What Are FAR Deviations?
If you read almost any federal government solicitation or contract today, you’ll likely find many Federal Acquisition Regulation (FAR) clauses marked with the word “DEVIATION,” followed by a date. It’s important that contractors know what FAR deviations are and how to find deviated FAR clauses–otherwise, a contractor may inadvertently rely on the wrong version of the clause. Here is a high-level overview of what federal contractors should know.
FAR Subpart 1.3 defines FAR deviations and explains how and when they may be used. At the most basic level, a deviation is an agency-specific regulation that varies from the standard FAR. A deviation may apply to only a single acquisition, known as an “individual deviation,” or to all applicable acquisitions of the agency, called a “class deviation.” For example, the Department of War (DoW) is currently using a class deviation to the FAR’s limitations on subcontracting clause, FAR 52.219-14, intended to align the DoW’s practices with the rules of the U.S. Small Business Administration.
When an agency will use a deviated version of a FAR clause in a solicitation or contract, it must let contractors know. FAR 52.103 instructs federal Contracting Officers to use the word “DEVIATION” in the name of the clause, followed by the effective date of the deviation and any other relevant identifying information. For instance, the DoW’s deviation to FAR 52.219-14 is identified in a solicitation or contract as “52.219-14 Limitations on Subcontracting (DEVIATION 2021-O0008).”
FAR deviations have been part of the federal contracting landscape for decades, but they have proliferated under the ongoing top-to-bottom rewrite of the FAR known as the Revolutionary FAR Overhaul (RFO). Under the RFO, federal agencies have been asked to adopt standardized deviations to many portions of the FAR pending a final rewrite of the FAR to make those changes permanent. At present, it’s not uncommon to find dozens of deviated FAR clauses in a typical solicitation or contract.
For contractors, it is important to pay attention to FAR deviations–or risk using the wrong version of the clause. For example, a contractor under a DoW contract must follow the DoW deviation to FAR 52.219-14 rather than the “base” version. Following the wrong clause could lead to compliance shortfalls.
Fortunately, thanks to the DEVIATION labeling system, it’s easy for contractors to identify deviated FAR clauses. Then, for FAR clauses not incorporated in full text in the solicitation or contract, contractors should look up the deviated version and make sure they fully understand it. All RFO deviations can be found on the RFO website; other FAR deviations–like the DoW clause we’ve discussed–can be found through a simple internet search.
Deviations can add a little extra complexity to federal contracting, but by knowing what they are and how to find them, contractors can ensure that they’re following the correct rulebook.
Disclaimer:
Nothing contained in this article is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and information purposes only. Although the author strives to present accurate information, the information provided in this article is not guaranteed to be accurate, complete, or up-to-date. Reading this article does not establish an attorney-client relationship with the author.
