FedSubK Feature: Service Contract Labor Standards (SCLS) - Exemptions for Certain Services (Part 2 of 3)
Updated: May 4, 2024
(UPDATED 4/23/2024)
In this second installment of our three-part series on the Service Contract Labor Standards (SCLS, formerly known as the Service Contract Act (or SCA)), we are going to talk about certain services that are exempt from the SCLS. There are exemptions based on statute and exemptions based on regulation. Individual exemptions can also be based on criteria set forth in the Fair Labor Standards Act (FLSA) based on the work performed by an employee for classification as a bona fide executive, administrative or professional service. (That one is not as easy to determine as it sounds…read on!)
Knowledge Baseline: Some SCLS basics to keep in mind are–
- The statutory threshold for application of the SCLS is $2,500. Yes, it’s LOW. And, no, it is not subject to inflationary adjustments because it is set in the statute. It has been this amount since the statute originated.
- Actions with a total value at or below $2,500 are not subject to the SCLS.
- Actions with a total value over this amount are reviewed by the Contracting Officer and will include terms and conditions letting businesses know if the action is subject to the SCLS or if an exemption applies.
- The Federal Acquisition Regulation (FAR) Subpart 22.10 governs Federal contracting processes related to the SCLS.
- The SCLS applies to services performed in the 50 United States, District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll, Johnston Island, Canton Island, and the Northern Marianas.
Why is Understanding Exemptions Important? If an employee is not exempt from the SCLS, you must pay at least the prevailing wage found in the contract (provided by the Contracting Officer) and fringe benefits as mandated by the Department of Labor. Failure to do so can result in steep fines.
Statutory Exemptions from the SCLS.
Services exempted by statute are industries or classes of services which are typically offered, sold regularly, and/or provided by businesses to the general public on a commercial basis in substantial quantities as part of normal business operations. Prices for these services are most often based on established and regularly maintained catalog or market prices and are either published or available for inspection by customers. Services exempted from the SCLS by statute include:
Regulatory Exemptions from SCLS.
In addition to the statutory exemptions above, FAR 22.1003-4 includes a list of administrative limitations, variations, tolerances, and exemptions provided for by the Secretary of Labor. Regulatory exemptions from SCLS include:
NOTE: Moving services are subject to the SCLS. “Moving” is defined as storage, packing, and crating for “moving from one building to another or further distances” and includes intra-office moves. (29 CFR 4.123(e)(2)(i)(G))
The Secretary of Labor may also provide reasonable limitations and may make rules and regulations allowing reasonable variations, tolerance, and exemptions to and from any or all provisions of the SCLS statute except for wage and fringe benefit determinations, only in special circumstances where the Secretary determines that the limitation, variation, tolerance, or exemption is necessary and proper in the public interest or to avoid serious impairment of Federal Government business and such action will protect prevailing labor standards.
SCLS and Professional Services.
Services may also be exempt from the SLCS based on the services performed and the classification of the personnel who perform the work. The Fair Labor Standards Act (FLSA) (29 USC 201, et seq.) prescribes standards for the basic minimum wage and overtime pay that may affect SCLS-covered actions. The FLSA interacts with the SCLS in three key ways:
NOTE: Non-management maintenance employees such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and other laborers are not exempt from the SCLS or FLSA no matter how highly paid they might be.
Professional Services Exemption from SCLS. “Professional Services” are classified as such because the primary duty of the individual performing the work requires knowledge of an advanced type in a field of science or learning which is customarily acquired by a prolonged course of specialized intellectual instruction or the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. Architects, engineers, archeologists, chemists, biologists, accountants, lawyers, doctors of medicine or dentistry, actuaries, physicists, computer systems analysts, computer programmers, software engineers, and other similarly skilled computer workers, or instructors of the same are considered to provide “professional” services. Computer-related positions are covered under the Administrative Procedure Act Section 13(1)(17) of the FLSA.
!!!!BEWARE!!!! Per the Code of Federal Regulations (20 CFR Part 541), job titles alone are insufficient to establish the exempt status. The exempt or nonexempt status is determined on the basis of whether the salary and duties of the person doing the work meet the requirements therein. To be considered professional services, criteria set forth in the FLSA must be met.
