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jwomack:

Could be. Either way, an agency head cannot approve a deviation, i.e., violation, of statute. Keep in mind that FAR Subparts 1.3 and 1.5 and DFARS 201.3 merely implement 41 U.S.C. 1707 (formerly 41 U.S.C. 418b), and that statute does not permit agency heads to put a "significant" policy or procedure into effect without first publishing in the Federal Register. An agency must publish either a proposed rule and then a final rule, or, in cases of urgency, an interim rule and then a final rule.

In La Gloria, the Court of Federal Claims decision I cited in my earlier post, the agency published a proposed rule. It then issued a class deviation putting the rule into effect immediately pending completion of the proposed rule process. The court ruled that the publication of the proposed rule did not satisfy the law, because it did not tell the public that the agency was going to put the rule into effect immediately:

Defendant's view is that the 1995 publication in the Federal Register of notice of defendant's proposed FAR revision also, in effect, publicized defendant's request for a class deviation pending approval of the revision, Def.'s Reply at 15, and that plaintiff's reliance on § 22 of the OFFP Act is misplaced because “[t]he class deviation was published as the proposed rule.” Id. The court disagrees...

As plaintiff argues in it [sic] briefing, the Federal Register notice failed to serve as publication of the purported class deviation because the proposed rule in the Federal Register did not “even remotely refer[ ] to a class deviation.” Pl.'s Reply at 12. Plaintiff notes the difference between notice of a permanent revision (or permanent deviation) and notice of a class deviation, and points out that published notice of a permanent FAR revision informs the public of a potential, but not immediate, change in the law, while published notice of a class deviation informs the public of an immediate, but not permanent, change in the law. Id. at 12–13. The court notes that defendant's effort to make an immediate change in policy is relevant as well to the issue of compliance with § 22 of the OFFP Act [41 U.S.C. 1707]. Defendant's notice of a possible FAR revision failed to afford notice in compliance with the OFPP Act. [Footnotes omitted.]

Joel: DOD does not have the legal authority to decide that there is not time to go through the rulemaking process. The law is the law. Moreover, DOD knew about this problem in 2011 and took no regulatory action until last month. See: Iraq Drawdown: Opportunities Exist to Improve Equipment Visibility, Contractor Demobilization, and Clarity of Post-2011 DOD Role, GAO-11-774, September 2011.


During our travel to Iraq, numerous officials at numerous levels cited the critical importance of planning early to minimize challenges in conducting future similar transitions, such as will be necessary in Afghanistan.

Unless there is something we don't know, DPAP dropped the ball and is now resorting to improper expediency.

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Vern,

I'm still having trouble with your interpretation of FAR 1.401(f) (Strangely enough, it came up in my dream last night :lol: ). For argument's sake, I will accept the interpretation of FAR 1.401(f) that you wrote in an earlier post as follows:

Thus, a deviation under 1.401(f) is failure to incorporate a policy or procedure into an agency supp when such incorporation is required by law, i.e., 41 U.S.C. 1707, and by FAR 1.301( b ). Clearly, however, deviations that must be published in the agency supplements in accordance with 1.301( b ) are subject to the notice and public comment requirements of 41 U.S.C. 1707, and cannot take effect until published in the Federal Register as proposed or interim rules. Thus, DOD’s August 30 class deviation is unlawful.

In other words the "issuance" described at FAR 1.401(f) requires rulemaking, but has yet to go through the process. You say that such an issuance is unlawful. However, FAR subpart 1.4 and DFARS subpart 201.4 authorize agency heads to approve "deviations" as defined at FAR 1.401. I anticipate your response to be "Yes, but the agency head must first go through the rulemaking process." The problem is that if the issuance went through the rulemaking process, it would no longer be a deviation under FAR 1.401(f). As such, the agency head can't really approve a "deviation" as defined at FAR 1.401(f).

Am I understanding you correctly?

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Don:

FAR cannot authorize an agency head to take or approve any action that would be a violation of statute, unless the statute permits the agency head to waive its requirements.

Issuance of a policy or procedure without incorporating it into agency regulations in accordance with FAR 1.301( b ) would be a deviation, as defined by FAR 1.401(f), that is a violation of statute, 41 U.S.C. 1707.

Therefore, an agency head cannot approve a deviation as defined by FAR 1.401(f), and FAR cannot be interpreted to permit an agency head to do it.

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