41 U.S.C. 1707 generally requires the publication in the Federal Register for public comment proposed procurement policies and practices that have a significant impact on contractors.  Does this publication requirement apply to FAR deviations that otherwise meet the criteria in 41 U.S.C. 1707 for publication in the Federal Register?

I'm not an attorney, but my thought is NO.  The FAR has already been through whatever public process is required, and changes to the FAR go through a process, and agency acquisition regulations have to go through a process (see FAR 1.301(b)), but I am not aware of anything in FAR subpart 1.4 that requires a public process for deviations -- indeed, FAR subpart 1.4 has already been through any needed review process, and FAR subpart 1.4 allows for deviations.  So my thought is that we already have permission to do any needed deviations without a public review process, since the actual regulation remains unchanged.

ji, isn't a deviation from the FAR a change to the FAR, at least in regard to the agency granting the deviation?  For example, look at DoD Class Deviation 2020-O0008 granting a deviation from the FAR limitation on subcontracting.

In my mind, no.  The FAR text is not changed by a deviation.  And permission to do deviations is contained with the FAR.

The FAR is changed by interim and final rules using the public review process.  A deviation doesn’t change the FAR text.

At least, that’s how I want to look at it.

5 hours ago, Retreadfed said:

41 U.S.C. 1707 generally requires the publication in the Federal Register for public comment proposed procurement policies and practices that have a significant impact on contractors.  Does this publication requirement apply to FAR deviations that otherwise meet the criteria in 41 U.S.C. 1707 for publication in the Federal Register?

Assuming that you are referring to class deviations, then a deviation that met the criteria in 41 U.S.C. 1707 would require publication in the Federal Register and an opportunity for public comment. Note that DFARS 201.301(a)(1) states:
 

Quote

 

The DFARS contains—

                    (i)  Requirements of law;

                    (ii)  DoD-wide policies;

                    (iii)  Delegations of FAR authorities;

                    (iv)  Deviations from FAR requirements; and

                    (v)  Policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors.

 

Also note that DoD class deviations issued as memoranda (prior to the COVID-19 pandemic) would typically state something like "this deviation remains in effect until incorporated in to the FAR (or DFARS) or is rescinded". 

That fact that something is a deviation has no bearing on whether it triggers the publication requirements of 41 USC 1707. See here starting on p. 13.

Quote

The court finds that, based on the regulatory publication requirements and the acknowledged impact of the proposed class deviation, publication of the class deviation was required by the DLAR and § 22 of the OFPP Act.  Defendant did not publish notice of the proposed class deviation and, contrary to defendant’s assertion, the published notice of the proposed permanent revision did not provide notice of the class deviation. Because defendant obtained the class deviation in contravention of the publication requirements established by DLAR § 1.490, defendant’s own regulation, and § 22 of the OFPP Act, the class deviation was not authorized and is not valid for plaintiff’s 1997, 1998, and 1999 contracts. 

Note this case was reversed on other grounds. 

Thanks, Don.  Can you provide a citation for the case?

8 hours ago, Retreadfed said:

Thanks, Don.  Can you provide a citation for the case?

La Gloria, 56 Fed. Cl. 211. I provided a link in my last post.

Thanks, Don.  I missed the link.

DFARS 201.402(2)(vii) indicates that DFARS deviations may be subject to FAR subpart 1.5 publication requirements. Per 1.5, FAR and DFARS deviations that are significant revisions require opportunity for public comment.

Looking at Neil's reference, I noticed the standards for publication from 41 USC 1707 are stated at DFARS 201.404(b)(ii)(A) and (B). So, only DPAP (now DPC) can approve a class deviation that would require publication.