Exceptions
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.