The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
Released: 2015-12-18T00:00:00

Introduction

The federal government is the largest buyer of goods and services in the world, and executive branch agencies—particularly the Department of Defense—make most of these purchases. Many (although not all) acquisitions by executive branch agencies are subject to the Federal Acquisition Regulation (FAR), which can make the FAR a topic of interest to Members and committees of Congress and their staff. In particular, Members, committees, and staff may find themselves

considering or drafting legislation that would prompt amendment of the FAR to save money, promote transparency, or further other public policies; conducting oversight of executive agencies' performance in procuring goods and services, including their compliance with the FAR; and responding to questions from constituents regarding executive branch procurement activities.

In addition, in 2012, the Defense Business Board recommended "zero-bas[ing]" the entire acquisition system, apparently including the FAR, to "restor[e] the management of the requirements, acquisition, and budget processes back to the state envisioned by the Packard Commission." The Packard Commission is the name commonly given to President Reagan's 1986 Blue Ribbon Commission on Defense. The commission is generally credited with seeking to "link and streamline" the requirements, acquisition, and budget processes, thereby "reducing complexities, regulations, and processes, and enhancing accountability as well as recruiting experienced personnel with strong management credentials."

This report provides answers to 25 frequently asked questions regarding the FAR. These questions and their answers are organized into six broad categories, including (1) what the FAR is and what it covers; (2) promulgation of the FAR; (3) the relationship between the FAR and other authorities governing federal procurement (e.g., statutes, agency FAR supplements, other regulations, policies); (4) the FAR in relation to Congress and judicial and other tribunals; (5) the relationship between the FAR and federal procurement contracts; and (6) other topics.

The FAR and What It Covers

This section includes questions and answers that broadly address what the FAR is and what it covers, including where the text of the FAR can be found; what agencies are subject to the FAR; what purchases are subject to the FAR; and what transactions fall outside the FAR's coverage.

What Is the Federal Acquisition Regulation?

The FAR is a regulation, codified in Parts 1 through 53 of Title 48 of the Code of Federal Regulations (C.F.R.). As is discussed in more detail below (see " What Does the FAR Cover? "), each part of the FAR, such as Part 37—Service Contracting, is divided into subparts (e.g., Subpart 37.1, Service Contracts—General). Subparts are divided into sections (FAR 37.113, Severance payments to foreign nationals), which may be divided into subsections (Section 37.113-2, Solicitation provision and contract clause). The FAR also contains standard solicitation provisions and contract clauses (Part 52) and forms (Part 53).

The various agency FAR supplements, codified in Chapters 2 through 63 of Title 48, and the Cost Accounting Standards (CAS), codified in Chapter 99 of Title 48, are not part of the FAR, although they can play a significant role in the acquisition process. " What Is the Relationship Between the FAR and Agency FAR Supplements? ," below, discusses in more detail the relationship between the FAR and agency FAR supplements, such as the Defense Federal Acquisition Regulation Supplement (DFARS).

Where Can I Find the FAR?

The FAR is available in print from the Government Printing Office as part of the Code of Federal Regulations , or from private publishers. However, it is arguably most conveniently accessed online, where it is available in either PDF or HTML format, at https://www.acquisition.gov/?q=browsefar , or as Title 48 of the C.F.R. at http://ecfr.gpoaccess.gov/ , or at http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR .

What Agencies Are Subject to the FAR?

The FAR applies to certain purchases, discussed below (see " What Purchases Are Subject to the FAR? "), by executive branch agencies, which the FAR defines to mean

executive department[s], ... military department[s], or any independent establishment[s] within the meaning of 5 U.S.C. 101, 102, and 104(1), respectively, and any wholly owned Government corporation within the meaning of 31 U.S.C. 9101.

However, although the FAR applies to executive branch agencies, it does not necessarily apply to all executive branch agencies, or to all organizational components of a particular executive branch agency. Exceptions include, for example, the Federal Aviation Administration (FAA), which Congress has authorized to establish its own acquisition system, and the U.S. Mint.

The FAR does not apply to legislative branch agencies or judicial branch agencies, although agencies in the other branches of government (or otherwise not subject to the FAR) may adopt the FAR as a matter of policy, or promulgate or otherwise be subject to requirements like those in the FAR. For example, the Library of Congress, a legislative branch agency, has stated that it is Library policy to follow the FAR, unless it is determined that a deviation would "be in the best interest of the Library." See also " Could an Agency or Transaction Not Subject to the FAR Be Subject to Requirements Like Those in the FAR? ," below.

The FAR does not directly regulate federal contractors or would-be federal contractors, although such vendors are affected by the application of the FAR's definitions, policies, procedures, and requirements by contracting officers. For example, the FAR provides policies and procedures related to types of contracts, subcontracting, contract termination, and payments to contractors. See also " What Is the Relationship Between the FAR and a Federal Contract? " and " What Happens If Required Contract Clauses Are Not Included in a Particular Contract? ," below.

What Purchases Are Subject to the FAR?

As noted previously (see " What Agencies Are Subject to the FAR? "), executive branch agencies are generally subject to the FAR when making certain purchases. Namely, the FAR applies to "acquisitions" of "supplies" (or goods) and "services" with appropriated funds by most (although not all) executive branch agencies. Each of these terms—acquisitions, appropriated funds, supplies, and services—has a specific meaning for purposes of the FAR, which can influence whether the FAR is applicable to particular transactions.

