When Does a Regulation Have the "Force and Effect of Law"?

[Vern Edwards]

When does an agency regulation have the "force and effect of law"?

See LAX ELECTRONICS, INC. d/b/a AUTOMATIC CONNECTOR v. United States, Court of Federal Claims No. 19-1668C, June 10, 2021, in which the Court cites the Federal Circuit.

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv1668-36-0

The discussion is on pages 5 - 8.

[Don Mansfield]

The Court references the procedural requirements of the Administrative Procedures Act (5 U.S.C. § 552) in its discussion. However, I don't see how that's relevant.  5 U.S.C. § 553(a)(2) exempts matters relating to contracts from the APA's rule making requirements. That's why we have 41 U.S.C. 1707 (to require publication of procurement rules).

 

[Vern Edwards]

@Don MansfieldDid you see footnote 6? And do you think DODM 4120.24 is covered by 5 USC 553(a)(2).?

[Don Mansfield]

23 minutes ago, Vern Edwards said:

Did you see footnote 6?

Yes, what about it?

23 minutes ago, Vern Edwards said:

And do you think DODM 4120.24 is covered by 5 USC 553(a)(2).?

I don't know about the entire document, but I do think some parts are (e.g., Enclosure 4 (Standardization in the Acquisition Process), Enclosure 12 (DIDs), and Enclosure 14 (Qualification)). FAR 11.102 refers to the guidance in the Manual when prescribing a policy for selecting requirements documents, so I think that is a matter related to contracts. 

[Vern Edwards]

Yes, well...

[Retreadfed]

19 hours ago, Don Mansfield said:

5 U.S.C. § 553(a)(2) exempts matters relating to contracts from the APA's rule making requirements. That's why we have 41 U.S.C. 1707 (to require publication of procurement rules).

If the manual is a matter relating to contracts so that it is exempt from the APA's rule making requirements, what impact would failure to publish under 1707 have on its validity?