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  • Question

    What is the protocol for NDAA Legislative Provisions that are not incorporated in the Federal Acquisition Regulations (FAR)?


    Answer

    Subsequent to the passage of an NDAA, the FAR Councils can take anywhere from months to years to implement the acquisition-related sections in the FAR. For example, section 841 of the FY 2009 NDAA has yet to be incorporated in the FAR. During this time, an individual contracting office is not responsible for implementing sections of an NDAA on their own. Doing so may constitute a deviation from the FAR and trigger the publication requirements of 41 U.S.C. 1707 and the Paperwork Reduction Act (44 U.S.C. Chapter 35). If the Director of Defense Procurement and Acquisition Policy (DPAP) determines that a particular statute must be implemented within DoD immediately, they will typically issue a class deviation to implement the statute on a temporary basis until it is incorporated in the FAR or DFARS.

    As of this writing, there are only two open FAR cases that implement sections of the FY 2016 NDAA: FAR Case 2017-003 (implements section 874) and FAR Case 2016-005 (implements section 887). According to the FAR open cases status report, neither case is being held up by the current moratorium on issuing new regulations. See http://www.acq.osd.mil/dpap/dars/opencases/farcasenum/far.pdf

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