For purposes of the FAR, "acquisition" means:

the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

Appropriated funds are "funds paid out of the United States Treasury" that are charged "to an appropriation provided by or derived from an act of Congress." An appropriation is "[a]uthority given to federal agencies to incur obligations and to make payments from Treasury for specified purposes."

"Supplies" means:

all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.

Other examples of supplies include office furniture, cameras and audio-visual equipment, information technology and communications equipment, cleaning products and tools, uniforms, and musical instruments.

Generally, "services" refers to tasks performed by a contractor. More specifically, a "service contract" means "a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply." The FAR identifies the following as examples of areas in which service contracts may be found:

(1) [m]aintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment. (2) [r]outine recurring maintenance of real property. (3) [h]ousekeeping and base services. (4) [a]dvisory and assistance services. (5) [o]peration of Government-owned equipment, real property, and systems. (6) [c]ommunications services. (7) [a]rchitect-[e]ngineering …. (8) [t]ransportation and related services …. (9) [r]esearch and development.

What Transactions Fall Outside the FAR's Coverage?

Certain transactions, by their nature, are not subject to the FAR. Notable examples of such transactions are

any agency contract or agreement that is not a procurement contract (i.e., not a contract that uses appropriated funds to acquire property or services for the direct use of the United States), including "other transactions" (i.e., non-procurement contracts that authorized agencies may use for research and/or development of prototypes); grants and cooperative agreements; contracts with third parties entered into by persons using federal funds from a grant, cooperative agreement, or other federal financial assistance; purchases or leases of real property; and transactions where Congress has authorized a government entity to acquire goods or services "notwithstanding any other provision of law."

Subcontracts under federal contracts (i.e., contracts with third parties entered into by federal contractors) are also not subject to the FAR. In some cases, the FAR requires agencies to include terms in their prime contracts obligating their contractors to "flow down" certain requirements to subcontractors, so that subcontractors may be subject to certain requirements like those in the FAR as terms of their contracts. However, not all requirements flow down, and certain FAR provisions that pertain primarily to the conduct of procurements by executive branch agencies are inapplicable to subcontractors. For example, although federal agencies are generally required to provide for "full and open competition" in the selection of contractors, agency contractors are generally not required to provide for "full and open competition" in the selection of subcontractors.

What Does the FAR Cover?

The various parts of the FAR contain somewhat different types of information, as illustrated below. In particular, Parts 1 through 51 establish policies, requirements, exceptions, practices, and procedures to guide members of the acquisition workforce in performing their responsibilities, while Parts 52 and 53 provide standard solicitation and contract clauses and forms. In addition, while much of the FAR is arguably process oriented (e.g., specifying how agencies may obtain full and open competition), the opening sections of the FAR articulate "guiding principles" for the federal acquisition system that arguably inform all other sections of the FAR and federal procurement generally (e.g., satisfying the customer, minimizing administrative operating costs).

Parts 1 to 51

Contracting officers and other members of the acquisition workforce rely on the FAR for guidance on a wide range of topics, including acquisition planning, publicizing contract actions, required sources of supplies and services, and types of contracts. Additionally, the FAR provides definitions of words and terms used in government procurement.

Depending upon the topic, the FAR may provide contracting officers with the government's basic policy, any requirements that agencies must meet, and any exceptions to these requirements. For example, Subpart 6.1 of the FAR articulates that, as a matter of policy, "contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts," and identifies acceptable procedures for full and open competition (e.g., sealed bidding, competitive proposals). Subpart 6.3, in turn, identifies the circumstances in which other than full and open competition is permitted (e.g., only one responsible source, urgent and compelling circumstances). It also specifies the procedures and requirements for using other than full and open competition (e.g., contracting officers are generally required to justify their decision to use other than full and open competition, and obtain approval from a higher-ranking agency official).

In other cases, the FAR articulates general standards that agencies are to consider in making certain determinations, or the grounds upon which agencies may take certain actions. Thus, Part 9 of the FAR—which addresses "contractor qualifications"—specifies the "general standards" that contracting officers must consider when determining whether prospective contractors are responsible. It similarly describes the grounds upon which agency suspension and debarment officials may exclude persons from federal contracting for a temporary or fixed period. Other provisions of Part 9 describe how contracting officers may (or, in some cases, must) obtain information for use in making determinations regarding contractor qualifications (e.g., preaward surveys, the Federal Awardee Performance and Integrity Information System [FAPIIS], and the System for Award Management [SAM]).

Yet other provisions articulate the responsibilities of various agency personnel in administering the contract. Contract administration may include a variety of tasks and responsibilities depending on, for example, the type of contract and the goods or services acquired. Part 42 of the FAR provides guidance for contracting officers and other members of the acquisition team regarding audits, postaward orientations for contractors, production surveillance and reporting, and collection of contractor performance information, among other things. Additionally, a detailed list of 71 specific contract administration functions may be found in Section 42.302(a), which is to be used by the contract administration officer (CAO).

Parts 52 and 53

Parts 52 and 53 differ from the other parts of the FAR in that they provide agencies with standard provisions and clauses to be included, or incorporated by reference, in the solicitation or contract, as well as forms for use during the acquisition process. Part 52 contains solicitation provisions and contract clauses prescribed elsewhere in the FAR. Each provision and clause has its own unique identification number. For example, the following provision is included in solicitations that involve an Office of Management and Budget (OMB) Circular A-76 standard competition:

(a) This solicitation is part of a standard competition under Office of Management and Budget Circular No. A-76 (Revised), Performance of Commercial Activities, dated May 29, 2003 (hereafter "the Circular"), to determine whether to accomplish the specified work under contract or by Government performance.

