Gov. Contracting - DFARS Part 201 - Federal Acquisition Regulation System - Win Federal Contracts

DFARS - 2021
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Federal Acquisition Regulation
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About Our Speaker
Terry O’Connor
Berenzweig Leonard LLP
toconnor@berenzweiglaw.com
703-760-0626

DFARS Part #201
Federal Acquisition Regulation System
Wednesday, 06 January 2021

DFARS Part 201
FAR Part 1 Federal Acquisition Regulations System
FAR Subpart 1.1 Purpose, Authority, Issuance
FAR Subpart 1.2 Administration
FAR Subpart 1.3 Agency Acquisition Regulations
FAR Subpart 1.4 Deviations
FAR Subpart 1.5 Agency and Public Participation
FAR Subpart 1.6 Career Development, Contracting Authority, Responsibilities
FAR Subpart 1.7 Determinations and Findings

DFARS Part 201
 FAR 1.101 Purpose
• Uniform policies and procedures for acquisition by all executive agencies.
• The Federal Acquisition Regulations System: FAR and agency acquisition regulations that implement or
supplement the FAR.
• The FAR System does not include internal agency guidance of the type described in 1.301(a)(2).
 DFARS 201.101 Purpose
• Objective of DOD acquisition: acquire quality supplies and services that satisfy user needs with
measurable improvements to mission capability and operational support at a fair and reasonable price.
• The investment strategy of DoD shall be postured to support not only the current United States armed
forces, but also future armed forces of the United States.

DFARS Part 201
FAR 1.102 Guiding Principles for Acquisition
1.102-4(d) 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. In exercising
initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or
procedure is in the best interests of the Government and is not addressed in the FAR nor prohibited by law
(statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a
permissible exercise of authority.
DFARS: None

DFARS Part 201
FAR 1.103 Authority
FAR is under the control of the Secretary of DoD, Administrator of General Services (GSA
Head) and the Administrator of NASA.
DFARS: None

DFARS Part 201
FAR 1.104 Applicability: all acquisitions as defined by FAR Part 2 Definitions.
DFARS 201.104 Applicability
DFARS applies to “support of foreign military sales or North Atlantic Treaty
Organization cooperative projects without regard to the nature or sources of funds
obligated, unless otherwise specified in this regulation.”

DFARS Part 201
FAR 1.105 Issuance
FAR an be found in the Federal Register, the U.S. Code of Federal Regulations, and
https://www.acquisition.gov/browse/index/far.
DFARS 201.105-3 Issuance
The DFARS and the DFARS Procedures, Guidance, and Information (PGI) are available
electronically via the World Wide Web at
http://www.acq.osd.mil/dpap/dars/index.htm.

DFARS Part 201
FAR 1.106 OMB Approval under Paperwork Reduction Act
DFARS 201.106 OMB Approval under Paperwork Reduction Act
See PGI 201.106

DFARS Part 201
FAR 1.107 Certifications
Similar to DFARS below
DFARS 201.107 Certifications
In accordance with 41 U.S.C. 1304, a new requirement for a certification by a contractor or
offeror may not be included in the DFARS unless—
(1) imposed by statute; or
(2) Written justification to USD(ATL) and the Secretary of Defense approves it.

DFARS Part 201
FAR 1.108 FAR Conventions
(c) Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of
applicability is the final anticipated dollar value of the action, including the dollar value of all options.
(d)(1) FAR changes apply to solicitations issued on or after the effective date of the change;
DFARS: None

DFARS Part 201
FAR 1.109 Statutory acquisition-related dollar thresholds—adjustment for inflation.
 Every 5 years by the FAR Council – 2020 was latest
 Exceptions: Construction Wage Rates, Service Contract Labor Standards
 Check https://beta.regulations.gov/document/FAR-2019-0013-0009
 “…without regard to contract date….”
DFARS 201.109 Statutory acquisition-related dollar thresholds—adjustment for inflation.
Cites PGI 201.109 for access to those new dollar thresholds but I could not get the link
to work so I’d use the FAR cite above.

