1.405 Deviations pertaining to treaties and executive agreements
Source: FAR 1.405 on acquisition.gov
FAR 1.405 allows necessary deviations from the FAR to comply with treaties or executive agreements, but requires proper reporting and approval for civilian agencies.
Overview
FAR 1.405 addresses how deviations from the Federal Acquisition Regulation (FAR) are handled when compliance with treaties or executive agreements is required. It defines "executive agreements" as government-to-government agreements, including those with international organizations, to which the U.S. is a party. The section authorizes deviations from the FAR if necessary to comply with a treaty or executive agreement, unless such deviations would conflict with laws enacted after the treaty or agreement. For civilian agencies (excluding NASA), any authorized deviation must be reported to the FAR Secretariat, and if a deviation is not automatically authorized, a formal request must be submitted for approval.
Key Rules
- Definition of Executive Agreements
- Executive agreements include government-to-government and international organization agreements involving the U.S.
- Authorized Deviations for Treaties
- Deviations from the FAR are allowed to comply with treaties, unless inconsistent with later-enacted laws.
- Authorized Deviations for Executive Agreements
- Deviations are also allowed for executive agreements, unless inconsistent with law.
- Reporting Requirements for Civilian Agencies
- Civilian agencies (except NASA) must send a copy of any authorized deviation to the FAR Secretariat.
- Requesting Unauthorized Deviations
- If a deviation is not automatically authorized, civilian agencies (except NASA) must request approval through the FAR Secretariat to the Civilian Agency Acquisition Council.
Responsibilities
- Contracting Officers: Ensure compliance with treaties and executive agreements, determine if deviations are authorized, and follow reporting or approval procedures as required.
- Contractors: Be aware that contract terms may deviate from standard FAR clauses to comply with international agreements.
- Agencies: Must report or request deviations as specified, ensuring proper documentation and approval.
Practical Implications
- This section ensures U.S. treaty and executive agreement obligations can be met even if they conflict with the FAR, but maintains oversight and legal consistency.
- Contractors may encounter non-standard clauses or procedures in contracts involving international agreements.
- Failure to follow reporting or approval processes can result in noncompliance for agencies.
(a) "Executive agreements," as used in this section, means Government-to-Government agreements, including agreements with international organizations, to which the United States is a party.
(b) Any deviation from the FAR required to comply with a treaty to which the United States is a party is authorized, unless the deviation would be inconsistent with FAR coverage based on a law enacted after the execution of the treaty.
(c) Any deviation from the FAR required to comply with an executive agreement is authorized unless the deviation would be inconsistent with FAR coverage based on law.
(d) For civilian agencies other than NASA, a copy of the text deviation authorized under paragraph (b) or (c) of this section shall be transmitted to the FAR Secretariat through a central agency control point.
(e) For civilian agencies other than NASA, if a deviation required to comply with a treaty or an executive agreement is not authorized by paragraph (b) or (c) of this section, then the request for deviation shall be processed through the FAR Secretariat to the Civilian Agency Acquisition Council.