(b) The Government will evaluate private sector offers, the agency tender, and public reimbursable tenders, as provided in this solicitation and the Circular.

(c) A performance decision resulting from this standard competition will be publicly announced in accordance with the Circular. If the performance decision favors a private sector offeror, a contract will be awarded. If the performance decision favors an agency or a public reimbursable tender, the Contracting Officer shall establish, respectively, either a Most Efficient Organization letter of obligation or a fee-for-service agreement, as those terms are defined in the Circular.

(d) As provided in the Circular, directly interested parties may file contests, which are governed by the procedures in Federal Acquisition Regulation 33.103. Until resolution of any contest, or the expiration of the time for filing a contest, only legal agents for directly interested parties shall have access to the certified standard competition form, the agency tender, and public reimbursable tenders.

Part 53 contains standard, optional, and agency-prescribed acquisition forms, such as Standard Form 30, "Amendment of Solicitation/Modification of Contract"; Optional Form 17, "Offer Label"; and DOD Form DD 254, "Contract Security Classification Specification."

Guiding Principles for the Federal Acquisition System

In addition to providing procedures and requirements that, collectively, make up the procurement process, discussed above, the FAR also articulates guiding principles for the federal acquisition system (which includes performance standards), and describes the federal acquisition team and its roles and responsibilities. According to the FAR, the overarching vision of the acquisition system "is to deliver on a timely basis the best value product or service to the customer, while maintaining the public's trust and fulfilling public policy objectives." In brief, the four performance standards are:

(a) [s]atisfy the customer in terms of cost, quality, and timeliness of the delivered product or service ...;

(b) [m]inimize administrative operating costs;

(c) [c]onduct business with integrity, fairness, and openness; and

(d) [f]ulfill public policy objectives.

Agency personnel—including "representatives of the technical, supply, and procurement communities" and "the customers they serve"—and contractors make up the acquisition team. Government members of the team "must be empowered to make acquisition decisions within their areas of responsibility … [possess] the authority to make decisions … and be prepared to perform the functions and duties assigned." The contractor is also encouraged to be prepared for performance of the contract.

Promulgation of the FAR

The questions and answers in this section address the promulgation of the FAR, including the origins of the FAR; the process by which the FAR is amended; who typically promulgates regulations amending the FAR; the roles of the Office of Federal Procurement Policy (OFPP) and the Office of Management and Budget (OMB) in revising and implementing the FAR; and how long it generally takes to amend the FAR.

How Did the FAR Originate?

Prior to the establishment of the FAR system and the initial publication of the FAR, two primary procurement regulations existed: the Federal Procurement Regulations (FPR) and the Defense Acquisition Regulation (DAR). Generally, the FPR applied to civilian agencies and the DAR applied to the Department of Defense (DOD) and its components, although the then-Atomic Energy Commission (AEC), Central Intelligence Agency (CIA), National Aeronautics and Space Administration (NASA), Tennessee Valley Authority (TVA), and Bonneville Power Administration, among others, each had "semiautonomous procurement regulations." The proliferation of agency procurement regulations was such that, in its 1972 report, the Commission on Government Procurement stated that it had found "a burdensome mass and maze of procurement and procurement-related regulations" within the federal government, and "no effective overall system for coordinating, controlling, and standardizing regulations."

The commission's report provided an impetus for bringing order to the "mass and maze" of procurement regulations. Notably, Congress enacted the Office of Federal Procurement Policy Act Amendments of 1979 ( P.L. 96-83 ), which amended the Office of Federal Procurement Policy Act ( P.L. 93-400 ) to authorize the Administrator of the Office of Federal Procurement Policy (OFPP), with the concurrence of the Director of the Office of Management and Budget (OMB), to "issue policy directives … for the purpose of promoting the development and implementation of the uniform procurement system." Subsequently, OFPP released Policy Letter 80-5. This document effectively established the "Federal Acquisition Regulation System" and stated that the system would include, among other things, "[a] single Federal Acquisition Regulation (FAR), to be issued jointly by the General Services Administration, the Department of Defense, and the National Aeronautics and Space Administration, pursuant to their respective authorities" under the Federal Property and Administrative Services Act, the Armed Services Procurement Act, and the National Aeronautics and Space Act.

The FAR was published initially on September 19, 1983, and took effect on October 1, 1984. It has been periodically amended since then, as discussed below (see " Who Typically Promulgates Regulations Amending the FAR? " and " How Is the FAR Amended? ").

How Is the FAR Amended?

The FAR was initially promulgated—and has subsequently been amended—using the same rulemaking procedures used in promulgating other regulations. In short, the Department of Defense (DOD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), acting on behalf of the Federal Acquisition Regulatory Council (FAR Council), or the Administrator of the Office of Federal Procurement Policy (OFPP), as discussed below (see " Who Typically Promulgates Regulations Amending the FAR? "), issue proposed and final rules amending the FAR under the "notice-and-comment" procedures of the Administrative Procedure Act (APA). The APA established four basic requirements agencies must follow when issuing rules using notice-and-comment, or informal, rulemaking. These four steps are

1. the publication of a proposed rule in the Federal Register ; 2. the opportunity for interested persons to submit comments on the proposed rule; 3. publication of a final rule that includes a "concise general statement" of the "basis and purpose" of the rule; and 4. a 30-day waiting period after the final rule is published in the Federal Register before the rule can take effect.