DFARS Part 201
DFARS 201.170 – Peer review
DoD peer reviews:
(i) Preaward peer reviews for competitive procurements will be conducted
in three phases for all solicitations valued at $1 billion or more;
(ii) Preaward peer reviews for noncompetitive procurements will be conducted in
two phases for new contract actions valued at $500 million or more; and
(iii) Postaward peer reviews will be conducted for all contracts for services valued at
$1 billion or more.
Component peer reviews also

DFARS Part 201
FAR Subpart 1.2 - Administration
FAR 1.201 Maintenance of the FAR
1.201-1 The Two Councils – DAR Council and CAA Council
1.201-1(c) The Director of the DAR Council represents the Secretary of Defense who decides
how the DAR Council operates. Members: representatives of the military departments, the
Defense Logistics Agency, and the Defense Contract Management Agency.
DFARS 201.201-1(c) The composition and operation of the DAR Council is prescribed in DoD
Instruction 5000.35, Defense Acquisition Regulations (DAR) System.
DFARS 201.201-70: DAR Council maintains the PGI

DFARS Part 201
FAR Subpart 1.2 - Administration
FAR 1.202 Agency Compliance with the FAR
Secretary of DoD is responsible for FAR compliance by military departments and defense agencies.
DFARS: None

DFARS Part 201
FAR 1.301 Policy
 Agency head issues regulations
 Regulations that “implement or supplement” FAR – nothing else!
 Proposed regulations published for public comment in the Federal Register
DFARS 201.301 Policy
 DFARS contains: Requirements of law, DoD–wide policies, Delegations of FAR
authorities, Deviations from FAR requirements, and significant policies/procedures.
 Anything else goes in PGI.

DFARS Part 201
FAR 1.302 Limitation
Agency acquisition regulations shall be limited to—
(a) Those necessary to implement FAR policies and procedures within the agency; and
(b) Additional policies, procedures, solicitation provisions, or contract clauses that
supplement the FAR to satisfy the specific needs of the agency.
DFARS: None

DFARS Part 201
FAR 1.303 Publication and codification
Agency acquisition regulations shall follow FAR style.
DFARS 201.303 Publication and codification
To the extent possible, all DFARS text (whether implemental or supplemental) is numbered as if it were
implemental. Supplemental numbering is used only when the text cannot be integrated intelligibly with its FAR
counterpart.
22R

DFARS Part 201
EXAMPLE in DFARS 201.303
To the extent possible, all DFARS text (whether implemental or supplemental) is numbered as if it were
implemental. Supplemental numbering is used only when the text cannot be integrated intelligibly with its FAR
counterpart.
FAR Is implemented by Is supplemented by
19.5 219.5 219.570

DFARS Part 201
DFARS 201.170 Peer review
DoD peer reviews:
(i) Preaward peer reviews for competitive procurements will be conducted
in three phases for all solicitations valued at $1 billion or more;
(ii) Preaward peer reviews for noncompetitive procurements will be conducted in
two phases for new contract actions valued at $500 million or more; and
(iii) Postaward peer reviews will be conducted for all contracts for services valued at
$1 billion or more.
Component peer reviews

DFARS Part 201
FAR 1.304 Agency control and compliance procedures
 Agencies shall control and limit issuance of agency acquisition regulations
 Agency acquisition regulations cannot unnecessarily repeat, paraphrase, or otherwise
restate FAR or DFARS material or conflict with or be conflict or be inconsistent with FAR
 Exceptions: Deviations
DFARS 201.304 Agency control and compliance procedures
Approval of the USD(AT&L) is required before including in an agency supplement, or any other contracting
regulation document such as a policy letter or clause book, any policy, procedure, clause, or form that—
(A) Has a significant effect beyond the internal operating procedures of the agency; or
(B) Has a significant cost or administrative impact on contractors or offerors.

DFARS Part 201
FAR Subpart 1.4 – Deviations from the FAR
FAR 1.401 Deviations
Deviation:
 Something inconsistent with the FAR
 Leaving out any solicitation provision or contract clause that is required
 Use of modified or alternate language that is not authorized by the FAR
 Using “substantially as follows” or “substantially the same as” but it’s inconsistent with FAR
 Using lesser or greater limitations on the use of any solicitation provision, contract clause, policy, or
procedure prescribed by the FAR
 Using something not incorporated into agency acquisition regulations via publication in Federal Register
DFARS: None

DFARS Part 201
FAR 1.402 Policy
The fact that deviation authority is required should not, of itself, deter agencies in their development and
testing of new techniques and acquisition methods.
DFARS 201.402 Policy
OUSD(AT & L)DPAP approves any individual or class deviation from—
 FAR and DFARS Procurement Integrity provisions;
 FAR an DFARS Rights in Data and Copyrights provisions;
 FAR and DFARS Cost Accounting Standards Administration provisions;
 FAR and DFARS Applicability (contract cost principles);
 FAR and DFARS Contracts with Commercial Organizations provisions;
 Some FAR and DFARS Contract Financing provisions.

