The primary rulebook for U.S. federal government contractors, the Federal Acquisition Regulation, is in the midst of a top-to-bottom overhaul. This process, known as the Revolutionary FAR Overhaul, or RFO, is intended to “return the FAR to its statutory roots, rewritten in plain language” to make the rules easier to understand and follow for contractors and government officials alike.
One might think that FAR revisions, including those stemming from the RFO process, automatically apply to existing solicitations and contracts. After all, these revisions represent the current public policy. However, FAR 1.108(d) provides that FAR revisions often do not apply to existing solicitations and contracts:
(d)Application of FAR changes to solicitations and contracts. 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.
As provided in FAR 1.108(d), FAR revisions only apply automatically to solicitations issued on or after the effective date of the revision. For example, if a solicitation is issued on August 1 and a FAR revision takes effect on August 15, the FAR revision does not automatically apply to the solicitation. However, if those dates are reversed–the FAR revision takes effect on August 1 and the solicitation is issued on August 15–the revision automatically applies.
If a FAR revision takes effect after the date the solicitation is issued, it is up to the contracting officer whether to amend the solicitation to include the revision. Similarly, if a FAR revision takes place after the effective date of a contract, the contracting officer may choose to amend the contract to include the revision, providing “appropriate consideration” to the contractor, such as an upward revision in the contract price if including the revised FAR provision will increase the contractor’s costs of performing the contract.
The RFO process will mean that the FAR will see a large number of revisions in the coming months, and many of those revisions will be impactful for contractors. If contractors are uncertain about whether a revised FAR provision applies to a specific solicitation or contract, it’s best not to guess. Instead, ask the contracting officer!
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