5.202 Exceptions
Source: FAR 5.202 on acquisition.gov
FAR 5.202 allows contracting officers to bypass public notice requirements for proposed contract actions only under specific, well-documented exceptions to protect national interests or operational efficiency.
Overview
FAR 5.202 outlines specific exceptions to the requirement for contracting officers to publish a synopsis of proposed contract actions as required by FAR 5.201. This section details circumstances under which advance public notice is not necessary, such as when national security could be compromised, urgent and compelling needs exist, or when acquisitions are made under certain statutory or international agreements. The regulation also covers exceptions for specific contract types, such as orders under existing contracts, utility services, perishable supplies, and certain small business or research-related actions. Additionally, it allows for agency head determinations, in consultation with key federal officials, to waive the notice requirement when advance notice is deemed inappropriate or unreasonable.
Key Rules
- National Security and Classified Information
- No synopsis is required if disclosure would compromise national security, but mere presence of classified information is not sufficient for this exception.
- Urgency and Compelling Need
- If urgent circumstances under FAR 6.302-2 or simplified acquisition procedures make compliance with notice periods impractical, the synopsis can be omitted.
- International Agreements and Foreign Direction
- No notice is needed if a foreign government or international agreement requires acquisition from specified sources.
- Statutory or Interagency Acquisitions
- Exceptions apply for acquisitions mandated by statute or through other government agencies, including SBA 8(a) and certain nonprofit sources.
- Utility Services and Sole Source
- Utility services (excluding telecom) from a sole source do not require a synopsis.
- Orders Under Existing Contracts
- Orders placed under contracts previously synopsized in detail are exempt.
- Small Business Innovation and Unsolicited Proposals
- Certain awards under the Small Business Innovation Development Act or unique unsolicited research proposals may be exempt to protect proprietary information.
- Perishable Supplies and Brand Name Resale
- Perishable subsistence supplies and some brand name commercial products for resale are exempt when advance notice is not reasonable.
- Defense Agency Overseas and Simplified Acquisitions
- Defense contracts performed overseas with only local sources, and certain simplified acquisitions using electronic means, are exempt.
- Agency Head Determination
- The agency head can waive the notice requirement in writing after required consultations.
Responsibilities
- Contracting Officers: Must determine and document the applicability of exceptions before omitting a synopsis, and ensure compliance with all conditions for each exception.
- Contractors: Should be aware of these exceptions as they may affect competition and notice opportunities.
- Agencies: Agency heads must consult with federal procurement officials before waiving notice requirements under (b), and maintain proper documentation.
Practical Implications
- This section provides flexibility for agencies to bypass public notice in specific, justified scenarios, balancing transparency with operational needs.
- Contractors should monitor these exceptions as they may limit opportunities for competition or public awareness of upcoming contracts.
- Common pitfalls include misapplying exceptions, failing to document determinations, or overlooking required consultations.
The contracting officer need not submit the notice required by 5.201 when-
(a) The contracting officer determines that-
(1) The synopsis cannot be worded to preclude disclosure of an agency’s needs and such disclosure would compromise the national security (e.g., would result in disclosure of classified information). The fact that a proposed solicitation or contract action contains classified information, or that access to classified matter may be necessary to submit a proposal or perform the contract does not, in itself, justify use of this exception to synopsis;
(2) The proposed contract action is made under the conditions described in 6.302-2 (or, for purchases conducted using simplified acquisition procedures, if unusual and compelling urgency precludes competition to the maximum extent practicable) and the Government would be seriously injured if the agency complies with the time periods specified in 5.203;
(3) The proposed contract action is one for which either the written direction of a foreign government reimbursing the agency for the cost of the acquisition of the supplies or services for such government, or the terms of an international agreement or treaty between the United States and a foreign government, or international organizations, has the effect of requiring that the acquisition shall be from specified sources;
(4) The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of the Committee for Purchase from People Who Are Blind or Severely Disabled;
(5) The proposed contract action is for utility services other than telecommunications services and only one source is available;
(6) The proposed contract action is an order placed under subpart 16.5. When the order contains brand-name specifications, see especially 16.505(a)(4);
(7) The proposed contract action results from acceptance of a proposal under the Small Business Innovation Development Act of1982 (Pub.L.97-219);
(8) The proposed contract action results from the acceptance of an unsolicited research proposal that demonstrates a unique and innovative concept (see 2.101) and publication of any notice complying with 5.207 would improperly disclose the originality of thought or innovativeness of the proposed research, or would disclose proprietary information associated with the proposal. This exception does not apply if the proposed contract action results from an unsolicited research proposal and acceptance is based solely upon the unique capability of the source to perform the particular research services proposed (see 6.302-1(a)(2)(i));
(9) The proposed contract action is made for perishable subsistence supplies, and advance notice is not appropriate or reasonable;
(10) The proposed contract action is made under conditions described in 6.302-3, or 6.302-5 with regard to brand name commercial products for authorized resale, or 6.302-7, and advance notice is not appropriate or reasonable;
(11) The proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of 5.207 with respect to the current proposed contract action;
(12) The proposed contract action is by a Defense agency and the proposed contract action will be made and performed outside the United States and its outlying areas, and only local sources will be solicited. This exception does not apply to proposed contract actions covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see subpart 25.4);
(13) The proposed contract action-
(i) Is for an amount not expected to exceed the simplified acquisition threshold;
(ii) Will be made through a means that provides access to the notice of proposed contract action through the GPE; and
(iii) Permits the public to respond to the solicitation electronically; or
(14) The proposed contract action is made under conditions described in 6.302-3 with respect to the services of an expert to support the Federal Government in any current or anticipated litigation or dispute.
(b) The head of the agency determines in writing, after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that advance notice is not appropriate or reasonable.