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You Said, We Did
You Said, We Did
How Public Feedback on Model Deviations Informed the Proposed Rules
In Phase 1 of the RFO, the FAR Council issued model deviations associated with each FAR part, which agencies used to execute related agency RFO class deviations. An important element of Phase 1 was the opportunity to receive public feedback on the model deviations, intended to directly inform the formal rule-making process, RFO Phase 2.
The RFO Phase 2 rule-making process has been organized in 12 FAR Cases, as outlined in the chart. The FAR Council has published Proposed Rules (PR) for the first 4 of 12 RFO-related FAR cases.
With this publication, it’s the perfect time to show how public feedback informed key changes from the model deviations to the proposed rules. Your voice made a difference. The FAR Council received almost 1,600 valuable comments, primarily from industry (80%), but also from industry associations (7%) and federal government employees (13%). The public feedback received informed the FAR Council’s work in preparing the proposed rules.
While all public comments received may not be reflected, the tables below highlight examples of key policy updates that resulted from some of the public feedback submitted via acquisition.gov. The tables are organized by the RFO-related FAR rules, and will be continuously updated as the remaining RFO-related rules are published over the coming months.
| FAR Part & Theme | What You Said | What We Did (Gov Response) | Impact (Why It Matters) |
|---|---|---|---|
FAR Part 1 Sunset Clause | FAR Subpart 1.109 introduced a four-year sunset clause for non-statutory FAR language, and required regular review and justification for each requirement. However, you expressed concerns that while the intent of the sunset language is understood, the automatic expiration creates uncertainty and eliminates the opportunity for public comment. The small business community states that this language would harm small businesses who lack the resources to navigate continuous changes, giving larger businesses a competitive advantage. | Modified the rule to state that there will not be automatic expirations. The FAR clarifies that sections, provisions, and clauses do not expire until removed through rulemaking. The FAR Council will standardize the review process by issuing a future proposed rule at regularly timed increments requesting public input on policies for sunset review. | Eliminating automatic expirations reduces uncertainty by clarifying that sections, provisions, and clauses will only be removed through a formal rulemaking process. This guarantees contractors the opportunity to provide input on sunset review policies, and maintains transparency and stakeholder engagement. The elimination of continuous, resource-intensive changes alleviates the burden on small businesses, which removes a competitive barrier and helps to level the playing field with larger, more resourced companies. |
FAR Part 4 Service Contract Reporting | The language stating that Service Contract Reporting (SCR) is no longer required for commercial services contracts is vague. | Clarified language to state “Service contractor reporting is required for contracts and first-tier subcontracts for services, excluding commercial services, based on type of contract and estimated total value.” | By explicitly excluding commercial services contracts from the SCR requirement and clearly stating the criteria (contract type and estimated total value), the revised language ensures correct application of the rule, reduces confusion, and increases the efficiency and accuracy of contract management for acquisition professionals. |
FAR Part 4 SAM Registration | The administrative burden for all contractors to register in SAM is too high and serves as a deterrent to new market entrants. | In Part 4, we eliminated half the information required to register to do business with the Federal Government and SAM has been updated to reflect these changes. | This change enhances efficiency by simplifying the registration process, making it faster and easier for all businesses. We reduced burdens by eliminating half of the required information, freeing up contractor resources that can be directed toward core business operations. This could also increase market entry by encouraging new entrants, particularly small and emerging businesses, to seek federal contracting opportunities. |
FAR Part 33 Source Selection Decision Disclosure | Provide a redacted source selection decision document and the offerors' technical evaluation to all offerors. | For protests reviewed at a level above the contracting officer, FAR 33.104-4(a)(5)(ii)(B) proposes a significant enhancement by allowing the disclosure of a redacted copy of the agency’s final technical evaluation of the protester’s proposal and a redacted copy of the source selection decision. | This enhancement substantially increases transparency and information sharing within an agency's protest process. This increased information sharing strongly incentivizes parties to pursue the faster, less costly agency-level protest as an effective alternative to filing with other venues, leading to a more efficient resolution of protests. |