- Persons performing professional services must do so “customarily and regularly” as part of their primary duties, meaning that the professional services occur normally as part of their primary duties and reoccur every work-week; professional services are not isolated or one-time tasks.
- The profession must be considered exempt under Section 13(a)(1) of the FLSA to qualify for an SCLS exemption.
- The individual must be employed in a bona fide executive, administrative, or professional capacity.
The individual exemptions are each addressed below.
FLSA Individual Exemption - Bona Fide Executive (29 CFR 541.100). For an individual to meet the bona fide executive exemption, all of the following must apply:
Examples of management duties include:
- Selecting, training, appraising, disciplining employees,
- Plan or apportions work,
- Determines technical and/or materials to be used, purchased, stocked, and/or sold,
- Plans and controls budget,
- Monitors performance.
FLSA Individual Exemption - Administrative (29 CFR 541.200). For an individual to meet the bona fide administrative exemption, all of the following must apply:
The phrase “discretion and independent judgment” must be applied in light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:
- has authority to formulate, affect, interpret, or implement management policies or operating practices;
- carries out major assignments in conducting the operations of the business;
- performs work that affects business operations to a substantial degree, even if the employee's assignments are related to the operation of a particular segment of the business;
- has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval;
- has the authority to negotiate and bind the company on significant matters;
- provides consultation or expert advice to management;
- is involved in planning long- or short-term business objectives;
- investigates and resolves matters of significance on behalf of management; and
- represents the company in handling complaints, arbitrating disputes, or resolving grievances.
The “exercise of discretion and independent judgment” implies that the employee has the authority to make an independent choice, free from immediate direction or supervision. The term “discretion and independent judgment” does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee's decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. For example, the policies formulated by the credit manager of a large corporation may be subject to review by higher company officials who may approve or disapprove these policies. The management consultant who has made a study of the operations of a business and who has drawn a proposed change in the organization may have the plan reviewed or revised by superiors before it is submitted to the client.
FSLA Individual Exemption - Professional (29 CFR 541.300). For an individual to meet the bona fide professional exemption, all of the following must apply:
The phrase “work requiring advanced knowledge” means work that is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical, or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.
The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type but is not in a field of science or learning.
The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best initial evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is also available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction.
Subsets of “professionals” include:
- Teachers (29 CFR 541.303). Any employee with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge. Exempt teachers include but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school pupils; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrumental music instructors. The possession of an elementary or secondary teacher's certificate provides a clear means of identifying the individuals contemplated as being within the scope of the exemption for teaching professionals. A teacher who is not certified may be considered for exemption, provided that such individual is employed as a teacher by the employing school or school system.
- Practice of Law or Medicine (29 CFR 541.304). Any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof and any employee who is the holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of the profession is eligible for the exemption.
FSLA Individual Exemption - Computer Employees (29 CFR 541.400). Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption. For an individual to meet the computer employee exemption, all of the following must apply:
The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters, and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in § 541.400(b), are also not exempt computer professionals. (29 CFR 541.401)
Computer employees may also have executive and administrative duties which qualify the employees for exemption under bona fide executive or professional definitions.
“Learned Professionals” Exemption.
Learned professionals must perform work requiring advanced knowledge in a field of science or learning, and knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Below is a list of categories of “learned professionals”. The FLSA says that to qualify for an exemption, the employee’s “primary duty” must be the performance of exempt work. The term “primary duty” means the principal, main, major, or most important duty that the employee performs with the general test being that an employee who spends more than 50% of their time performing exempt work satisfies the primary duty requirement.
