25.702-4 Waiver
Source: FAR 25.702-4 on acquisition.gov
A waiver from the Sudan contracting prohibition requires a rigorous, multi-agency review and Presidential certification that the contract is in the national interest, with detailed justification and semiannual Congressional reporting.
Overview
FAR 25.702-4 outlines the process and requirements for obtaining a waiver from the prohibition on contracting with entities that conduct restricted business operations in Sudan. The President may grant such waivers on a case-by-case basis if it is determined to be in the national interest, with written certification to Congress. Agencies must submit waiver requests to the Office of Federal Procurement Policy (OFPP), which coordinates with key national security and foreign policy offices before making a recommendation. Waivers can be requested for individual contracts or classes of supplies, but are not indefinite and may be cancelled. Detailed information and justification must accompany each request, including market research, past performance, and humanitarian considerations. OFPP reports to Congress semiannually on waivers granted.
Key Rules
- Presidential Waiver Authority
- Only the President can waive the prohibition, and only if it is certified in writing as being in the national interest.
- Waiver Request Process
- Agencies must submit requests to OFPP, which consults with relevant national security and foreign policy offices.
- Types of Waivers
- Waivers may be individual or class-based, but class waivers require proof that no other sources are available and must serve the national interest.
- Required Documentation
- Requests must include detailed agency and offeror information, justification, market research, past performance, and humanitarian impact.
- Agency Head Review
- All waiver requests must be reviewed and cleared by the agency head before submission.
- Congressional Reporting
- OFPP must report to Congress semiannually on all waivers granted.
Responsibilities
- Contracting Officers: Ensure all required information and justifications are included in waiver requests and that agency head approval is obtained.
- Contractors: Provide necessary information and documentation to support the agency’s waiver request, including past performance and humanitarian efforts.
- Agencies: Submit complete waiver requests to OFPP, coordinate internal reviews, and track waiver status and reporting obligations.
Practical Implications
- This section provides a narrow path for exceptions to the Sudan contracting prohibition, requiring high-level justification and oversight.
- Agencies must plan ahead due to the lengthy review and approval process.
- Incomplete or poorly justified requests are likely to be denied, and waivers can be revoked if circumstances change.
(a) The President may waive the requirement of subsection 25.702-2 on a case-by-case basis if the President determines and certifies in writing to the appropriate congressional committees that it is in the national interest to do so.
(b) An agency seeking waiver of the requirement shall submit the request to the Administrator of the Office of Federal Procurement Policy (OFPP), allowing sufficient time for review and approval. Upon receipt of the waiver request, OFPP shall consult with the President’s National Security Council, Office of African Affairs, and the Department of State Sudan Office and Sanctions Office to assess foreign policy aspects of making a national interest recommendation.
(c) Agencies may request a waiver on an individual or class basis; however, waivers are not indefinite and can be cancelled if warranted.
(1) A class waiver may be requested only when the class of supplies is not available from any other source and it is in the national interest.
(2) Prior to submitting the waiver request, the request must be reviewed and cleared by the agency head.
(3) All waiver requests must include the following information:
(i) Agency name, complete mailing address, and point of contact name, telephone number, and email address;
(ii) Offeror’s name, complete mailing address, and point of contact name, telephone number, and email address;
(iii) Description/nature of product or service;
(iv) The total cost and length of the contract;
(v) Justification, with market research demonstrating that no other offeror can provide the product or service and stating why the product or service must be procured from this offeror, as well as why it is in the national interest for the President to waive the prohibition on contracting with this offeror that conducts restricted business operations in Sudan, including consideration of foreign policy aspects identified in consultation(s) pursuant to 25.702-4(b);
(vi) Documentation regarding the offeror’s past performance and integrity (see the Contractor Performance Assessment Reporting System (CPARS) including the Federal Awardee Performance Information and Integrity System at https://www.cpars.gov" target="_blank">https://www.cpars.gov and any other relevant information);
(vii) Information regarding the offeror’s relationship or connection with other firms that conduct prohibited business operations in Sudan; and
(viii) Any humanitarian efforts engaged in by the offeror, the human rights impact of doing business with the offeror for which the waiver is requested, and the extent of the offeror’s business operations in Sudan.
(d) The consultation in 25.702-4(b) and the information in 25.702-4(c)(3) will be considered in determining whether to recommend that the President waive the requirement of subsection 25.702-2. In accordance with section 6(c) of the Sudan Accountability and Divestment Act of 2007, OFPP will semiannually submit a report to Congress, on April 15 th and October 15 th, on the waivers granted.