FAR Part 39 Cloud, Agile, and AI Modernization | The FAR Part 39 structure fails to capture the nuances of current and emerging procurement models such as those involving Cloud, Agile development, and Artificial Intelligence. | Text was added at FAR 39.001(b) mentioning “new or emerging” technologies in the proposed rule. | This change signals the FAR Council’s intent to expand and evolve FAR Part 39. It establishes a necessary foundation for future requirements and guidance related to the acquisition of cutting-edge technologies. By explicitly acknowledging "new or emerging" technologies, procurement professionals can better address the complexities of modern IT acquisitions, moving away from outdated models and embracing more flexible and efficient contracting methods. |
FAR Part 40 Definitions & Controlled Unclassified Guidance (CUI) | Some of the definitions, such as “covered procurement actions”, are inadequate and could result in overall insufficient details, and inaccurate security classification. FAR Part 40 also lacks guidance regarding the protection of proprietary/commercially sensitive information. | Under FAR 40.201(4)(1), a detailed description of “covered procurement actions” was added at the beginning and throughout Part 40 as applicable. We added detailed descriptions of "telecommunications equipment and services" and "video surveillance and services". Under FAR 40.304, policies and procedures were added to provide guidance on the handling of CUI. | The addition of detailed descriptions for "covered procurement actions" and specific equipment (telecommunications and video surveillance) directly addresses the need for clarity and sufficient detail in definitions, ensuring acquisition professionals have a comprehensive understanding of the rule's scope. Furthermore, the inclusion of CUI policies and procedures under FAR 40.304 provides necessary guidance for protection, mitigating risks of inaccurate security classification and safeguarding proprietary or commercially sensitive information. This enhances the security posture and regulatory compliance of covered procurements. |
FAR Part 6 Justification & Approval (J&A) | FAR 6.103(d) requires a J&A for other than full and open competition, unless the FAR 6.103-5 or FAR 6.103-7 authorities are used. However, this general statement is misleading because FAR 6.103-4 provides exceptions to the J&A requirement, and FAR 6.103-5 sometimes requires a J&A. | FAR 6.103(d) was eliminated. | The elimination of FAR 6.103(d) also eliminated confusion and potential misapplication regarding the requirement for a J&A when using other than full and open competition. It also helps to streamline the acquisition process by removing unnecessary or ambiguous provisions. |
FAR Parts 7 Industry Engagement | Industry engagement should begin early in the acquisition planning process. | In Part 7, we emphasized acquisition planning should be a living, on-going process. Consolidation of market research and acquisition planning in the proposed rule drives home the point that market research is an integral part of the acquisition planning process. | This change highlights early engagement, a critical step that ensures businesses receive opportunities and successfully participate in the federal marketplace. |
FAR Parts 7 & 10 Merge FAR Parts | Merge the overhauled FAR Part 10 (Market Research) into FAR Part 7 (Acquisition Planning), as market research is an intrinsic part of the planning process. | FAR Part 10 was consolidated into Part 7 to simplify processes related to acquisition planning and market research. | By merging these two parts, the revision creates a more logical and cohesive structure within the FAR, improves efficiency, reduces complexity for acquisition professionals, and cements market research as essential to the acquisition planning process. |
FAR Part 26 Indian Incentive Program | The scope section in the codified FAR Subpart 26.100 should be retained in the deviated version of FAR Part 26 because it implements 25 U.S.C. 1544, which provides an incentive to prime contractors for using Indian organizations and Indian-owned economic enterprises as subcontractors. | The section on the Indian Incentive program under the deviatied FAR 26.1 has been moved to FAR 26.3 in the proposed rule and the reference to 25 U.S.C. 1544 has been retained. The proposed text, however, significantly streamlines content. For example, the existing policy contains extensive non-statutory procedural detail involving contractor engagement. This content is already captured in FAR Contract Clause 52.226-1, Utilization of Indian Organizations and Indian-Owned Economic Enterprises. | The retention of 25 U.S.C. 1544 in the proposed rule ensures that the statutory incentive for prime contractors to use Indian organizations and Indian-owned economic enterprises as subcontractors is maintained. Moving the Indian Incentive program section from the deviated FAR 26.1 to FAR 26.3 and significantly streamlining content, results in a more concise and efficient regulation that removes extensive non-statutory procedural details and eliminates redundancy. |
