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  • Question

    What determines whether an acquisition reg is/will be posted to the FAR or as a FAR Supplement?


    Answer

    Will the new rule be applicable to the entire Federal Government or is it applicable to only one Agency?  The Department of Defense has a very large supplement known as the DFARS.  These rules are applicable to only DOD.  These supplemental rules occur for several reasons.... Congress passes the National Defense Authorization Act (NDAA) which includes acquisition language only applicable to DOD OR some acquisition issue occurs within the military services, (lots of contingency contracting, for example), and DOD decides that it needs a new regulation that applies to all of DOD contracting OR DOD wishes to add more clarity to current FAR language so it makes more sense or is more restrictive to DOD activities.   The other Agencies have similar supplements, although the DFARS is the largest. Below is from FAR Part 1.3 Agency Acquisition Regulations which discusses how the FAR may be supplemented.

     

    FAR 1.301 -- Policy.

    (a)(1) Subject to the authorities in paragraph (c) of this section and other statutory authority, an agency head may issue or authorize the issuance of agency acquisition regulations that implement or supplement the FAR and incorporate, together with the FAR, agency policies, procedures, contract clauses, solicitation provisions, and forms that govern the contracting process or otherwise control the relationship between the agency, including any of its suborganizations, and contractors or prospective contractors.
    (2) Subject to the authorities in paragraph (c) of this section and other statutory authority, an agency head may issue or authorize the issuance of internal agency guidance at any organizational level (e.g., designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements).
    (b) Agency heads shall establish procedures to ensure that agency acquisition regulations are published for comment in the Federal Register in conformance with the procedures in Subpart 1.5 and as required by section 22 of the Office of Federal Procurement Policy Act, as amended (41 U.S.C.418b), and other applicable statutes, when they have a significant effect beyond the internal operating procedures of the agency or have a significant cost or administrative impact on contractors or offerors. However, publication is not required for issuances that merely implement or supplement higher level issuances that have previously undergone the public comment process, unless such implementation or supplementation results in an additional significant cost or administrative impact on contractors or offerors or effect beyond the internal operating procedures of the issuing organization. Issuances under 1.301(a)(2) need not be publicized for public comment.
    (c) When adopting acquisition regulations, agencies shall ensure that they comply with the Paperwork Reduction Act (44 U.S.C.3501, et seq.) as implemented in 5 CFR 1320 (see 1.106) and the Regulatory Flexibility Act (5 U.S.C.601, et seq.). Normally, when a law requires publication of a proposed regulation, the Regulatory Flexibility Act applies and agencies must prepare written analyses, or certifications as provided in the law.
    (d) Agency acquisition regulations implementing or supplementing the FAR are, for –
    (1) The military departments and defense agencies, issued subject to the authority of the Secretary of Defense;
    (2) NASA activities, issued subject to the authorities of the Administrator of NASA; and
    (3) The civilian agencies other than NASA, issued by the heads of those agencies subject to the overall authority of the Administrator of General Services or independent authority the agency may have.
    1.302 -- Limitations.
    Agency acquisition regulations shall be limited to --
    (a) Those necessary to implement FAR policies and procedures within the agency; and
    (b) Additional policies, procedures, solicitation provisions, or contract clauses that supplement the FAR to satisfy the specific needs of the agency.

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