Federal Acquisition Regulation

The Federal Acquisition Regulation (FAR) is the principal set of rules in the Federal Acquisition Regulations System.[1] The FAR System governs the "acquisition process" by which executive agencies of the United States federal government acquire (i.e., purchase or lease) goods and services by contract with appropriated funds.[1][2][3] The process consists of three phases:[4]

  1. Need recognition and acquisition planning;
  2. Contract formation; and
  3. Contract administration.

The FAR System regulates the activities of government personnel in carrying out that process. The FAR System is codified at Title 48, Chapter 1 of the Code of Federal Regulations. These requirements can be found in the Code of Federal Regulations at 48 C.F.R. 31.

While nearly all federal government executive agencies are required to comply with the FAR, some executive agencies are exempt (e.g., the Federal Aviation Administration[5][6] and the U.S. Mint[7][8]). In those cases, the agency promulgates its own specific procurement rules.[9][10] The remainder of the FAR System consists mostly of sets of regulations issued by executive agencies of the federal government of the United States to supplement the FAR.[1]

Purpose

The purpose of the FAR is to provide "uniform policies and procedures for acquisition."[11] Among its guiding principles is to have an acquisition system that satisfies customer's needs in terms of cost, quality, and timeliness; minimize administrative operating costs; conduct business with integrity, fairness, and openness; and fulfill other public policy objectives.[12]

Procedure

When a federal government agency issues a solicitation, it will specify the applicable FAR provisions, which may be numerous. In order to be awarded a contract, an offeror must either comply with the provisions, demonstrate that it will be able to comply with them at the time of award, or claim an exemption from them. As an example, Part 30 (Cost Accounting Standards Administration) allows for small businesses to be exempt from those requirements. If the offeror demonstrates that it meets the small business criteria, Part 30 does not apply.

The largest single part of the FAR is Part 52, which contains standard solicitation provisions and contract clauses. Solicitation provisions are certification requirements, notices, and instructions directed at firms that might be interested in competing for a specific contract. These provisions and clauses are of six types: (i) required solicitation provisions; (ii) required-when-applicable solicitation provisions; (iii) optional solicitation provisions; (iv) required contract clauses; (v) required-when-applicable contract clauses; and (vi) optional contract clauses."[13]

If the FAR requires that a clause be included in a government contract, but that clause is omitted, case law may provide that the missing clause is deemed to be included. This is known as the Christian Doctrine, which is based on the underlying principle that certain government regulations have the force and effect of law,[14] and government personnel may not deviate from the law without proper authorization. Prospective contractors are presumed to know the law, including the limits of the authority of government personnel. Thus, a mandatory clause that expresses a significant or deeply ingrained strand of public procurement policy will be incorporated into a Government contract by operation of law, even if the parties intentionally omitted it.

A contract award can be challenged and set aside if a protester can prove that either the contracting agency or the contract awardee did not comply with the requirements of the solicitation. A successful protest can result in reconsideration of the decision to award the contract or award of the contract to the protester in lieu of the original awardee. Even though a successful protester may not ultimately be awarded the contract, the government agency may have to pay the protester's bid and proposal costs.

Authority

The FAR was issued pursuant to the Office of Federal Procurement Policy Act of 1974.[15] Statutory authority to issue and maintain the FAR resides with the Secretary of Defense, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration,[16] subject to the approval of the Administrator of Federal Procurement Policy.[17]

Structure

The Federal Acquisition Regulation is contained within Chapter 1 of Title 48 of the Code of Federal Regulations (CFR).[18] Chapter 1 is divided into Subchapters A-H, which encompass Parts 1-53. Chapter 1 appears in two volumes, with Subchapters A-G appearing in Volume 1 while Subchapter H occupies all of Volume 2.[19][20] The volumes are not formal subdivisions of Title 48, but refer instead to the fact that the FAR is printed by the Government Printing Office in two volumes for convenience.

