The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
Congressional research reportApr 7, 2025
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The Federal Acquisition Regulation (FAR):
Answers to Frequently Asked Questions
Updated April 7, 2025
Congressional Research Service
https://crsreports.congress.gov
R42826
SUMMARY
The Federal Acquisition Regulation (FAR):
Answers to Frequently Asked Questions
According to the U.S. General Services Administration (GSA), the U.S. government is the largest
buyer of goods and services in the world, and executive branch agencies—led by the Department
of Defense (DOD)—make most of these purchases. Many (although not all) acquisitions by
executive branch agencies are subject to the FAR. Members, congressional committees, and staff
regularly (1) consider legislation that would amend the FAR to save money, promote
transparency, or further other public policies; (2) conduct oversight of executive agencies’
performance in procuring goods and services; and (3) respond to questions from constituents
regarding executive branch procurement activities. In addition, certain commentators have
recently suggested that some or all FAR provisions should be withdrawn.
R42826
April 7, 2025
David H. Carpenter
Legislative Attorney
Matthew D. Trout
Legislative Attorney
Dominick A. Fiorentino
Analyst in Government
Organization and
Management
The FAR, which is codified in Title 48 of the Code of Federal Regulations (C.F.R.), generally
governs acquisitions of goods and services by executive branch agencies. The FAR articulates
the guiding principles for the federal acquisition system, which include satisfying the customer in
terms of cost, quality, and timeliness of the delivered goods and services; minimizing operating
costs; conducting business with integrity, fairness, and openness; and fulfilling public policy objectives. In addition, the FAR
identifies members and roles of the “acquisition team.” The FAR also addresses the acquisition process, from acquisition
planning to contract formation and contract management. Depending upon the topic, the FAR may provide contracting
officers with (1) the government’s basic policy (e.g., giving small businesses the “maximum practicable opportunity” to
participate in acquisitions); (2) any requirements agencies must meet (e.g., obtaining full and open competition through the
use of competitive procedures); (3) any exceptions to the requirements (e.g., when and how agencies may limit competition);
and (4) any required or optional clauses to be included, or incorporated by reference, in the solicitation or contract (e.g.,
terminating contracts for the government’s convenience).
The FAR is the result of a 1979 statute directing the Office of Federal Procurement Policy (OFPP) within the Office of
Management and Budget (OMB) to “issue polic[ies] ... for the purpose of promoting the development and implementation of
[a] uniform procurement system.” Partly in response to this directive, the FAR was issued in 1983 and took effect in 1984. It
has been revised frequently since then, in response to legislation, executive orders, litigation, and policy considerations.
These revisions are generally made by the Administrator of the GSA, the Secretary of Defense, and the Administrator of the
National Aeronautics and Space Administration (NASA), acting on behalf of the Federal Acquisition Regulatory Council
(FAR Council). However, the Administrator of OFPP also has the authority to amend the FAR in certain circumstances. FAR
amendments generally apply only to contracts awarded after the effective date of the amendment.
The FAR contains the principal rules of the federal acquisition system, but it is not the only authority governing acquisitions
of goods and services by executive branch agencies. Statutes, agency FAR supplements, other agency regulations, and
guidance documents may also apply. In some cases, these sources cover topics not covered in the FAR, while sometimes the
FAR addresses topics not expressly addressed in statute or elsewhere. In addition, it is the contract (not the FAR) that binds
the contractor, although judicial and other tribunals may read terms required by the FAR into contracts that lack them.
Agencies subject to the FAR may deviate from it in certain circumstances, and agencies or transactions not subject to the
FAR may be subject to similar requirements under other authority.
Congressional Research Service
The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
Contents
Introduction ..................................................................................................................................... 1
The FAR and What It Covers .......................................................................................................... 1
What Is the FAR? ...................................................................................................................... 2
Where Can I Find the FAR? ...................................................................................................... 2
What Agencies Are Subject to the FAR?................................................................................... 2
What Purchases Are Subject to the FAR? ................................................................................. 3
What Transactions Fall Outside the FAR’s Coverage? ............................................................. 5
What Does the FAR Include? .................................................................................................... 5
Parts 1 to 51 ........................................................................................................................ 7
Parts 52 and 53 .................................................................................................................... 8
Guiding Principles for the Federal Acquisition System ...................................................... 8
Promulgation of the FAR................................................................................................................. 9
How Did the FAR Originate? .................................................................................................... 9
What Is the Relationship Between the FAR and Procurement or Other Statutes? .................. 10
How Is the FAR Amended? ..................................................................................................... 12
Who Typically Promulgates Regulations Amending the FAR? .............................................. 13
What Roles Do OFPP and OMB Play in Revising and Implementing the FAR? ................... 15
How Long Does It Take to Amend the FAR?.......................................................................... 15
Relationship Between the FAR and Other Authorities Governing Procurement ........................... 16
What Is the Relationship Between the FAR and Agency FAR Supplements? ........................ 16
What Is the Relationship Between the FAR and Other Regulations (i.e., Non-FAR
Supplements)? ...................................................................................................................... 18
Does the FAR Include All the Government’s Procurement Policies? ..................................... 19
The FAR and Congress .................................................................................................................. 19
What Can Congress Do to Prompt Amendment of the FAR? ................................................. 20
What Can Congress Do If It Disapproves of a Potential Amendment to the FAR? ................ 20
The FAR and Federal Contracts .................................................................................................... 21
What Is the Relationship Between the FAR and a Federal Contract? ..................................... 21
Do Amendments to the FAR Apply to Preexisting Contracts?................................................ 22
What Happens If Required Contract Clauses Are Not Included in a Particular
Contract? .............................................................................................................................. 23
Other Topics .................................................................................................................................. 24
May Agencies Deviate from the FAR? ................................................................................... 24
May an Acquisition Team Use a Policy or Procedure That Is Not Addressed by the
FAR? .................................................................................................................................... 25
Could an Agency or Transaction Not Subject to the FAR Be Subject to Requirements
Similar or Identical to Those in the FAR?............................................................................ 26
Tables
Table A-1. Table of Acronyms and Abbreviations ......................................................................... 27
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The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
Appendixes
Appendix. Table of Acronyms and Abbreviations ......................................................................... 27
Contacts
Author Information........................................................................................................................ 28
Congressional Research Service
The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
Introduction
The U.S. government buys more goods and services than any other entity in the world,1 with the
Department of Defense (DOD) making the most purchases of all federal agencies.2 Many
(although not all) acquisitions by executive branch agencies are subject to the Federal Acquisition
Regulation (FAR). As a result, Members and committees of Congress and their staff often
•
•
•
consider legislation that would prompt amendment of the FAR to save the federal
government money, promote transparency, or further other public policies;3
conduct oversight of executive agencies’ performance in procuring goods and
services, including their compliance with the FAR;4 and
respond to questions from constituents regarding executive branch procurement
activities.5
This report answers frequently asked questions regarding the FAR. These questions and their
answers are organized into six broad categories: (1) what the FAR is and what it covers; (2)
promulgation of the FAR; (3) the relationship between the FAR and other authorities governing
federal procurement (e.g., statutes, agency FAR supplements, other regulations, and policies);
(4) the FAR in relation to Congress, courts, and other tribunals; (5) the relationship between the
FAR and federal procurement contracts; and (6) other miscellaneous topics.
The FAR and What It Covers
This section includes questions and answers that broadly address what the FAR is and what it
covers, including where the text of the FAR can be found, what agencies are subject to the FAR,
what purchases are subject to the FAR, and what transactions fall outside the FAR’s coverage.
1 See, e.g., Federal Acquisition Policy Division, U.S. GEN. SERVS. ADMIN. (Aug. 24, 2024),
https://www.gsa.gov/policy-regulations/policy/acquisition-policy/office-of-acquisition-policy/governmentwide-acqpolicy/federal-acquisition-policy-division (characterizing the federal government as the “largest buyer of goods and
services in the world”).
2 See, e.g., A Snapshot of Government-Wide Contracting for FY 2023 (Interactive Dashboard), U.S. GOV’T
ACCOUNTABILITY OFF. (June 25, 2024), https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2023interactive-dashboard (listing DOD contracting at $456.0 billion with other agencies totaling a combined $303.2 billion
for FY2023).
3 See, e.g., Preventing Organizational Conflicts of Interest in Federal Acquisition Act, P.L. 117-324, 136 Stat. 4439
(2022) (“Not later than 18 months after the date of the enactment of this Act, the Federal Acquisition Regulatory
Council shall revise the Federal Acquisition Regulation.... ”); Keep China Out of Solar Energy Act of 2023, S. 968,
118th Cong. § 2(b) (2023).
4 See, e.g., Made in China: Is GSA Complying with Purchasing Restrictions?: Hearing Before the Subcomm. on
Cybersecurity, Information Tech., and Gov’t Innovation of the H. Comm. on Oversight & Accountability, 118th Cong.
(2024); VA Contracting: Challenges in Competition and Conflicts of Interest: Joint Hearing Before the Subcomm. on
Tech. Modernization and Subcomm. on Oversight and Investigations of the H. Comm. on Veterans’ Affairs, 118th
Cong. (2023).
5 Cf. CRS Report RS22536, Overview of the Federal Procurement Process and Resources, by Dominick A. Fiorentino
(2023).
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The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
What Is the FAR?
The FAR is a regulation, codified in Title 48, Parts 1-53, of the Code of Federal Regulations. As
is discussed in more detail below,6 each part of the FAR (e.g., Part 37, “Service Contracting,” is
divided into subparts (e.g., Subpart 37.1, “Service Contracts—General”)). Subparts are divided
into sections (e.g., FAR 37.113, “Severance Payments to Foreign Nationals”), which may be
divided into subsections (e.g., Section 37.113-2, “Solicitation Provision and Contract Clause”).
The FAR also contains standard solicitation provisions and contract clauses7 and forms.8
The various agency FAR supplements, codified in Title 48, Chapters 2-61, and the Cost
Accounting Standards (CAS), codified in Title 48, Chapter 99, are not part of the FAR, although
they can play a significant role in the acquisition process. “What Is the Relationship Between the
FAR and Agency FAR Supplements?,” below, discusses in more detail the relationship between
the FAR and agency FAR supplements, such as the Defense Federal Acquisition Regulation
Supplement (DFARS).
Where Can I Find the FAR?
The FAR is available in print from the Government Publishing Office as part of the Code of
Federal Regulations9 or from private publishers. PDF and HTML versions of the FAR are also
available online.10
What Agencies Are Subject to the FAR?
The FAR applies to certain purchases11 by any executive agency, which the FAR defines to mean
“an executive department, a military department, or any independent establishment within the
meaning of 5 U.S.C. § 101, 102, and 104(1), respectively, and any wholly owned Government
corporation within the meaning of 31 U.S.C. § 9101.”12
Notwithstanding this broad definition, the FAR does not apply to all executive branch agencies or
to all organizational components of a particular executive branch agency.13 Exceptions include,
for example, the Federal Aviation Administration (FAA), which Congress has authorized to
6 See infra “What Does the FAR Include?”
7 FAR pt. 52.
8 FAR pt. 53.
9 U.S. Gov’t Publ’g Off., CFR, U.S. GOVERNMENT BOOKSTORE, https://bookstore.gpo.gov/CFR (last visited Sept. 17,
2024).
10 E.g., Access the Federal Acquisition Regulation, ACQUISITION.GOV, https://www.acquisition.gov (last visited Sept.
17, 2024); Nat’l Archives, Title 48, CODE OF FED. REGULS, https://www.ecfr.gov/current/title-48 (last visited Sept. 17,
2024); U.S. Gov’t Publ’g Off., Code of Federal Regulations, GOVINFO,
https://www.govinfo.gov/app/collection/cfr/2023/title48 (last visited Sept. 17, 2024).
