Submit Comments to the FAR Council

COMMENTS ON PROPOSED CHANGES TO FAR PART 39: Acquisition of Information and Communication Technology Submitted By: Name: [Name] Company: [Company Name] Email: [Email Address] Address: [Full Address] Company Description: [Company Description] EXECUTIVE SUMMARY I submit these comments regarding proposed changes to FAR Part 39, urging recognition that the current Revolutionary FAR Overhaul (RFO) methodology is chaotic, confusing, legally flawed, and detrimental to fair competition, particularly for small businesses. Small businesses now face an impossible compliance burden requiring navigation of: the original FAR, DFARs, non-regulatory RFO pages, approximately 190 "Agency Deviations," and proposed legislative changes—all without proper Administrative Procedure Act (APA) compliance. This fragmented approach ensures no one can comprehend how FAR provisions will ultimately integrate, creating an unmanageable burden that shifts government responsibilities to individual contractors. CRITICAL ISSUES WITH RFO IMPLEMENTATION A. Unprecedented Compliance Burden The RFO creates an unmanageable landscape for small businesses historically reliant on clear regulatory frameworks. Incomplete, legally questionable provisions impose compliance burdens while shifting responsibility from government to contractors with limited resources. B. Circumvention of Legal Process The "adopt first, finalize later" approach via rolling class deviations circumvents APA‑mandated transparent notice‑and‑comment processes. This undermines transparent governance, making public input meaningless and eventual rulemaking performative rather than substantive. C. Dismantling of Small Business Safeguards The RFO systematically removes interconnected procedural safeguards protecting small business participation, creating a "procedural vacuum." It severs connections between FAR parts, removing explicit small business considerations from critical sections (Parts 10, 6, and 11). Contracting officers are no longer explicitly required to seek small business capabilities, consult SBA regarding bundling, or avoid unnecessarily restrictive schedules. D. Economic Impact Over 300 congressional districts each risk losing $100+ million annually in small business contract revenues. For 325 of 435 districts, over half of small business federal contracting revenue comes from set‑asides now being undermined by consolidation policies. Data shows declining unique small business federal suppliers, accelerating job losses nationwide. E. Increased Financial Risk The shift toward discretionary guidance and prioritization of existing government‑wide contracts transfers financial and compliance risks to small businesses, reducing competition, inflating government costs, and stifling innovation. SPECIFIC COMMENTS ON FAR PART 39 FAR Part 39 exemplifies the RFO's detrimental impact through extreme complexity and unmanageable burdens from incomplete regulations and conflicting agency deviations. Positive Aspects: • Modular Contracting (39.102): Strong emphasis on breaking large IT projects into smaller, interoperable increments reduces barriers for small businesses. Critical Problems: • Personnel Qualification Requirements (Proposed 39.103): The change from "must not" to "should not" regarding minimum experience requirements creates problematic discretionary authority, allowing contracting officers to skew competitions by requiring unwarranted qualifications that disadvantage small businesses. This provision should remain "MUST NOT." • Broader ICT Scope (39.001(a)(2)): The move to "Information and Communication Technology" with emphasis on emerging technology creates continuous investment burdens for small businesses, potentially disadvantaging those specializing in established technologies. • Heightened Accessibility Requirements (39.104): New Section 508 compliance requirements add significant mandatory compliance burdens, requiring investment in VPATs, testing, and potentially costly remediation. • Accelerated Procurement Cycles: The 180‑day solicitation‑to‑award and 18‑month delivery timeframes pressure small businesses to be pre‑positioned on contract vehicles, creating additional administrative and financial barriers. • Removal of Prescriptive Policies: Streamlining removes clarity and specific guidance, leading to ambiguity, inconsistent interpretation, and increased risk of non‑compliance or proposal rejection. • Agency Deviation Proliferation: Multiple conflicting agency deviation memos for FAR Part 39 (and all RFO FAR Parts to date) create impossible tracking burdens, requiring reconciliation of original FAR, proposed FAR, and multiple agency‑specific deviations. REGULATORY COMPLIANCE COMPARISON Pre‑RFO: Single, codified FAR with transparent APA‑compliant rulemaking, uniform agency application, mandatory contracting officer requirements, and meaningful stakeholder input. Current RFO: Original FAR plus incomplete proposed FAR plus multiple agency deviations, "adopt first, finalize later" approach circumventing APA, fragmented agency‑specific variations, discretionary guidance with reduced accountability, and limited stakeholder input after implementation. RECOMMENDATIONS 1. Restore APA Compliance: Immediately halt the "adopt first, finalize later" approach. Require all FAR changes to follow transparent, legally compliant notice‑and‑comment processes with genuine stakeholder input before implementation. 2. Reinstate Small Business Safeguards: Re‑establish mandatory requirements for contracting officers to document and justify evaluation of small business capabilities, ensuring the Rule of Two remains viable and enforceable. Restore explicit market research triggers and mandatory SBA consultation requirements. 3. Re‑establish Oversight and Protest Rights: Restore small business ability to challenge unfair practices, including full SBA oversight and protest rights based on inadequate market research. 4. Prioritize Small Business Viability: Ensure all acquisition regulations follow principles of simplification, efficiency, transparency, and good practice while enabling small business participation per statutory requirements. CONCLUSION The RFO's circumvention of the APA, systematic erosion of small business safeguards, and resulting unmanageable compliance burden represent fundamental breakdowns in transparent governance. The current approach is neither simplified nor efficient, lacks transparency, deviates from good practice, and is unequivocally detrimental to small businesses. Immediate corrective action is essential to restore integrity and fairness to federal procurement, protecting small businesses and maintaining competitive procurement that serves taxpayer interests and national economic health.