President Trump has issued two new Executive Orders (“EOs”) that seek to reshape federal procurement.  The much anticipated “Restoring Common Sense To Federal Procurement” EO (the “FAR Reform EO”) seeks to “create the most agile, effective, and efficient procurement system possible” by revising the Federal Acquisition Regulation (“FAR”) such that the FAR contains “only provisions required by statute or essential to sound procurement.”  While amending the FAR will take several months, the FAR Reform EO contemplates interim deviations and guidance that will take effect in advance of a final rule.

The second EO, titled “Ensuring Commercial, Cost-Effective Solutions in Federal Contracts” (the “Commercial Solutions EO”), seeks to prioritize the procurement of commercial products and services over non-commercial products and services consistent with the Federal Acquisition Streamlining Act of 1994 (“FASA”).  The Commercial Solutions EO requires a review of all “pending actions” for the procurement of non-commercial products and services, and may delay and/or ultimately reorient such actions (as well as future procurements) towards commercial products and services.

These EOs come against a broader backdrop of government reform efforts, including two additional orders over the last month that have sought to reform defense acquisitions and augment the role of the General Services Administration (“GSA”) in federal procurement.

Reform of Federal Acquisition Regulation

The FAR Reform EO primarily aims to streamline and simplify the FAR, which has governed federal procurement of goods and services for more than 40 years.  Within 180 days of the EO (i.e., by October 12, 2025), the Administrator of the Office of Federal Public Procurement Policy (the “Administrator”) in coordination with the Federal Acquisition Regulatory Council (the “FAR Council”) and agency leadership and procurement officials are required to “take appropriate actions” to amend the FAR.  It is not clear from the FAR Reform EO or the accompanying Fact Sheet posted to WhiteHouse.gov whether the 180 day window sets the timeline for proposing, rather than finalizing, amendments to the FAR.  In the ordinary course, 180 days would be a rapid timeline to satisfy the notice-and-comment process typically required to amend even a portion of the FAR. 

In addition to setting this 180-day timeline, the FAR Reform EO previews the substance of the FAR amendments.  Specifically, the revisions are meant to ensure that the FAR contains only provisions that are (a) “required by statute” or (b) “necessary to support simplicity and usability, strengthen the efficacy of the procurement system, or protect economic or national security interests.”  In amending the FAR, the Administrator and FAR Council are further required to consider a “regulatory sunset provision” that would result in the expiration of any FAR provisions that are not required by statute after four years unless they are renewed by the FAR Council.  A separate White House press release further notes that the FAR rewrite will be “in plain English, eliminate non-statutory and duplicative regulations, remove DEI and wokeness, and add buyer guides in place of burdensome and outdated requirements,” in addition to stopping the procurement of paper straws and focusing “above all else” on the “best products and services at the best cost.”

The FAR Reform EO makes clear that agencies with procurement authority and the Office of Management and Budget (“OMB”) will play a key role in these reforms to the FAR.  Within 15 days (i.e., by April 30^th), each agency with procurement authority is required to designate a senior official to ensure agency alignment with the revisions to the FAR, and to provide recommendations regarding agency-specific supplemental regulations that are consistent with the EO and revised FAR.  Additionally, within 20 days (i.e., by May 5^th), the Director of OMB will issue a memorandum to agencies that provides guidance regarding implementation of the FAR Reform EO. This guidance is meant to “ensure consistency and alignment of policy objectives and implementation regarding changes to the FAR and agencies’ supplemental regulations[,]” and will “propose new agency supplemental regulations and internal guidance that promote expedited and streamlined acquisitions.”  The FAR Reform EO expects that—in proposing reforms to supplemental regulations—OMB will adhere to the “ten-for-one” requirement established by the Trump Administration in EO 14192, which states that 10 regulatory requirements must be repealed for every new requirement that is proposed or enacted.

The FAR Reform EO also contemplates that in advance of the final FAR amendments, the Administrator and the FAR Council will issue deviations and interim guidance, as appropriate and consistent with applicable law, until final rules reforming the FAR are published.  The EO and accompanying Fact Sheet do not offer any details on these deviations and interim guidance, but we expect they will align with the policy objectives of the proposed amendments and seek to streamline FAR requirements. 

Reinforcing a Preference for Commercial Products

The Commercial Solutions EO directs the government to “procure commercially available products and services, including those that can be modified to fill agencies’ needs, to the maximum extent practicable, including pursuant to [FASA].”  As the Commercial Solutions EO recognizes, a preference for commercial procurement is already part of existing law.  Under FASA, the head of an agency is required to “ensure that procurement officials in that agency, to the maximum extent practicable, acquire commercial products or commercial services . . .”  See 41 U.S.C. § 3307(b).  Additionally, FAR 12.101 currently requires that agencies “acquire commercial products, commercial services, or non-developmental items when they are available to meet the needs of the agency,” and FAR 10.002(d)(1) requires the acquisition of commercial items when market research indicates they might meet agency needs.  The Commercial Solutions EO largely appears to create additional process to enforce compliance with these existing requirements.

For instance, the Commercial Solutions EO initiates a two-step review requiring first that contracting officers prepare applications justifying all pending non-commercial procurements, and second that the agency’s senior procurement executive determine whether these procurements should instead utilize commercial products and services.  The Commercial Solutions EO applies this review to “all open agency solicitations, pre-solicitation notices, solicitation notices, award notices, and sole source notices for non-commercial products and services”—which notably excludes currently binding procurement contracts for non-commercial products and services.  Though not clear from the EO itself, the accompanying Fact Sheet indicates that contracting officers will have 60 days (i.e., by June 14, 2025) to complete their applications requesting approval for the purchase of non-commercial products or services, which must include the market research, price analysis, and rationale used to justify the procurement of a non-commercial product or service.  Within 30 days of receipt of the application, the agency’s senior procurement executive must “assess each proposed application’s compliance with FASA” and make “recommendations to advance the solicitation of commercial products or services” where appropriate.  

The Commercial Solutions EO also imposes additional, forward-looking requirements.  First, agencies will be required to submit reports to OMB within 120 days and annually thereafter detailing compliance with FASA and progress on implementing the Order’s commerciality preference.  Second, for all future proposals to solicit a non-commercial product or service, the applicable contracting officer is required to provide the agency’s senior procurement executive with a description of the proposed procurement and “the specific reasons a non‑commercial product or service is required, including all market research and price analysis in support of the proposed solicitation for such product or service.”  The senior procurement executive may then either approve or deny the use of non-commercial products or services in writing, and may also seek the Director of OMB’s recommendation on whether the proposal should be approved or denied.

Impact On Contactors

These rapid changes may make it challenging for contractors to judge performance obligations and price work where the applicable regulations and contract requirements could be in flux.  This will be further complicated by the sunset provisions in the FAR Reform EO, which may cause uncertainty whether expiring provisions in effect at the time of award will continue to apply, making it difficult to forecast compliance costs and establish long term compliance plans and policies.  Finally, contractors that have developed non-commercial products or services for pending solicitations must anticipate the possibility that the government’s requirement may be reclassified as a commercial-item procurement.  In such cases, where possible contractors may want to take steps to justify the commerciality of their product or service or, alternatively, consider proactive engagement with their agency counterparts regarding, market research or price analysis that demonstrates the value and need for government-unique systems.

EO Action Item Timeline[1]

[1] Though both orders are dated April 15, 2025, the Commercial Solutions EO was posted on whitehouse.gov on April 16, 2025.