If necessary, agencies can invoke a "good cause" exception to some of these requirements. One particular application of the "good cause" exception is the use of interim final rulemaking. If an agency finds that notice and comment would be "impracticable, unnecessary, or contrary to the public interest," the agency may issue a rule without prior notice and comment and instead take post-promulgation comments. The agency may choose to revise the rule in light of the post-promulgation comments it receives.

In addition to the APA, there are a number of executive orders and other statutes that may be applicable to the rulemaking process (for example, Executive Order 12866, the Regulatory Flexibility Act, the Paperwork Reduction Act, the Unfunded Mandates Act, and the Congressional Review Act all have additional requirements agencies must follow when promulgating rules).

Who Typically Promulgates Regulations Amending the FAR?

The Federal Register notices proposing or announcing amendments to the FAR are jointly issued by the Department of Defense (DOD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA). These three agencies issue the Federal Register notices, in part, because federal statutes and regulations task the heads of these agencies with "jointly issu[ing] and maintain[ing] … a single Government-wide procurement regulation, to be known as the Federal Acquisition Regulation." However, the amendments proposed and announced by DOD, GSA, and NASA have been arrived at by means of and with the concurrence of the Federal Acquisition Regulatory Council (FAR Council). This council—which consists of the Administrator of OFPP, the Secretary of Defense, the Administrator of National Aeronautics and Space, and the Administrator of General Services, or their designees (see " What Roles Do OFPP and OMB Play in Revising and Implementing the FAR? ") —is also tasked by statute with certain responsibilities as to the FAR. Specifically, the council is to "assist in the direction and coordination of Government-wide procurement policy and Government-wide procurement regulatory activities in the Federal Government," as well as "manage, coordinate, control, and monitor the maintenance of, issuance of, and changes in, the Federal Acquisition Regulation."

In practice, the FAR Council operates by referring potential changes to the FAR to one or more standing "FAR teams," each of which is responsible for maintaining specific parts of the FAR. Each team is created by the FAR Council, and is composed of representatives from military and civilian agencies and advisory representatives from OFPP. The FAR teams are directed by the Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition Regulations Council (DAR Council), and their activities are coordinated to ensure agreement and cooperation between civilian and defense acquisition personnel. The relevant FAR team drafts and submits potential FAR amendments to the CAAC and the DAR Council for review. After the councils have reviewed a potential FAR amendment, they submit it to OFPP and OIRA for additional review. These are then sent to the FAR signatories within GSA, DOD, and NASA for approval before being published as proposed, interim final, or final rules in the Federal Register .

The Administrator of OFPP is also authorized to amend the FAR on his or her own if he or she determines that GSA, DOD, and NASA "are unable to agree on or fail to issue Government-wide regulations." In practice, the Administrator of OFPP appears to have seldom exercised this authority after the initial promulgation of the FAR. However, the Administrator has periodically issued policy letters and notices pertaining to federal procurement, as discussed below (see " Does the FAR Include All the Government's Procurement Policies? ").

Congress does not itself amend the FAR, although it could enact legislation that could prompt the executive branch to amend the FAR. See " What Can Congress Do to Prompt Amendment of the FAR? ," below.

What Roles Do OFPP and OMB Play in Revising and Implementing the FAR?

The Office of Federal Procurement Policy (OFPP) provides overall direction for the government-wide procurement policies, regulations, procedures, and forms for executive agency acquisitions that make up the FAR. The Administrator for Federal Procurement Policy is responsible for directing the development of the procurement policies that are implemented, in part, by the FAR. The Administrator also establishes procedures to ensure that executive agencies are complying with the FAR.

In addition, the Administrator serves as the chair of the Federal Acquisition Regulatory Council (FAR Council), which "assist[s] in the direction and coordination of Government-wide procurement policy and Government-wide procurement regulatory activities." The Secretary of Defense, Administrator of the National Aeronautics and Space Administration (NASA), and Administrator of the General Services Administration (GSA) are the other members of the FAR Council. In the event that these three members are unable to reach agreement regarding revisions to the FAR, the Administrator of OFPP has the authority to prescribe certain revisions without their concurrence, as discussed above (see " Who Typically Promulgates Regulations Amending the FAR? ").

The Office of Management and Budget (OMB) provides oversight and review of proposed changes and amendments to the FAR. These responsibilities are largely carried out by OMB's Office of Information and Regulatory Affairs (OIRA). Rules amending the FAR are subject to the same rulemaking requirements that are applicable to executive agencies, which typically include review by OIRA. Both OFPP and OIRA review proposed changes to the FAR to ensure that they are consistent with the law and policies of the Administration.

The Administrator of OFPP, in concurrence with the Director of OMB, may also deny or rescind any government-wide regulation or final rule of any executive agency relating to procurement if the Administrator determines that the regulation or rule is inconsistent with the policies, regulations, or procedures issued pursuant to the FAR.

How Long Does It Take to Amend the FAR?

