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Happy FY end, Wifcon! (Almost...)

FAR 4.2104, which implements the Sec. 889 waiver process, alternately refers to the “head of the *executive* agency” (for standard waivers) and the “head of an agency” (for emergency waivers). 

Is this a distinction without a difference or does the word “executive” carry special meaning here? 

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Yes, these definitions exist under FAR Part 2 but they don’t provide context into what is meant by “head of an executive agency.” The FAR is written for and applicable to all executive agencies (1.101). 

Assuming the use of the word “executive” carries meaning here (I’m not convinced it does), what could that be?

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Wiki doesn't seem to be convinced either.

"Legislative definitions of a federal agency are varied, and even contradictory. The official United States Government Manual offers no definition.[1][2] While the Administrative Procedure Act definition of "agency" applies to most executive branch agencies, Congress may define an agency however it chooses in enabling legislation, and subsequent litigation, often involving the Freedom of Information Act and the Government in the Sunshine Act. These further cloud attempts to enumerate a list of agencies.[3][4]

The executive branch of the federal government includes the Executive Office of the President and the United States federal executive departments (whose secretaries belong to the Cabinet). Employees of the majority of these agencies are considered civil servants.

The majority of the independent agencies of the United States government are also classified as executive agencies (they are independent in that they are not subordinated under a Cabinet position). There are a small number of independent agencies that are not considered part of the executive branch, such as the Library of Congress and Congressional Budget Office, administered directly by Congress and thus are legislative branch agencies."

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18 hours ago, FrankJon said:

Yes, these definitions exist under FAR Part 2 but they don’t provide context into what is meant by “head of an executive agency.” The FAR is written for and applicable to all executive agencies (1.101). 

Assuming the use of the word “executive” carries meaning here (I’m not convinced it does), what could that be?

My regulatory construction for 4.2104 is that “head of an agency” is used interchangeably with “head of the executive agency.”  Head of executive agency is defined in FAR 2.101 

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The initial post mentions Section 889.  I must assume that is the John S. McCain National Defense Authorization Act for Fiscal Year 2019.  Public Law - 115-232.  In Section 889 which is the Prohibition on certain telecommunications and video surveillance services or equipment.  Section 889 specifically contains paragraph (f) which defines Exeutive agency as  "The term “executive agency” has the meaning given the term in section 133 of title 41, United States Code. " 

Below is Section 133 of Title 41, USC. that defines Executive Agency as 

Quote

 (1) an executive department specified in section 101 of title 5;

(2) a military department specified in section 102 of title 5;
(3) an independent establishment as defined in section 104(1) of title 5; and
(4) a wholly owned Government corporation fully subject to chapter 91 of title 31.

Section 889 authorizes waiver authority to only 2 individuals.

  1. The head of an executive agency, and 
  2. The Director of National Intelligence.

Since the FAR is subordinate to Section 889, I would assume that the FAR is incorrectly written if its head of an agency is below the head of an executive agency.  I cannot imagine the Executive Branch of government trying to subvert the will of the citizens as expressed by the Congress.

 

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45 minutes ago, bob7947 said:

Since the FAR is subordinate to Section 889, I would assume that the FAR is incorrectly written if its head of an agency is below the head of an executive agency.  I cannot imagine the Executive Branch of government trying to subvert the will of the citizens as expressed by the Congress.

Seems to be some variation in FAR 2.101:

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.

Head of the agency (see “agency head”).

Executive agency means an executive department, a military department, or any independent establishment within the meaning of 5 U.S.C.101, 102, and 104(1), respectively, and any wholly owned Government corporation within the meaning of 31 U.S.C.9101. (Emphasis added)

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On 9/23/2020 at 3:06 PM, FrankJon said:

Is this a distinction without a difference or does the word “executive” carry special meaning here? 

FrankJon, could you perhaps state in plainer language, what you see as the problem? Is it you don't know who the person is that is authorized to grant a waiver, or you don't know if the agency you are buying for is an executive agency or ???? 

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Jamaal:

Using the general definitions provided by the FAR an

Quote

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.

Wow!  The Secretary of Defense, Deputy Secretary of Defense and an Assistant Secretary of Defense are agency heads.  If they knew they were all the boss, we may be defenseless.  I understand what they mean but it can be interpreted a different way.

With the existing junk laws, some dating back to the 1700s; the annual perfections to those laws; the minor deletions, I guess the FAR Councils are having trouble keeping up with all the perfections and have no time to go back and read any of the regulations that are meant to implement law.

It's so much easier being the Wizard of Wifcon hiding behind a curtain.  

Wizard icon

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Appreciate the robust discussion on this. 
 

22 hours ago, Neil Roberts said:

FrankJon, could you perhaps state in plainer language, what you see as the problem? Is it you don't know who the person is that is authorized to grant a waiver, or you don't know if the agency you are buying for is an executive agency or ???? 

I work in a defense agency under USD Intelligence and Security. According to my policy people apparently Defense Pricing and Contracting has specified that USD Acquisition and Sustainment is the waiver approval authority, although I’ve seen nothing explicitly stated in writing to this effect. My policy people further interpret the *emergency* waiver authority to be the Director of our agency, based on the fact that that language refers to the “head of the agency” vice “head of an executive agency.”

We’ve encountered another ambiguous topic regarding the exceptions. This rule is a mess. Your average 1102 has difficulty understanding which acquisition procedures s/he is using for a given procurement. S/he does not have the time, patience, or ability to sit with this and understand the nuance. Why the drafters could not craft clearer implementation guidance is beyond me. 

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Like some other things, it is messy.

If I were the contracting officer, I would rely on my boss and my attorney to answer this question.  I might ask, certainly, but I would rely on their answer and so memorialize the file.

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5 hours ago, FrankJon said:

This rule is a mess. Your average 1102 has difficulty understanding which acquisition procedures s/he is using for a given procurement. S/he does not have the time, patience, or ability to sit with this and understand the nuance. Why the drafters could not craft clearer implementation guidance is beyond me. 

FrankJon,

I sympathize with your situation and front line professional frustration. I do not know the extent to which the definition of agency head or head of the agency in FAR 2.101 is a significant contributing cause of your situation and frustration. I have private industry background, not government. My view is that what you are caught up in is driven by delegation powers. The Secretary of Defense is empowered to designate which of his or her duties are to be performed by other persons in, or organizations of, DOD. Pricing and Contracting seems to be a natural choice to be focal for knowing and/or orchestrating the best delegation from the Secretary of Defense delegation chain to a person or organization to sign off in support of DOD contract issues. Delegation happens in private industry as well. My experience is that it was not always transparent and required digging and questioning. There is no way for any rule maker to know in advance what the head of an agency may delegate to whom. But it seems possible to have internal transparent written information.   

                                                       

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