Revolutionary FAR Overhaul: FAR Council Proposes To Make Agency-Level Bid Protests A More Attractive Forum

Background

On April 15, 2025, President Donald Trump issued Executive Order (E.O.) 14275, Restoring Common Sense to Federal Procurement, “to create the most agile, effective, and efficient procurement system possible.” E.O. 14275 explained that the Federal Acquisition Regulation (FAR) “has swelled to more than 2,000 pages of regulations, evolving into an excessive and overcomplicated regulatory framework and resulting in an onerous bureaucracy.” The policy focus is “[r]emoving undue barriers, such as unnecessary regulations, while simultaneously allowing for the expansion of the national and defense industrial bases is paramount.” E.O. 14275 directed the FAR Council and Office of Management and Budget (OMB) to create an efficient set of procurement regulations that contains only provisions required by statute or essential to sound acquisition strategies.

On May 2, 2025, OMB issued Memorandum M–25–26 to implement E.O. 14275, in which OMB announced the “Revolutionary FAR Overhaul” (RFO). During Phase I of the RFO, the FAR Council reviewed and revised the FAR via “model deviations.” Once the model deviations were published on the acquisition.gov website (note, not formally published in the Federal Register), all executive agencies had 30 days to implement the model deviations by issuing agency class deviations. The agency deviations adopted the model deviations, making them applicable by agency.

On June 23, 2026, as part of the RFO process, the FAR Council issued four separate proposed rules to amend various parts of the FAR to implement E.O. 14275.

In our first GT Alert concerning the RFO Rulemaking, we discussed the proposed FAR CUI Rule, contained in RFO Part 40. In our second GT Alert concerning the RFO Rulemaking, we discussed the proposed changes to the deadlines in FAR Part 49, concerning termination settlement proposals. In this GT Alert, we discuss the proposed changes to FAR Part 33, which governs the bid protest process.

Key Proposed Changes to FAR Part 33

FAR 33.103 allows parties to submit protests to the agency for resolution and is intended to provide parties with an inexpensive, informal, procedurally simple, and expeditious process. It also allows a protester to request an independent review of their protest:

In accordance with agency procedures, interested parties may request an independent review of their protest at a level above the contracting officer; solicitations should advise potential bidders and offerors that this review is available. Agency procedures and/or solicitations shall notify potential bidders and offerors whether this independent review is available as an alternative to consideration by the contracting officer of a protest or is available as an appeal of a contracting officer decision on a protest. Agencies shall designate the official(s) who are to conduct this independent review, but the official(s) need not be within the contracting officer’s supervisory chain.

FAR 33.103(d)(4). During Phase I of the RFO, the FAR Council issued a model deviation for FAR Part 33 that builds on this independent-review framework, which has been adopted in the proposed rule. Importantly, the change could make an agency-level protest more meaningful because it requires agencies to provide protesters with a redacted copy of its SSDD and permits them to submit supplemental protests to the independent review official based on the documents provided:

1. In accordance with agency procedures, interested parties may request an independent review of their protest at a level above the contracting officer; solicitations should advise potential bidders and offerors that this review is available.
2. Agency procedures and/or solicitations must-
   1. Notify potential bidders and offerors whether this independent review is available as an alternative to consideration by the contracting officer of a protest, or is available as an appeal of a contracting officer decision on a protest.
   2. Ensure that the protester receives a redacted copy of the source selection decision, if applicable, or if not already provided to the protester, within a reasonable time after the protester elects the independent review;
   3. Provide the protester an opportunity to submit a supplemental statement to the independent review official based on the documents provided, subject to timeliness requirements at 33.104-2 and 33.104-3.

FAR 33.104-4(a)(5). The practical importance of this change is that an SSDD typically reflects an agency’s evaluation rationale, including but not limited to its assessment of proposals, any tradeoff analysis, and the ultimate basis for selecting the awardee. As a result, a redacted SSDD may give unsuccessful offerors meaningful insight into the agency’s award decision—which would be “available for any type of procurement”—and may help identify whether an agency’s evaluation was inconsistent with its solicitation and complies with applicable procurement law and regulation.

The enhanced agency protest process in the RFO revisions to FAR Part 33 may provide protesters with a tool for satisfying GAO’s increasingly demanding pleading and evidentiary standards in recent bid protest decisions. GAO’s Bid Protest Regulations require that protests include a detailed statement of the legal and factual grounds of protest and that the grounds be legally sufficient. 4 C.F.R. § 21.1(c)(4) and (f). “This requirement contemplates that protesters will provide, at a minimum, credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester’s claim of improper agency action.” Warfighter Focused Logistics, Inc., B-423546, B-423546.2, Aug. 5, 2025, at 4 (emphasis added). In practice, the Warfighter standard can be difficult to satisfy where the protester has only received a debriefing (or not received a debriefing at all) or has limited visibility into the agency’s evaluation. Thus, the proposed rule may help protesters develop more concrete grounds before deciding whether to proceed at GAO or the U.S. Court of Federal Claims (COFC).

Takeaways

Under the proposed FAR 33.104-4 independent review procedure, a protester can obtain a redacted copy of the SSDD. Note that, where post-award Department of Defense debriefings are required, small business and nontraditional defense contractors receiving awards valued between $15 and $150 million may request a redacted copy of the SSDD. For awards exceeding $150 million, the agency must provide the redacted SSDD as part of the debriefing. This requirement is limited to DoD debriefings and does not apply to civilian agency procurements or procurement methodologies that do not require a debriefing at all. The revised FAR Part 33 procedures provide a more expansive avenue for a protester to obtain the SSDD or further information about the award decision.

Thus, where an agency does not, or is not required to, provide the SSDD as part of a debriefing—or is not required to provide a debriefing at all—this is a potential avenue for further information to decide whether to file a GAO protest or a protest at the COFC. However, GAO’s deadline for post-award protests must be considered when contemplating this potential tactic. Comments on the proposed rule are due by July 23, 2026.