Depending upon how the regulation is promulgated (see " How Is the FAR Amended? "), the number of comments received upon a proposed change, and other factors, the process of amending the FAR can take anywhere from months to years (and, in some cases, a change is proposed, but not finalized). The FAR amendment could potentially take longer than any period prescribed in statute for the amendment, where amendment is required by statute. However, rules generally have the force of law even if they are enacted after any statutory deadline for their promulgation. Moreover, while agencies could potentially be compelled to take action in certain circumstances if they have "unreasonably delayed," they have seldom, if ever, been compelled to issue procurement regulations. This is, in part, because congressional indications of how quickly an agency should proceed are only one factor in determining whether a delay in rulemaking is unreasonable and agency action should be compelled. Other factors include (1) whether a danger to human health is implicated by the delay; (2) the agency's competing priorities; (3) the interests prejudiced by the delay; and (4) whether the agency has treated the present party disparately from others. Certain of these factors (e.g., danger to human health, disparate treatment) would seldom be implicated in a procurement context.

Relationship Between the FAR and Other Authorities Governing Procurement

This section addresses the relationship between the FAR and other authorities governing federal procurement, including statutes, agency FAR supplements, other regulations, and executive branch policies and guidance.

What Is the Relationship Between the FAR and Procurement or Other Statutes?

In addition to the FAR, there are a number of statutes that, directly or indirectly, address the acquisition of goods and services by executive branch agencies. The primary statutes governing federal procurement are the codifications in Titles 10 and 41 of the United States Code of the Armed Services Procurement Act and the Federal Property and Administrative Services Act, which, respectively, govern the procurements of defense and civilian agencies. However, a number of other statutes also apply, including the Anti-Kickback Act; Brooks Act of 1972, as amended; Buy American Act; Buy Indian Act; Contract Disputes Act; Contract Work Hours and Safety Standards Act; Davis-Bacon Act; Defense Production Act; Economy Act; Federal Activities Inventory Reform (FAIR) Act; Miller Act; Office of Federal Procurement Policy Act; Prompt Payment Act; Service Contract Act; Small Business Act; Trade Agreements Act; Truth in Negotiations Act; and Walsh-Healy Public Contracts Act. In addition, there are a number of provisions within other statutes (e.g., national defense authorizations acts, appropriations acts) that address procurement.

The FAR implements many such statutory provisions, although, in some cases, other agency regulations may also implement particular statutory provisions (e.g., the Small Business Act), and the FAR must "conform" to the non-procurement regulations of other agencies (see below " What Is the Relationship Between the FAR and Other Regulations (i.e., Non-FAR Supplements)? "). However, there are some procurement-related provisions in statute—especially in permanent provisions of appropriations laws —that are not reflected in the FAR or the agency FAR supplements discussed below (see " What Is the Relationship Between the FAR and Agency FAR Supplements? "). These include, for example, statutory grounds for debarment, authorization to enter noncompetitive contracts related to hazardous fuels reduction activities, and certain restrictions upon the purchase of incandescent lamps.

On the other hand, because certain statutes grant the executive branch broad discretion to regulate federal contracting, there are provisions in the FAR that do not have a direct counterpart in federal statute. Examples include the grounds for administrative debarment and suspension, the requirement that contractors disclose "credible evidence" of certain offenses to federal officials, and the procedures surrounding the government's termination of contracts for convenience or default. Often the FAR provisions without direct statutory counterparts have developed in response to executive orders; judicial or other decisions; or policy recommendations.

What Is the Relationship Between the FAR and Agency FAR Supplements?

The FAR expressly authorizes agency heads to issue agency-specific procurement regulations that implement or supplement the FAR. These agency-specific regulations are codified in Title 48 of the Code of Federal Regulations , immediately following the FAR. A well-known example is the Department of Defense's (DOD's) Defense Federal Acquisition Regulation Supplement (DFARS), which is found in chapter 2 of Title 48, Code of Federal Regulations .

There is a common misperception that agency FAR supplements differ significantly from the FAR and essentially create agency-unique procurement structures. This is generally not the case, particularly when a statute does not impose or authorize unique procurement requirements for an agency. Rather, absent agency-specific statutory requirements, agency-specific regulations may only be issued when necessary to implement FAR policies and procedures, or to supplement the FAR to meet the agency's specific needs. Further, the regulations may not conflict or be inconsistent with the FAR, except as required by law or if the agency has used an authorized deviation (see " May Agencies Deviate from the FAR? ").

The FAR contains requirements that agencies must follow when promulgating agency-specific regulations. They include providing notice and comment in the Federal Register when required (e.g., if the regulations have a significant cost or administrative impact on contractors or offerors). Additionally, agencies must comply with such federal laws as the Paperwork Reduction Act and Regulatory Flexibility Act. See " How Is the FAR Amended? ," above.

What Is the Relationship Between the FAR and Other Regulations (i.e., Non-FAR Supplements)?

Although the FAR and any agency FAR supplements, discussed above (see " What Is the Relationship Between the FAR and Agency FAR Supplements? "), are intended to guide executive agencies in acquiring goods and services, they may not be the only regulations to address particular procurement-related topics. For example, regulations promulgated by the Department of Energy codified in Title 10 of the Code of Federal Regulations discuss the award and administration of energy savings performance contracts by federal agencies. These long-term contracts—which provide for the contractor to incur the costs of implementing energy savings measures in exchange for a share of any energy savings directly resulting from the measures—are also discussed in certain agency FAR supplements. However, Title 10 expressly provides that:

[t]he provisions of this subpart are controlling with regard to energy savings performance contracts notwithstanding any conflicting provisions of the Federal Acquisition Regulation and related Federal agency regulations.

