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FAR-flung 1102

OFFICE FURNITURE BUY OVER $5000

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21 hours ago, Retreadfed said:

DW, what gives a contracting officer the authority to ignore the FAR and apply the regulations of an agency like the SBA or DoL instead of what the FAR provides?

See FAR 1.602-1(b):

Quote

(b) No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.

Emphasis added. Nothing in FAR says that it prevails if it conflicts with another agency's regulation.

See also FAR 1.602-2:

Quote

Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall—

(a) Ensure that the requirements of 1.602-1(b) have been met....

Emphasis added.

Sometimes regulations conflict, and the conflict must be resolved in favor of one or the other. See e.g., C&G Excavating, Inc. v. U.S., 32 Fed.Cl. 231 (1994):

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Although plaintiff contends that the FAR restriction controls the extent of the SBA's review authority, plaintiff fails to recognize that “considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.... [especially when the] ‘decision as to the meaning or reach of a statute has involved reconciling conflicting policies....' ” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (footnote omitted) (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961) (citations omitted)). Because Congress entrusted the SBA with administering the COC program as provided in section 8(b) of the Act, 15 U.S.C. § 637(b)(7), the court must accord the SBA's interpretation of the program appropriate deference. The FAR, promulgated by DOD, GAO, and NASA, are designed to provide uniform acquisition procedures for federal government agencies. Once the contracting officer refers a matter to the SBA, as required by the FAR, the SBA's procedures generally should control, especially considering that the SBA is the agency charged with issuing COCs, not DOD, GAO, or NASA.

*     *     *

With regard to the direct conflict between 13 C.F.R § 125.5(e) and FAR § 19.602–2(a)(2), the court finds that the restrictive language in the FAR concerning the scope of SBA's site investigation cannot be interpreted to limit the scope of SBA's general review authority. The clear intendment of 13 C.F.R. § 125.5(e) is that the SBA may perform a site investigation examining all elements of responsibility. This interpretation is consistent with the statute and shall be given deference. 

 

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This raises some interesting issues.  Let's take limitation on subcontracting as an example.  In the 2013 NDAA, Congress amended the Small Business Act by changing the limitation on subcontracting applicable to set aside contracts.  However, the SBA did not implement these changes until May of 2016 with an effective date of June 2016.  Although there is a FAR case to update the FAR to be consistent with the revised SBA rules, the FAR has not been changed to reflect the statutory changes that have been in effect since 2013 or the SBA rules that have been in effect since 2016.

Taking the limitation on subcontracting when a service contract is involved, 13 CFR 125.6 states in part that the contractor "will not pay more than 50% of the amount paid by the government to it to firms that are not similarly situated. "  In contrast, FAR 52.219-14 states that the contractor will pay at least "50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern."  Clearly there is an inconsistency between the SBA rules and the FAR.  Further, the FAR is inconsistent with the 2013 NDAA amendments.

Applying FAR 1.602-1(b), no contract awarded after June 2016 should contain FAR 52.219-14, but should contain language that is consistent with the NDAA and implementing SBA rules.  This raises the question of whether contracts awarded with 52.219-14, as contained in the FAR, were properly awarded? 

In order to achieve consistency with the NDAA and SBA rules, the contracting officer would have to obtain a deviation to 52.219-14.  If such deviation is not granted, can the contracting officer award the contract using 52.219-14 as currently written?

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1 hour ago, Retreadfed said:

This raises the question of whether contracts awarded with 52.219-14, as contained in the FAR, were properly awarded? 

In order to achieve consistency with the NDAA and SBA rules, the contracting officer would have to obtain a deviation to 52.219-14.  If such deviation is not granted, can the contracting officer award the contract using 52.219-14 as currently written?

Given our imperfect system of statutory and administrative law, I doubt that any court would declare such a contract improper and void ab initio. But who knows what a court might do?

I think that a CO should initiate action in accordance with the law. I tend to be a stickler about complying with the rules, but when the rules conflict due to bureaucratic inaction I think a CO should act to award contracts in accordance with current statute or governing regulation. I realize of course that COs are themselves merely bureaucrats and must work within the bureaucratic scheme of their respective agencies, and that most will not be free to act on their own.

If I were a CO, I might modify the FAR clause to bring it into line with statute without an approved deviation and see who says what about it. If they ordered me to comply with the FAR despite the statute I would document the file and move on. But then again, being sick of the socio-economic programs I might just laugh.

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