FAR Supplements vs FAR

[David Shumway]

I have a general question. If there is a FAR Supplement term and condition that has additonal conditons when compared to the same FAR term, what term controls ? My understanding is that the Agency FAR supplement controls in these instances but I wanted to open up a discusson about this as I have been unable to find anything that definitively states as such.

[policyguy]

I believe the agency supplment would control - - see FAR Subpart 1.3 Agency Acquisition Regulations - - for additional information.

[Don Mansfield]

David,

I don't understand what you're asking. Can you provide a specific example of what you're talking about?

[ji20874]

I wouldn't use the term "controls" -- a contracting officer in an agency complies with both the FAR and his or her agency's FAR supplement as he or she prepares a contract -- and a contractor complies with the contract as it is written. If one contract clause supplements another contract clause, the contractor complies with both, letting its reading of the supplement clause guide its understanding of the FAR clause.

[amthomf]

Since David did not say the FAR and its supplements were in conflict I assume he is referring to a situation where the supplement is more restrictive/requires additional due diligence, such as in the case when only one offer is received in response to a solicitation. FAR 15.403-1©(1)(ii) discusses adequate price competition as being achieved when there was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation. While DFARS 215.371 goes further to supplement the FAR's requirement to justify adequate price competition by levying additional requirements such as resoliciting to allow an additional period of at least 30 days for receipt of proposals.

Is this a correct interpretation of your question David?

[David Shumway]

The specific instance has to do with HHS. I cannot go into a lot of detail but the HHS regulation places a dollar threshold on an activity that may require the head of contracting activiity (HCA) approval while the FAR contains no such financial threshold.

With regard to Ji20874's comments, control is the appropriate word here. There are terms within GWACs that state that if there is a conflcit between a task order and the top level contract, the top level contract terms control.

[David Shumway]

I have this comment to add on this Friday afternoon

Life may not be the party we hoped for...but while we are here we might as well dance !!!

Have a wonderful weekend and I honestly appreciate everyone's feedback above.

[Guest Vern Edwards]

An agency FAR supplement might (1) instruct contracting officers to deviate from the FAR, in accordance with a determination and approval made in accordance with FAR 1.404 (a "class deviation"), (2) require contracting officers to do things or refrain from doing things that the FAR does not mention, as long as the requirement does not violate statute, or (3) require contracting officers to obtain approvals that FAR does not require or obtain approvals at a higher level than FAR requires. See FAR 1.301.

Also, Congress sometimes imposes special statutory requirements on an agency that do not apply to other agencies. Such statutes may be implemented in the agency FAR supplement, rather than the FAR.

[David Shumway]

Vern, thank you. In FAR 1.301 (2) it states that "Subject to the authorities in paragraph © of this section and other statutory authority, an agency head may issue or authorize the issuance of internal agency guidance at any organizational level, (e.g. designations and delegations of authority, assignments of responsibilities, work-flow proceduress, and internal reporting requirements).

I view the supplement not so much a deviation, but a designation and delegation. The FAR allowed for a designation and delegation but the supplement restricted the $$$ threshold for such delegation. The FAR supplement is much more restrictive.