May the contracting office award a cost type CAS-covered contract to this contractor in accordance with FAR 30.202-6 based on the prior ACO adequacy determinion of the previously submitted disclosure statment? That is, when a new or revised disclosure statment is sumbitted by the offeror, must the contracting office wait for an adequacy determintion from the ACO or may a CAS covered contract be awarded based on the prior (and previsouly approved) disclosure statment?
You have cited the correct paragraph from the Federal Acquisition Regulation (FAR) that covers your situation. Unfortunately, it does not allow you to use the previous Disclosure Statement as you suggest. It does allow for the situation that you find yourself facing. You must get the Agency Head to allow the award prior to the review and approval of the new Disclosure Statement as follows: FAR 30.202-6
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“…(b) The contracting officer shall not award a CAS-covered contract until the cognizant Federal agency official (CFAO) has made a written determination that a required Disclosure Statement is adequate unless, in order to protect the Government’s interest, the agency head, on a nondelegable basis, authorizes award without obtaining submission of the required Disclosure Statement (see 48 CFR 9903.202-2). In this event, the contractor shall submit the required Disclosure Statement and the CFAO shall make a determination of adequacy as soon as possible after the award.”
Alternatively, you might request a waiver under FAR 30.201-5 however a waiver requires the approval of the Agency Head as well. It would appear that your only remaining alternative is to wait for the approval of the new Disclosure Statement and then proceed with your contract award.
The FAR and DFARS contain the definitions of Agency Head, as follows:
FAR 2.101 Definitions. “Agency head” or “head of the agency” means the Secretary, Attorney General, Administrator, Governor, Chairperson, or other chief official of an executive agency, unless otherwise indicated, including any deputy or assistant chief official of an executive agency.
DFARS 202.101 Definitions. “Head of the agency” means, for DoD, the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force. Subject to the direction of the Secretary of Defense, the Under Secretary of Defense (Acquisition, Technology, and Logistics), and the Director of Defense Procurement and Acquisition Policy, the directors of the defense agencies have been delegated authority to act as head of the agency for their respective agencies (i.e., to perform functions under the FAR or DFARS reserved to a head of agency or agency head), except for such actions that by terms of statute, or any delegation, must be exercised within the Office of the Secretary of Defense.