Other agency regulations directly or indirectly pertaining to federal procurement include those in Titles 13, 28, 29, and 41 of the Code of Federal Regulations , which, respectively, discuss contracting with small businesses; Federal Prison Industries/UNICOR; the Davis-Bacon and Service Contract Acts, and certain other labor provisions; and AbilityOne and contractors' anti-discrimination and affirmative action obligations.

Depending upon the requirements of the underlying statute and, particularly, whom this statute charges with its implementation, the FAR provisions may need to "conform" to the provisions of another agency's regulations, or the FAR and any agency regulations may be issued with the "concurrence" of all agencies involved.

Does the FAR Include All the Government's Procurement Policies?

Various procurement policies, requirements, and guidance are issued by OFPP or OMB as circulars, guides, memoranda, and policy letters. Some of these documents supplement material found in the FAR, while others cover subjects or issues not found in the FAR. For example, Policy Letter 11-01, "Performance of Inherently Governmental and Critical Functions," addresses a topic also addressed in the FAR. Policy Letter 11-01 provides specific guidance regarding how agencies are to manage the performance of inherently governmental and other functions, while Subpart 7.5 of the FAR lists examples of functions that are considered to be inherently governmental, or that "may approach being in that category because of the nature of the function, the manner in which the contractor performs the contract, or the manner in which the Government administers contractor performance." In contrast, other procurement topics are addressed by OFPP memoranda, but not covered in the FAR. Examples include Federal Activities Inventory Reform (FAIR) Act inventories, service contract inventories, and the quality of federal procurement data.

The FAR, Congress, and Judicial and Other Tribunals

This section includes questions and answers that address what Congress can do to prompt amendment of the FAR; what Congress can do if it disapproves of a potential amendment to the FAR; and the deference given to FAR provisions by judicial and other tribunals.

What Can Congress Do to Prompt Amendment of the FAR?

As noted previously (see " Who Typically Promulgates Regulations Amending the FAR? "), Congress does not itself amend the FAR. However, Congress may prompt the executive branch to amend the FAR by doing one of two things. In some cases, Congress effectively prompts amendment of the FAR by enacting or amending a law implemented, in part, through the FAR. This law need not mention the FAR, or amendment of the FAR, for an amendment to ensue. In other cases, Congress explicitly directs that the FAR be amended. Sometimes, Congress also specifies that the FAR Council should make this amendment, or the time frame within which the amendment should be made (although not all FAR amendments required by Congress are made within the prescribed time frame, as discussed above, " How Long Does It Take to Amend the FAR? "). The first approach appears to be more common in situations where procurement or other statutes directly address the topic of the legislation, while the second approach tends to be used in situations where the FAR addresses topics not directly addressed in statute (see " What Is the Relationship Between the FAR and Procurement or Other Statutes? ").

However, as discussed previously (see " Who Typically Promulgates Regulations Amending the FAR? "), the FAR Council and OFPP may also amend the FAR without the enactment of procurement-related legislation or a congressional directive to do so. Some FAR amendments are initiated by the FAR Council, in particular, in response to policy concerns or litigation. In other cases, the FAR Council amends the FAR in response to an executive order directing the amendment of the FAR, or otherwise addressing procurement matters. Thus, committees and Members of Congress could also encourage the FAR Council or OFPP to use its authority to amend the FAR, or encourage the President to issue an executive order, provided that the proposed changes are within their authority.

What Can Congress Do If It Disapproves of a Potential Amendment to the FAR?

In certain circumstances, Congress may have concerns about a proposed or final amendment to the FAR, particularly one which may have resulted from executive branch action without express statutory authorization. Members of Congress may make such concerns known to the executive branch informally (e.g., via letters), or through the exercise of oversight, in the hope of prompting the abandonment or modification of the provisions in question. In some cases, however, Congress may also enact legislation that effectively or expressly forecloses certain amendments to the FAR. For example, Congress could enact legislation whose requirements would be inconsistent with certain potential amendments to the FAR, as happened in 2008, when Congress required that contracts for commercial items or performed overseas be subject to any "mandatory disclosure rule" promulgated by the FAR Council. Congress could also enact legislation that bars agencies from imposing certain requirements on contractors, or from using appropriated funds to implement specific rules, regulations, or executive orders pertaining to contract-related matters.

In addition, the Congressional Review Act (CRA) (5 U.S.C. §§801-808) provides Congress with the opportunity to overturn a final rule, including a rule that would amend the FAR, through the enactment of a joint resolution of disapproval. If passed by Congress and signed into law by the President, a joint resolution of disapproval results in the rule having no "force or effect." Enacted in March 1996 as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA) ( P.L. 104-121 ), the CRA contains expedited procedures for congressional consideration of such joint resolutions of disapproval.

How Much Deference Do Courts and Other Tribunals Give to FAR Provisions?

Like other regulations, FAR provisions represent agencies' constructions of the statutes which they implement. As such, judicial and other tribunals generally review the provisions of the FAR in light of Chevron, USA v. Natural Resources Defense Council in determining whether these interpretations are entitled to deference (commonly known as "Chevron deference"). In Chevron , the Supreme Court articulated a two-part test for review of an agency's construction of a statute which it administers: (1) Has Congress directly spoken to the precise question at issue, and (2) If not, is the agency's reasonable interpretation of the statute consistent with the purposes of the statute? "[I]f the statute speaks clearly 'to the precise question at issue,'" the tribunal "must give effect to the unambiguously expressed intent of Congress," regardless of what the agency regulation provides. However, where "the statute is silent or ambiguous with respect to the specific issue," the tribunal "must sustain the [a]gency's interpretation if it is 'based on a permissible construction' of the Act."