- Account clerk or bookkeeper – performs routine work and do not require a 4-year or advanced degree. Certified public accountants generally meet the duties requirements for the learned professional exemption. In addition, many other accountants who are not certified public accountants but perform similar job duties may qualify as exempt learned professionals. However, accounting clerks, bookkeepers, and other employees who normally perform a great deal of routine work generally will not qualify as exempt professionals. (29 CFR 541.301(e)(5))
- Paralegal or Legal Assistant – an advanced degree is not required for entry into the field, however, some paralegals possess general 4-year advanced degrees or training from a 2-year college or equivalent institution, unless the paralegal or legal assistant possesses an advanced specialized degree in another professional field and applies advanced knowledge from their field in the performance of their duties, generally, the FLSA exemption does not apply. (Example: if a law firm hires an engineer as a paralegal to provide expert advice on product liability cases or to assist on patent matters, that engineer would qualify for FLSA exemption.) (29 CFR 541.301(e)(7))
- Computer Analyst – primary duties consist of advanced knowledge or application of systems analysis techniques and procedures, consulting with users to determine hardware, software, or system functional specifications. (29 CFR 541.400)
- Hardware or Software Engineer – primary duties consist of design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, to include the creation of prototypes, and may be related to operating systems. (29 CFR 541.400)
- Interpreter – typically an advanced degree is not required for entry into the field but could be if necessary for the type of interpretation being done (linguist interpreter).
- Stenographer – an advanced degree is not required for entry into the field.
- Consultant or Advisor – This goes back to our definitions of professional services. It depends on the work and who performs the work. Merely calling giving oneself a title such as “consultant” or “advisor” does not confer advanced knowledge gained from a prolonged course of intellectual study, and does not automatically trigger the FLSA exemption. These types of services must be reviewed on a case-by-case basis and classified appropriately based on criteria set in the SCLS and FLSA.
- Law Enforcement, Emergency Response, & Rescue -- The FLSA does not grant SCLS exemption to the following classifications of employees.
(1) Police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers, and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.
(2) Such employees do not qualify as exempt executive employees because their primary duty is not the management of the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof as required by the FLSA. The position is not exempt merely because the police officer or firefighter also directs the work of other employees in the conduct of an investigation or fighting a fire.
(3) Such employees do not qualify as exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer or the employer's customers as required by the FLSA.
(4) Such employees do not qualify as exempt professionals because their primary duty is not the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as required by the FLSA. Although some police officers, firefighters, paramedics, emergency medical technicians, and similar employees have college degrees, a specialized academic degree is not a standard prerequisite for employment in such occupations.
Where Can I Find Out More? Here are a few great references for service contractors to have at hand in case the need arises:
DOL’s WHD Compliance Assistance Webpage: https://www.dol.gov/agencies/whd/compliance-assistance
DOL McNamara-O’Hara Service Contract Act (SCA) site:
https://www.dol.gov/agencies/whd/government-contracts/service-contracts
Frequently Asked Questions on SCLS (SCA):
https://www.dol.gov/agencies/whd/government-contracts/service-contracts/faq
Fair Labor Standards Act (FLSA):
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What Does Nonstatutory Really Mean? (Weathering the RFO Series)
In my last article, I suggested that one of the biggest misconceptions surrounding the Revolutionary FAR Overhaul (RFO) is the idea that the FAR itself creates procurement policy. It doesn't. And if you are in GovCon, you should know that basic truth. Congress creates procurement policy. The FAR implements it. That distinction changes how we should think about the RFO. Instead of asking, "Why did they delete that?" I think we should first ask, "What purpose was that requirement serving?"
That brings us to one of the words that appears throughout the RFO.
Nonstatutory.
It sounds like a legal term. But in reality, it's become one of the most misunderstood words in the current conversation.
At first, I thought it was pretty straightforward. Like most people, the first time I read that the FAR Council intended to remove nonstatutory requirements from the FAR, my reaction was pretty simple. “That makes sense.” If Congress didn't require it, why should it stay? Then I caught myself. That question assumes something that isn't necessarily true. It assumes that if Congress didn't specifically require a procedure, the procedure probably isn't very important. After spending most of my career implementing procurement policy rather than simply reading it, I'm not sure that's always the right conclusion.
Let's Separate Those Two Very Different Questions
One of the things working as a Contracting Officer in Federal acquisition teaches you is that two questions can sound almost identical while leading to very different answers. And as Contracting Officers, we’ve been taught to pay attention to words and questions very carefully.
In this case, the first question is: Did Congress require this? That's a legal question.
The second question is: Why did this procedure exist? That's an acquisition question.
Sometimes the answer to both questions is the same.
Congress required it. Case closed.
