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FAR
1.404: Class Deviations |
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Comptroller General - Key Excerpts |
ASA argues
that GSAR sect. 552.237-73 violates FAR sections 8.4, 12.403, 49.000 and
52.212‑4 as well as the spirit of the FAR. Protest at 13. ASA argues that the
clause is unfair because it allegedly expands GSA's rights beyond a standard
termination for convenience clause. Protester's Comments at 11. ASA also
maintains that the clause eliminates a contractor's ability to seek damages for
breach of contract if the agency cancels a schedule contract without cause. Id.;
E‑mail from Protester to GAO, Jan. 6, 2009, at 1.
GSA responds that the cancellation clause does not conflict with the FAR, and
its use is required by the GSA Acquisition Manual. Legal Memorandum at 3-4;
Contracting Officer's Statement at 3.
Although the protester argues that the cancellation clause directly conflicts
with particular FAR clauses, we see no basis to sustain this protest. An agency
head, or his designee, has the authority to approve deviations from particular
requirements of the FAR, including exempting the agency from a particular
provision. FAR sect. 1.404; See, e.g., Telos Field Eng'g, B‑257747, Nov. 3,
1994, 94-2 CPD para. 172 at 3-4 (agency properly deviated from FAR requirement
to publicize solicitation requirement, even though it also failed to obtain full
and open competition required by statute). As required, the cancellation clause
here was promulgated by GSA through the notice and comment rulemaking process.
Although agency FAR Supplements generally may not conflict or be inconsistent
with FAR content, FAR sect. 1.304(b)(2), we disagree with the protester's claim
that the cancellation clause conflicts with any of the specified provisions of
the FAR. (Advanced Scientific Applications,
Inc., B-400312.2, February 5, 2009) (pdf) |
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Comptroller General - Listing of Decisions
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For
the Government |
For
the Protester |
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Advanced Scientific Applications, Inc.,
B-400312.2, February 5, 2009 (pdf) |
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