Over the years, certain FAR provisions have been upheld under Chevron on the grounds that Congress has not spoken directly to the precise question at issue, and the agency's interpretation is reasonable and consistent with the purposes of the underlying statute. However, other provisions have been found either to be contrary to the intent of Congress, as "unambiguously expressed" in statute; or to be based on an impermissible construction of the underlying statute. These provisions tend to be amended to conform to the underlying statute (although in some cases, the underlying statute has been amended to support a long-standing agency interpretation).

In contrast, individual agency interpretations of the FAR, issued in guidance or other documents, are not entitled to Chevron deference, although they may receive a lesser degree of deference. The extent of such deference is generally "understood to vary with circumstances," such as "the degree of the agency's care, its consistency, formality, and relative expertness, and … the persuasiveness of the agency's position," as well as the "writer's thoroughness, logic, and expertise, its fit with prior interpretations, and any other source of weight."

The FAR and Federal Contracts

This section includes questions and answers addressing the relationship between the FAR and a federal contract; whether FAR amendments apply to pre-existing contracts; and what happens if a contract clause which is required by the FAR is not included in a particular contract.

What Is the Relationship Between the FAR and a Federal Contract?

The FAR applies only to federal agencies, while the contract applies to both the agency and the contractor. Thus, it is the provisions in the contract, not those in the FAR, that bind the contractor, although contract terms required by the FAR may be read into contracts which lack them in certain circumstances (see " What Happens If Required Contract Clauses Are Not Included in a Particular Contract? ").

While the FAR contains many standard terms and clauses, the details and specifics are left to the individual contract. For this reason, the drafting that occurs for each contract can be highly important. The interaction between the FAR and the contract is exemplified by the treatment of economic price adjustments. An economic price adjustment provides for the upward or downward revision of prices in a contract if certain conditions occur. The FAR provides that there are three general types of economic price adjustments: those based on established prices; those based on actual costs of labor or material; and those based on cost indexes of labor or material. When one of these price adjustments is to be used, the contract will then be drafted to address the specifics, such as identifying the events that will trigger the price adjustment, identifying the applicable indexes or established prices, and establishing the base levels.

Importantly, while courts and other tribunals will generally interpret a statute or regulation, such as the FAR, by looking to its plain meaning, and not the drafters' intent, the intent of the parties to a contract could be found to prevail over its plain text in certain cases (e.g., other provisions of the contract evidence that the contract's language on a particular issue does not reflect their intentions). In addition, the enforcement of specific provisions of a contract could potentially be waived—or relinquished—by a party to the contract.

Do Amendments to the FAR Apply to Pre-Existing Contracts?

Amendments to the FAR generally apply only to contracts entered into on or after the date of the amendment, not to pre-existing contracts (i.e., contracts whose terms have already been agreed upon). The FAR itself characterizes this as a "convention." However, this convention is intended to shield the government from liability for breach of contract, which it could potentially incur were it to unilaterally amend the terms of an existing contract. Moreover, when the FAR change is prompted by a statute, this convention also reflects the fundamental canon of statutory interpretation that laws will not be given retroactive effect unless there is clear congressional intent to the contrary. A procurement-related statute could potentially be found to have retroactive effect if it purported to alter the parties' obligations under a contract whose terms had been agreed upon prior to the statute's enactment.

What Happens If Required Contract Clauses Are Not Included in a Particular Contract?

Because the standard contract clauses are designed, in part, to protect the government's interests in the performance of the contract, the FAR generally requires that some variant of these clauses be either included or incorporated by reference in agency contracts. However, agencies have sometimes awarded contracts that lack a required clause, prompting questions about whether the requirements governed by that clause apply.

In certain circumstances, the courts and boards of contract appeals will "read" required clauses into contracts which lack them, treating the clause as a term of the contract despite its absence. The currently prevailing grounds for "reading in" clauses is that articulated by the former Court of Claims (here acting as a predecessor to the current U.S. Court of Appeals for the Federal Circuit) in G.L. Christian & Associates v. United States , wherein the court found that certain required contract terms allowing the government to terminate contracts for its convenience were to be read into contracts which lacked them because (1) the terms represented a "deeply ingrained strand of public procurement policy," and (2) federal regulations can "fairly be read" as permitting the clause to be read into the contract since they require agencies to incorporate the clause. Other required FAR clauses that have been read into government contracts under the " Christian doctrine" have included those allowing the government to terminate contracts for default; addressing protests after award; and governing contractors' use of government property. However, courts have declined to read in other clauses, often when the contractor (as opposed to the government) seeks to rely upon the missing, but required, clause. In other cases, courts have relied upon other grounds to read certain terms into government contracts, such as the theory that the government has an "inherent right" to terminate contracts for its convenience.

Other Topics

This section addresses agency deviations from the FAR; the ability of third parties to enforce the terms of the FAR against a government contractor; the use of procurement techniques not expressly mentioned in the FAR; and whether agencies or transactions not subject to the FAR could be subject to requirements like those in the FAR.

May Agencies Deviate from the FAR?

