emergency acquisitions (see above), it’s worth highlighting the training materials which accompany the proposed FAR Part 39. The training materials may create conflicts with current law. The training materials call, for instance, for “[d]ialogue and interactive discussion” to speed procurement, but current FAR 15.102(f) (which has not yet been revised) says that when “an oral presentation includes information that the parties intend to include in the contract as material terms or conditions, the information shall be put in writing. Incorporation by reference of oral statements is not permitted.” As this example shows, it will be important to coordinate the training with existing legal requirements.
FAR Part 43 – Contract Modifications
There are no major changes to FAR Part 43, regarding contract modifications. The FAR Council’s summary of this class deviation acknowledges that, under this model class deviation, the FAR Part’s “[o]verhaul[ed] content remains the same – just more concise with renumbering of subparts.” The accompanying redline confirms that the overhaul makes very modest changes to FAR Part 43, going mainly to minor administrative details. The accompanying unofficial redline also confirms, as the FAR Council explains, that the “overhaul” actually extends the scope of FAR Part 43, by making modifications to task and delivery orders subject to the Part’s general requirements for contract modifications.
Conclusion
This third round of changes seems to confirm patterns in the “Revolutionary FAR Overhaul.” While the changes (at least so far) have been relatively modest, they have not been fully explained; indeed, the unofficial “redlines” which accompany this posting confirm that the changes proposed by the overhaul are more extensive than those reflected in the official “line-outs” published by the FAR Council. The proposed changes, as before, still bypass the public notice and comment normally required by law. Finally, the FAR Council’s accompanying training materials, though quite good pedagogically, suggest ways to accelerate procurement that in practice may conflict with the law.
Resources — Prior Rounds
Revolutionary FAR Overhaul: Second Round (FAR Part 10 – Market Research)
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 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 June 3, 2025, 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) |
The State Department has also adopted the FAR Council’s model class deviations to FAR Parts 1 and 34 — but not to Part 10.
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); Navajo Ref. Co., L.P. v. United States, 58 Fed. Cl. 200, 209 (2003) (although “section 22 of the OFFP Act does not specifically address class deviations, the court finds that a class deviation may fall within any of the various categories of procurement changes identified in the OFFP Act — in particular, changes in procurement policy, regulation, procedure or form — that require publication in the Federal Register under the OFFP Act”); Mr. John Mcnerney Assoc. Dir. Bldg. Div. the Associated Gen. Contractors of Am., Comp. Gen. B-224357.2 (Aug. 31, 1987) (GAO issued finding regarding validity of class deviation under the FAR).
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.
Defense Department units that adopt class deviations may face a greater risk of legal challenge 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.