11 See infra “What Purchases Are Subject to the FAR?”
12 FAR 2.101.
13 When it was established, the Transportation Security Administration was authorized to use the Federal Aviation
Administration’s (FAA’s) Acquisition Management System in lieu of the FAR. See Aviation and Transportation
Security Act, P.L. 107-71, § 101(a), 115 Stat. 597–604 (2001) (formerly codified at 49 U.S.C. § 114(o)). However, in
2008, Congress eliminated this statutory provision. See Consolidated Appropriations Act, 2008, P.L. 110-161, § 568,
121 Stat. 2092 (2007) (striking § 114(o)).
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The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
establish its own acquisition system,14 and the U.S. Mint.15 The FAR also generally does not
apply to mixed-ownership government corporations, such as the Federal Deposit Insurance
Corporation,16 or to executive agencies that are funded with nonappropriated funds (i.e., from
sources other than discretionary funds from an appropriations act), such as the Office of the
Comptroller of Currency, which is a bureau within the Department of the Treasury.17
The FAR does not apply to legislative branch agencies or judicial branch entities, although
agencies in the other branches of government (or otherwise not required to follow the FAR) may
adopt the FAR as a matter of policy or promulgate or otherwise be subject to requirements similar
to those in the FAR. For example, the Library of Congress, a legislative branch agency, has stated
that its policy is to follow the FAR “to the extent consistent with the Library’s interests.”18 (For
more information, see “Could an Agency or Transaction Not Subject to the FAR Be Subject to
Requirements Similar or Identical to Those in the FAR?” below.)
The FAR does not directly regulate federal contractors or prospective federal contractors,
although such vendors are affected by contracting officers applying the FAR’s definitions,
policies, procedures, and requirements. For example, the FAR provides policies and procedures
related to types of contracts,19 subcontracting,20 contract termination,21 and payments to
contractors.22 The FAR also requires agencies to incorporate various contract clauses in the
contracts that directly bind contractors. (For more information, see “What Is the Relationship
Between the FAR and a Federal Contract?” and “What Happens If Required Contract Clauses Are
Not Included in a Particular Contract?,” both below.)
What Purchases Are Subject to the FAR?
Most executive branch agencies are generally subject to the FAR when making acquisitions of
supplies and services with appropriated funds.23
The FAR defines acquisition to mean
[T]he acquiring by contract with appropriated funds of supplies or services (including
construction) by and for the use of the Federal Government through purchase or lease,
whether the supplies or services are already in existence or must be created, developed,
demonstrated, and evaluated. Acquisition begins at the point when agency needs are
established and includes the description of requirements to satisfy agency needs,
solicitation and selection of sources, award of contracts, contract financing, contract
14 See Department of Transportation and Related Agencies Appropriations Act, 1996, P.L. 104-50, § 348, 109 Stat.
460–61 (1995) (directing the Administrator of the FAA to develop and implement an acquisition system for the FAA).
15 See 31 U.S.C. § 5136 (stating that “provisions of law governing procurement or public contracts shall not be
applicable to the procurement of goods or services necessary for carrying out [U.S.] Mint programs and operations”).
16 Id. § 9101(2).
17 See, e.g., FAR 1001.104; OFF. OF THE COMPTROLLER OF THE CURRENCY, U.S. DEP’T OF THE TREASURY,
CONGRESSIONAL BUDGET JUSTIFICATION AND ANNUAL PERFORMANCE PLAN AND REPORT FY 2024 (2023),
https://home.treasury.gov/system/files/266/25.-OCC-FY-2024-CJ.pdf.
18 Library of Congress Regulation 7-110, § 3(A).
19 FAR pt. 16.
20 FAR pt. 44.
21
FAR pt. 49.
22 FAR pt. 32.
23 FAR 1.104.
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performance, contract administration, and those technical and management functions
directly related to the process of fulfilling agency needs by contract.24
The FAR further defines terms used in this definition—including appropriated funds, supplies,
and services—which can influence whether the FAR is applicable to particular transactions.
Appropriated funds are “funds paid out of the United States Treasury” that are charged “to an
appropriation provided by or derived from an act of Congress.”25 An appropriation is “[a]uthority
given to federal agencies to incur obligations and to make payments from Treasury for specified
purposes.”26
Supplies are
[A]ll property except land or interest in land. It includes (but is not limited to) public
works, buildings, and facilities; ships, floating equipment, and vessels of every character,
type, and description, together with parts and accessories; aircraft and aircraft parts,
accessories, and equipment; machine tools; and the alteration or installation of any of the
foregoing.27
Generally, services refer to tasks performed by a contractor. More specifically, a service contract
means “a contract that directly engages the time and effort of a contractor whose primary purpose
is to perform an identifiable task rather than to furnish an end item of supply.”28 The FAR
provides the following nonexhaustive list as examples of areas in which service contracts may be
found:
(1) Maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or
modification of supplies, systems, or equipment.
(2) Routine recurring maintenance of real property.
(3) Housekeeping and base services.
(4) Advisory and assistance services.
(5) Operation of Government-owned equipment, real property, and systems.
(6) Communications services.
(7) Architect-Engineering....
(8) Transportation and related services....
(9) Research and development....29
24 FAR 2.101.
25 U.S. GOV’T ACCOUNTABILITY OFF., GAO-04-261SP, I PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, 2-4 to 2-5 (3d
ed., 2004); see also U.S. CONST. art. I, § 9, cl. 7 (Appropriations Clause).
26 I PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, supra note 21, at 2-5; see also CFPB v. Cmty. Fin. Servs. Ass’n,
601 U.S. 416, 416–17 (2024) (discussing constitutional definition of “appropriation”); but see Int’l Line Builders,
67 Comp. Gen. 8 (1987) (rejecting the Bonneville Power Administration’s argument that it was not subject to the FAR
because it did not use appropriated funds on the grounds that funds available to an agency, regardless of their private
source, are considered appropriated funds when they are made available for collection and expenditure pursuant to
specific statutory authority); USA Fabrics, Inc., B-295737, 2005 WL 924199 (Comp. Gen Apr. 19, 2005) (finding that
GAO’s bid protest jurisdiction, which is discussed in the FAR, is not based on the expenditure of appropriated funds
but rather turns on whether the procurement at issue is being conducted by a “federal agency,” as that term is defined in
the Competition in Contracting Act).
27
FAR 2.101.
28 FAR 37.101.
29 FAR 37.101.
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What Transactions Fall Outside the FAR’s Coverage?
The FAR only applies to procurement contracts, which are contracts through which appropriated
funds are used to acquire supplies or services for the direct use of the United States.30
Transactions not subject to the FAR include
•
•
•
•
grants and cooperative agreements;31
“other transactions” (i.e., nonprocurement contracts that authorized agencies may
use for the research and development of prototypes);32
purchases or leases of real property;33 and
transactions where Congress has authorized a government entity to acquire goods
or services “notwithstanding any other provision of law.”34
Subcontracts under federal prime contracts (i.e., contracts that federal contractors enter into with
third parties) are also not subject to the FAR. In some cases, the FAR requires agencies to include
terms in prime contracts obligating prime contractors to “flow down” certain requirements to
subcontractors.35 As a result, the FAR, at times, indirectly subjects subcontractors to various
contractual terms. However, not all requirements flow down, and the federal government cannot
directly enforce against subcontractors the terms that do flow down. Certain FAR provisions that
pertain primarily to the conduct of procurements by executive branch agencies are inapplicable to
subcontractors. For example, although the FAR generally requires federal agencies to provide for
“full and open competition” in the selection of contractors, agency contractors are generally not
required to provide for “full and open competition” in the selection of subcontractors.36
What Does the FAR Include?
The various parts of the FAR impose different types of requirements, as illustrated below. Parts 1
through 51 establish policies, obligations, exceptions, practices, and procedures to guide members
of the acquisition workforce in performing their responsibilities. Parts 52 and 53 provide standard
30 31 U.S.C. § 6303.
31 FAR 2.101; see also 31 U.S.C. §§ 6301–6309.
32 Several agencies, including the National Aeronautics and Space Administration (NASA), DOD, and Department of
Homeland Security (DHS), have statutory authority to enter into what are known as other transactions (OTs). See, e.g.,
51 U.S.C. § 20113(e) (“[NASA] is authorized ... to enter into and perform such contracts, leases, cooperative
agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem
appropriate.... ”). Generally, agencies with OT authority use OTs for research and development purposes or prototype
development. OTs are not subject to the FAR because the FAR “applies to all acquisitions as defined in Part 2 of the
FAR,” and Part 2 defines acquisitions as “the acquiring by contract.... ” See FAR 1.104, 2.101 (emphasis added). OTs
are agreements that are not contracts within the meaning of the statute and are thus not covered by the FAR. See, e.g.,
51 U.S.C. § 20113 (authorizing NASA to enter into “contracts ... or other transactions”).
33 See FAR 2.101.
34 See, e.g., 33 U.S.C. § 891d(b) (authorizing the National Oceanic and Atmospheric Administration [NOAA] to enter
multiyear contracts for oceanographic research, fisheries research, and mapping and charting services to assist in
fulfilling NOAA missions “[n]otwithstanding any other provision of law.”).
35 See, e.g., FAR 52.214-26(e) (“The Contractor shall insert a clause containing all the provisions of this clause
[regarding audits and records] ... in all subcontracts expected to exceed the threshold for submission of certified cost or
pricing data in FAR 15.403-4(a)(1) on the date of the subcontract award.”).
36 But see FAR 44.204(c) (generally requiring the inclusion of the clause at 52.244-5 in cost-type or cost-priced
contracts valued in excess of the simplified acquisition threshold entered into via negotiated procurement); id. 52.2445(a) (“The Contractor shall select subcontractors (including suppliers) on a competitive basis to the maximum practical
extent consistent with the objectives and requirements of the contract.”).
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The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions
solicitation and contract clauses and forms. While much of the FAR is process oriented (e.g.,
specifying how agencies may obtain full and open competition), the opening sections of the FAR
articulate “guiding principles” for the federal acquisition system that inform the rest of the FAR
and federal procurement generally. These guiding principles include satisfying the customer,
minimizing administrative operating costs, promoting competition, operating with fairness and
integrity, and furthering public policies.
Federal Acquisition Regulation
General Structure and Parts
Part 1—Federal Acquisition Regulations System
Part 2—Definitions of Words and Terms
Part 3—Improper Business Practices and Personal Conflicts of Interest
Part 4—Administrative and Information Matters
Part 5—Publicizing Contract Actions
Part 6—Competition Requirements
Part 7—Acquisition Planning
Part 8—Required Sources of Supplies and Services
Part 9—Contractor Qualifications
Part 10—Market Research
Part 11—Describing Agency Needs
Part 12—Acquisition of Commercial Products and Commercial Services
Part 13—Simplified Acquisition Procedures
Part 14—Sealed Bidding
Part 15—Contracting by Negotiation
Part 16—Types of Contracts
Part 17—Special Contracting Methods
Part 18—Emergency Acquisitions
Part 19—Small Business Programs
Part 20—Reserved
Part 21—Reserved
Part 22—Application of Labor Laws to Government Acquisitions
Part 23—Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and
Drug-Free Workplace
Part 24—Protection of Privacy and Freedom of Information
Part 25—Foreign Acquisition
Part 26—Other Socioeconomic Programs
Part 27—Patents, Data, and Copyrights
Part 28—Bonds and Insurance
Part 29—Taxes
Part 30—Cost Accounting Standards Administration
Part 31—Contract Cost Principles and Procedures
Part 32—Contract Financing
Part 33—Protests, Disputes, and Appeals
Part 34—Major System Acquisition
Part 35—Research and Development Contracting
Part 36—Construction and Architect-Engineer Contracts
Part 37—Service Contracting
Part 38—Federal Supply Schedule Contracting
Part 39—Acquisition of Information Technology
Part 40—Information Security and Supply Chain Security
Part 41—Acquisition of Utility Services
Part 42—Contract Administration and Audit Services
Part 43—Contract Modifications
Part 44—Subcontracting Policies and Procedures
Part 45—Government Property
Part 46—Quality Assurance
Part 47—Transportation
Part 48—Value Engineering
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Part 49—Termination of Contracts
Part 50—Extraordinary Contractual Actions and the SAFETY Act
Part 51—Use of Government Sources by Contractors
Part 52—Solicitation Provisions and Contract Clauses
Part 53—Forms
Parts 1 to 51
Contracting officers and other members of the acquisition workforce rely on the FAR for
guidance on a wide range of topics, including acquisition planning, publicizing contract actions,
required sources of supplies and services, and contract types.37 Additionally, the FAR defines
terms governing the federal procurement system.38
Depending upon the topic, the FAR may provide contracting officers with the government’s basic
policy, any requirements that agencies must meet, and any exceptions to these requirements. For
example, Subpart 6.1 of the FAR articulates that, as a matter of policy, “contracting officers shall
promote and provide for full and open competition in soliciting offers and awarding Government
contracts”39 and identifies acceptable procedures for full and open competition (e.g., sealed
bidding, competitive proposals).40 Subpart 6.3, in turn, identifies the circumstances in which other
than full and open competition is permitted (e.g., when there is only one responsible source or
there are urgent and compelling circumstances). It also specifies the procedures and requirements
for using other than full and open competition (e.g., contracting officers are generally required to
justify their decision to use other than full and open competition and obtain approval from a
higher-ranking agency official).
