Overview
FAR Subpart 1.4 establishes the policies and procedures for authorizing deviations from the Federal Acquisition Regulation to meet specific agency needs or to foster the development of innovative acquisition techniques. It defines what constitutes a deviation and provides the administrative framework for approving departures from standard regulations at both the individual contract and class-wide levels.
Key Rules
- Definition of Deviation: A deviation occurs when an agency uses a policy, procedure, clause, or method that is inconsistent with the FAR, omits a required clause, or modifies authorized language in a way that changes the intent of the regulation.
- Prohibited Deviations: Deviations are generally not authorized for Cost Accounting Standards (CAS) or specific cost principles and procedures unless explicitly permitted by specific sections (e.g., FAR 30.201-5).
- Individual Deviations: These apply to a single contract action and may be authorized by the agency head, provided the justification is documented in the contract file.
- Class Deviations: These apply to multiple contract actions. If an agency intends to use a class deviation permanently, it is encouraged to propose a formal FAR revision.
- Consultation Requirements: For civilian agencies (excluding NASA), officials must consult with the Chairperson of the Civilian Agency Acquisition Council (CAA Council) before authorizing a class deviation, unless urgency prevents it.
- Treaties and Executive Agreements: Deviations required to comply with international treaties or executive agreements are generally authorized unless they conflict with FAR coverage based on subsequent legislation.
Responsibilities
- Agency Heads: Responsible for authorizing individual deviations and designating authority for class deviations (which cannot be delegated below the Head of the Contracting Activity).
- Contracting Officers (CO): Responsible for documenting the justification and official agency approval for any deviation within the specific contract file.
- FAR Secretariat: Acts as the central repository for copies of approved class deviations from civilian agencies and processes requests for deviations involving international agreements.
- Assistant Administrator for Procurement (NASA): Specifically responsible for the control and approval of NASA-related class deviations.
- Department of Defense (DoD): Responsible for controlling and processing class deviations in accordance with the DFARS (Defense FAR Supplement).
Practical Implications
- Innovation and Testing: This subpart prevents the FAR from being a barrier to progress; agencies can use deviation authority to pilot "Commercial Solutions Openings" or other non-traditional procurement methods to see if they are more effective than current regulations.
- Emergency Response: In scenarios like natural disasters or public health crises, agencies may issue class deviations to streamline procurement or modify standard payment terms to ensure rapid response.
- Compliance Risk: Contracting Officers must be cautious; using a "substantially the same as" clause that alters the substance of the FAR's intent without a formal deviation can lead to legal challenges or protests regarding the validity of the contract terms.
- International Operations: For agencies operating overseas, Subpart 1.405 provides the necessary flexibility to honor Host Nation Agreements and Status of Forces Agreements (SOFA) that might otherwise conflict with standard U.S. acquisition law.