But very often they aren't. And that comes out when you sit in a FAR policy working group meeting. You hear the discussion and debate over what Congress said is the law and the intent of that law, versus how we implement the law and ensure compliance with the law. In that room, the conversation always went back to…
--Congress established the objective and intent or outcomes.
--The FAR established the procedure with which to get there consistently and effectively across Government.
That's an important distinction.
Congress rarely tells Contracting Officers exactly how to conduct acquisition planning. Or exactly how to perform market research. Or exactly how to document a responsibility determination. Congress establishes policy. The FAR has historically translated that policy into repeatable acquisition practices. And for good reason. Left to their own devices, agencies have as many ways to do acquisition as the number of acquisition professionals they have on staff.
How FAR Actually Evolves
One thing I wish more people understood is that the FAR didn't appear one day as a finished document. It just evolved. Every acquisition professional has lived some part of that evolution.
--Congress passes legislation.
--The FAR Council implements it.
--GAO issues protest decisions that clarify how the rule should work.
--Courts interpret statutory authority.
--Inspectors General identify recurring weaknesses.
--Agencies develop better practices.
And eventually, some of those practices become regulatory language. Not because Congress required every sentence. Because the acquisition system learned something. That's why I hesitate whenever someone says, "It's only nonstatutory."
Maybe. (Insert my shoulders shrugging.) But that's not the whole story.
Think About It This Way
Imagine Congress passes a law requiring agencies to maximize practicable opportunities for small businesses. Congress doesn't necessarily prescribe every analytical step a Contracting Officer should take before deciding whether a procurement should be set aside.
But take that law, and if the FAR Council believes it should be incorporated into the regulation, it creates a FAR case and tasks one of two councils – the Civilian Agency Acquisition Council (CAAC) or the Defense Acquisition Regulations Council (DARC) – to proceed with FAR implementation.
Those entities lead and coordinate the writing of the FAR changes to include parameters and PROCESSES for implementation. These working groups of acquisition professionals from across government talk about how their interpretations and context can change based on the words used in writing the FAR changes. And that is why process and procedure start to become important. Context is everything. The words are chosen carefully and the decision to step through a procedure is not taken lightly.
Over time, once rules become final and their processes were implemented, those processes were then tied to other processes – existing, changing, and new – and then you get a series of procedures for things like market research (what determines its enough), acquisition planning (documenting the thought process behind the acquisition), bundling analyses (to ensure it can withstand scrutiny), and documenting acquisition decisions (to ensure the Government followed the process and procedures it said it would along with being compliant with the regulation and laws).
See how those processes and procedures help create consistency across government?
They are not the POLICY. They are how policy gets implemented. And that doesn't automatically mean every procedure put into action should remain forever. However, it does suggest we should understand what role processes and procedures have been playing before deciding they are no longer needed. Particularly with an acquisition workforce turned upside down through "The Fork" and DRP and people jumping ship. We don't have enough historical knowledge in place with those that remain with the requisite experience in making business decisions for the Government and its unquie considerations of public stewardship over profitability to "get it" without many of these processes and procedures still in place.
Was the point to clear the "old wood". I'm not naive enough to think that isn't the case. I most definitely was and is. But as we see -- pool liners, systems changes, running low on munitions, and a parasite causing real havoc all have real consequences.
This Isn't an Argument Against Simplification
Nothing here should be taken as an argument that every existing FAR provision deserves to stay. Frankly, it is the exact opposite. I've worked with the FAR long enough to know that it contains language that could be simplified, reorganized, or removed without affecting procurement outcomes. (How I wished I could have been part of the rewrite because I would have taken a few parts much further.)
The acquisition workforce has been asking for a more readable and user-friendly FAR for years. Industry also. In part, the RFO is responding to that need. And I think that part of the RFO is worthwhile.
But I go back to -- the question isn't whether simplification is good. The question is how we distinguish between simplifying regulations and simplifying implementation. They aren't always the same thing but those who have been sitting in policy while looking at work from on high often think they are. They don’t remember how process and procedure also drive faster and better decision-making along with more risk taking because a Contracting Officer can fall back on it.
The question I keep coming back to while reading the currently released FAR cases are the same ones over and over.
Now that “X” has disappeared, what function disappears with it?
Does that function still matter or has it moved somewhere else?
