U.S.C. and FAR

[Gov Researcher]

Hi everyone,

A quick search on Wifcon did not yield any other threads that answered this and, looking online, I have not found clear answers to the following questions:

What is the relationship between United States Code (U.S.C.) and the Federal Acquisition Regulations (FAR)? As a Contracting Officer, which one do you abide by in practice and what if one contradicts the other? Finally, how do National Defense Authorization Acts factor into the writing of U.S.C. and FAR?

Thank you!

[joel hoffman]

6 hours ago, Gov Researcher said:

Hi everyone,

A quick search on Wifcon did not yield any other threads that answered this and, looking online, it is difficult to find a reasonably clear answer to the following questions:

1. What is the relationship between United States Code (U.S.C.) and the Federal Acquisition Regulations (FAR)?

2. As a Contracting Officer, [a]which one do you abide by in practice and [b] what if one contradicts the other?

3. Finally, how do National Defense Authorization Acts factor into the writing of U.S.C. and FAR?

Thank you!

A good reference for your questions Is Chapter 1 of the current edition (or one of the more recent editions, if you have access to them) of Formation of Government Contracts. It is currently published by Wolters Kluwer. It’s written by Professors Ralph C. Nash, John Cibinic, JR. and James F. Nagle (5th Edition).

Chapter One- Basic Principles of Federal Procurement discusses, among numerous topics, Contracting Powers, the various procurement statutes (e.g., Titles 10 and 41) and Procurement Regulations, etc. 

One paragraph under “II Contracting Powers”  states:”Statutes are supplemented by regulations that contain detailed procedures to be used in awarding contracts that contain detailed procedures to be used in awarding contracts and that require the use of specified terms and conditions.”

Chapter 1 addresses the Federal Acquisition Regulations.

Regarding question 2[a] , you generally abide by the statutes, applicable case law and the FAR. In practice, you will generally comply with the FAR, which may be interpreted or affected by Case Law.

Your question 2[b] is too broad to briefly answer and depends upon the specific contradiction.

Bringing questions 2 and 3 into perspective, for instance, a statute may revise or add to current contract law or even case law. Generally, the statutes provide for or require the Departments and Agencies and/or FAR council to implement the various provisions. When that happens, generally speaking, you will wait until the FAR or applicable FAR supplement is updated or until the Department and/or Agency provides implementing policy (could be a class deviation for instance).

Can you provide a specific example or examples of a contradiction(s), please ? 

At any rate, I’d advise you to obtain access to the Book that I referenced above. If your agency (if applicable) won’t buy it for a reference Library, I suggest you buy it. It and the Other George Washington University School of Law, Government Contracts Program books are extremely valuable references. Since you are a "Gov[ernment] Researcher", you probably can gain access to "Formation of Government Contracts" and other books and articles which others here may well reference. I used to buy the hard or soft bound copies from university book stores. A printed book is easier for me to navigate through than a digital version but not easy to quote from. I am a two finger typist.

Disclaimer: I’m not a lawyer. 

[joel hoffman]

I forgot to mention that the GAO and other protest forums also provide interpretations of the Statutes and and procurement regulations. In addition, see the FAR guiding principles, at 1.102 and its’ subparagraphs.

[Vern Edwards]

1 hour ago, joel hoffman said:

A good reference for your questions Is Chapter 1 of the current edition (or one of the more recent editions, if you have access to them) of Formation of Government Contracts ,  currently published by Wolters Kluwer . It’s written by Professors Ralph C. Nash, John Cibinic, JR. and James F. Nagle (5th Edition).

Actually, the authors of Formation (4th ed., not 5th; the 5th hasn't been published yet) are Cibinic, Nash, and Christopher Yukins. Nagle is a co-author of Administration of Government Contracts (5th ed.).

[joel hoffman]

11 minutes ago, Vern Edwards said:

Actually, the authors of Formation (4th ed., not 5th; the 5th hasn't been published yet) are Cibinic, Nash, and Christopher Yukins. Nagle is a co-author of Administration of Government Contracts (5th ed.).