The single most heavily regulated aspect of acquisition is contract pricing, which is addressed throughout the FAR, but especially in Subpart 15.4, Parts 30 and 31, and Subparts 42.7, 42.8, and 42.17. A large part of the FAR, Subchapter D, describes various socio-economic programs, such as the various small business programs, purchases from foreign sources, and laws written to protect laborers and professionals working under government contracts.

The final three chapters of Title 48 (61, 63 and 99) establish the Civilian Board of Contract Appeals, the Department of Transportation Board of Contract Appeals, and the Cost Accounting Standards Board, respectively. The Armed Services Board of Contract Appeals has been established by charter within the Department of Defense.

The proper way to cite a regulation within the FAR is by part, subpart, section, subsection, without respect to chapter or subchapter.[21] For instance, the FAR rule on legislative lobbying costs is found at FAR Part 31, Section 205, Subsection 22 (cited as "FAR 31.205-22").

The table of contents, as of the edition published October 1, 2012, is as follows:[19][20]

In Volume 1:

In Volume 2:

Supplements

As the original purpose of the FAR was to consolidate the numerous individual agency regulations into one comprehensive set of standards which would apply government-wide, the issuance of supplemental regulations is closely governed by the FAR. Nearly every major cabinet-level department (and many agencies below them) has issued such regulations, which often place further restrictions or requirements on contractors and contracting officers.

One of the best-known examples of an agency supplement is the Defense Federal Acquisition Regulation Supplement (DFARS), used by the Department of Defense, which constitutes Chapter 2. Chapter 3 is the Department of Health and Human Services Acquisition Regulation; Chapter 4 is the Department of Agriculture's Acquisition Regulation; etc.

The required format for agency FAR supplements is to follow the basic FAR format.[22] To continue the example above, the supplemental DFARS section on legislative lobbying costs is DFARS Subpart 231, Section 205, Subsection 22 (cited as "DFARS 231.205-22").

Criticisms

Some have suggested that the complexity of complying with the FAR discourages competition, especially by small companies. See, e.g., Government Accountability Office, Managing the Supplier Base in the 21st Century (Report GAO-06-533SP) at 7.

See also

References

  1. 1 2 3 48 C.F.R. 1.101.
  2. ↑ 48 C.F.R. 1.104.
  3. ↑ 48 C.F.R. 2.101 (see definitions of "acquisition," "contract," and "executive agency").
  4. ↑ 48 C.F.R. 2.101 (see definition of "acquisition").
  5. ↑ 49 U.S.C. § 40110(d)(2); Department of Transportation and Related Agencies Appropriations Act for FY1996, Pub.L. 104–50, § 348, 109 Stat. 460-61 (Nov. 15, 1995).
  6. ↑ 48 C.F.R. 1201.104(d).
  7. ↑ 31 U.S.C. § 5136.
  8. ↑ 48 C.F.R. 1001.104.
  9. ↑ E.g., the Federal Aviation Administration (FAA) Acquisition Management System (AMS).
  10. ↑ Federal Aviation Administration Life Cycle Acquisition Management System, 61 FR 15155 (April 4, 1996).
  11. ↑ 48 C.F.R. 1.101 (2012).
  12. ↑ 48 C.F.R. 1.102 (2012).
  13. ↑ 48 C.F.R. 52.101(e) (2012).
  14. ↑ See Davies Precision Machining, Inc. v. U.S., 35 Fed. Cl. 651 (1995)
  15. ↑ Pub.L. 93–400 and Title 41 of the United States Code, Chapter 7
  16. ↑ 41 U.S.C. § 421(c)(1)
  17. ↑ 41 U.S.C. § 405
  18. ↑ 48 CFR Table of Contents, vol. 1 p. 1 (2010).
  19. 1 2 48 CFR 1 Table of Contents, vol. 1 p. 3-4 (2010).
  20. 1 2 48 CFR 1 Table of Contents, vol. 2. p. 3 (2010).
  21. ↑ 48 C.F.R. 1.105-2 (2012).
  22. ↑ 48 C.F.R. 1.303
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