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"...U.S.C takes precedence over the FAR

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Vern (or others that would like to join the discussion)

I would like to know some examples of when U.S.C. takes precedence over the FAR. I've always understood USC as the "What" and the CFR as the "How", I would be curious to see some examples of conflict.

This quote is from one of my favorite threads; it's a completely different topic so I didn't want to bump the old thread.

4. The FAR cites at least 18 titles of the United States Code that also govern acquisition in some way and that, in some cases, take precedence over the FAR in the case of a conflict.

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One instance:

FAR 33.208(a) says:

(a) The Government shall pay interest on a contractor?s claim on the amount found due and unpaid from the date

that?

(1) The contracting officer receives the claim (certified if required by 33.207(a)); or

(2) Payment otherwise would be due, if that date is later, until the date of payment

The U.S. Court of Appeals for the Federal Circuit has three times held that subparagraph (a)(2) conflicts with the Contract Disputes Act, 41 U.S.C. ? 611, and is invalid. Interest on a contractor's claim accrues from the date that the CO receives the claim, period, even if the contractor has not yet incurred the cost claimed. The most recent decision was Richlin Security Service Co. v. Chertoff, 437 F.3d 1296 (2006). The other decisions were Servidone Construction Corp. v. United States, 931 F.2d 860 (Fed.Cir.1991) and Caldera v. J.S. Alberici Const. Co., 153 F.3d 1381, 1383 (Fed.Cir.1998). The most extensive discussion of the conflict is in the Corps of Engineers Board of Contract Appeals decision in J.S. Alberici Construction Co., Inc. & Martin K. Eby Construction Co., Inc., ENGBCA No. 6179, 97-1 BCA ? 28639. The FAR councils have never changed FAR to reflect the decisions, which I wrote about in the February 2009 edition of The Nash & Cibinic Report, in A mystery: when does interest begin to accrue on a contractor?s claim?

There have been other cases. Perhaps the most famous had to do with an old passage of FAR that said that award fee decisions would not be subject to dispute under the Disputes clause. The Federal Circuit threw that out because it conflicted with the Contract Disputes Act, 41 U.S.C. 601 -613, Burnside-Ott Aviation Training Center v. Dalton, 107 F.3d 854 (1997). The FAR councils corrected the FAR in 1997 to eliminate the conflict. See FAC 97-15, 64 Fed. Reg. 72448 (Dec. 27, 1999).

The notion that the U.S.C. is "what" and the FAR is "how' is not correct. The relationship is much more complex than that and cannot be explained that simply.

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Vern (or others that would like to join the discussion)

I would like to know some examples of when U.S.C. takes precedence over the FAR. I've always understood USC as the "What" and the CFR as the "How", I would be curious to see some examples of conflict.

This quote is from one of my favorite threads; it's a completely different topic so I didn't want to bump the old thread.

See, MCS Portable Restroom Service, B-299291, March 28, 2007, where the GAO found an inconsistency between the FAR guidance on when an SDVOSB sole source award was permitted and the authorizing statute and SBA regulations.

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Thank you. If you or anyone else finds examples of conflict, please share them.

Also, I understand the relationship between the USC and FAR is complex; the what/how statement was not an attempt to oversimplify it. It?s merely an observation on my part of the USC stating requirements (e.g. contract competition requirements) and the FAR defining how those requirements are carried out.

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