Thanks, Vern.
When I clicked on Ralph Nash under the Fourth edition, the fifth edition popped up in a box at a higher price than the fourth. I assumed that it was published. 

[Vern Edwards]

6 hours ago, Gov Researcher said:

What is the relationship between United States Code (U.S.C.) and the Federal Acquisition Regulations (FAR)? As a Contracting Officer, which one do you abide by in practice and what if one contradicts the other? Finally, how do National Defense Authorization Acts factor into the writing of U.S.C. and FAR?

The U.S.C. is a codification of statutes enacted by Congress. The FAR System is Title 48 of the Code of Federal Regulations (CFR), which is a a codification of regulations promulgated by the Executive Branch. The FAR is promulgated in accordance with 41 U.S.C. § 1303.

On a day-to-day basis, COs comply with the FAR. In the event of a conflict, the U.S.C. takes precedence, because it is statutory, and statutes are higher law than regulations.

The national defense authorization acts are laws, parts of which end up codified in the U.S.C.

You really should do some internet research if you have more questions. The topic is too complicated for short answers in this forum. Start with finding out what kind of publication the United States Code is and what kind of publication the Code of Federal Regulations is. Or you can buy the Cibinic, Nash, and Yukins book and read about it.

[Jamaal Valentine]

@Gov Researcher,

I believe contracting officials must follow FAR based on their delegated authority; however, “[n]o 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.” (FAR 1.602-1(b))

In my experience, agencies wait until FAR implements new laws either through an amendment or some type of deviation.

You have responses to your specific questions, but based on the question, I think you’d get some useful information reading these:

The Contract Attorneys Deskbook 2020, Chapter 3, Authority

The Federal Acquisition Regulations: Answers to Frequently Asked Questions

[joel hoffman]

A reason I asked “govresearcher”  for specific example(s) is because some Statutes require the Councils to implement the rules and others might not.

Another resource might be some WIFCON Forum threads that discuss conflicts between USC and the FAR or even conflicts between CFR’s, like the SBA’s and the FAR.

 

[Gov Researcher]

Thank you, Joel, Jamaal, and Vern! My Cibinic, Nash, and Yukins' Formation book should be arriving any day now and your references were very useful, Jamaal. 

To respond to Joel's question:

On 4/9/2021 at 9:57 AM, joel hoffman said:

A reason I asked “govresearcher”  for specific example(s) is because some Statutes require the Councils to implement the rules and others might not.

Another resource might be some WIFCON Forum threads that discuss conflicts between USC and the FAR or even conflicts between CFR’s, like the SBA’s and the FAR.

I believe one example of a conflict between U.S.C. and FAR (unless I am missing something) occurred after Section 811 of the 2018 National Defense Authorization Act (NDAA) amended 10 U.S.C. 2306a and 41 U.S.C. 3502 to change the cost or pricing data (TINA) threshold to $2 million, effective for contracts entered into after June 30th, 2018. Subsequently, a small handful of agencies such as the DoD and DOE filed class deviations to FAR to follow the $2 million threshold specified in the 2018 NDAA, by June 30th, 2018. I believe the rest of the federal agencies did not implement the new threshold until FAR 15.403-4 was updated August 3rd, 2020 to be retroactively effective for contracts entered into on or after June 30th, 2018 via FAC 2020-07.

This brings a couple of questions to mind for everyone:

1.)  Were agencies that did not file a class deviation still supposed to follow the U.S.C. amendments mentioned above as soon as they became effective, or were these amendments to the U.S.C. that specifically required the Councils to implement them (or approve class deviations) first?
2.) Are the DoD and other military agencies expected to follow (amended) U.S.C. in more circumstances than civilian agencies? Perhaps by just more regularly or quickly filing class deviations to FAR to make it consistent with U.S.C.?

Many thanks, everyone!