In other cases, the FAR articulates general standards that agencies must consider in making
certain determinations or the grounds on which agencies may take certain actions. For instance,
Part 9 of the FAR—which addresses “contractor qualifications”—specifies the “general
standards” that contracting officers must consider when determining whether prospective
contractors are responsible.41 Part 9 similarly describes the grounds on which agency suspension
and debarment officials may exclude persons from federal contracting for a period of time.42
Other provisions of Part 9 describe how contracting officers may (or, in some cases, must) obtain
information for use in making determinations regarding contractor qualifications (e.g., preaward
surveys, the Federal Awardee Performance and Integrity Information System, and the System for
Award Management [SAM]).43
37 See FAR pts. 7, 5, 8, and 16.
38 See FAR pt. 2. In some cases, other parts of the FAR, including the standard solicitation or contract clauses, provide
additional or context-specific definitions. See, e.g., FAR 9.301 (defining “approval” for purposes of the FAR provisions
on first article testing and approval); id. 52.204-3 (defining “common parent” for purposes of the clause regarding
taxpayer identification).
39 FAR 6.101(a).
40 FAR 6.102. The term full and open competition refers to acquisitions where “all responsible sources are permitted to
submit sealed bids or competitive proposals.” 41 U.S.C. § 107. Sealed bidding “is a method of contracting that employs
competitive bids, public opening of bids, and awards.” FAR 14.101. Competitive proposals may be used when sealed
bids are not appropriate, such as instances where it is necessary to conduct discussions with offerors relative to
proposed contracts. FAR 6.401(b). Other competitive procedures include awards resulting from a “broad agency
announcement that is general in nature identifying areas of research interest, including criteria for selecting proposals,
and soliciting the participation of all offerors capable of satisfying the Government’s needs.” FAR 6.102(d)(2)(i).
41
FAR 9.104-1.
42 FAR 9.400–.404.
43 FAR 9.105-1.
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Other FAR provisions articulate the responsibilities of various agency personnel in administering
contracts. For example, contract administration may include a variety of tasks and
responsibilities, depending on the type of contract and the goods or services acquired. Part 42 of
the FAR provides guidance for acquisition personnel regarding audits, postaward contractor
orientations, production surveillance and reporting, and the collection of contractor performance
information. Additionally, FAR 42.302(a) includes a detailed list of 71 specific contract
administration functions to be used by the contract administration officer.
Parts 52 and 53
Parts 52 and 53 differ from the other parts of the FAR in that they provide agencies with standard
provisions, clauses, and forms to be included, or incorporated by reference, in solicitations or
contracts, as well as forms for use during the acquisition process. Part 52 contains solicitation
provisions and contract clauses prescribed elsewhere in the FAR. Each provision or clause has a
unique identification number.44 For example, FAR 52.249-1 provides the standard, short-form
“Termination for Convenience” contract clause for fixed-price contracts, which states
The Contracting Officer, by written notice, may terminate this contract, in whole or in part,
when it is in the Government’s interest. If this contract is terminated, the rights, duties, and
obligations of the parties, including compensation to the Contractor, shall be in accordance
with part 49 of the Federal Acquisition Regulation in effect on the date of this contract.45
Part 53 contains standard, optional, and agency-prescribed acquisition forms, such as Standard
Form 30, “Amendment of Solicitation/Modification of Contract”; Optional Form 17, “Offer
Label”; and DOD Form DD 254, “Contract Security Classification Specification.”46
Guiding Principles for the Federal Acquisition System
In addition to providing procedures and requirements discussed above that, collectively, make up
the procurement process, the FAR also articulates guiding principles for the federal acquisition
system (which includes performance standards) and describes the federal acquisition team and its
roles and responsibilities.
According to the FAR, the overarching vision of the acquisition system “is to deliver on a timely
basis the best value product or service to the customer, while maintaining the public’s trust and
fulfilling public policy objectives.”47 In brief, the four performance standards are
1. satisfying customers in terms of cost, quality, and timeliness of the delivered
product or service;
2. minimizing administrative operating costs;
3. conducting business with integrity, fairness, and openness; and
4. fulfilling public policy objectives.48
44 Each identification number corresponds to the subpart of the FAR in which the provision or clause is prescribed.
Subpart 52.3 of the FAR contains a matrix that lists the unique identification number for each provision or clause and
the principle contract types and purposes to which it applies.
45 FAR 52.249-1.
46
FAR 53.301–.303.
47 FAR 1.102(a).
48 FAR 1.102(b); see also FAR 1.102-2(a)–(d).
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The FAR defines the acquisition team to include contracting officers and certain other agency
personnel, the taxpayer “customers they serve,” and contractors.49 “The role of each member of
the Acquisition Team is to exercise personal initiative and sound business judgment in providing
the best value product or service to meet the customer's needs.”50 Government members of the
team “must be empowered to make acquisition decisions within their areas of responsibility ...
[and] must have the authority to the maximum extent practicable and consistent with law, to
determine the application of rules, regulations, and policies, on a specific contract.”51 The
contractor is also encouraged to be prepared for performance of the contract through training,
professional development, and other measures.52
Promulgation of the FAR
The questions and answers in this section address the promulgation of the FAR, including the
origins of the FAR, the process by which the FAR is amended, the agencies that typically
promulgate regulations amending the FAR, the roles of the OFPP and the OMB in revising and
implementing the FAR, and the length of time it generally takes to amend the FAR.
How Did the FAR Originate?
Prior to the establishment of the FAR system and the initial publication of the FAR, two primary
procurement regulations existed: the Federal Procurement Regulations (FPR) and the Defense
Acquisition Regulation (DAR).53 Generally, the FPR applied to civilian agencies and the DAR
applied to the DOD and its components, although the then-Atomic Energy Commission, Central
Intelligence Agency, NASA, Tennessee Valley Authority, and Bonneville Power Administration,
among others, each had “semiautonomous procurement regulations.”54
In 1969, Congress established the Commission on Government Procurement to issue a report on
the status of the federal procurement system.55 As noted in its 1972 report, the commission found
“a burdensome mass and maze of procurement and procurement-related regulations” within the
federal government and “no effective overall system for coordinating, controlling, and
standardizing regulations.”56
The report provided an impetus for attempting to bring order to the “mass and maze” of
procurement regulations. Notably, Congress enacted the Office of Federal Procurement Policy
Act Amendments of 1979,57 which amended the Office of Federal Procurement Policy Act58 to
authorize the Administrator of the OFPP, with the concurrence of the Director of the OMB, to
“issue policy directives ... for the purpose of promoting the development and implementation of
49 FAR 1.102(c).
50 FAR 1.102(d).
51 FAR 1.102-5(a).
52 FAR 1.102-5(c).
53 The Armed Services Procurement Regulation was renamed the DAR in 1978.
54 COMM’N ON GOV’T PROCUREMENT, I REPORT OF THE COMMISSION ON GOVERNMENT PROCUREMENT, 33 (1972).
55 Office of Federal Procurement Policy Act Amendments of 1979, P.L. 96-83, 93 Stat. 684.
56
COMM’N ON GOV’T PROCUREMENT, supra note 51, at 31.
57 P.L. 96-83.
58 P.L. 93-400, 88 Stat. 796 (1974).
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the uniform procurement system.”59 Subsequently, OFPP released Policy Letter 80-5. This
document established the “Federal Acquisition Regulation System” and stated that the system
would include, among other things, “[a] single Federal Acquisition Regulation (FAR), to be
issued jointly by GSA, DOD, and the National Aeronautics and Space Administration, pursuant to
their respective authorities” under the Federal Property and Administrative Services Act, the
Armed Services Procurement Act, and the National Aeronautics and Space Act.60
The FAR was initially published on September 19, 1983, and took effect on April 1, 1984.61 It has
been amended periodically since then.62
What Is the Relationship Between the FAR and Procurement or
Other Statutes?
In addition to the FAR, there are a number of statutes that, directly or indirectly, address the
acquisition of goods and services by executive branch agencies. The primary statutes governing
federal procurement are the Armed Services Procurement Act of 194763 and the Federal Property
and Administrative Services Act of 1949,64 codified in Titles 10 and 41 of the U.S. Code. These
laws respectively govern the procurements of defense and civilian agencies. A number of other
statutes might also apply to agency procurements, including the Anti-Kickback Act;65 Brooks Act
of 1972;66 Buy American Act;67 Buy Indian Act;68 Competition in Contracting Act of 1984;69
Contract Disputes Act;70 Contract Work Hours and Safety Standards Act;71 Davis-Bacon Act;72
Defense Production Act;73 Economy Act;74 Federal Activities Inventory Reform (FAIR) Act;75
59 Id. § 6(h) (as amended by P.L. 96-83 § 4(e), 93 Stat. at 650). Additionally, the act required that “[t]he policy
directives shall be followed by executive agencies.” Id.
60 Federal Acquisition Regulation System; Other Procurement Rules and Regulations, 45 Fed. Reg. 48074, 48076 (July
17, 1980).
61 Establishing the Federal Acquisition Regulation, 48 Fed. Reg. 42102 (Sept. 19, 1983).
62 See infra “What Is the Relationship Between the FAR and Procurement or Other Statutes?”; “How Is the FAR
Amended?”; and “Who Typically Promulgates Regulations Amending the FAR?”
63 Pub. L. No. 80-413, 62 Stat. 21 (1948) (codified as amended throughout Title 10 of the U.S. Code).
64 Pub. L. No. 81-152, 63 Stat. 377 (1949) (codified as amended throughout Title 41 of the U.S. Code).
65 Act of Mar. 8, 1946, ch. 80, 60 Stat. 37 (codified as amended at 41 U.S.C. §§ 8701–08).
66 Pub. L. No. 92-582, 86 Stat. 1278 (1972) (codified as amended at 40 U.S.C. §§ 1101–04).
67 Act of Mar. 3, 1933, ch. 212, tit. III, 47 Stat. 1489, 1520 (codified as amended at 41 U.S.C. §§ 8301–05).
68 Act of June 25, 1910, ch. 431, § 23, 36 Stat. 855, 861 (codified as amended at 25 U.S.C. § 47).
69 P.L. 98-369, Title VII, §§ 2701–53, 98 Stat. 494, 1175–1203 (1984) (codified as amended in scattered sections of the
U.S. Code).
70 Contract Disputes Act of 1978, P.L. 95-563, 92 Stat. 2383 (codified as amended at 41 U.S.C. §§ 7101–09).
71 Contract Work Hours Standards Act, Pub. L. No. 87-581, 76 Stat. 357 (1962) (codified as amended at 40 U.S.C.
§§ 3701–08). The name of the act was amended to its current form in 1969. Pub. L. No. 91-54, § 2, 83 Stat. 96, 98
(1962).
72 Act of Mar. 3, 1931, ch. 411, 46 Stat. 1494 (codified as amended at 40 U.S.C. §§ 3141–48).
73 Defense Production Act of 1950, ch. 932, 64 Stat. 798 (codified as amended at 50 U.S.C. §§ 4501–68).
74 Act of Mar. 4. 1915, ch. 143, § 1, 30 Stat. 1062, 1084 (codified as amended at 31 U.S.C. §§ 1535–37).
75 Federal Activities Inventory Reform Act of 1998, P.L. 105-270, 112 Stat. 2382 (codified as amended at 31 U.S.C.
§ 501 note).
