4.2305 Waivers
Source: FAR 4.2305 on acquisition.gov
FAR 4.2305 establishes a formal process for agencies to request waivers from FASCSA orders, requiring detailed justification and written approval before contract award.
Overview
FAR 4.2305 outlines the process by which executive agencies may request waivers from compliance with a Federal Acquisition Supply Chain Security Act (FASCSA) order. This section details the circumstances under which waivers can be sought, the required content of waiver requests, and the procedural steps contracting officers must follow before making an award when a waiver is involved. The regulation ensures that agencies have a formal mechanism to seek relief from FASCSA orders when compliance is impracticable or contrary to mission-critical or national security interests, while maintaining oversight and risk mitigation.
Key Rules
- Waiver Eligibility
- Agencies may request that a FASCSA order or specific provisions not apply to themselves, certain actions, classes of acquisitions, or for a limited time before compliance is feasible.
- Submission Requirements
- Waiver requests must be submitted in writing to the official who issued the FASCSA order, unless otherwise directed by the order.
- Required Information
- Requests must include identification of the order, a description of the exception sought, identification of the covered article or service, compelling justification, alternative mitigations, and any other information requested by the issuing official.
- Contracting Officer Procedures
- Contracting officers must decide whether to pursue a waiver or award to an offeror not requiring a waiver, and cannot make an award until a waiver is granted in writing.
Responsibilities
- Contracting Officers: Coordinate with program offices to determine waiver necessity, ensure all waiver requirements are met, and withhold award until waiver approval is received.
- Contractors: Provide necessary information to support agency waiver requests if applicable.
- Agencies: Prepare and submit comprehensive waiver requests, justify exceptions, and implement alternative mitigations as needed.
Practical Implications
- This section provides a structured process for agencies to seek relief from FASCSA orders, balancing security requirements with operational needs.
- Delays in award may occur if a waiver is pursued, as written approval is mandatory before proceeding.
- Agencies must provide strong justification and risk mitigation plans to obtain waivers, making thorough documentation and coordination essential.
(a) An executive agency required to comply with a FASCSA order may submit a request that the order or some of its provisions not apply to—
(1) The agency;
(2) Specific actions of the agency or a specific class of acquisitions;
(3) Actions of the agency for a period of time before compliance with the order is practicable; or
(4) Other activities, as appropriate, that the requesting agency identifies.
(b) A request for waiver shall be submitted by the executive agency in writing to the official that issued the order, unless other instructions for submission are provided by the applicable FASCSA order.
(c) The request for waiver shall provide the following information for the issuing official to review and evaluate the request, including—
(1) Identification of the applicable FASCSA order;
(2) A description of the exception sought, including, if limited to only a portion of the order, a description of the order provisions from which an exception is sought;
(3) The name or a description sufficient to identify the covered article or the product or service provided by a source that is subject to the order from which an exception is sought;
(4) Compelling justification for why an exception should be granted, such as the impact of the order on the agency's ability to fulfill its mission-critical functions, or considerations related to the national interest, including national security reviews, national security investigations, or national security agreements;
(5) Any alternative mitigations to be undertaken to reduce the risks addressed by the FASCSA order; and
(6) Any other information requested by the issuing official.
(d) The contracting officer, in accordance with agency procedures and working with the program office or requiring activity, shall decide whether to pursue a waiver or to make award to an offeror that does not require a waiver in accordance with the procedures at 4.2304(f). If a waiver is being pursued, then the contracting officer may not make an award until written approval is obtained that the waiver has been granted.