Comment under 5 U.S.C. § 610 — the protections the overhaul removes without counting

Comment Letter
Written By ASBCC Admin

FILED 2026-07-09 · FOUR RFO DOCKETS · 5 U.S.C. § 610

All four Revolutionary FAR Overhaul notices carry the same invitation, in identical words: small entities may comment on the existing regulations affected by the rulemaking, under 5 U.S.C. § 610 — the Regulatory Flexibility Act provision requiring agencies to review rules that significantly affect small entities. On 9 July 2026 The American Small Business Chamber of Commerce™ accepted that invitation, filing an eleven-page companion to its principal comment into all four dockets.

The § 610 comment does what the government's own analysis did not: it counts.

Fifteen days to none — not fifteen to ten

The proposed rules raise the presolicitation posting tier from $25,000 to $45,000. Under the existing rule, a proposed contract action in that band gets a synopsis with a guaranteed fifteen-day lead time before the solicitation issues — time for a small firm to find the opportunity, assess it, and prepare.

The replacement is commonly described as ten days. It is not. The Council's own preamble states that the ten days "refers to the minimum posting duration, not a pre-issuance lead time," and its response-time table sets the minimum response period for this band at none. The guaranteed pre-issuance lead time falls from fifteen days to zero.

That fifteen-day window is not an agency courtesy. Congress wrote it into two parallel statutes — the Small Business Act at 15 U.S.C. § 637(e), among the small-business access provisions, and the general procurement-notice statute at 41 U.S.C. § 1708.

The uncounted 95,000

The Regulatory Flexibility Act requires the government to estimate the number of small entities a proposed rule affects and to analyze alternatives that would lessen the impact. The analysis accompanying the posting-tier change did neither: it offered no count of affected entities in the band, declared that "there are no significant alternatives," and called the impact "minimal and generally neutral to slightly beneficial."

ASBCC supplied the count the analysis omitted, from the government's own procurement data — every contract action reported to FPDS, FY2022 through FY2026: 30,067,324 actions.

  • The $25,000–$45,000 band holds 662,158 distinct awards worth $21.0 billion over the five-year window.
  • Small businesses win 47.0% of band dollars and 48.2% of band actions, stable in every complete year — roughly 1.7 times the government-wide small-business share of 27.58% (FY2025, SBA scorecard baseline).
  • Roughly 95,000 small-business contract actions per complete year sit in the band that loses its guaranteed lead time — 90,184 in FY2022, rising to 98,611 in FY2025.

This band is the entry door: the acquisitions where new entrants win their first federal awards and build the past performance larger competitions require. The SBA's own FY2025 scorecard reports the small-business vendor base shrinking 6.93% in a single year, from 60,951 to 56,725. A shrinking entry pipeline argues for strengthening the door's notice protections, not removing them.

The government's two explanations cannot both be true

The Council's public "You Said, We Did" page describes the posting-tier change as removing "the administrative burden of a mandatory posting timeframe." Its Regulatory Flexibility analysis of record calls the same change "neutral" to small entities.

A mandatory timeframe cannot simultaneously be a burden significant enough to justify elimination and a provision whose removal costs the affected firms nothing. Either it mattered — in which case its removal demanded the alternatives analysis the government declined to perform — or it did not, in which case the burden invoked to justify removing it does not exist.

The pattern repeats beyond the entry band

The comment documents the same failure — protections removed without being counted, costed, or weighed — across three further areas:

  • The market-research trigger. Existing rules make market research mandatory, and that step is what forces the small-business set-aside determination in each acquisition. The proposed rules convert it to discretion — before Part 19, the provision it triggers, has even been published for comment.
  • Notice for small-business sole-source awards. For forty years the FAR has excused presolicitation notice only conditionally, case by case. The proposed rules make the exemption categorical — withdrawing public notice from the women-owned, HUBZone, and service-disabled-veteran direct-award programs, in text that appeared nowhere in the deviation the public was invited to review.
  • Subcontract data. A definitional change removes commercial-item subawards from first-tier subcontract reporting — at the tier where, by estimates GAO has reported, 60 to 70 percent of defense contract work is actually performed, and against a transparency statute that contains no commercial exemption.

What we asked for

Eight requested actions. Among them: supplemental regulatory flexibility analyses that actually count the affected entities and weigh the obvious alternatives; a documented § 610 review of each existing protection before any rule eliminating it is finalized; restoration of the subcontract-reporting definition or a statement of the authority for narrowing it; and acceptance of the member-specific cost estimates ASBCC will submit for the record.

The comment closes on the Act's premise: the government must look before it leaps where small entities will land. On these provisions, the record shows the Council did not look. ASBCC's data shows what a look would have found.

The record

Filed 9 July 2026 into all four Revolutionary FAR Overhaul dockets, signed by Charmagne Giardina, President. Posted 13 July 2026.

Download the filed comment (PDF, 11pp) — it incorporates the principal comment by reference. Analysis basis: Federal Marketplace Index™ v0.2 — methodology · archived release.

ASBCC Admin
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