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.