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What do you do if the law conflicts with the Federal Acquisition Regulation (FAR)?
“This perennial problem puzzles our profession every time it presents itself: Congress passes a new law affecting government; the law does not specify when the changes take effect; and the Federal Acquisition Regulation (FAR) has not been updated with the changes prescribed by this new law– therefore, there are no FAR clauses that reflect the new law. How do we proceed?”
That’s the opener to my latest article in the National Contract Management Association (NCMA) journal: “When Does This Law Take Effect?” Ask me for the complete copy and I’ll email it to you. For now, here’s the bottom-line, upfront (BLUF).
The law has changed, but what about the FAR?
It happens to you all the time as a proposal professional in the government contracting industry. You notice a new law. New rules for defining government requirements! Extended debriefings and expanded rights to find out why your proposal did not win you the contract! New teaming arrangements that allow you to bid on larger requirements!
You love these new news laws and want to take advantage of these gifts from Congress, but here’s the deal. You can’t use these gifts until we get a FAR clause for the contract or provision for the solicitation. Remember, the FAR does not apply to federal contractors!
The FAR does not apply to federal contractors!
(You don’t believe that the FAR does not apply to federal contractors? Read my earlier article for APMP!)
You would think a law is effective immediately. However, in the strange world of government contracts, it doesn’t always work that way. Typically, you have to wait for the regulations to “implement” the new law.
Show me the FAR contract clause or solicitation provision!
For the law to apply to your proposal, the government needs a standard solicitation provision to insert into the solicitation. This may require an amendment to the solicitation, or your source selection may instead operate under the “old rules.” Always read the solicitation, very carefully!
For the law to apply to federal contractors, you need a regulation or clause in the form of the FAR. That way, the FAR clause can be in your contract and apply to you as a federal contractor.
Two steps: Congress passes a law, the FAR Council implements the law into regulation
That’s why my full-length article introduces the two-step process: Congress passes a law, then the FAR Council implements this law into a FAR clause or solicitation provision.
Until you get to step two, as a federal contractor, the law might not benefit you. You need that clause for your contract, not just the law! That’s why it’s very frustrating to wait for the FAR Council to create the new regulation or FAR clause.
There are other complications, such as laws that affect small business contracting, which generally go to the Small Business Administration for regulations in Title 13 of the Code of Federal Regulations, and then to the FAR Council. That can transform it into a three-step process (Congress passes a law, SBA issues regulations, FAR is updated).
This process of updating regulations like the FAR can take years, not months! You can track the slow, tedious progression of FAR cases using the Federal Register or by searching for Defense Pricing and Contracting’s “FAR Case Status,” which is available online.
As usual, my full-length article gives you the practical basics of what you need to know. Ask me for a copy!
Christoph Mlinarchik, JD, CFCM, PMP is the owner of www.ChristophLLC.com, providing expert advice in government contracts: consulting, professional instruction, and expert witness services. Contact Christoph at Christoph@ChristophLLC.com