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The second round of Revolutionary FAR Overhaul (RFO) proposed rules generated many comments that reflect support for a shorter, clearer, and more flexible Federal Acquisition Regulation (FAR). But the comments also reflect a concern that simplification should not come at the expense of transparency, small-business policy, established risk allocation, or predictability.

The comments submitted for the second round of RFO proposed rules reflect many of the same concerns expressed in those submitted for the first round of RFO proposed rules. The first-round comments focused on issues such as the FAR Companion, cybersecurity, transparency, protest and dispute procedures, small-business protections, termination for convenience, and proposed clause renumbering. The second-round comments reveal many of those same concerns and address multiple-award contracting, source selection, construction and design-build procurement, research and development, and data rights. 

The Womble Bond Dickinson review of the RFO’s first-round comments covered eight key points.  This alert covers seven key points from the second round of comments and adds an observation from a recent protest that addresses the situation where a solicitation mixes the RFO deviations with the pre-deviation FAR.

1. Providing Greater Discretion Raises Questions About Consistency

Many comments support giving contracting officers greater flexibility in source selections, contract-type decisions, multiple-award contracting, commercial acquisitions, and research procurements. The concern is not discretion itself. It is whether eliminating detailed rules without replacing them with sufficiently clear standards could produce inconsistent results across agencies and contracting offices.

Several comments call for retaining baseline documentation requirements, objective standards, or review mechanisms. The underlying point is that a shorter FAR is not necessarily a more predictable FAR if agencies implement the same statutory requirements differently.

This concern carries forward a key Round 1 comment theme. Round 2 commenters identified procedures in which expanded discretion could affect evaluation, competition, and contract administration. 

2. The FAR Companion Remains a Concern

The role of the FAR Companion continues to attract scrutiny. Comments question whether contractor-facing requirements, procedural protections, and substantive acquisition policies should be transferred from codified regulations to guidance that may be revised outside the ordinary rulemaking process.

Comments from the American Bar Association’s Public Contract Law Section and from several contractors and small-businesses state that material acquisition policies should remain in the FAR, particularly when they affect contractor obligations, evaluation standards, or enforceable procedural rights. Some comments also raise questions under 41 U.S.C. § 1707 “Publication of proposed regulations” when procurement policies with significant effects are placed in non-regulatory guidance. 

Round 1 comments questioned the proposed division between the FAR and the Companion. Round 2 comments sharpen that concern by identifying material that commenters believe should remain in the regulation.

3. Small Business Issues 

Small-business protections were important in comments from both rounds. Comments from the second round examine how the revised acquisition structure could affect access to federal opportunities.

Native, tribal, Alaska Native Corporation, women-owned, and other small-business comments express concern that greater reliance on governmentwide vehicles and category-management practices could reduce opportunities for firms that do not already hold positions on major contract vehicles. They also question whether revised market-research and vehicle-selection procedures sufficiently preserve Part 19 (Small Business Programs) requirements and other socioeconomic contracting policies.

These comments do not generally oppose multiple-award vehicles. Instead, they seek clearer assurance that acquisition efficiency will not displace the Rule of Two, statutory set-aside requirements, on-ramping opportunities, or meaningful consideration of smaller and newer market participants.

4. Clause Renumbering Concerns Continue

The proposal to renumber FAR clauses continues to generate concerns.

Comments point to the conversion costs associated with contract-writing systems, compliance manuals, subcontract templates, training materials, automated tools, legal research resources, and existing contract portfolios. Several recommend retaining existing clause numbers and using clause dates to distinguish revised provisions. 

This is an area in which the second round does not appear to present a new debate. Instead, it reinforces and broadens a concern already raised in Round 1.

5. Construction and Design-Build Comments Emphasize Risk Allocation

Construction and design professionals were among the most active Round 2 commenters.

Comments from the American Institute of Architects, the Design-Build Institute of America, and the ABA Public Contract Law Section address differing site conditions, site investigations, disclosure of physical data, architect-engineer selection, design-build competitions, and related construction procedures. Their common concern is that provisions developed over decades to allocate risk and protect competition should not be treated as unnecessary detail. 

These comments draw an important distinction between eliminating unnecessary administrative steps and changing the allocation of responsibility between the government and its contractors. 

6. Research Contracting, AI, and Data Rights Present Questions

The Part 35 (Research and Development Contracting) comments raise issues including treatment of technical uncertainty, Broad Agency Announcements, preservation of research records, transition from research to production, and small-business participation in federal R&D programs.

Other comments address government use of AI-assisted evaluation tools. Their recommendations include human review, retention of evaluation records and audit trails, and clearer disclosure of how automated tools affect source-selection decisions. The comments indicate that AI governance has entered the procurement-rulemaking debate. 