Will Contract Specialists and Contracting Officers still have the same tools available, and if not, how will agencies implement the statute consistently?
(Heck, we all know that agencies and even offices within agencies had a hard enough time WITH processes and procedures being consistent.)
But do you notice that's missing in those questions? I'm not asking whether the provision was statutory. I'm asking what it helped the acquisition workforce accomplish.
To me, that's the most useful conversation as these rules play out. It should be front of mind in our comments, too.
From the Contracting Officer's Chair
If someone had walked into my office twenty years ago and said, "Shauna, this requirement isn't statutory."
My next question probably would have been, "Okay...but why is it there?"
Not because I was defending regulations but because I was trying to understand whether removing that requirement would actually change how I approached an acquisition and create efficiencies. Should I push back and how far can I push the envelope? Or could I defend taking a different action yet still be compliant?
Some procedures existed because they genuinely improved decision-making. Others existed because they reflected old ways of doing business that no longer made sense. One of the responsibilities of a good Contracting Officer is learning to tell the difference.
I think understanding how to sort those out and not throw the baby out with the bathwater is exactly the responsibility we have as we evaluate the RFO as contracting professionals. We must be honest that, in many cases (and you know you did this) having process to fall back on actually helped with decision-making, efficiency, and consistency.
My Perspective
I’m interested in understanding the role that “requirement” played in the acquisition system, whether statutory or nonstatutory. Those two categories deserve very different conversations. Talking only about nonstatutory information that remains short-circuits the discussion we need to have. Statute tells us where a requirement came from, but experience helps us understand why it mattered. And why is might still be needed. I think we need both perspectives as we move forward reviewing proposed RFO changes.
What's Coming Next -- Article Three: If Congress Sets the Destination, Who Builds the Road?
One of the first places this conversation becomes very real is acquisition planning. The FAR has historically translated procurement objectives put in place by Congress into how we determine acquisition planning requirements. And that influences everything from competition to market research to small business participation.
Next, I’ll be talking about why acquisition planning became one of the foundations of federal procurement and what it means when many of those implementation details move from regulation to guidance…again, two very different things.
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Author: Shauna Weatherly, President, Federal Subcontract Solutions LLC (dba FedSubK). Shauna is a small business advocate and owner of FedSubK. FedSubK exists to simplify federal contracting, empowering small businesses with practical, understandable resources. We bring first-hand experiences in Federal contracting from multiple perspectives derived from roles held both in and out of Government over almost four decades of Federal service.
Visit us at fedsubk.com to learn more about--
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The FAR Isn't Procurement Policy (Weathering the RFO Series)
Over the past several months, one question has followed me almost everywhere I've gone and on most every phone call.
"Shauna, what do you think about the Revolutionary FAR Overhaul?"
It's a fair question. And I don't answer it. At least not right away.
Instead, I usually ask a question of my own.
"Which part?" Then I wait, maybe shuffle around, and take a deep breath. The reason I ask – and display some body language that shows I’m anticipating the answer -- is because the Revolutionary FAR Overhaul isn't a single regulatory change. It's a fundamental reconsideration of how the Federal Acquisition Regulation should be organized, what belongs in it, and perhaps most importantly, what doesn't.
Depending on who you ask, it's “the most significant acquisition reform in decades”, a “risky departure from the procurement system we've relied on for more than forty years”, or a big “nothing-burger”. And I understand all of those perspectives.
And yes, I do occasionally shoot from the hip. But before I deciding whether I fully agree or disagree with any particular change (proposed or in progress), I want us all to go back to this one much simpler question:
What problem is the FAR Council trying to solve?
I've learned over the years that procurement regulations don't appear or disappear by accident. Some exist because Congress required them. Some were added after GAO decisions exposed weaknesses in the acquisition process. Others grew out of Inspector General findings or years of agencies wrestling with the same recurring problems. Some were brought about to force consistent behavior and interpretation. And yes, many stayed in the FAR long after anyone could clearly explain why they were still there -- except maybe someone like me who has been living the FAR since FASA and before.
The biggest challenge is knowing which is which. Which were put into place for what reason.
That's why I decided to write Weathering the RFO. Not because I think I already know all the answers. But because I think we're asking the wrong questions about where we go from here.