DFARS Part 201
FAR 1.403 Individual Deviations
Individual deviations:
 affect only one contract action,
 may be authorized by the agency head.
 contracting officer must document the justification and agency approval in the contract file.
DFARS 201.403 Individual Deviations
Outside of US, contracting officers have more flexibility

DFARS Part 201
FAR 1.404 Class Deviations
Class deviations
 Affect more than one contract action
 When an agency knows that it will require a class deviation on a permanent basis, it should propose a FAR
revision, if appropriate.
 See DFARS
DFARS 201.404 Class Deviations
OUSD(AT & L)DPAP is the approval authority within DoD for any class deviation, BUT
the senior procurement executives for the Army, Navy, and Air Force, and the Directors of the Defense
Commissary Agency, the Defense Contract Management Agency, and the Defense Logistics Agency, may approve
any class deviation, other than those described in 201.402(1), that are “insignificant.”

DFARS Part 201
FAR 1.405 Deviations pertaining to treaties and executive agreements
(a) Executive agreements: Government-to-Government agreements, including agreements with international
organizations, to which the United States is a party.
(b) Any deviation from the FAR required to comply with a treaty is authorized, unless the deviation would be
inconsistent with FAR coverage based on a law enacted after the execution of the treaty.
(c) Any deviation from the FAR required to comply with an executive agreement is authorized unless the
deviation would be inconsistent with FAR coverage based on law.
DFARS: None

DFARS Part 201
FAR 1.5 Agency and Public Participation
FAR 1.501 Solicitation of Agency and Public Views
FAR 1.501-1 “Significant revisions:”
 revisions that alter the substantive meaning of any coverage in the FAR System and
 which have a significant cost or administrative impact on contractors or offerors, or a significant effect
beyond the internal operating procedures of the issuing agency.
 EXCLUDES: editorial, stylistic, or other revisions that have no impact on the basic meaning of the coverage
being revised.
DFARS: None

DFARS Part 201
FAR 1.501-2 Opportunity for Public Comment
 Views of agencies and nongovernmental parties or organizations will be considered in formulating
acquisition policies and procedures.
 Federal Register notice
 A minimum of 30 days and, normally, at least 60 days will be given for the receipt of comments.
DFARS: None

DFARS Part 201
FAR 1.501-3 Exceptions to publication:
 Regulations that are not revisions
 Urgent and compelling circumstances
DFARS: None

DFARS Part 201
FAR 1.601 General (a)
 Authority and responsibility to contract are vested in the agency head.
 The agency head may establish contracting activities and delegate broad authority to manage the agency's
contracting functions to heads of such contracting activities.
 Contracts may be entered into and signed on behalf of the Government only by contracting officers.
 In some agencies, a relatively small number of high level officials are designated contracting officers solely
by virtue of their positions.
 Contracting officers below the level of a head of a contracting activity shall be selected and appointed under
1.603.
DFARS: None

DFARS Part 201
FAR 1.601 General
(b) Agency heads may mutually agree to—
 Assign contracting functions and responsibilities from one agency to another; and
 Create joint or combined offices to exercise acquisition functions and responsibilities.
DFARS: None

DFARS Part 201
FAR 1.602-1 Authority
(a) Contracting officers have authority to enter into, administer, or terminate contracts and make related
determinations and findings. Contracting officers may bind the Government only to the extent of the authority
delegated to them. Contracting officers shall receive from the appointing authority (see 1.603–1) clear
instructions in writing regarding the limits of their authority. Information on the limits of the contracting
officers' authority shall be readily available to the public and agency personnel.
DFARS: None

DFARS Part 201
FAR 1.602-1 Authority
(b) No contract shall be entered into unless the contracting officer ensures that all requirements of law,
executive orders, regulations, and all other applicable procedures, including clearances and approvals, have
been met.
DFARS: None

DFARS Part 201
FAR 1.602-2 Responsibilities
Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting,
ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its
contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide
latitude to exercise business judgment.
DFARS: See 201.602(d) on later slide

DFARS Part 201
FAR 1.602-2 Responsibilities
Contracting officers shall—
(a) Ensure that the requirements of 1.602–1(b) have been met, and that sufficient funds are available for
obligation;
(b) Ensure that contractors receive impartial, fair, and equitable treatment;
(c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation,
and other fields, as appropriate; and
(d) [Next slide]

DFARS Part 201
FAR 1.602-2(d) Responsibilities of CORs
(d) Designate and authorize, in writing and in accordance with agency procedures, a contracting officer's
representative (COR) on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-
price contracts and orders as appropriate, unless the contracting officer retains and executes the COR duties.
See 7.104(e).

