Which Rules Survive the FAR Rewrite (FAR 2.0)?

On April 15, 2025, President Trump issued Executive Order (“EO”) 14275 titled Restoring Common Sense to Federal Procurement (“FAR EO”), confirming rumors throughout early April that a rewrite of the Federal Acquisition Regulation (“FAR”) was under way. In an earlier article, we wrote about seismic changes in policy and reductions in federal contract and grant spending in the name of “efficiency.” FAR 2.0 may serve as the crown jewel of the Trump Administration’s reforms to government procurement, incorporating the EOs we discussed in that article, in addition to several published since then.

This article summarizes the FAR EO and the likely outcome of the EO’s requirements for federal agencies, which the Government Contracts community should begin to consider in the months leading up to the new FAR. If you have any questions about regulatory matters, click here to schedule a consultation or fill out our online contact form. You are also welcome to email GovSpring’s managing attorney at marcos@govspringlegal.com.

Background

In late March, a draft “FAR Prototype” was circulating around the Government Contracts community. The document was later revealed to be a pet project by a procurement professional, but it got the conversation going about probable contents in a new FAR. At the Federal Procurement Institute’s annual meeting, a panelist confirmed an EO formalizing a FAR Rewrite was forthcoming, stating it was supposed to be released on April 1, 2025 but had been delayed.  Finally, on April 15, President Trump issued the FAR EO, which cited reports from the 2024 Senate Armed Services Committee (PDF) ranking member, Roger Wicker and the 2019 Advisory Panel on Streamlining and Codifying Acquisition Regulations (the “Section 809 Panel”)(Vol. 1 PDF) that both discuss methods of streamlining acquisition and various barriers that that lend unnecessary complexity to the acquisition process and the need to eliminate barriers to the expansion of the defense industrial base through the creation of an “agile, effective, and efficient procurement system.”

The FAR EO is consistent in spirit with EO 14192, titled Unleashing Prosperity Through Deregulation, issued by Trump on January 31. In other words, it is largely a regulation-cutting exercise. The FAR EO directs the FAR Council, agency heads, and other senior procurement officials to take actions to amend the FAR within 180-days of the EO’s issuance to include only clauses and provisions that fall under these four categories:

• Provisions required by federal statute;
• Provisions necessary to “support simplicity and usability;”
• Provisions that strengthen the efficacy of the procurement system; and
• Provisions that protect economic or national security interests

Additionally, agency supplements to the FAR (e.g., the DFARS and GSAR) must be reformed to align with the reenvisioned FAR through working with the FAR Council and following forthcoming guidance from the Office of Management and Budget (“OMB”).

Understanding FAR 2.0: What Falls Under Each Category?

The FAR EO does not cite to any specific provisions in the existing FAR as exemplary of the above categories, but it is possible to glean some examples of what likely would be retained in the new version of the FAR based on the four categories listed in the EO.

Provisions Required by Federal Statute

Many of the provisions in the existing federal procurement framework were implemented based on the requirements of a federal statute. For example, FAR Subpart 6.101, the source of the requirement for “full and open competition” when awarding government contracts, exists due to the statutory requirements under 10 U.S.C. § 3201 and 41 U.S.C. § 3301.[1] Specifically, both statutes require federal agencies to use competitive procedures to solicit offers and select awardees. Thus, it is unlikely that the Trump Administration would eliminate the statutory requirement for competition.

In addition, there are other provisions of the FAR which are backed by federal statute that would prospectively remain under the FAR despite the Trump Administration’s sentiments towards “social” policies. For instance, FAR 22.1002-1 requires service contracts over $2,500 to contain mandatory provisions related to minimum wage, fringe benefits, and safe and sanitary working conditions. This requirement is a direct result of the McNamara-O’Hara Service Contract Act (“SCA”), which codified these requirements to ensure that contractors would not be able to pay service employees less than a “living wage.”[2]

Other provisions with a statutory basis include:

Davis-Bacon Act[3]
Truthful Cost or Pricing Data Statute (formerly TINA)[4]
Contract Disputes Act (CDA)[5]
Anti-Kickback Act[6]
Walsh-Healey Public Contracts Act[7]
Federal Acquisition Streamlining Act (FASA)[8]
Small Business Act[9]
Buy American Act[10]
Trade Agreements Act[11]

There are dozens of other statutes incorporated into the FAR, and the rewrite will have to account for all of those.

Provisions Necessary to “Support Simplicity and Usability”

We can also derive some provisions and clauses that are likely to remain due to their facilitating “simplicity and usability.” Trump recently restated the administration’s preference for use of commercial services and goods to the greatest extent practicable in EO 14271, titled Ensuring Commercial, Cost-Effective Solutions in Federal Contracts, issued the same day as the FAR EO. This EO requires federal agencies to maximize commercial opportunities with procedures requiring the approval of a commercial authority when choosing a non-commercial product or service. 