Let's Start in a Different Place
One thing I've noticed as I've listened to conversations about the RFO is that many of us instinctively started with the FAR itself. We started asking questions like:
-- "Why did they delete this section?"
-- "Why did they move this guidance?"
-- "Why are they shortening this part?"
Those are reasonable questions. I'm just not convinced they're the first questions we should ask anymore. So I think we should start somewhere else. And that place with with Congress.
-- Congress, not the FAR Council, establishes federal procurement policy.
-- Congress decided that agencies should maximize practicable opportunities for small businesses.
-- Congress established full and open competition as the standard for federal contracting unless a statutory exception applies.
-- Congress created procurement integrity requirements, commercial acquisition authorities, and the socioeconomic programs that have shaped today's procurement landscape.
The FAR Council nor the FAR itself created those policies. FAR is how the rules Congress creates are implemented. That distinction may sound subtle, but I believe it's the key to understanding the RFO. The RFO doesn't rewrite the Small Business Act, the Competition in Contracting Act, or the Office of Federal Procurement Policy Act....or any others. Those statutes remain exactly where they've always been without exceptions, short of an Executive Order. Instead, I'm hoping the FAR Council is asking a different question:
What's the best way to implement those laws through regulation?
Throughout the proposed rulemaking, the FAR Council explains that its objective is to retain statutory requirements and those necessary for sound procurement while removing or relocating other material that has accumulated in the FAR over time. That theme appears consistently throughout the initial set of proposed FAR cases and reflects the broader objective of simplifying the regulation without changing the underlying statutory framework.
Once I started looking at the RFO through that lens, the conversation changed for me. I stopped asking, "Why did they remove this?" And I started asking, "How will agencies accomplish the same objective now?"
To me, that's the more interesting and important question. Process edicts written into the FAR -- by design -- have led behavior of Contract Specialists and Contracting Officers for decades.
When process disappears overnight and leadership says "read all this great stuff we've given you to explain what we did", what leads and drives behavior then?
Why This Matters
One of the advantages of spending nearly four decades inside the Federal Government system and near all of that in acquisition is that you develop a healthy respect for unintended consequences. I've seen relatively small policy changes fundamentally reshape acquisition practices. I've also seen sweeping reforms generate months of debate before settling quietly into the background with very little long-term impact.
I’m taking a step back now and resisting the temptation to label the RFO either a success or a mistake before I talk and work through the changes made from the lens of the Contract Specialist, Contracting Officer, Chief of Contracting, COR, and Project Manager who has lived and been tasked with implementing and guiding others through major acquisition reforms over the years. I'm using careful analysis and the experience of decades of best practices, lessons learned, “wish I could haves”, ... thinking through it all with the patience and insight to how acquisition policy gets implemented and absorbed within the workforce, and their behavior as it drops and becomes part of the new normal.
This is the lens it deserves.
Oh, there will almost certainly be changes that I think are dumb, or overdue. There may be others that concern me from the position of a small business advocate. And there will probably be a lot that fall somewhere in between. That's because procurement has never been about absolutes. It's about balance.
Competition and efficiency.
Flexibility and consistency.
Innovation and oversight.
Speed and stewardship.
Those competing priorities have always defined federal acquisition, and they don't disappear simply because the FAR suddenly becomes a shorter version of its former self.
The Conversation I Hope We Can Have
If you're looking for someone to tell you the RFO is either the best thing that's happened to acquisition in decades or the worst, you probably won't find that here. That's not because I don't have opinions (because you know I do, if you’ve followed me for any length of time). Anyone who has spent a career in federal acquisition has opinions. It's because experience has taught me that good procurement decisions rarely begin with conclusions. They begin with understanding.
In each article in this series, I'm going to explore the questions I found myself asking as I read through the proposed rules.
-- What was Congress trying to accomplish?
-- What was the intent?
-- How has the FAR historically implemented that objective?
-- What is the FAR Council proposing to change?
-- Why does the Council believe the change is appropriate?
And perhaps -- most importantly --What might this mean for the people who actually have to use these regulations?
· The Contracting Specialists and Contracting Officers.
· The Program and Project Managers.
· The Small Businesses Specialists.
