40.202-6
Waivers
Agency heads may request waivers to the UAS procurement prohibition, but only through a rigorous process requiring OMB approval, FASC consultation, and congressional notification.
Overview
FAR 40.202-6 outlines the process by which the head of an agency may request a waiver from the prohibitions on procuring or operating unmanned aircraft systems (UAS) manufactured or assembled by entities covered under the American Security Drone Act. Waivers are granted on a case-by-case basis, must follow agency-specific procedures, and are subject to statutory waiver provisions. Approval from the Director of the Office of Management and Budget (OMB) is required, following consultation with the Federal Acquisition Security Council (FASC). Additionally, agencies must notify key congressional committees when a waiver is granted.
Key Rules
- Agency Head Waiver Authority
- The head of the agency can initiate a waiver process for the prohibitions under FAR 40.202, but only in accordance with agency procedures and statutory provisions.
- OMB Approval and FASC Consultation
- Waivers require approval from the OMB Director after consultation with the FASC.
- Congressional Notification
- Agencies must notify the Senate Committee on Homeland Security and Governmental Affairs, the House Committee on Oversight and Accountability, and other relevant congressional committees when a waiver is granted.
Responsibilities
- Contracting Officers: Ensure any procurement or operation of covered UAS under a waiver follows the outlined process and documentation requirements.
- Contractors: Must comply with any restrictions or conditions imposed by the waiver and provide necessary information to support agency compliance.
- Agencies: Must follow statutory and procedural requirements for waivers, secure OMB approval, consult with FASC, and notify Congress.
Practical Implications
- This section provides a formal process for exceptions to the UAS procurement prohibition, ensuring oversight and accountability.
- Agencies must be diligent in following all procedural steps to avoid unauthorized procurements.
- Contractors should be aware that waivers are rare, highly scrutinized, and require significant justification and documentation.