In cases where a federal agency does not receive annual appropriations but chose to follow the FAR anyways along with drafting their own FAR Supplement, is this FAR Supplement still required to be hung out on the Federal Register for review by the public? Again, the agency does not receive congressional funds but made an internal decision to follow FAR as a guide.
Some believe there is no requirement to post the FAR Supplement in the Federal Register for review because of the fact the Agency uses apportioned funds and not appropriated funds.
Thanks for the response.
Guidance for publication in the federal register is found at FAR 1.301(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 41 U.S.C. 1707, 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.”
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However, FAR 1.104 says: “The FAR applies to all acquisitions as defined in Part 2 of the FAR, except where expressly excluded.” Then FAR 2.101 defines acquisition as ” 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.”
Therefore, it appears that if you do not receive annual appropriations then the FAR does not apply to you and you do not have to publish your supplement in the Federal Register. However, we recommend that you also consult the Civilian Agency Acquisition Council (firstname.lastname@example.org) for further guidance on this matter as well as your legal counsel.