FAR Part 37 Service Contract Definition | The definition of “service contract” in FAR 37.001 as an identifiable task does not align with FAR 37.102-1(a)(2) regarding the Performance Work Statement (PWS) requirements. Specifically, the current definition focuses on “identifiable tasks,” which contrasts with the PWS requirement to describe “outcomes.” | The definition was revised to remove the "identifiable task" language. Under 37.101-1(a), outcome-focused approaches were added as part of performance-based acquisition methods. The outcome-focused approach is now seen throughout Part 37. For example, under 37.102-1(3), direction to the CO on how to compile a PWS includes defining the basis by which successful outcomes will be achieved. | This revision successfully resolves the foundational conflict between the task-based definition of "service contract" in FAR 37.001 and the outcome-based requirement for PWS. This ensures all relevant sections of the rule consistently drive acquisition planning towards measurable results, which is key to effective performance-based service contracting. |
FAR Part 41 Definition of Utility Service | Revise the definition of "Utility Service" for clarity. | The definition of "Utility Service" was revised to include a clarifying phrase: " It also does not include the following ...". This makes clear the list of items not considered a "Utility Service". | This revision specifically addresses the structure of the exclusion list, ensuring that items not considered "Utility Service" are distinctly identified, thereby improving user comprehension and reducing potential misinterpretation of the definition's scope. |
FAR Part 5 Conflicting Requirements | FAR Subpart 5.302 contains conflicting language. It states, “Contracting officers must make information available on awards of contract actions over $4.5 million in sufficient time for the agency concerned to publicly announce it by 5 p.m., Eastern Time (ET), on the day of award. Agencies shall not release information on awards before the public release time of 5 p.m., ET.” This language is impractical and makes it hard to both award and release the award information publicly in a timely fashion. | Revised the language to state, "agencies may publicly announce awards of contract actions over $5.5 million as soon as practicable on the day of award, consistent with agency procedures. Public announcement under this section is distinct from the automated posting to the Governmentwide Point of Entry required by part 5.301. Agencies may use any appropriate method to inform the public of significant contract awards." | By changing the requirement from a restrictive 5 p.m. ET release time to allowing public announcement "as soon as practicable on the day of award," the rule provides necessary flexibility. This makes it more practical for agencies to complete the award process and release information efficiently, removing a procedural hurdle for contracting officers. |
FAR Part 5 Simplified Acquisition Procedures | The Simplified Acquisition Threshold (SAT) procedures in FAR Parts 5, 12, and 13 contradict each other. Resolve these contradictions using clear and consistent language in all three parts. | References to the SAT as they relate to FAR Part 12 and the acquisition of commercials products and services were removed from FAR Part 5. | This eliminates contradictions between different FAR Parts. It also creates a more cohesive and unambiguous set of procedures for acquisition professionals, making it easier for them to accurately apply the correct SAT procedures, particularly when acquiring commercial products and services. |
FAR Part 5 Outdated Thresholds | Several thresholds are outdated and should be updated. For example, the $25,000 threshold in Table 5.2, Minimum Timeframe for Posting Pre-solicitation Notices, and in other sections of FAR Part 5, has been unchanged for decades. | The thresholds have been updated across FAR Part 5. Specifically in Table 5.2, the thresholds increased from $25,000 to $45,000. | Adjusting the thresholds reflect current economic conditions and the true value of procurement activities, ensuring the regulation remains relevant and functional. This upward adjustment also improves efficiency by allowing a greater number of lower-dollar acquisitions to move forward without the administrative burden of a mandatory posting timeframe. |
| The government considered the public feedback received on RFO parts 3 and 49, but determined that the recommendations, such as for refinement of language pertaining to termination settlements, had already been addressed in the policy and/or FAR Companion. | |||
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