· Small and large businesses.
· The Agency and industry attorneys.
· The acquisition leaders at all levels in the organization, particularly those with front line responsibilities to guide the acquisition workforce daily.
This is important because procurement policy doesn't live in the Federal Register.
It lives in acquisition offices across the Government, where real people make real decisions every minute of every day as tax dollars fly out the door.
THAT....That....that's where the ground zero of the RFO is taking shape and will determine the future use and participation by industry.
From the Contracting Officer's Chair
As an acquisition leader, I rarely acted on the strong urge to switch courses immediately upon policy changes. I wanted to understand the problem that the law or rule or FAR was trying to solve. I always wanted to see how I could tie changes into my business decision-making and critical thinking process I was already using as a Contracting Officer very successfully.
How did it make my analysis and decision process more solid but still ease my burden?
Sometimes a new requirement looked unnecessary until I learned it had been added after a series of successful GAO protests. Sometimes a procedure that seemed cumbersome turned out to be the Government's best evidence that a statutory obligation had been met. And often enough, a change in the regulation or a new regulation over time become little more than institutional inertia. Then there are the ones that just are what they are and you suck it up and keep plowing forward.
The point is I learned not to judge a requirement by its age or by the number of pages it occupied in the FAR. I tried to first understand its purpose.
-- Looking at the big picture.
-- Looking at the small picture.
-- Looking at it from the lens of industry.
-- What could I learn from the change?
-- What did it do for the overall mission?
-- How did it support stewardship of taxpayer funds?
That's the mindset I'm bringing to this series.
My Perspective
As I finished reading the first group of proposed RFO rules, one thought stayed with me.
I don't think the most important question is whether the FAR becomes shorter.
I think the more important question is whether the acquisition workforce still has the tools it needs to faithfully carry out the procurement policies Congress established that form the foundation of the regulation itself.
Sometimes simplifying a regulation removes unnecessary burden. Sometimes it also removes a process that quietly helped agencies demonstrate compliance with the law. The challenge and the opportunity is knowing the difference.
That's the conversation I hope Weathering the RFO encourages. Not because I expect everyone to agree with my observations but because I think the acquisition community benefits when we take the time to understand not only what changed, but why it matters.
What is Coming Next -- Article Two: What Does "Nonstatutory" Really Mean?
One of the phrases that appears throughout the Revolutionary FAR Overhaul is nonstatutory requirements. Now at first glance, it seems self-explanatory, but I'm not sure it is.
In the next article, we'll unpack that phrase and explore why understanding it may be one of the keys to understanding the entire Revolutionary FAR Overhaul.
Watch for it here.
Author: Shauna Weatherly, President, Federal Subcontract Solutions LLC (dba FedSubK). Shauna is a small business advocate and owner of FedSubK. FedSubK exists to simplify federal contracting, empowering small businesses with practical, understandable resources. We bring first-hand experiences in Federal contracting from multiple perspectives derived from roles held both in and out of Government over almost four decades of Federal service.
Visit us at fedsubk.com to learn more about--
Getting Started in Federal Contracting: fedsubk.com/begin-your-journey-here
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The FAR Overhaul: Long-Deferred Maintenance on the Government's Procurement Highway
If you’ve ever worked in federal procurement — as a contracting professional, program manager, small business, prime, sub, or advisor — you’ve probably had this moment:
You’re doing your best to follow the rules…and suddenly you hit a clause, a cross-reference, or a requirement that feels like it came out of nowhere.
That’s because the Federal Acquisition Regulation (FAR) isn’t just a set of rules. It’s a highway system. A massive, heavily traveled road network that’s been patched, expanded, and rerouted for decades — and in many areas, it’s operating with years of deferred maintenance.
Let’s talk about what that really means using the highway analogy to explain why the Revolutionary FAR Overhaul isn't as "revolutionary" as some might think.
The FAR is like a Well-Traveled Federal Highway
The FAR is the main road that nearly every federal acquisition travels on. And like any highway system:
- Everyone uses it
- Everyone depends on it
- And over time, it’s been modified in ways that made sense in the moment… but created complexity later
If you look at any highway on Google Maps it shows a rather clean route. FAR, we were taught, was set up to be the same way: requirements, procedures, clauses, and guidance. But once you’re actually “driving” that road? Well, you realize the terrain is full of twists and turns. It's more complicated than you realized.