The proposed Part 27 (Patents, Data, and Copyrights) changes generated concerns involving validation and challenge procedures, commercial software, privately developed technical data, culturally sensitive information, and the possible extension of defense-oriented data-rights concepts into civilian procurement. 

Together, these comments illustrate a broader RFO challenge: rules designed for simplification must still accommodate specialized acquisitions in which intellectual property, emerging technology, or other issues materially affect contract structure.

7. Questions on the Pace and Sequencing of the Overhaul

A final recurring concern involves the rulemaking process itself.

Comments note that the RFO is being issued through interrelated packages, accompanied by class deviations and evolving guidance. Some argue that stakeholders cannot fully evaluate one group of proposed changes without seeing related provisions, including the ultimate treatment of Part 19 and the complete content of the FAR Companion. Others contend that compressed comment periods make it difficult to assess the combined effects of multiple changes. As agencies use RFO procedures through class deviations before the rulemaking is complete, transition issues are being seen, as noted below.

Early Warning: Transition Issues Have Arrived

A recent GAO decision illustrates the transition risks created when a solicitation operates under RFO class deviations while also incorporating provisions associated with the codified FAR.

In Kearney & Company, P.C.; NextGen Federal Systems LLC; Integral Federal, Inc.; Alpha Tech Alliance, LLC, B-424433.14 et al (Sept. 21, 2026), GAO considered protests challenging the Army’s Marketplace for the Acquisition of Professional Services (MAPS) solicitation. The Army issued the MAPS solicitation using RFO Part 15 procedures adopted through Department of Defense Class Deviation No. 2026-O0048. The solicitation also incorporated policies, provisions, and clauses from other RFO parts implemented through additional DOD-wide class deviations. 

The protesters argued, among other things, that the solicitation’s use of both codified FAR provisions and RFO deviations created ambiguities and internal inconsistencies that prevented offerors from competing intelligently and on a common basis. GAO considered the mixed-framework challenge under the significant-issue exception to its timeliness rules because the interaction between the existing FAR and RFO class deviations presented an issue of widespread interest to the procurement community. 

GAO denied the relevant challenges. Three cited provisions had not been changed by the RFO and therefore did not require deviation designations. For another provision, FAR clause 52.233-4, GAO concluded that the codified and RFO versions imposed the same substantive rule and did not create an ambiguity or material inconsistency. GAO also denied the protesters’ broader ambiguity challenges because it found the solicitation sufficiently clear to permit intelligent competition on a common basis. 

The holding is narrower than a general endorsement of mixed solicitations. GAO determined that the specific provisions before it were not ambiguous or materially inconsistent. It did not hold that agencies may freely combine legacy FAR text and RFO deviations regardless of whether the provisions differ or affect offerors’ pricing, risk assumptions, or proposal strategies. 

GAO also did not reach the merits of a separate allegation that the Army improperly used the pre-RFO FAR when preparing its consolidation analysis. GAO dismissed that ground as untimely because the underlying consolidation documents had been publicly available before the protest was filed. 

Thus, Kearney shows that GAO will examine the solicitation as a whole and will not infer an ambiguity merely because codified FAR provisions and RFO deviations appear in the same procurement. But it also confirms that the interaction between the two frameworks is protestable and that an actual material inconsistency could present a different case.

For agencies, the lesson is to identify applicable deviations clearly, remove obsolete references, and confirm that retained FAR provisions are substantively consistent with the operative RFO framework. For contractors, the decision underscores the importance of reviewing solicitations provision by provision and raising patent ambiguities before proposal submission. Transition questions may otherwise be lost on timeliness grounds before GAO reaches their merits.

Looking Ahead

Across both rounds of comments, stakeholders have noted concerns with transparency, predictability, small-business participation, the status of the FAR Companion, increased contracting officer discretion, and clause renumbering. 

The RFO’s second round comments show how those concerns may arise in multiple-award vehicles, specialized acquisitions, construction risk allocation, research contracting, AI-assisted evaluations, and data-rights administration.

The Kearney decision adds another dimension. Agencies are already using the RFO’s revised procedures through class deviations, and GAO is already resolving protests involving the interaction between those deviations and the codified FAR. 

As the FAR Council moves into the RFO’s third and final round of proposed rules and then toward final rules, the question is not simply how much text can be removed. It is whether the resulting system will remain sufficiently clear, consistent, and transparent for agencies and contractors to determine which rules govern and how those rules will be applied.

If you have any questions about the issues raised in this alert, please contact the authors or the Womble Bond Dickinson attorneys with whom you normally work.