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Miller Act;76 Office of Federal Procurement Policy Act;77 Prompt Payment Act;78 Service
Contract Act;79 Small Business Act;80 Trade Agreements Act;81 Truth in Negotiations Act;82 and
Walsh-Healy Public Contracts Act.83 In addition, Congress regularly implements procurement
policy through appropriations acts and national defense authorization acts.84
The FAR implements many such statutory provisions. In some cases, other agency regulations
may also implement particular statutory provisions (e.g., the Small Business Act), and the FAR
must “conform” to the nonprocurement regulations of other agencies.85 However, there are some
procurement-related provisions in statute—especially in permanent provisions of appropriations
laws86—that are not reflected in the FAR or the agency FAR supplements discussed below.87
These include, for example, statutory grounds for debarment, authorization to enter
noncompetitive contracts related to hazardous fuels reduction activities, and certain restrictions
upon the purchase of incandescent lamps.88
On the other hand, because certain statutes grant the executive branch broad discretion to regulate
federal contracting,89 there are provisions in the FAR that do not have a direct counterpart in
federal statute. Examples include (1) the grounds for administrative debarment and suspension,
(2) the requirement that contractors disclose “credible evidence” of certain offenses to federal
officials, and (3) the procedures surrounding the government’s termination of contracts for
76 Act of Aug. 24, 1935, ch. 642, 49 Stat. 793 (codified as amended at 40 U.S.C. §§ 3131–34).
77
Office of Federal Procurement Policy Act, P.L. 93-400, 88 Stat. 796 (1974) (codified as amended at 41 U.S.C. §§
1101–02).
78 Prompt Payment Act, P.L. 97-177, 96 Stat. 85 (1982) (codified as amended at 31 U.S.C. §§ 3901–07).
79 Service Contract Act of 1965, Pub. L. No. 89-286, 79 Stat. 1034 (codified as amended at 41 U.S.C. §§ 6701–07).
80 Small Business Act of 1953, ch. 282, tit. II, 67 Stat. 230, 232 (codified as amended at 15 U.S.C. §§ 631–57u).
81 Trade Agreements Act of 1979, P.L. 96-39, 93 Stat. 144 (codified as amended at 19 U.S.C. §§ 2501–81).
82 Pub. L. No. 87-653, 76 Stat. 528 (1962) (codified as amended at 10 U.S.C. §§ 3701–08).
83 Act of June 30, 1936, ch. 881, 49 Stat. 2036 (codified as amended at 41 U.S.C. §§ 6501–11).
84 See, e.g., Consolidated Appropriations Act, 2024, P.L. 118-42, § 514, 138 Stat. 25, 169 (establishing supply chain
risk review requirements for acquisitions of certain information systems); National Defense Authorization Act of 2024,
P.L. 118-31, Div. A, tit. I, 137 Stat. 136, 164 (authorizing and limiting various procurement authorities for Department
of Defense programs).
85 See infra “What Is the Relationship Between the FAR and Other Regulations (i.e., Non-FAR Supplements)?”
86 See, e.g., District of Columbia Appropriations Act for FY2001, P.L. 106-553, app’x B, tit. I, § 119, 114 Stat. 2762A69 (2000) (“[T]he Attorney General hereafter may enter into contracts and other agreements, of any reasonable
duration, for detention or incarceration space or facilities, including related services, on any reasonable basis.”). See
also PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, supra note 21, at 2-33 to 2-39 (discussing when general provisions
of an appropriations act may be construed as permanent legislation).
87 See infra “What Is the Relationship Between the FAR and Agency FAR Supplements?”
88 See, e.g., 42 U.S.C. § 7606 (statutory debarment for certain violations of the Clean Air Act); id. § 17141 (prohibition
upon the purchase or installation of general service incandescent lamps at certain Coast Guard facilities); Consolidated
Appropriations Act, 2014, P.L. 113-76, 128 Stat. 5, 306–07 (authorizing noncompetitive contracts for hazardous fuels
reduction activities and associated training and monitoring). Provisions like the one in P.L. 113-76 have appeared in
appropriations for the Department of the Interior since 2004. See Mason C. Alinger, The Impact of Procurement
Provisions in Appropriations Acts on the Federal Acquisition System, 36 PUB. CONT. L.J. 583, 593 (2007).
89 See, e.g., 40 U.S.C. § 121(a) (authorizing the President to prescribe policies and directives that the President
“considers necessary” to promote economy and efficiency in federal procurement).
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convenience or default.90 Often the FAR provisions without direct statutory counterparts have
developed in response to executive orders,91 judicial decisions,92 or policy recommendations.93
How Is the FAR Amended?
The DOD, GSA, and NASA, acting on behalf of the FAR Council (or the Administrator of the
OFPP, as discussed below94), issue proposed and final rules amending the FAR in accordance
with the procedures primarily codified at 41 U.S.C. § 1707. These rulemaking procedures are
similar to the “notice-and-comment” procedures of the Administrative Procedure Act (APA)95 that
are the default procedures used by agencies to promulgate regulations. Section 1707 generally
requires publication in the Federal Register of a proposed rule.96 These rules may not take effect
until at least 60 days after publication unless “there are compelling circumstances for [an] earlier
effective date.” If such compelling circumstances are present, the rule may not take effect for at
least 30 days.97 Section 1707 also generally requires a minimum of 30 days for interested persons
to submit comments on the proposal.98 The agencies must consider the comments received before
90 48 C.F.R. §§ 9.400–9.409 (debarment and suspension); 48 C.F.R. §§ 3.1000–3.1004 (mandatory disclosure rule);
FAR 49.000–49.607 (termination for convenience and default).
91 See, e.g., Federal Acquisition Regulation: Sustainable Acquisition, 76 Fed. Reg. 31395 (May 31, 2011)
(implementing, in part, Executive Order 13,514, Federal Leadership in Environmental, Energy, and Economic
Performance, 74 Fed. Reg. 52117 (Oct. 8, 2009)).
92 For example, the FAR Council amended the FAR in 2014 to delete certain provisions regarding price evaluation
adjustments for small disadvantaged businesses implemented under the authority of a statute that the U.S. Court of
Appeals for the Federal Circuit found was unconstitutional on its face in its 2008 decision in Rothe Development
Corporation v. Department of Defense, 545 F.3d 1023 (Fed. Cir. 2008). See Federal Acquisition Regulation; Federal
Contracting Programs for Minority-Owned and Other Small Businesses: Final Regulation, 79 Fed. Reg. 61746 (Oct.
14, 2014) (codified at 48 C.F.R. pts. 1, 2, 4, 12, 14, 15, 19, 22, 26, 36, 52, 53).
93 For example, the FAR Council amended the FAR in 2008 to require certain federal contractors and subcontractors to
make “timely disclosure” to agency inspectors general and contracting officers whenever they have “credible evidence”
that a violation of the civil False Claims Act or certain federal criminal laws has occurred in connection with the award,
performance, or closeout of a federal contract. See Federal Acquisition Regulation; FAR Case 2007-006, Contractor
Business Ethics Compliance Program and Disclosure Requirements: Final Rule, 73 Fed. Reg. 67064, 67065 (Nov. 12,
2008). This amendment was generally prompted by certain recommendations made by the Department of Justice,
although Congress did enact legislation requiring that contracts (1) for commercial items or (2) performed overseas be
subject to any disclosure rule promulgated by the FAR Council. See Supplemental Appropriations Act, 2008, P.L. 110252, § 6102, 122 Stat. 2386.
94 See infra “Who Typically Promulgates Regulations Amending the FAR?”
95 5 U.S.C. § 553. The rulemaking procedures of the APA do not apply to “a matter relating to ... public property, loans,
grants, benefits, or contracts.” Id. at 553(a); see also Bayaud Enters., Inc. v. U.S. Dep’t of Veterans Affs., 440 F. Supp.
3d 1230, 1238 (D. Colo. 2020) (discussing the applicability of 41 U.S.C. § 1707, rather than the APA’s notice-andcomment rulemaking procedures, to an agency action involving federal procurement contracts). The judicial review
provisions of the APA (5 U.S.C. §§ 701-706), however, do apply to claims alleging that a FAR rulemaking did not
comply with applicable rulemaking procedures. Alphapointe v. Dept. of Veterans Affs., 416 F. Supp. 3d 1, 7 (D.D.C.
2019); Southfork Sys., Inc. v. United States, 141 F.3d 1124, 1135 (Fed. Cir. 1998) (“As far as Counts I–III are
concerned, Southfork’s real complaint was that the Department of Education and DOD had acted arbitrarily in
promulgating the regulations that the Air Force followed in conducting the Lackland procurement. If a bidder wishes to
challenge the validity of a regulation governing a procurement, the proper method of doing so is to bring an action in
federal district court under the Administrative Procedure Act, 5 U.S.C. § 702.”). For more information on judicial
review under the APA, see CRS Legal Sidebar LSB10558, Judicial Review Under the Administrative Procedure Act
(APA), by Jonathan M. Gaffney (2024).
96 41 U.S.C. § 1707(a), (b). Under § 1707(a), publication of a proposed rule is required “if it relates to the expenditure
of appropriated funds and has a significant effect beyond the internal operating procedures of the agency issuing the
policy, regulation, procedure, or form; or has a significant cost or administrative impact on contractors or offerors.”
97 Id. § 1707(a).
98 Id.
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issuing a final rule.99 The notice-and-comment requirements of Section 1707(a) and (b) can be
waived “if urgent and compelling circumstances make compliance with the requirements
impracticable.”100 Rules issued under this waiver authority may only be “effective on a temporary
basis” but may be finalized after being published in the Federal Register and after a 30-day
comment period.101
Additionally, FAR amendments are subject to the procedural requirements of various generally
applicable administrative procedure laws and executive orders, such as the Regulatory Flexibility
Act,102 the Paperwork Reduction Act,103 and Executive Order 12,866.104
Who Typically Promulgates Regulations Amending the FAR?
Typically the DOD, GSA, and NASA jointly issue the Federal Register notices proposing or
announcing amendments to the FAR.105 These three agencies issue the Federal Register notices in
accordance with federal statutes and regulations that task the heads of these agencies with “jointly
issu[ing] and maintain[ing] ... a single Government-wide procurement regulation, to be known as
the Federal Acquisition Regulation.”106 The amendments proposed and announced by DOD,
GSA, and NASA are developed through and with the concurrence of the FAR Council. This
council—which consists of the Administrator of OFPP, the Secretary of Defense, the
Administrator of National Aeronautics and Space (NASA Administrator), and the Administrator
of General Services (GSA Administrator), or their designees107—is also tasked by statute with
certain responsibilities as to the FAR. Specifically, the council is to “assist in the direction and
coordination of Government-wide procurement policy and Government-wide procurement
regulatory activities in the Federal Government,”108 as well as to “manage, coordinate, control,
and monitor the maintenance of, issuance of, and changes in, the Federal Acquisition
Regulation.”109
99 Id. § 1707(b).
100 Id. § 1707(d).
101 Id. § 1707(e).
102 5 U.S.C. §§ 601–612.
103 44 U.S.C. §§ 3501–3521.
104 Regulatory Planning and Review, 58 Fed. Reg. 51735 (Oct. 4, 1993).
105 See, e.g., Federal Acquisition Regulation: United States-Korea Free Trade Agreement, 77 Fed. Reg. 56739 (Sept.
13, 2012) (amending parts 4, 25, and 52 of the FAR in response to the United States-Korea Free Trade Agreement).
106 41 U.S.C. § 1303(a)(1) (“Subject to sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title,
the Administrator of General Services, the Secretary of Defense, and the Administrator of National Aeronautics and
Space, pursuant to their respective authorities under division C of this subtitle, chapters 4 of title 10, chapter 137 of title
10 legacy provisions ... , and the National Aeronautics and Space Act of 1958 ... , shall jointly issue and maintain in
accordance with subsection (d) a single Government-wide procurement regulation, to be known as the [FAR].”). See
also Federal Acquisition Regulation System; Other Procurement Rules and Regulations, 45 Fed. Reg. 48076 (July 17,
1980).