Hidden Guardrails: The Rules You Don’t See Until You Need Them
Some of the FAR’s most critical compliance safeguards are like guardrails buried under weeds or snow. They’re there for a reason: to prevent waste, protect fairness, ensure accountability. But they’re not always easy to spot. In practice, you often discover them when someone asks:
“Did you document that?”
“Where’s your justification?”
“Why didn’t you compete this?”
“Which clause applies here?”
That’s when you realize the guardrails were present the whole time — just not visible.
Guardrails are added all the time or in the process of being fixed (via rulemaking). But all that construction can clog up traffic and make the time for arrival (contract award) continually recalculate.
Hazards & Risks: Potholes, Speed Traps, and Fog
Now add in the hazards:
- Potholes = ambiguity and unclear language
- Fog = inconsistent interpretation across offices and agencies
- Construction zones = evolving policy updates, executive orders, and new mandates
- Speed traps = protests, audits, IG scrutiny, and compliance reviews
And these hazards hit different people differently. The same stretch of FAR may feel smooth to one team and treacherous to another. That’s not because the people are bad at driving — it’s because the road is uneven.
Side Roads & Gray Areas: The Detours Everyone Knows About
Then there are the side roads. Some are official alternate routes: simplified acquisition procedures, flexibilities, exceptions, and FAR “shortcuts” that exist for good reasons. Those are the routes people take because they’ve always taken them. Indicators might be hearing yourself or your peer say --
“We’ve always done it this way.”
“That’s how the last CO handled it.”
“This should be faster.”
“It’ll probably be fine.”
Side roads aren’t automatically wrong. But they come with risks, Eventually someone asks, “Why did you go that way instead of the main route?”
Others are the gray areas -- the gravel roads and roads only the locals (experienced COs/KOs) know. Those routes have to be navigated very carefully and even the best driver can have issues even if there is less traffic. Many times they beat those on the highway to their destination, but it's only because they know where all the seen and unseen hazards are from their years driving that route.
So What Is the FAR Overhaul, Really?
Here’s the key point:
✅ It is NOT building a new road.
✅ It is NOT bulldozing the FAR and replacing it.
✅ It IS road maintenance -- the kind that should've been done years ago.
And when you have decades of deferred maintenance, it takes a lot of work to make that road appear to be what it was all along.
But that's not "revolutionary". That's finally doing the work you've been putting off because you couldn't get to it.
The County (in this case, the FAR Council, being the governing body over the FAR and its contents) could always do a little better job at maintenance than they do. But their budget and resources are low and their workload demands are very high (just take a look at the FAR Open Case Report). Sometimes it takes a new Sheriff In town (a new Administration) driving down the highway see what those too close to it should have been aware of all along. Layers upon layers of deferred maintenance.
The FAR Overhaul is best understood as freshening up the same highway.
- Clearing overgrowth = outdated and redundant material and non-regulatory clutter.
- Improving signage = clarity and usability.
- Standardizing merges and exits = better consistency and flow.
- Removing obsolete detours = non-regulatory clutter, outdated terminology, and rules that no longer serve their purpose.
And a bonus is the updated maps available for your travels (FAR Companion and Practitioner Albums)
The destination isn’t changing. But the route is FAR more functional -- see how I did that. ;)
Why This Metaphor Matters
When people hear the word “overhaul,” they often assume “Everything is changing.” But what this effort really signals is “We are fixing the road we’ve been driving on for decades.” That’s important because procurement has become more complex, acquisition timelines are under pressure, and both agencies and industry need guidance that is easier to understand, apply, and defend.
If the FAR Overhaul is the same old FAR highway with better pavement, clearer signs, fewer surprises, and, hopefully, less time lost in detours, fewer compliance collisions, and a smoother drive for everyone. The biggest difference is that now all travelers know what the locals knew all along. How to get from point A to point B in less time using an updated road system and map.
Safe travels on the FAR Highway in 2026!
The FAR Is a Highway System… and the Revolutionary FAR Overhaul Is Long-Overdue Road Work
