FAR 1.404:  Class Deviations

Comptroller General - Key Excerpts

ASA argues that GSAR sect. 552.237-73 violates FAR sections 8.4, 12.403, 49.000 and 52.212‑4 as well as the spirit of the FAR. Protest at 13. ASA argues that the clause is unfair because it allegedly expands GSA's rights beyond a standard termination for convenience clause. Protester's Comments at 11. ASA also maintains that the clause eliminates a contractor's ability to seek damages for breach of contract if the agency cancels a schedule contract without cause. Id.; E‑mail from Protester to GAO, Jan. 6, 2009, at 1.

GSA responds that the cancellation clause does not conflict with the FAR, and its use is required by the GSA Acquisition Manual. Legal Memorandum at 3-4; Contracting Officer's Statement at 3.

Although the protester argues that the cancellation clause directly conflicts with particular FAR clauses, we see no basis to sustain this protest. An agency head, or his designee, has the authority to approve deviations from particular requirements of the FAR, including exempting the agency from a particular provision. FAR sect. 1.404; See, e.g., Telos Field Eng'g, B‑257747, Nov. 3, 1994, 94-2 CPD para. 172 at 3-4 (agency properly deviated from FAR requirement to publicize solicitation requirement, even though it also failed to obtain full and open competition required by statute). As required, the cancellation clause here was promulgated by GSA through the notice and comment rulemaking process. Although agency FAR Supplements generally may not conflict or be inconsistent with FAR content, FAR sect. 1.304(b)(2), we disagree with the protester's claim that the cancellation clause conflicts with any of the specified provisions of the FAR.  (Advanced Scientific Applications, Inc., B-400312.2, February 5, 2009)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Advanced Scientific Applications, Inc., B-400312.2, February 5, 2009  (pdf)  


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