107 See infra “What Roles Do OFPP and OMB Play in Revising and Implementing the FAR?”; 41 U.S.C. § 1302(b)(1)–
(2).
108 Id. § 1302(a).
109 Id. § 1303(d). In addition, a number of statutes have specifically tasked the FAR Council with implementing
particular amendments to the FAR. See, e.g., Sudan Accountability and Divestment Act, P.L. 110-174, § 6(d), 121 Stat.
2521 (2007) (“Not later than 120 days after the date of the enactment of this Act, the Federal Acquisition Regulatory
Council shall amend the Federal Acquisition Regulation ... to provide for the implementation of the requirements of
this section.”); Energy Independence and Security Act, P.L. 110-140, § 433(c), 121 Stat. 1614 (2007) (“Not later than 2
years after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to require Federal
(continued...)
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In practice, the FAR Council operates by referring potential changes to the FAR to one or more
standing “FAR teams,” each of which is responsible for maintaining specific parts of the FAR.110
The FAR Council establishes each team with representatives from military and civilian agencies
and OFPP advisory representatives.111 The Civilian Agency Acquisition Council (CAA Council)
and the DAR Council (DAR Council) oversee the FAR teams. The FAR teams coordinate their
activities to ensure agreement and cooperation between civilian and defense acquisition
personnel.112 The relevant FAR team drafts and submits potential FAR amendments to the CAA
Council and the DAR Councils for review.113 After the councils have reviewed a potential FAR
amendment, they submit it to OFPP and OIRA for additional review.114 After these reviews, FAR
signatories within GSA, DOD, and NASA conduct a final approval of the amendments and then
submit the proposed, interim final, or final rules for publication in the Federal Register.115
The Administrator of OFPP is also authorized to amend the FAR on his or her own if he or she
determines that GSA, DOD, and NASA “are unable to agree on or fail to issue Government-wide
regulations.”116 In practice, the Administrator of OFPP appears to have seldom exercised this
authority after the initial promulgation of the FAR. However, the Administrator has periodically
issued policy letters and notices pertaining to federal procurement, as discussed below.117
Congress has regularly passed legislation requiring or prompting FAR amendments.118
officers and employees to comply with this section and the amendments made by this section in the acquisition,
construction, or major renovation of any facility. The members of the Federal Acquisition Regulatory Council ... shall
consult with the Federal Director and the Commercial Director before promulgating regulations to carry out this
subsection.”).
110
For additional information on the structure and responsibilities of the FAR Teams, see the Defense Pricing and
Contracting, FAR Operating Guide (2015), https://www.acq.osd.mil/dpap/dars/docs/far_dfars_guide/
FAR_Operating_Guide_July_2015.pdf.
111 FAR 1-201-1. See also Memorandum from Robert A. Burton, Assoc. Adm’r of OFPP, to Fed. Acquisition Council
Senior Agency Procurement Execs. (Mar. 11, 2004), https://apps.dtic.mil/sti/tr/pdf/ADA439360.pdf#page=109; see
also Close the Contractor Fraud Loophole Act Hearing and Real Property Disposal Enhancement Act: Hearing on
H.R. 5712 and H.R. 5787 Before the Subcomm. on Gov’t. Mgmt. Org. & Procurement of the H. Comm. on Oversight &
Gov. Reform, 110th Cong. 34−36 (2008) (statement of David Drabkin, Acting Chief Acquisition Officer and Senior
Procurement Exec., Gen.l Svcs. Admin.).
112 The CAA Council and the DAR Council are made up of senior procurement officials, and the two Councils assist in
the development of changes to the FAR. Subpart 1.2 of the FAR states that “revisions to the FAR will be prepared and
issued through the coordinated action of two councils, the DAR Council (DAR Council) and the [Civilian Agency
CAA Council].” FAR 1.201-1(a).
113 FAR Operating Guide § II.A. (June 2015).
114 Id. § I.C.
115 Id. § I.B.
116 41 U.S.C. § 1121(d). As is discussed in greater detail below (see infra “What Roles Do OFPP and OMB Play in
Revising and Implementing the FAR?”), the Administrator of OFPP may also, with the concurrence of the Director of
OMB, deny the promulgation of or rescind any government-wide regulation, or final rule or regulation of an executive
agency relating to procurement, if the Administrator determines that the rule or regulation is inconsistent with any
policies, regulations, or procedures of the FAR. 41 U.S.C. § 1121(e).
117 See infra “Does the FAR Include All the Government’s Procurement Policies?”; see, e.g., OFPP Policy Letter 1101, Performance of Inherently Governmental and Critical Functions, 76 Fed. Reg. 56227 (Sept. 12, 2011). OFPP
periodically promulgates regulations amending the CAS in Title 48, Part 99 of the Code of Federal Regulations. See,
e.g., CAS: Elimination of the Exemption from CAS for Contracts and Subcontracts Executed and Performed Entirely
Outside the United States, Its Territories, and Possessions, 76 Fed. Reg. 49365 (Aug. 10, 2011) (to be codified at 48
C.F.R. pt. 9903). However, Part 99is not part of the FAR (see supra “What Is the FAR?”).
118 See infra “What Can Congress Do to Prompt Amendment of the FAR?”
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What Roles Do OFPP and OMB Play in Revising and
Implementing the FAR?
The OFPP provides overall direction for the government-wide procurement policies, regulations,
procedures, and forms for executive agency acquisitions that are covered by the FAR.119 The
Administrator for Federal Procurement Policy is responsible for directing the development of the
procurement policies that are implemented, in part, through the FAR. The Administrator also
establishes procedures to ensure that executive agencies are complying with the FAR.
The Administrator serves as the chair of the FAR Council, which “assist[s] in the direction and
coordination of Government-wide procurement policy and Government-wide procurement
regulatory activities.”120 The Secretary of Defense, NASA Administrator, and GSA Administrator
are the other members of the FAR Council. As discussed in the previous section, these three
agency heads are primarily responsible for implementing the FAR, in consultation with the FAR
Council. In the event that these three agency heads are unable to reach agreement regarding
revisions to the FAR, the Administrator of OFPP has the authority to prescribe certain revisions
without their concurrence, as discussed above.121
OMB provides oversight and review of proposed changes and amendments to the FAR.122 These
responsibilities are largely carried out by OMB’s Office of Information and Regulatory Affairs
(OIRA).123 Rules amending the FAR are subject to the same rulemaking requirements applicable
to executive agencies, which typically include review by OIRA.124 Both OFPP and OIRA review
proposed changes to the FAR to ensure that they are consistent with the law and Administration
policies.125
The OFPP Administrator, in concurrence with the OMB Director, may also rescind any
procurement-related government-wide regulation issued by any executive agency upon
determining that it is inconsistent with federal procurement policies, procedures, or rules.126
How Long Does It Take to Amend the FAR?
The full process of amending the FAR can take anywhere from months to years (and, in some
cases, proposed changes are never finalized).127 The timeline for finalizing FAR amendments
varies based on factors such as how the regulation is promulgated, the complexity of the proposed
rule, and the number of comments received about a proposed rule. Although some amendments
required by statute are subject to statutory deadlines, a FAR amendment could potentially take
119 41 U.S.C. § 1121. The OFPP was established as part of the OMB in 1974 by the Office of Federal Procurement
Policy Act, P.L. 93-400, 88 Stat. 796 (1974).
120 41 U.S.C. § 1303(d). The FAR Council was established by the Office of Federal Procurement Policy Act
Amendments of 1988 P.L. 100-679, 102 Stat. 4055.
121 41 U.S.C. § 1121(d); see supra “Who Typically Promulgates Regulations Amending the FAR?”
122 See generally Exec. Order 14094, 88 Fed. Reg. 21879 (Apr. 6, 2023).
123 Id.
124 Id.
125 Id.
126 41 U.S.C. § 1121(e).
127 See, e.g., Deborah Billings, USDA Drops Plan to Fast-Track Rule on Contractor Labor Law Compliance, 97 FED.
CONT. REP. 85 (Jan. 31, 2012) (reporting that the Department of Agriculture had withdrawn a rule, originally scheduled
to take effect on Feb. 28, 2012, that would have required contractors to certify their compliance with labor laws).
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longer than those prescribed deadlines.128 However, rules generally have the force of law even if
they are enacted after any statutory deadline for their promulgation.129 In cases of extreme delay,
the APA authorizes lawsuits seeking court orders to compel agency action.130 Congressional
prerogatives on how quickly an agency should promulgate regulations are only one factor in
determining whether an unreasonable delay warrants judicially compelled agency action.131 Other
factors include (1) whether a danger to human health is implicated by the delay; (2) the agency’s
competing priorities; (3) the interests prejudiced by the delay; and (4) whether the agency has
treated the present party disparately from others.132
Relationship Between the FAR and Other
Authorities Governing Procurement
This section addresses the relationship between the FAR and other authorities governing federal
procurement, including statutes, agency FAR supplements, other regulations, and executive
branch policies and guidance.
What Is the Relationship Between the FAR and Agency FAR
Supplements?
The FAR expressly authorizes agency heads to issue agency-specific procurement regulations that
implement or supplement the FAR.133 These agency-specific regulations are codified in separate
chapters of Title 48 of the Code of Federal Regulations, immediately following the FAR.134 One
example is the DOD’s DFARS, which is found in Chapter 2 of Title 48.
128 See infra “How Is the FAR Amended?”; see, e.g., Small Business Jobs Act, P.L. 111-240, § 1334, 124 Stat. 2542–
43 (2010) (to be codified at 15 U.S.C. § 657q) (requiring that the FAR be amended, “[n]ot later than 1 year after the
date of enactment,” to address certain matters pertaining to prime contractors’ payment of small business
subcontractors). The Small Business Administration promulgated regulations implementing this provision of the Small
Business Jobs Act in 2013. See Small Business Admin., Small Business Subcontracting: Final Rule, 78 Fed. Reg.
42390 (July 16, 2013) (codified, in part, at 13 C.F.R. § 125.3(c)(5)). However, amendments to the FAR implementing
these provisions of the Small Business Jobs Act were not proposed until July 2015. See Federal Acquisition Regulation:
Small Business Subcontracting Improvements, 80 Fed. Reg. 32909 (June 10, 2015) (to be codified at 48 C.F.R. pts. 1,
2, 15, 19, 52).
129 See, e.g., Barnhart v. Peabody Coal, 537 U.S. 149, 158–59 (2002) (“[I]f a statute does not specify a consequence for
noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own
coercive sanction” (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 63 (1993)); PM Farms, Inc. v.
Young, 233 F. Supp. 3d 706, 720 (S.D. Iowa 2017) (collecting cases in which in which “a deadline seeks speed by
creating a time-related directive that is legally enforceable but does not deprive a judge or other public official of the
power to take the action to which the deadline applies if the deadline is missed”). Courts have applied this principle in
the acquisitions context as well. See, e.g., Women’s Chamber of Com. v. Small Bus. Admin., No. 04-CV-01889, 2005
WL 3244182, at *18 (D.D.C., Nov. 30, 2005) (finding that the Small Business Administration’s [SBA’s] delay in
implementing the statute authorizing set-asides for women-owned small businesses was unreasonable, but declining to
grant injunctive relief, in part, because the SBA had “re-drafted proposed regulations and [is] actively searching for
proposals to conduct [the statutorily required] study”).
130 5 U.S.C. § 706(1).
131 See, e.g., Telecomm. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).
132
Id.