FAR Subpart 12, covering the Acquisition of Commercial Products and Commercial Services, is supported by statutory authority requiring agency heads to take steps to maximize the acquisition of commercial products and services. But Part 12 does not contain the requirements listed in EO 14271. Hence, these requirements will constitute an uncodified requirement all federal agencies must follow. The Trump Administration sees commercial acquisitions as a suitable vehicle to expand the national and industrial base given its streamlined procedures. These tenets also existed in Senator Roger Wicker’s FORGED Act, which seeks to “cut red tape” by using non-traditional acquisition methods, including commercial procedures.

Provisions that Strengthen the Efficacy of the Procurement System

Consolidating contract vehicles

The Trump Administration’s approach to “strengthening the efficacy” of federal procurement, aside from deregulation, also focuses on the consolidation of several procurement vehicles. EO 14240, titled Eliminating Waste and Saving Taxpayer Dollars by Consolidating Procurement, was issued in-part to consolidate all Governmentwide Acquisition Contracts (“GWAC”) under the General Services Administration (“GSA”). Under this directive, GSA, with OMB’s assistance, is tasked with “rationalizing” GWACs by identifying and eliminating duplicative GWACs to increase the efficiency of information technology (“IT”) GWACs across the civilian sector.

One reading of this portion of EO 14240 could be that the procedures and policies (e.g., FAR Subpart 16.505; FAR Subpart 17.5) underlying interagency acquisitions under indefinite-delivery contracts, such as GWACs, would remain in FAR 2.0. If the intention of EO 14240 is to reduce the redundancy and inefficiency of GWACs, eliminating the procedures and preferences for their usage under the FAR would undermine the Trump Administration’s goals.

Agency-level Protests

Other provisions that do not have a statutory basis but facilitate “efficacy” are provisions for agency-level protests at FAR 33.103. The ability to submit a protest to an agency prior to seeking a resolution through GAO is derived from EO 12979, not statute. However, it improves the efficacy of the procurement system by providing a simplified dispute resolution mechanism, prior to undergoing the length and expense of a more formal protest.

Debriefings on Orders over $6 Million

Debriefings are required by statute on contracts, but not all task orders. However, FAR 16.505(b)(6) extends debriefing requirements to task orders over $6 million. Quality debriefings reduce the probability of a protest, since they provide a contractor insight into the award they might otherwise seek through a protest. This regulatory provision might be retained for that reason, since they avoid lengthy stays of awards required under the Competition in Contracting Act and other obstacles to the continued procurement.

Provisions that Protect Economic or National Security Interests

Provisions that protect economic interests are relatively easy to identify, particularly in light of the Trump Administration’s America First policy outlined in the America First Trade Policy directive issued in January 2025. Deriving from President Trump’s first term, the “America First” directive at present is built around enhancing the nation’s investment and productivity, as well as benefitting American manufacturers and businesses.

Non-Statutory Supplements to Buy American Act

Accordingly, FAR Subpart 25, which implements the requirements outlined in Buy American Act (“Buy American”), codified under 41 U.S.C. Chapter 83, and related trade agreements, laws, and regulations, will undoubtedly remain in FAR 2.0. Presently, under FAR Subpart 25.001, Buy American restricts purchases of supplies that are not domestic end products for use in the United States, with certain exceptions based on existing trade agreements. However, given the Trump Administration’s scrutiny of existing trade agreements to ensure they favor the U.S. and the imposition of tariffs to trade partners, FAR Subpart 25’s requirements may be supplemented. For example, existing exemptions under trade agreements that are found to disadvantage the U.S. may be eliminated entirely under the America First trade policy. It would be unsurprising if this schema finds its way into FAR 2.0 to reorient federal procurement as a means of bolstering the Trump Administration’s America First policy by focusing on domestic acquisitions.

The Cyber Maturity Model Certification (CMMC) program

Regarding national security, the Cyber Maturity Model Certification (CMMC) program is authorized by regulations promulgated by the National Institutes of Standards and Technology (NIST), which are derived from EO 13556. Hence, while there is no statutory requirement for CMMC, the cyber controls clearly relate to the protection of national security information and are likely to remain.

Foreign Ownership, Control, or Influence (FOCI) Mitigation Procedures

Another non-statutory FAR requirement based on national security but without a statutory basis is the National Industrial Security Program (NISP), which governs how contractors access classified information.  Several of those program requirements are found in FAR part 4 and associated clause, 52.204-2, Security Requirements. While not derived from statute, the requirements are likely to remain as essential to national security. 

Despite the four categories in EO 14275 providing hints on which provisions in the FAR would be retained, it is still largely vague and does not outline what would be eliminated outright. For example, EO 14151 and EO 14173 eliminated President Johnson’s Equal Opportunity EO, which prohibited federal contractors from discriminating on the basis of race, sex, and national origin. Although it is likely FAR Subpart 22.8 will look drastically different in a FAR 2.0, or be eliminated altogether, President Johnson’s EO was founded on the basis of the Civil Rights Act of 1964. As a result, if some of the requirements in FAR Subpart 22.8 are read to be founded upon a federal statute, it may be that these requirements could remain, with modification, in FAR 2.0. This may be through the reinterpretation of specific civil rights issues, such as interpreting affirmative action as discrimination against Caucasians and others who do not benefit from preferences.