DFARS Part 201
FAR 1.602-2(d) Responsibilities of CORs (continued)
A COR—
(1) Shall be a Government employee, unless otherwise authorized in agency regulations;
(2) Shall be certified and maintain certification in accordance with the current Office of Management and
Budget memorandum on the Federal Acquisition Certification for Contracting Officer Representatives (FAC–
COR) guidance, or for DoD, in accordance with the current applicable DoD policy guidance;
(3) Shall be qualified by training and experience commensurate with the responsibilities to be delegated in
accordance with agency procedures;
(4) May not be delegated responsibility to perform functions that have been delegated under 42.202 to a
contract administration office, but may be assigned some duties at 42.302 by the contracting officer;

DFARS Part 201
A COR:
(5) Has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other
terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in
conflict with the contract terms and conditions;
(6) Shall be nominated either by the requiring activity or in accordance with agency procedures; and

DFARS Part 201
A COR:
(7) Shall be designated in writing, with copies furnished to the contractor and the contract administration
office—
(i) Specifying the extent of the COR's authority to act on behalf of the contracting officer;
(ii) Identifying the limitations on the COR's authority;
(iii) Specifying the period covered by the designation;
(iv) Stating the authority is not redelegable; and
(v) Stating that the COR may be personally liable for unauthorized acts.
DFARS: See 201.602(d) on next slide

DFARS Part 201
DFARS 201.602-2(d)
(d) Follow the procedures at PGI 201.602–2 regarding designation, assignment, and responsibilities of a
contracting officer's representative (COR).
(1) A COR shall be an employee, military or civilian, of the U.S. Government, a foreign government, or a
North Atlantic Treaty Organization/coalition partner. In no case shall contractor personnel serve as
CORs.

DFARS Part 201
DFARS 201.602-70
Use the clause at 252.201–7000, Contracting Officer's Representative, in solicitations and
contracts when appointment of a contracting officer's representative is anticipated.

DFARS Part 201
DFARS 252.201-7000
Contracting Officer's Representative (DEC 1991)
(a) Definition. Contracting officer's representative means an individual designated in accordance with
subsection 201.602–2 of the Defense Federal Acquisition Regulation Supplement and authorized in writing by
the contracting officer to perform specific technical or administrative functions.
(b) If the Contracting Officer designates a contracting officer's representative (COR), the Contractor will receive
a copy of the written designation. It will specify the extent of the COR's authority to act on behalf of the
contracting officer. The COR is not authorized to make any commitments or changes that will affect price,
quality, quantity, delivery, or any other term or condition of the contract.

DFARS Part 201
FAR 1.602-3 Ratification of unauthorized commitments
(a) Definitions
Ratification, as used in this subsection, means the act of approving an unauthorized commitment by an official
who has the authority to do so.
Unauthorized commitment, as used in this subsection, means an agreement that is not binding solely because
the Government representative who made it lacked the authority to enter into that agreement on behalf of the
Government.
DFARS: None

DFARS Part 201
(b) Policy
 Agencies should act to preclude the need for ratifications
 The head of the contracting activity may ratify an unauthorized commitment.
 Delegation no lower than chief of the contracting office
 Agencies should process unauthorized commitments using the ratification authority of this subsection
instead of referring such actions to the Government Accountability Office for resolution. (See 1.602–3(d).)
 Unauthorized commitments that would involve claims should be processed via Disputes clause.
DFARS: None

DFARS Part 201
(c) Limitations - ratifications require:
 Government gets benefit
 The ratifying official has the authority to enter into a contractual commitment
 The resulting contract would otherwise have been proper if made by an appropriate contracting officer
 Price is fair and reasonable
 The contracting officer recommends payment and legal counsel concurs
 Funds are available and were available at the time the unauthorized commitment was made
DFARS: None

DFARS Part 201
(d) Non-ratifiable commitments go to GAO
DFARS: None

DFARS Part 201
FAR 1.603-1 General
An agency must have
 a procurement career management program
 a system for the selection, appointment, and termination of appointment of contracting officers.
DFARS: None

