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What parts of the FAR apply to me?


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Guest Vern Edwards

You are making the classic rookie mistake of interpreting a regulation based on an isolated sentence. You have to read FAR 15.404-3 in the context of the entire regulation. See Lengerich v. Department of Interior, 454 F.3d 1367 (Fed. Cir. 2006):

In interpreting a regulatory provision, we examine the text of the regulation as a whole, reconciling the section in question with sections related to it. See Reflectone, 60 F.3d 1577-78 (holding that the proper interpretation of the plain language of the regulation “examines and reconciles the text of the entire regulation, not simply isolated sentences”).

Taken in the context of the entire FAR, which at 1.104 and 2.101 expressly states that the FAR applies to acquisitions and that acquisitions are government actions, and reconciling 15.404-3 to the rest of it, all it means is that the contracting officer must demand that primes and subs perform analyses of subcontractor proposals. The language stating that the "prime contractor or subcontractor shall" analyze subcontractor proposals does not command prime contractors or subcontractors to do anything, because the FAR, unlike the tax regulations in Title 26 of the CFR, does not apply to the public. If the government wants to make an offeror or a prime or sub do something that the FAR requires, it must include a provision in a solicitation or a clause in a contract.

If the FAR applies directly to offerors and contractors irrespective of contract language, why do we need solicitation provisions and contract clauses? Why not just say that in submitting a proposal or performing a contract the offeror or contractor shall comply with the FAR?

But look, since I'm not getting paid to teach you, I encourage you to go on believing what you like.

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