133 FAR 1.301(a)(1).
134 Id.
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Agency FAR supplements generally do not differ significantly from the FAR except where a
statute imposes or authorizes unique procurement procedures for an agency.135 Agency FAR
supplements may not conflict with the FAR, except as authorized by law.136
The FAR contains requirements that agencies must follow when promulgating agency-specific
regulations. They include providing notice and comment in the Federal Register when required
(e.g., if the regulations have a significant cost or administrative impact on contractors or
offerors).137 Additionally, agencies must comply with other federal laws, such as the Paperwork
Reduction Act and Regulatory Flexibility Act.138
Agency FAR Supplements Located in Title 48 of the Code of Federal Regulations
(Not all chapter numbers are currently in use)
Chapter 2—Department of Defense Federal Acquisition Regulation Supplement (DFARS)
Chapter 3—Department of Health and Human Services Acquisition Regulation (HHSAR)
Chapter 4—Department of Agriculture Acquisition Regulation (AGAR)
Chapter 5—General Services Administration Acquisition Regulation (GSAR)
Chapter 6—Department of State Acquisition Regulation (DOSAR)
Chapter 7—U.S. Agency for International Development Acquisition Regulation (AIDAR)
Chapter 8—Department of Veterans Affairs Acquisition Regulation (VAAR)
Chapter 9—Department of Energy Acquisition Regulation (DEAR)
Chapter 10—Department of the Treasury Acquisition Regulation (DTAR)
Chapter 12—Department of Transportation Acquisition Regulation (TAR)
Chapter 13—Department of Commerce Acquisition Regulation (CAR)
Chapter 14—Department of the Interior Acquisition Regulation (DIAR)
Chapter 15—Environmental Protection Agency Acquisition Regulation (EPAAR)
Chapter 16—Office of Personnel Management Federal Employees Health Benefits Acquisition Regulation
(FEHBAR)
Chapter 17—Office of Personnel Management
Chapter 18—National Aeronautics and Space Administration Federal Acquisition Regulations Supplement (NFS)
Chapter 19—Broadcasting Board of Governors
Chapter 20—Nuclear Regulatory Commission Acquisition Regulation (NRCAR)
Chapter 21—Office of Personnel Management Federal Employees’ Group Life Insurance Federal Acquisition
Regulation
Chapter 23—Social Security Acquisition Regulation (SSAR)
Chapter 24—Department of Housing and Urban Development Acquisition Regulation (HUDAR)
Chapter 25—National Science Foundation
Chapter 28—Department of Justice Acquisition Regulation (JAR)
135 FAR 1.302; see also 41 U.S.C. § 1303(a)(2) (providing that procurement regulations other than the FAR must be
limited to those “essential to implement Government-wide policies and procedures within the agency” and “additional
policies and procedures required to satisfy the specific and unique needs of the agency”).
136 See infra “May Agencies Deviate from the FAR?”; FAR 1.304(b)(2); see, e.g., Desciose v. Delbalzo, No. CV-9301901, 1998 WL 764453 at *1 (9th Cir. Oct. 29, 1998) (explaining that, if the GSA regulation in question were to
conflict with the FAR, then the FAR would control).
137 FAR 1.301(b); see also Davies Precision Machining, Inc. v. United States, 35 Fed. Cl. 651, 657 (1996) (“The FAR
and DFARS are issued under statutory authority and published in conformance with required statutory and regulatory
procedures. FAR § 1.301(b). Accordingly, those regulations have the force and effect of law.”).
138 FAR 1.301(b). The Paperwork Reduction Act is codified at 44 U.S.C. §§ 3501–21, and the Regulatory Flexibility
Act is codified at 5 U.S.C. §§ 601–12.
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Chapter 29—Department of Labor Acquisition Regulation (DOLAR)
Chapter 30—Department of Homeland Security Acquisition Regulation (HSAR)
Chapter 34—Department of Education Acquisition Regulation (EDAR)
Chapter 51—Department of the Army Acquisition Regulations (reserved)
Chapter 52—Department of the Navy Acquisition Regulations
Chapter 53—Department of the Air Force Federal Acquisition Regulation Supplement (reserved)
Chapter 54—Defense Logistics Agency
Chapter 57—African Development Foundation
What Is the Relationship Between the FAR and Other Regulations
(i.e., Non-FAR Supplements)?
Although the FAR and agency FAR supplements (discussed above)139 are intended to guide
executive agencies in acquiring goods and services, they may not be the only regulations to
address particular procurement-related topics. For example, regulations promulgated by the
Department of Energy apply to the award and administration of energy savings performance
contracts by federal agencies.140 These long-term contracts—which provide for the contractor to
incur the costs of implementing energy savings measures in exchange for a share of any energy
savings directly resulting from the measures—are also discussed in certain agency FAR
supplements.141 The Department of Energy regulations expressly provide that they are
“controlling with regard to energy savings performance contracts notwithstanding any conflicting
provisions of the Federal Acquisition Regulation and related Federal agency regulations.”142
Other agency regulations directly or indirectly pertaining to federal procurement include
regulations governing contracting with small businesses;143 governing contracting with Federal
Prison Industries/UNICOR;144 implementing labor laws under the Davis-Bacon and Service
Contract Acts, among others;145 governing contracting with AbilityOne, which employs the blind
and severely disabled;146 and imposing contractors’ antidiscrimination and affirmative action
obligations.147
Depending upon the requirements of the specific underlying statute, including the identity of the
officer or agency charged with implementing the statute, FAR provisions may need to conform to
139 See supra “What Is the Relationship Between the FAR and Agency FAR Supplements?”
140 10 C.F.R. § 436.30.
141 48 C.F.R. §§ 225.7017-1, 225.7017-4 (DOD).
142 10 C.F.R. § 436.30(a).
143 Codified in various sections throughout Title 13 of the Code of Federal Regulations.
144 Codified in various sections throughout Title 28 of the Code of Federal Regulations.
145
Codified in various sections throughout Title 29 of the Code of Federal Regulations.
146 41 C.F.R. §§ 51-1–51-99.
147 Codified in various sections throughout Title 41 of the Code of Federal Regulations.
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another agency’s regulations.148 In other cases, the FAR and another agency might issue
regulations with each other’s concurrence.149
Does the FAR Include All the Government’s Procurement Policies?
Various procurement policies, requirements, and guidance are issued by the OFPP or the OMB as
circulars, guides, memoranda, and policy letters.150 Some of these documents supplement material
found in the FAR, while others cover subjects or issues not found in the FAR. For example,
Policy Letter 11-01, “Performance of Inherently Governmental and Critical Functions,” builds on
FAR Subpart 7.5, which lists examples of functions that are inherently governmental or that “may
approach being in that category because of the nature of the function, the manner in which the
contractor performs the contract, or the manner in which the Government administers contractor
performance.”151 Policy Letter 11-01 provides specific guidance regarding how agencies are to
manage the performance of functions delineated in FAR Subpart 7.5.152 Various OFPP
memoranda address other procurement topics that are not expressly addressed in the FAR.
Examples include FAIR Act inventories, service contract inventories, and the quality of federal
procurement data.153
The FAR and Congress
This section includes questions and answers that address what Congress can do to prompt
amendment of the FAR and what Congress can do if it disapproves of a potential amendment to
the FAR.
148 See, e.g., 15 U.S.C. § 634(b)(6) (authorizing the Administrator of Small Business to “make such rules and
regulations as he deems necessary to carry out the authority vested in him by or pursuant to this chapter,” which,
among other things, limits agencies’ ability to “bundle” or “consolidate” requirements into contracts that are unsuitable
for award to small businesses); Task and Delivery Order Contracts, Bundling, Consolidation: Notice of Proposed
Rulemaking, 77 Fed. Reg. 29130 (May 16, 2012) (codified at 13 C.F.R. pts. 121, 124, 125, 126, 127) (“This proposed
rule [regarding contract bundling] may conflict with current FAR and General Services Administration regulations. As
a result, those regulations will need to be amended once this rule is issued as final.”).
149 See, e.g., 42 U.S.C. § 8287(b)(1)(A) (“The Secretary [of Energy], with the concurrence of the [FAR Council] ...
shall, by rule, establish appropriate procedures and methods for use by Federal agencies to select, monitor, and
terminate contracts with energy service contractors in accordance with laws governing Federal procurement that will
achieve the intent of this section in a cost-effective manner.”).
150 For links to procurement-related circulars, guides, memoranda, policy letters, and other documents, see the “Policy
Information” section of the OFPP’s website. Office of Federal Procurement Policy, THE WHITE HOUSE,
https://www.whitehouse.gov/omb/management/office-federal-procurement-policy (last visited Sept. 20, 2024).
151 FAR 7.503(d).
152 See Publication of the Office of Federal Procurement Policy (OFPP) Policy Letter 11-01, Performance of Inherently
Governmental and Critical Functions, 76 Fed. Reg. 56227 (Sept. 12, 2011).
153 Memorandum from Lesley A. Field, Acting Adm’r, Off. of Fed. Procurement Pol’y, to Heads of Exec. Dep’ts &
Agencies (Mar. 26, 2012), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/
memoranda/2012/m-12-09_0.pdf; Letter from Leslie A. Field, Acting Adm’r, Off. of Fed. Procurement Pol’y, to Jason
Chaffetz, Chairman of the H. Comm. on Oversight & Gov’t Reform (Jan. 17, 2017), https://www.whitehouse.gov/wpcontent/uploads/legacy_drupal_files/omb/memoranda/2017/service_contract_inventories.pdf; Memorandum from
Daniel I. Gordon, Adm’r, Off. of Fed. Procurement Pol’y, to Chief Acquisition Officers, Senior Procurement Execs &
Small Agency Council Members (May 31, 2011), https://www.whitehouse.gov/wp-content/uploads/
legacy_drupal_files/omb/procurement/memo/improving-data-quality-guidance-for-annual-verification-and-validationmay-2011.pdf.
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What Can Congress Do to Prompt Amendment of the FAR?
Congress regularly prompts the executive branch to amend the FAR. In some cases, Congress
effectively prompts amendment of the FAR by enacting or amending a law that is implemented,
at least in part, through the FAR.154 Congress can explicitly direct that the FAR be amended155
through legislation and may also direct the FAR Council to finalize an amendment by a certain
time (although not all FAR amendments required by Congress are made within the prescribed
time frame).156
As discussed above,157 the FAR Council and OFPP have general statutory authority to amend the
FAR. In some cases, the FAR Council initiates some FAR amendments in response to policy
concerns or litigation.158 In other cases, the FAR Council amends the FAR in response to an
executive order directing the amendment of the FAR or otherwise addressing procurement
matters.159 Members of Congress and congressional committees could, through letters or other
means short of new legislation, encourage the FAR Council or OFPP to amend the FAR pursuant
to their general rulemaking authority.160
What Can Congress Do If It Disapproves of a Potential
Amendment to the FAR?
In certain circumstances, Congress may have concerns about a proposed or final amendment to
the FAR, particularly one which may have resulted from executive branch action without express
statutory authorization. Members of Congress may make such concerns known to the executive
branch informally (e.g., via letters), through comments submitted as part of the proposed
rulemaking, or through the exercise of oversight. Congress may also enact legislation that
effectively or expressly rescinds amendments to the FAR. For example, Congress could enact
legislation containing requirements that are inconsistent with certain potential amendments to the
FAR. This happened, for example, in 2008, when Congress required that contracts for commercial
items or services that are performed overseas be subject to any “mandatory disclosure rule”
154 See, e.g., Small Business Jobs Act of 2010, P.L. 111-240, § 1313, 124 Stat. 2538–39 (imposing certain limitations
upon agencies’ consolidation of requirements into contracts unsuitable for award to small business, but not directly
calling for the promulgation of regulations on consolidation). The SBA amended its regulations to address the Small
Business Jobs Act’s restrictions on consolidation in October 2013. Acquisition Process: Task and Delivery Order
Contracts, Bundling, Consolidation, 78 Fed. Reg. 61114 (Oct. 2, 2013) (codified at 13 C.F.R. pts. 121, 124, 125, 126,
127). Subsequently, in July 2015, DOD, GSA, and NASA proposed amendments to the FAR addressing bundling and
consolidation. See Federal Acquisition Regulation; Consolidation and Bundling of Contract Requirements: Proposed
Rule, 80 Fed. Reg. 31561 (June 30, 2015) (to be codified at 48 C.F.R. pts. 2, 5, 7, 8, 10, 12, 15, 16, 19, 52).