DFARS Part 201
FAR 1.603-2 Selection
In selecting contracting officers, the appointing official shall consider the complexity and dollar value of the
acquisitions to be assigned and the candidate's experience, training, education, business acumen, judgment,
character, and reputation. Examples of selection criteria include—
(a) Experience in Government contracting and administration, commercial purchasing, or related fields;
(b) Education or special training in business administration, law, accounting, engineering, or related fields;
(c) Knowledge of acquisition policies and procedures, including this and other applicable regulations;
(d) Specialized knowledge in the particular assigned field of contracting; and
(e) Satisfactory completion of acquisition training courses.
DFARS: 201.603-2 [Next slide]

DFARS Part 201
DFARS: 201.603-2
(1) Federal statute requires a contracting officer above the simplified acquisition level:
 To have completed all required contracting courses
 Have at least 2 years experience in a contracting position
 Have received a baccalaureate degree from an accredited educational institution; and
 Meet such additional requirements, based on the dollar value and complexity of the contracts awarded
or administered in the position, as may be established by the Secretary of Defense.
(3) Waivers are available

DFARS Part 201
DFARS: 201.603-2
(2) Degree requirement does not apply to a DoD employee or member of the armed forces who—
(i) On or before September 30, 2000, occupied—
(A) A contracting officer position with authority to award or administer contracts above the
simplified acquisition threshold; or
(B) A position either as an employee in the GS–1102 occupational series or a member of the
armed forces in an occupational specialty similar to the GS–1102 series;
(ii) Is in a contingency contracting force; or
(iii) Is an individual appointed to a 3–year developmental position. Information on developmental
opportunities is contained in DoD Instruction 5000.66, Defense Acquisition Workforce Education,
Training, Experience, and Career Development Program.

Part 201
FAR 1.603-3 Appointment
(a) SF 1402
(b) Micro-purchase authority: authority should be in the hands of the users in writing
DFARS 201.603-3: DoD civilian and members of the armed forces can be delegated SOME
purchase authority as per DFARS 213.301.

DFARS Part 201
FAR 1.603-4 Termination
Termination of a contracting officer appointment will be by letter, unless the Certificate of Appointment
contains other provisions for automatic termination. Terminations may be for reasons such as reassignment,
termination of employment, or unsatisfactory performance. No termination shall operate retroactively.
DFARS: None

DFARS Part 201
DFARS 201.670 Appointment of property administrators and plant clearance officers.
(a) The appropriate agency authority shall appoint or terminate (in writing) property administrators and plant
clearance officers.
(b) In appointing qualified property administrators and plant clearance officers, the appointing authority shall
consider experience, training, education, business acumen, judgment, character, and ethics.

DFARS Part 201
FAR 1.701 Definition
Determination and Findings (D&F) means a special form of written approval by an authorized official that is
required by statute or regulation as a prerequisite to taking certain contract actions.
The determination is a conclusion or decision supported by the findings.
The findings are statements of fact or rationale essential to support the determination and must cover each
requirement of the statute or regulation.
DFARS: None

DFARS Part 201
FAR 1.702 General
 D&F shall ordinarily be for an individual contract action.
 The approval granted by a D&F is restricted to the proposed contract action(s) reasonably described in that
D&F. D&F's may provided for a reasonable degree of flexibility.
 Reasonable variations in estimated quantities or prices are permitted.
DFARS: None

DFARS Part 201
FAR 1.703 Class determinations and findings
A class D&F provides authority for a class of contract actions. A class may consist of contract actions for the
same or related supplies or services or other contract actions that require essentially identical justification.
DFARS: None

DFARS Part 201
FAR 1.704 Content
Each D&F shall set forth enough facts and circumstances to clearly and convincingly justify the specific
determination made. As a minimum, each D&F shall include:
(a) Identification of the contracting activity and specific identifications of the document as a
Determination and Findings.
(b) Description of the action being approved.
(c) Authority
(d) Findings that detail the particular circumstances, facts, or reasoning essential to support the
determination.
(e) A determination, based on the findings, that the proposed action is justified under the applicable
statute or regulation.
(f) Expiration date of the D&F, if required
(g) The signature of the official authorized to sign the D&F and the date signed.

THANK YOU to Our Speaker
Terry O’Connor
Berenzweig Leonard LLP
toconnor@berenzweiglaw.com
703-760-0626

Thank You For Attending!
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