Additionally, in a prior article, we wrote about how the Small Business Administration (“SBA”) reduced the 8(a) federal contracting goal for small, disadvantaged businesses to the statutory level of 5% from 15% under the Biden Administration. There has been talk that small business contracting may be on the “chopping block” concerning FAR sections that will undergo significant revision in FAR 2.0. However, given the Small Business Act provides the basis for many of the policies and procedures under FAR Subpart 19, which governs Small Business Programs, it may prove difficult to alter small business contracting without repealing laws. We may instead see a regulatory overhaul that sticks closely to the statutory language but pairs back select portions of regulations that are not specifically required.

Altogether, the Trump Administration’s undertaking of a rewrite of the FAR, the 40-year old document which serves as the bedrock for federal procurement, FAR 2.0 could serve as the crown jewel to President Trump’s concerted attempts to reform procurement. But, this course of action will fundamentally change federal procurement, and many longstanding policies or principles will likely be significantly revised or disappear entirely in FAR 2.0.

GovSpring is available to help contractors and companies understand how the prospective FAR revision may impact their current and future requirements under existing contracts, as well as how future procurements will be conducted by federal agencies. Click here to schedule a consultation or fill out our online contact form if you are in need of legal services.

This article was co-authored with Aaron Silva. Aaron is currently a third-year law student at The George Washington University Law School, with a focus in Government Procurement and International & Comparative Law.

[1] Competition in Contracting Act of 1984, Pub. L. No. 98-369, tit. VII, 98 Stat. 1175 (1984) (PDF), codified at e.g., 10 U.S.C. § 3201 et seq. & 41 U.S.C. § 3301 et seq.; principles incorporated throughout the FAR (esp. Part 6) and reflected in processes outlined in clauses such as: FAR 52.215-1 (Instructions to Offerors—Competitive Acquisition).

[2] McNamara-O’Hara Service Contract Act of 1965, Pub. L. No. 89-286, 79 Stat. 1034 (1965)(PDF), codified at 41 U.S.C. §§ 6701–6707.

[3] Act of Mar. 3, 1931, ch. 411, 46 Stat. 1494 (1931), codified at 40 U.S.C. §§ 3141–3148.

[4] Truth in Negotiations Act, Pub. L. No. 87-653, 76 Stat. 528 (1962) (as amended) (PDF), codified at 10 U.S.C. § 3701 et seq.; 41 U.S.C. § 3501 et seq.

[5] Contract Disputes Act of 1978, Pub. L. No. 95-563, 92 Stat. 2383 (1978) (PDF), codified at 41 U.S.C. §§ 7101–7109.

[6] Anti-Kickback Act of 1986, Pub. L. No. 99-634, 100 Stat. 3523 (1986) (PDF), codified at 41 U.S.C. §§ 8701–8707; incorporated in the following FAR Clause: FAR 52.203-7 (Anti-Kickback Procedures).

[7] Walsh-Healey Public Contracts Act, Act of June 30, 1936, ch. 881, 49 Stat. 2036 (1936) (PDF), codified at 41 U.S.C. §§ 6501–6511; incorporated in the following FAR Clause: FAR 52.222-20 (Contracts for Materials, Supplies, Articles, and Equipment).

[8] Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, 108 Stat. 3243 (1994) (PDF), codified at 41 U.S.C. §§ 103 and 134; incorporated in the following FAR Clauses: FAR 52.212-4 (Contract Terms and Conditions—Commercial Products and Commercial Services); FAR 52.212-5 (Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services); FAR 52.213-4 (Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services))

[9] Small Business Act, Pub. L. No. 85-536, 72 Stat. 384 (1958) (as amended), codified at 15 U.S.C. § 631 et seq.; incorporated in the following FAR Clauses: FAR 52.219-8 (Utilization of Small Business Concerns); FAR 52.219-9 (Small Business Subcontracting Plan); FAR 52.219-6 (Notice of Total Small Business Set-Aside); FAR 52.219-28 (Post-Award Small Business Program Rerepresentation).

[10] Buy American Act, Act of Mar. 3, 1933, ch. 212, tit. III, 47 Stat. 1520 (1933), codified at 41 U.S.C. §§ 8301–8305; incorporated in the following FAR Clauses: FAR 52.225-1 (Buy American—Supplies); FAR 52.225-2 (Buy American Certificate); FAR 52.225-9 (Buy American—Construction Materials).

[11] Trade Agreements Act of 1979, Pub. L. No. 96-39, 93 Stat. 144 (1979), codified at 19 U.S.C. § 2501 et seq. (see Title III); incorporated in the following FAR Clauses: FAR 52.225-5 (Trade Agreements); FAR 52.225-6 (Trade Agreements Certificate); FAR 52.225-11 (Buy American—Construction Materials Under Trade Agreements).