155 See, e.g., Small Business Jobs Act of 2010, P.L. 111-240, § 1334, 124 Stat. 2542–43 (“Not later than 1 year after
September 27, 2010, the Federal Acquisition Regulatory Council established under section 1302(a) of title 41 shall
amend the Federal Acquisition Regulation issued under section 1303(a) of title 41 to (i) describe the circumstances
under which a contractor may be determined to have a history of unjustified, untimely payments to subcontractors; (ii)
establish a process for contracting officers to record the identity of a contractor described in clause (i); and (iii) require
the identity of a contractor described in clause (i) to be incorporated in, and made publicly available through, the
Federal Awardee Performance and Integrity Information System, or any successor thereto.”).
156 See supra “How Long Does It Take to Amend the FAR?”
157 See supra “Who Typically Promulgates Regulations Amending the FAR?”
158 See supra notes 92–93.
159 See supra note 91.
160 For example, absent a statute expressly authorizing such awards, the FAR Council would arguably lack the authority
to amend the FAR to allow agencies to make sole-source awards to “local firms,” because such awards would not fall
within one of the statutory exceptions to the general requirement that agencies select contracts through full and open
competition. See 41 U.S.C. §§ 3301, 3304.
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promulgated by the FAR Council (in contrast to the rule in place at the time that excluded
contracts performed entirely outside the United States).161 Congress could also enact legislation
that bars agencies from imposing certain requirements on contractors or from using appropriated
funds to implement specific rules, regulations, or executive orders pertaining to contract-related
matters.162
In addition, the Congressional Review Act163 provides Congress with expedited procedures to
overturn final rules, including rules amending the FAR, through the enactment of joint resolutions
of disapproval within 60 congressional session days from the day the rule is received by
Congress. If passed by Congress and signed into law by the President, a joint resolution of
disapproval results in the rule having no “force or effect” and bars the agency from implementing
a substantially similar rule.164
The FAR and Federal Contracts
This section includes questions and answers addressing the relationship between the FAR and a
federal contract, whether FAR amendments apply to preexisting contracts, and what happens if a
contract clause required by the FAR is not included in a particular contract.
What Is the Relationship Between the FAR and a Federal Contract?
The FAR applies only to federal agencies, while a contract applies to both the agency and the
contractor. Thus, the terms in the contract, not provisions of the FAR, bind the contractor. That
said, terms or clauses required by the FAR that are missing from a given contract may be read
into the contract in certain circumstances.165
Although the FAR and a contract both legally bind the government, they do so in different ways.
Courts and tribunals often deploy different rules and devices when interpreting the ambiguous
terms of procurement contracts, on the one hand, and federal procurement statutes and
regulations, on the other. For example, while courts and other tribunals generally prioritize the
161 Close the Contractor Fraud Loophole Act, 2008, P.L. 110-252 § 6102, 122 Stat. 2386 (2008) (“The Federal
Acquisition Regulation shall be amended within 180 days after the date of the enactment of this Act pursuant to FAR
Case 2007-006 (as published at 72 Fed. Reg. 64019, November 14, 2007) or any follow-on FAR case to include
provisions that require timely notification by Federal contractors of violations of Federal criminal law or overpayments
in connection with the award or performance of covered contracts or subcontracts, including those performed outside
the United States and those for commercial items.”).
162 See, e.g., National Defense Authorization Act for FY2012, P.L. 112-81, § 823, 125 Stat. 1502, 1502–03 (2011)
(“The head of an agency may not require a contractor to submit political information related to the contractor or a
subcontractor at any tier, or any partner, officer, director, or employee of the contractor or subcontractor (1) as part of a
solicitation, request for bid, request for proposal, or any other form of communication designed to solicit offers in
connection with the award of a contract for procurement of property or services; or (2) during the course of contract
performance as part of the process associated with modifying a contract or exercising a contract option.”); Consolidated
Appropriations Act, 2012, P.L. 112-74, Div. C, tit. VII § 743, 125 Stat. 939 (2011) (“None of the funds made available
in this or any other Act may be used to recommend or require any entity submitting an offer for a Federal contract to
disclose [certain political spending] as a condition of submitting the offer.”). Congress has included similar language in
more recent appropriations measures. See Further Consolidated Appropriations Act, 2024, P.L. 118-47, Div. B, tit. VII
§ 735 (2024).
163 5 U.S.C. §§ 801–08.
164 Id. § 802(a). For more information on the CRA, see CRS Report R43992, The Congressional Review Act (CRA):
Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis (2021).
165 See infra “What Happens If Required Contract Clauses Are Not Included in a Particular Contract?”
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plain meaning of a statute or regulation over the drafters’ intent,166 the intent of the parties to a
contract can prevail over its plain text in certain cases, such as when other provisions of the
contract evidence that the contract’s language on a particular issue does not reflect their
intentions.167
While the FAR contains many standard contract terms and clauses, the details and specifics of a
particular contract are often left to the procurement personnel of the relevant agency. For this
reason, the drafting process that occurs for each contract can be highly important, as exemplified,
for instance, through the application of economic price adjustments under the FAR and the
contract. An economic price adjustment provides for the upward or downward revision of prices
in a contract if certain conditions occur.168 The FAR provides that there are three general types of
economic price adjustments: (1) those based on established prices; (2) those based on actual costs
of labor or material; and (3) those based on cost indexes of labor or material.169 When including
economic price adjustment in a contract, agency procurement personnel draft the contract to
include contract-specific details, such as identifying the events that will trigger the price
adjustments, incorporating applicable price indexes or established prices, and establishing price
floors and caps.
Do Amendments to the FAR Apply to Preexisting Contracts?
Amendments to the FAR and procurement-related statutes generally apply only to contracts
entered into on or after the date on which the amendment goes into effect, not to preexisting
contracts (i.e., contracts entered into before an amendment).170 This rule is intended to shield the
government from liability stemming from unilaterally amending the terms of an existing contract
to effectuate a regulatory change.171 Moreover, when a change to the FAR is prompted by a
statute, this rule also reflects the fundamental canon of statutory interpretation that laws will not
be given retroactive effect unless there is clear congressional intent to the contrary.172 Thus, if
166 See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (reciting the “plain meaning rule,” which provides that
if the language of a statute is clear, there is no need to look outside the statute to ascertain its meaning); Caminetti v.
United States, 242 U.S. 470, 485 (1917) (holding that “the meaning of the statute must, in first instance, be sought in
the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according
to its terms”) (citations omitted).
167 See Alvin, Ltd. v. USPS, 816 F.2d 1562, 1565 (Fed. Cir. 1987) (“In the case of contracts, the avowed purpose and
primary function of the court is the ascertainment of the intent of the parties” (quoting 4 SAMUEL WILLISTON &
WALTER H. E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS § 601 (3d ed. 1961))); Firestone Tire & Rubber Co. v.
United States, 444 F.2d 547, 551 (Ct. Cl. 1971) (“It has been a fundamental precept of common law that the intention
of the parties to a contract control its interpretation.”). But see infra “What Happens If Required Contract Clauses Are
Not Included in a Particular Contract?”
168 FAR 16.203-1.
169 FAR 16.203-1(a)(1)–(3).
170 FAR 1.108(d) (“Unless otherwise specified— (1) FAR changes apply to solicitations issued on or after the effective
date of the change; (2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued
before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and (3)
Contracting officers may, at their discretion, include the changes in any existing contract with appropriate
consideration.”).
171 Id. However, certain government contracts include a “Changes” clause, which authorizes the government to make
certain types of unilateral modifications within the scope of the contract. FAR 52.243-4.
172 See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“[A]bsent a clear direction by Congress to the
contrary, a law takes effect on the date of its enactment.... ”); Miller v. Florida, 482 U.S. 423, 430 (1987) (“A law is
retrospective if it ‘changes the legal consequences of acts completed before its effective date.’” (quoting Weaver v.
Graham, 450, U.S. 24, 31 (1981), abrogated by Peugh v. United States, 569 U.S. 530 (2013))); Sturges v. Carter, 114
U.S. 511, 519 (1885) (A retroactive statute is one that “‘takes away or impairs vested rights acquired under existing
(continued...)
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Congress wants to apply a newly enacted statute to alter the obligations under preexisting
contracts, it should do so clearly and unambiguously, with the understanding that any such
retrospective changes could necessitate the government to provide financial compensation to
affected contractors.173
What Happens If Required Contract Clauses Are Not Included in a
Particular Contract?
Because the standard contract clauses are designed, in part, to protect the government’s interests
in the performance of the contract, the FAR generally requires that some variant of these clauses
be either included or incorporated by reference in agency contracts.174 However, agencies have
sometimes awarded contracts that lack a required clause,175 prompting questions about whether
the requirements governed by that clause apply.
In certain circumstances, courts and boards of contract appeals have read required clauses into
contracts that lack them, treating the clause as a term of the contract despite its absence. The
currently prevailing grounds for “reading in” clauses were articulated by the former Court of
Claims, then acting as a predecessor to the current U.S. Court of Appeals for the Federal Circuit,
in G.L. Christian & Associates v. United States.176 The G.L. Christian court found that clauses
authorizing the government to terminate procurement contracts for its convenience could be read
into contracts because
1. the clause represented a “deeply ingrained strand of public procurement policy”
and
2. federal regulations required agencies to incorporate the clause.177
Courts have read in other required FAR clauses under the “Christian doctrine,” including clauses
that allow the government to terminate contracts for default;178 govern bid protests after award;179
govern contractors’ use of government property;180 and require bonding in construction
laws, or creates a new obligation, imposes a new duty, or attaches a new disability.’” (quoting Soc’y for the
Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814))). Courts also apply the presumption
against retroactivity to agency regulations. See, e.g., Bahr v. Regan, 6 F.4th 1059, 1071 (9th Cir. 2021).
173 Sturges, 114 U.S. at 519. At a minimum, retroactive contractual changes could require federal agencies to provide
contractors “just compensation” as provided by the Takings Clause of the U.S. Constitution. U.S. CONST. amend. V.
174 See, e.g., FAR 22.1310(a)(1) (directing contracting officers to “[i]nsert the clause at 52.222-35, Equal Opportunity
for Veterans, in solicitations and contracts if the expected value is $150,000 or more,” unless certain exceptions apply).
175 See, e.g., DODIG-2019-088, Evaluation of DoD Efforts to Combat Trafficking in Persons in Kuwait, Dep’t of Def.
Inspector Gen. (June 11, 2019) (noting that “Army and Air Force contracting officers did not always confirm that
contracts included the required [combating trafficking in persons FAR] clauses”).
176 312 F.2d 418 (Ct. Cl. 1963). Prior to the establishment of the modern federal procurement system and G.L.
Christian, courts relied on other grounds to read certain terms into government contracts, such as that the government
has an “inherent right” as a sovereign to terminate contracts for its convenience. See Russell Motor Car Co. v. United
States, 261 U.S. 514, 521 (1923) (“With the termination of the [Civil] war the continued production of war supplies
would become, not only unnecessary, but wasteful. Not to provide, therefore, for the cessation of this production when
the need for it has passed would have been a distinct neglect of the public interest.”); United States v. Corliss SteamEngine Co., 91 U.S. 321, 323 (1875) (“[I]t would be of serious detriment to the public service if the power of the
head[s] of [federal agencies] did not extend to providing for all ... possible contingencies by modification or suspension
of the contracts, and settlement with the contractors.”).
177 G.L. Christian, 312 F.2d at 426–27.
178
Sabre Eng’g Corp., ASBCA No. 24144, 81-2 BCA ¶ 15,310.
179 COMSI, Inc., ASBCA No. 34588, 88-1 BCA ¶ 20,245.
180 Hart’s Food Serv., Inc., ASBCA No. 30756, 89-2 BCA ¶ 21,789.
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contracts.181 However, courts have, at times, declined to read in other clauses, often when the
contractor, rather than the government, has sought to rely upon the missing, but required,
clause.182
Other Topics
This section addresses agency deviations from the FAR, the ability of third parties to enforce the
terms of the FAR against a government contractor, the use of procurement processes not
expressly addressed by the FAR, and whether agencies or transactions not subject to the FAR
could be subject to requirements similar to those in the FAR.
