Part 1 of 3: The Overhaul of the Federal Acquisition Regulations (FAR) Blazes Ahead

By RO WIETECHA

September 4, 2025 |

The fundamental purpose of contract law is the same for government procurements as that governing private contractual transactions, e.g., the Uniform Commercial Code: predictability, consistency and transparency. Unfortunately, the price of predictability, which allows more efficient and effective business decisions by contracting parties, is complexity. In US government contracts, that complexity results from an attempt to allow variation, flexibility and discretion for as many different government requirements and situations as possible while maintaining as high of a degree of standardization as possible. The result: the Federal Acquisition Regulation (FAR).

Starting January 2025, the Trump Administration has embarked on what it describes as “the first-ever comprehensive overhaul of the FAR” (FAR Overhaul). This is the first of a series of articles that take a brief look at some of the likely outcomes of the FAR Overhaul. While the revisions are not facially dramatic, some of the changes could perniciously alter what otherwise has become a highly-differentiated, transparent, but lengthy, tome of guidance contracting officers (COs) and industry (contractors) collaboratively (in opposition) developed over a century of practice and dispute resolution.

The FAR embodies decades of interpretive jurisprudence and best practices developed out of a general sense that a proliferation of details of the text leads to greater predictability and greater efficiency through fewer dispute resolution costs. It largely consists of practice guidance and judicial interpretations of the FAR at least partly developed to standardize and consistently award and administer government contracts while avoiding the uncertainty and inefficiencies of litigation. 

Notably, the FAR Overhaul is not the result of any statutory changes. Undeterred, the FAR Overhaul attempts to “return the FAR to its statutory roots, rewritten in plain language, and remove most non-statutory rules.” Instead of locating all of the relevant guidance in one place for both COs and contractors to reference, the Overhaul will be moving most non-statutorily required guidance to non-binding, forthcoming “Buying Guides,” "Practitioner Albums” and/or “Companion Guides.” Preliminary indications suggest these hortatory documents will be publicly available but the utility of them remains to be seen. At least one, the FAR Part 6 Competition Requirements Practitioner Album, contains rather vague and unenforceable (both by agency management and contractor lawsuits) statements such as “use competitive procedures to the extent practicable to increase vendor participation and maximize competition,” “use sound business judgement,” and “think beyond your immediate need and assess the long-term impacts of limited competition.”

While this same guidance provides some specific suggestions, such as down-selects and use of on/off-ramps, it’s not clear the degree to which the other components of the FAR that affect a contracting activity’s ability to use those tools will truly facilitate doing so in a meaningful way. Both of these competition-fostering techniques involve greater levels of interaction between the government procurement staff and industry that may or may not be realistic with the current government employment sector. For example, the use of on/off-ramps requirement more frequent and on-going technical evaluation and cost analysis in order to facilitate mid-cycle changes to which contractors are performing particular contracts. If the evaluation process by which contractors are selected to perform is not also streamlined, the burden of what could become constant evaluation and contract actions may not be feasible for a skeleton crew of technical personnel and a perennially understaffed contracts office. More importantly, it remains completely unclear the degree to which 48 CFR Parts 1-53 will retain the decades of interpretive jurisprudence previously contained in the FAR.

While two of the main goals of the FAR Overhaul are flexibility and discretion, the result is likely to be, at least in the medium term, increased uncertainty and increased inefficiency. By removing non-statutory mandatory guidance or converting such mandatory guidance to hortatory, unenforceable guidance, it is foreseeable that there will be increased costs and additional administrative burdens of re-litigating and re-learning the lessons of the past that were contained in the FAR. This is because the FAR is not just internal guidance to government COs, nor is it written just for the parties to a contract, it is also written for the adjudicators and dispute resolution practitioners by capturing previous decisions and interpretations about the statutory and procedural requirements governing federal procurement for application in future disputes. It is unclear whether those promulgating the FAR Overhaul are cognizant or appreciative of this aspect of the FAR. 

For example, the Overhaul removes language from FAR 6.303-2 designed to ensure compliance with the Competition in Contracting Act (CICA) by specifically pointing out that justifications for sole source contracts include an explanation of why documentation suitable for competition is not available, with an explanation that more flexible and discretionary guidance outside the regulation will be provided. Similarly, the statement at FAR 6.303-2(a) stating the standard for review for Justifications and Approvals (J&As). By removing such “low-hanging fruit” of procedural compliance with CICA from the regulatory text actually makes it more difficult to find and, therefore, likely to lead to disputes and delays. It’s like taking a particular size Philips screwdriver out of the toolbox in the garage and putting it in the attic in the house.  Now, the CO has to look in both places to see which tool to use whenever there’s a Philips head screw that needs tightening. The end result is an increase in uncertainty about whether prior jurisprudence will remain precedential, which translates to a higher risk, and burdens, for both COs and contractors. 

The increased litigation caused by the FAR Overhaul is also likely to produce more fulsome, less transparent, and highly differentiated jurisprudence. For example, two different COs purchasing the same requirement, especially at different agencies, will write/negotiate different types of contracts relying on the increased flexibility and discretion provided by the FAR Overhaul. If disputes arise under each of these contracts, the result could easily be two different litigation outcomes that will be extremely fact-dependent and difficult to reconcile or distinguish by other than those most deeply steeped in federal procurement law following the interpretive “bloom” in real time. Such off-menu but “real world” guidance, that stemming from Boards of Contract Appeals or federal court decisions, will be external to the FAR and inaccessible to most COs and contractors. Not without irony does the author note that this dynamic is likely to lead to an increased role for lawyers both in and outside government to monitor and manage the common law development outside the FAR. It is unclear if and when the FAR will resume being used to capture experiential lessons and judicial interpretations of government contract disputes but it is not likely to happen until at least shortly after the FAR Overhaul is determined by the Administration to have been completed.

In the meantime, the FAR Overhaul appears to be playing with fire and both the government and contractors will need to rely more heavily on their lawyers to avoid getting burned.