FAR 1.405—Deviations pertaining to treaties and executive agreements.
Plain-English Summary
FAR 1.405 explains how the FAR handles deviations that are needed to comply with international commitments, specifically treaties and executive agreements. It defines what counts as an "executive agreement" for this purpose, then distinguishes between deviations required by treaties and those required by executive agreements. The section authorizes deviations when they are necessary to meet those international obligations, but it also limits that authorization when the deviation would conflict with later-enacted law for treaties, or with applicable law for executive agreements. It also sets out a special process for civilian agencies other than NASA: authorized deviations must be transmitted to the FAR Secretariat through a central agency control point, and deviations that are not already authorized must be routed through the FAR Secretariat to the Civilian Agency Acquisition Council. In practice, this section ensures agencies can honor U.S. international commitments while preserving the hierarchy of domestic law and maintaining centralized oversight of FAR departures.
Key Rules
Executive agreement defined
For this section, "executive agreements" means Government-to-Government agreements, including agreements with international organizations, to which the United States is a party. This definition matters because it determines which international arrangements can support a FAR deviation under paragraph (c).
Treaty-based deviations authorized
A deviation from the FAR required to comply with a treaty is authorized. However, that authorization does not apply if the deviation would be inconsistent with FAR coverage based on a law enacted after the treaty was executed.
Executive-agreement deviations authorized
A 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. The rule recognizes the agreement but preserves the controlling effect of domestic law.
Later law can limit treaty deviations
Even when a treaty requires a deviation, the deviation is not authorized if it would conflict with FAR coverage grounded in a statute enacted after the treaty was made. This protects later congressional enactments from being overridden by earlier treaty commitments in this FAR context.
Civilian agency reporting requirement
For civilian agencies other than NASA, any deviation authorized under paragraph (b) or (c) must be transmitted to the FAR Secretariat through a central agency control point. This creates a record and supports centralized oversight of international-agreement-based deviations.
Unapproved deviations follow formal process
For civilian agencies other than NASA, if a treaty- or executive-agreement-based deviation is not authorized by paragraphs (b) or (c), the request must be processed through the FAR Secretariat to the Civilian Agency Acquisition Council. This ensures higher-level review before any nonstandard FAR departure is approved.
Responsibilities
Contracting Officer / Agency Acquisition Staff
Identify when a treaty or executive agreement requires a deviation from the FAR, determine whether the deviation is already authorized under paragraphs (b) or (c), and route the matter through the proper internal and FAR Secretariat channels when required.
Civilian Agencies other than NASA
Transmit copies of text deviations authorized under paragraphs (b) or (c) to the FAR Secretariat through a central agency control point, and ensure any deviation not already authorized is processed through the FAR Secretariat to the Civilian Agency Acquisition Council.
Central Agency Control Point
Serve as the internal routing and coordination point for transmitting authorized deviation texts to the FAR Secretariat for civilian agencies other than NASA.
FAR Secretariat
Receive transmitted authorized deviations and process non-authorized deviation requests for civilian agencies other than NASA through the appropriate FAR coordination channels.
Civilian Agency Acquisition Council
Review deviation requests that are not automatically authorized under paragraphs (b) or (c) and determine whether the requested deviation should be approved.
Agency Legal Counsel / Policy Officials
Assess whether the international commitment is a treaty or executive agreement, whether the requested deviation is required for compliance, and whether any later-enacted law or other law makes the deviation inconsistent or unavailable.
Practical Implications
This section is a legal-compatibility checkpoint: before deviating from the FAR to satisfy an international commitment, agencies must confirm the source of the obligation and whether domestic law limits the deviation.
The biggest pitfall is assuming every treaty or executive agreement automatically overrides the FAR; paragraph (b) and (c) both preserve limits where inconsistent with controlling law.
For civilian agencies other than NASA, even authorized deviations are not just internal decisions — they must be transmitted to the FAR Secretariat, so documentation and routing matter.
If the deviation is not clearly authorized, agencies cannot simply proceed informally; they must use the formal FAR Secretariat/Civilian Agency Acquisition Council process.
Contracting teams should involve legal and policy staff early, because the key questions are not only operational but also about the timing of the treaty or agreement and whether later statutes or other law affect the deviation.
Official Regulatory Text
(a) "Executive agreements," as used in this section, means 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 to which the United States is a party 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. (d) For civilian agencies other than NASA, a copy of the text deviation authorized under paragraph (b) or (c) of this section shall be transmitted to the FAR Secretariat through a central agency control point. (e) For civilian agencies other than NASA, if a deviation required to comply with a treaty or an executive agreement is not authorized by paragraph (b) or (c) of this section, then the request for deviation shall be processed through the FAR Secretariat to the Civilian Agency Acquisition Council.