May Agencies Deviate from the FAR?
Agencies are authorized to deviate from the FAR under certain circumstances. A deviation occurs
when an agency engages in a procurement action that is not authorized by the FAR or “is
inconsistent with the intent, principle, or substance” of the FAR absent express statutory
authorization.183 Deviations can include using a solicitation provision or contract clause that is
inconsistent with the FAR or failing to incorporate a contract clause that is required by the
FAR.184 Agencies may only deviate from the FAR in accordance with the policies and procedures
of FAR Subpart 1.4.185 Notably, deviations are only authorized when necessary to meet the
agency’s specific needs and requirements when the deviations are not otherwise “precluded by
law, executive order, or regulation.”186 Additionally, contracting officers must notify offerors and
contractors when a deviation is included in a solicitation or contract by incorporating the
Authorized Deviations in Provisions clause (solicitations) or the Authorized Deviations in Clauses
clause (solicitations and contracts).187
There are two types of deviations: individual and class. An individual deviation affects only a
single contract.188 Individual deviations generally may be authorized by an agency head, and
contracting officers must document the justification for the deviation in the contract file.189 Class
deviations affect multiple contracts.190 For civilian agencies other than NASA, class deviations
181 K-Con, Inc. v. Sec’y of Army, 908 F. 3d 719 (Fed. Cir. 2018).
182 See, e.g., United States v. Franklin Steel Prods., Inc., 482 F.2d 400 (9th Cir. 1973); United States v. Aerodex, Inc.,
469 F.2d 1003 (5th Cir. 1973).
183 FAR 1.401 (defining “deviation” to include (1) issuing or using a policy, procedure, solicitation provision, contract
clause, method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is
inconsistent with the FAR; (2) omitting a FAR-prescribed solicitation provision or contract clause; (3) using a
solicitation provision or contract clause with modified or alternate language not authorized by the FAR; (4) using a
FAR-prescribed solicitation provision or contract clause on a substantially-as-follows or substantially-the-same-as basis
if inconsistent with the intent, principle, or substance of the FAR; (5) authorizing lesser or greater limitations on the use
of any FAR-prescribed solicitation provision, contract clause, policy, or procedure; and (6) issuing certain policies or
procedures that are not incorporated into the agency’s FAR supplement).
184 Id.
185 See Gold Line Ref. v. United States, 54 Fed. Cl. 285 (2002) (holding that an agency’s nonauthorized deviation from
the FAR regarding pricing sources for an economic price adjustment was unenforceable, and thus the contractor was
entitled to damages), abrogated by Tesoro Haw. Corp. v. United States, 405 F.3d 1339 (Fed. Cir. 2005).
186 FAR 1.402. Deviations are not authorized with respect to the CAS regulations for solicitation provisions and
contract clauses (FAR 30.201-3, 30.201-4) or the CAS Board regulations (FAR ch. 99). See FAR 1.402.
187 FAR 52.107(e)–(f).
188
FAR 1.403.
189 See FAR 1.403.
190 FAR 1.404.
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may generally be authorized by agency heads or their designees after consultation with the CAA
Council chair.191 Additionally, a copy of each class deviation must be provided to the FAR
Secretariat.192 For DOD, the FAR provides that class deviations must be issued in compliance
with the DFARS,193 which generally authorizes the Director of Defense Procurement and
Acquisition Policy to issue them.194 Similarly, the FAR authorizes NASA’s Assistant
Administrator for Procurement to issue class deviations applicable to that agency in accordance
with NASA’s FAR supplement.195 If any agency requires a permanent class deviation, then it
should propose an appropriate FAR revision in accordance with the procedures specified in FAR
1.404.196
For example, DOD issued a class deviation involving the System for Award Management (SAM)
shortly after this database came into use.197 In anticipation of SAM’s completion, the FAR and
DFARS were amended to require contractors to use the database to meet initial registration and
annual certification requirements.198 However, once agencies began to use the SAM, users
reported “performance issues that ... affected the timely processing of awards.”199 These issues
prompted DOD to issue a class deviation permitting contractors to use alternative measures to
meet their registration and certification requirements until the problems with SAM were
resolved.200 DOD rescinded this deviation once the issues had been corrected.201
May an Acquisition Team Use a Policy or Procedure That Is Not
Addressed by the FAR?
The FAR authorizes acquisition personnel to use any “specific strategy, practice, policy, or
procedure” not addressed by the FAR so long as it is in the government’s best interest and is not
prohibited by law.202 This means that agencies are not necessarily limited to the strategies or
procedures expressly mentioned in the FAR but rather may exercise some discretion in
structuring procurements to meet their needs. For example, the Government Accountability
Office (GAO), in a bid protest decision, upheld an agency’s use of a reverse-auction source-
191 FAR 1.404(a)(1).
192 FAR 1.404. The FAR Secretariat performs various administrative tasks related to updating and maintaining the
FAR. See FAR 1.201-2.
193 FAR 1.404(b).
194 FAR 201.402. DOD’s current and archived class deviations are available on the Defense Procurement and
Acquisition Policy website. Class Deviations, DPCAP, https://www.acq.osd.mil/dpap/dars/class_deviations.html (last
visited Sept. 20, 2024).
195 FAR 1.404(c).
196 FAR 1.404.
197 See Memorandum from Richard Ginman, Dir., Def. Procurement & Acquisition Policy, DARS Tracking No. 2012O0015 (Aug. 21, 2012), https://www.acq.osd.mil/dpap/policy/policyvault/USA004926-12-DPAP.pdf.
198 Id. at 1.
199 Id.
200 Id.
201 See Memorandum from Richard Ginman, Dir., Def. Procurement & Acquisition Policy, DARS Tracking No. 2012O0015 (Dec. 12, 2012), https://www.acq.osd.mil/dpap/policy/policyvault/USA007351-12-DPAP.pdf.
202 FAR 1.102(d), 1.102-5(e) (“If a policy or procedure, or a particular strategy or practice, is in the best interest of the
Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order
or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction
should be interpreted as permitting the Team to [be] innovative and use sound business judgment that is otherwise
consistent with law and within the limits of their authority.”).
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selection method, despite the FAR not expressly addressing reverse auctions, on the grounds that
“a procurement procedure is permissible where not specifically prohibited.”203
Could an Agency or Transaction Not Subject to the FAR Be Subject
to Requirements Similar or Identical to Those in the FAR?
Agencies or transactions that are not themselves subject to the FAR could potentially be subject
to requirements like those in the FAR for several reasons. In some cases, statutes impose
requirements similar to those implemented by the FAR on entities or transactions that are not
subject to the FAR. For example, the American Recovery and Reinvestment Act of 2009 imposed
Buy American requirements on certain grant recipients and Davis-Bacon requirements on certain
loan recipients who would not have been subject to these requirements pursuant to the FAR.204
Additionally, some agencies whose acquisitions are not subject to the FAR have voluntarily
adopted regulations or internal rules of practice modeled after or akin to the FAR.205 For example,
GSA has adopted certain FAR provisions “as a matter of policy” in its regulations regarding real
property leases,206 and the U.S. Postal Service and the Senate, through its Senate Procurement
Regulations, have adopted procurement guidelines with provisions similar to the FAR.207
203 MTB Group, Inc., B-295463 (Feb. 23, 2005), 2005 WL 433615 (Comp. Gen. Feb. 23, 2005) (citing FAR 1.102(d)).
GAO further noted that the use of reverse auctions is consistent with the simplified acquisition methods in FAR Part
13.
204 See American Recovery and Reinvestment Act of 2009, P.L. 111-5, § 406, 123 Stat. 145 (requiring, as a condition
of the renewable energy and electric power transmission loan guarantee program, that “each recipient ... provide
reasonable assurance that all laborers and mechanics employed in the performance of the project for which the
assistance is provided ... will be paid wages at rates not less than those prevailing on similar work in the locality as
determined by the Secretary of Labor in accordance with ... the ‘Davis-Bacon Act’”); id., § 1605(a) (“None of the funds
appropriated or otherwise made available by this Act may be used for a project for the construction, alteration,
maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in
the project are produced in the United States.”).
205 See supra “What Agencies Are Subject to the FAR?”
206 FAR 570.101(d) (“The FAR does not apply to leasehold acquisitions of real property. Where referenced in this part,
FAR provisions have been adopted based on a statutory requirement applicable to such lease acquisitions or as a matter
of policy, including, but not limited to ‘Federal agency procurement’ as defined at FAR 3.104.”).
207 Compare USPS, SUPPLYING PRINCIPLES AND PRACTICES 508, cl. B-16 (2023), http://about.usps.com/manuals/spp/
spp.pdf (cl. B-16), with FAR 52.242-14 (Suspension of Work clause); compare Senate Procurement Regulations, 168
CONG. REC. S9619, S9621 (daily ed. Dec. 20, 2022) (publishing the Senate Procurement Regulations as adopted by the
S. Comm. on Rules & Admin. on Dec. 19, 2022), with FAR 1.602-3.
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Appendix. Table of Acronyms and Abbreviations
Table A-1. Table of Acronyms and Abbreviations
Administrative Procedure Act
APA
Agency for International Development Acquisition Regulation
AIDAR
American Recovery and Reinvestment Act
ARRA
Armed Services Procurement Regulation
ASPR
Atomic Energy Commission
AEC
Central Intelligence Agency
CIA
Civilian Agency Acquisition Council
CAAC
Congressional Review Act
CRA
Contract Administration Officer
CAO
Cost Accounting Standards
CAS
Defense Acquisition Regulation
DAR
Defense Acquisition Regulations Council
DAR Council
Defense Federal Acquisition Regulation Supplement
DFARS
Department of Agriculture Acquisition Regulation
AGAR
Department of Commerce Acquisition Regulation
CAR
Department of Defense
DOD
Department of Defense Federal Acquisition Regulation Supplement
DFARS
Department of Education Acquisition Regulation
EDAR
Department of Energy Acquisition Regulation
DEAR
Department of Health and Human Services Acquisition Regulation
HHSAR
Department of Homeland Security Acquisition Regulation
HSAR
Department of Housing and Urban Development Acquisition Regulation
HUDAR
Department of Justice Acquisition Regulation
JAR
Department of Labor Acquisition Regulation
DOLAR
Department of State Acquisition Regulation
DOSAR
Department of the Interior Acquisition Regulation
DIAR
Department of the Treasury Acquisition Regulation
DTAR
Department of Transportation Acquisition Regulation
TAR
Department of Veterans Affairs Acquisition Regulation
VAAR
Environmental Protection Agency Acquisition Regulation
EPAAR
Federal Acquisition Regulation
FAR
Federal Acquisition Regulatory Council
FAR Council
Federal Activities Inventory Reform
FAIR
Federal Aviation Administration
FAA
Federal Awardee Performance and Integrity Information System
FAPIIS
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Federal Procurement Regulations
FPR
General Services Administration
GSA
General Services Administration Acquisition Regulation
GSAR
Historically Underutilized Business Zone
HUBZone
Inspector General
IG
National Aeronautics and Space Administration
NASA
National Aeronautics and Space Administration Federal Acquisition Regulations
Supplement
NFS
Nuclear Regulatory Commission Acquisition Regulation
NRCAR
Office of Federal Procurement Policy
OFPP
Office of Information and Regulatory Affairs
OIRA
Office of Management and Budget
OMB
Office of Personnel Management
OPM
Office of Personnel Management Federal Employees Health Benefits Acquisition
Regulation
FEHBAR
Small Business Administration
SBA
Social Security Acquisition Regulation
SSAR
System for Award Management
SAM
Tennessee Valley Authority
TVA
Transportation Security Administration
TSA
Women-Owned Small Business
WOSB
Author Information
David H. Carpenter
Legislative Attorney
Dominick A. Fiorentino
Analyst in Government Organization and
Management
Matthew D. Trout
Legislative Attorney
Acknowledgments
Former CRS Legislative Attorneys Erika K. Lunder and Kate M. Manuel and former CRS Specialist
L. Elaine Halchin contributed to earlier versions of this report.
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Disclaimer
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Congressional Research Service
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.