Agencies are authorized to deviate from the FAR under certain circumstances. A deviation involves agency noncompliance with a mandatory procurement regulation (e.g., using a solicitation provision or contract clause that is inconsistent with the FAR), in the absence of a statute expressly requiring or authorizing such noncompliance. Only those deviations authorized by the FAR are permitted. Contracting officers must use the Authorized Deviations in Provisions clause and the Authorized Deviations in Clauses clause to notify offerors and contractors when a solicitation or contract contains a deviation.

Deviations may be granted (as discussed below) when necessary to meet the agency's specific needs and requirements, so long as not precluded by law, executive order, or regulation. The FAR recognizes two types of deviations: individual and class. Individual deviations affect only individual contract actions. They may generally be authorized by the agency head, with the contracting officer required to document the justification and agency approval in the contract file. Class deviations affect multiple contract actions. For civilian agencies (other than NASA), deviations may generally be authorized by agency heads or their designees after consultation with the Civilian Agency Acquisition Council (CAAC). Additionally, a copy of each class deviation must be provided to the FAR Secretariat. For DOD, the FAR provides that class deviations will be done in accordance with DFARS, which generally grants the Director of Defense Procurement and Acquisition Policy the authority to issue them. If any agency requires a permanent class deviation, then it should propose a FAR revision when appropriate.

An example of a recent notable class deviation was the one that DOD issued regarding the System for Award Management (SAM) shortly after this database came into use. In anticipation of SAM's completion, the FAR and DFARS were amended to require contractors to use the database to meet initial registration and annual certification requirements. However, once SAM began to be used, people reported "performance issues ... [that] affected the timely processing of awards." These issues prompted DOD to issue a class deviation permitting contractors to use alternative measures to meet their registration and certification requirements until the problems with SAM were resolved. DOD rescinded this deviation once SAM's "performance issues ... [had] been corrected."

May an Acquisition Team Use a Policy or Procedure That Is Not Addressed by the FAR?

The FAR authorizes acquisition team members to use any "specific strategy, policy, or procedure" not addressed by the FAR so long as the strategy, policy, or procedure is in the best interests of the government, and is not prohibited by statute, regulation, executive order, or case law. This means that agencies are not necessarily limited to the strategies or procedures expressly mentioned in the FAR, but rather may exercise some discretion in structuring procurements to meet agency circumstances and needs. For example, although the FAR nowhere mentions the use of reverse auctions, agencies' use of reverse auctions in source selection has been upheld on the grounds that "a procurement procedure is permissible where not specifically prohibited."

Can a Third Party Enforce the Terms of the FAR Against a Government Contractor?

The ability of third parties to enforce the requirements of the FAR—or the terms of a government contract—against a contractor is generally limited, particularly if the third party is not a subcontractor under the federal contract. In some cases, persons harmed by the actions (or inaction) of a government contractor have alleged that the harm would not have occurred had the contractor complied with the requirements of the FAR (as incorporated in the contract, or otherwise), or that they should be entitled to recover for this harm because of the provisions of the FAR. For example, the plaintiffs in one case seeking to hold a federal contractor liable for the death of a third party, Baragona v. Kuwait & Gulf Link Transportation Company , alleged that they were "third party beneficiaries" of a FAR provision requiring government contractors to obtain insurance against certain liability claims by third parties, and that this clause "effectively waive[d] a [foreign] contractor's ability to assert a personal jurisdiction defense." However, such allegations generally fail, as they did in Baragona , because plaintiffs who are not parties to a contract are generally seen to lack standing to enforce the contract's terms.

Could an Agency or Transaction Not Subject to the FAR Be Subject to Requirements Like Those in the FAR?

Agencies and/or transactions that are not themselves subject to the FAR could potentially be subject to requirements like those in the FAR for several reasons. In some cases, the FAR implements, in part, a more broadly applicable statute, and the requirements of this underlying statute could be found to pertain to agencies and/or transactions that are not themselves subject to the FAR. For example, in a 2012 decision, the Government Accountability Office (GAO) found that Historically Underutilized Business Zone (HUBZone) small businesses must be accorded a price evaluation preference when the General Services Administration (GSA) acquires certain leasehold interests in real property even though such acquisitions are not subject to the FAR (see " What Purchases Are Subject to the FAR? "). GAO reached this conclusion because the Small Business Act, which governs price evaluation and other preferences for HUBZone small businesses, "does not limit the type of contract to which it applies" (unlike the FAR, which applies only to procurement contracts). Because the Small Business Act "broadly applies to all federal contracts that involve full and open competition," and a lease of real property is a contract, GAO rejected GSA's assertion that price evaluation preferences for HUBZone small businesses are required only in procurements of goods and services (i.e., procurements subject to the FAR).

In other cases, statutes impose requirements like those implemented, in part, by the FAR on entities or transactions that are not subject to the FAR. The American Recovery and Reinvestment Act (ARRA) of 2009, for example, imposed "Buy American" requirements upon certain grant recipients, and "Davis Bacon" requirements upon certain loan recipients, who would not have been subject to these requirements pursuant to the FAR or the statutes that the FAR, in part, implements. In yet other cases, an agency adopts regulations or guidance with provisions modeled on or akin to those in the FAR, as noted previously (see " What Agencies Are Subject to the FAR? "). For example, GSA has adopted certain FAR provisions "as a matter of policy" in its regulations regarding leases of real property. Similarly, the procurement guidelines of the U.S. Postal Service include a "Suspensions and Delay" clause like that in the FAR, while the Senate Procurement Regulations include provisions on the ratification of unauthorized commitments like those in the FAR.