#GovConThoughts: With GSA's New Class Deviation, Contractors May Face a Bumpy Road Ahead

[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]

By now, most professionals in the government contracting industry are aware of the Trump Administration’s myriad procurement reform efforts, including an in-progress overhaul to the Federal Acquisition Regulation ("FAR") as mandated by Executive Order ("EO") 14275, Restoring Common Sense to Federal Procurement (dated April 15, 2025).

Interestingly, while the FAR amendments are far from complete – indeed, the EO provides relevant parties with a 180-day deadline – but in an effort to streamline the process, the Federal Acquisition Regulatory Council ("FAR Council") on May 2, 2025 issued its first set of rolling guidance. While this approach will likely garner significant attention, the rollout may inevitably create uncertainty for contractors, in part, because the General Services Administration ("GSA") already issued a class deviation to implement some of the new FAR guidance.

As noted above, in overhauling the FAR, the Administration is taking a "rolling" approach to what has been dubbed the Revolutionary FAR Overhaul ("RFO") initiative. As explained on the RFO website, this means that updates to the FAR will be "released on a rolling basis by FAR part, [and] will be adopted by agencies until the FAR is formally revised through rulemaking."

Consistent with that approach, on May 2, the FAR Council rolled out updates to FAR Parts 1 and 34 (with related changes to Part 52). Interestingly, while these updates involve a host of changes, one notable change under FAR Part 1 involves a regulatory sunset at RFO/FAR 1.109. The sunset is significant and states that “All FAR sections that are not required by statute must expire 4 years after the effective date of the sections, unless renewed by the Federal Acquisition Regulatory Council.” Notably, while RFO/FAR Part 1 has not been finalized in rulemaking, GSA has already issued a class deviation to implement it.

In that regard, at the same time the FAR Council released RFO/FAR Part 1, it appears that GSA also published its class deviation (dated April 21, 2025) to give effect to the FAR guidance. Titled FAR Class Deviation for FAR Part 1 in Support of Executive Order on Restoring Common Sense to Federal Procurement, the class deviation not only applies to all GSA procurements but also instructs agency officials to follow RFO/FAR Part 1 instead of the current FAR Part 1 regulations. Given that agency officials are now required to follow RFO/FAR Part 1, it will be interesting to see how this unfolds.

For starters, the most obvious way this will play out is through Q&As. This process provides agencies and contractors with a non-adversarial method to address regulations that a contractor believes should be excluded from a solicitation. Where the Q&A process fails to resolve the issue, contractors will likely turn to bid protest litigation for clarity. This adversarial process will inevitably invite a tribunal to rule on whether a particular FAR section is "not required by statute." And, because the new section states that such FAR provisions "must expire 4 years after the effective date," protesters also will have a leg to stand on when arguing that a particular regulation is non-statutory and therefore should be removed from the solicitation.

Takeaway

The FAR Council's rolling process for updating the FAR is interesting and worth following. Indeed, because the approach may involve multiple iterative changes, the procurement process could get a little chaotic for both agency officials and industry. For now, and in light of the foregoing, contractors should be mindful of GSA’s class deviation and the new RFO/FAR 1.109 for all GSA procurement efforts moving forward. Where a contractor thinks a particular FAR provision is not required by statute, contractors should turn to the Q&A process or bid protests for relief.

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#govcon