FAR 3.1104—Mitigation or waiver.
Plain-English Summary
FAR 3.1104 explains the limited process for dealing with personal conflicts of interest when a contractor cannot fully prevent them under the clause at FAR 52.203-16, Preventing Personal Conflicts of Interest. It covers when a contractor may request relief, how that request must be routed through the contracting officer, what the head of the contracting activity (HCA) may do in response, the requirement for a written best-interest determination, and the fact that this authority cannot be redelegated. In practice, this section creates an exception process—not a routine workaround—for unusual situations where strict prevention is not feasible. It matters because it preserves the Government’s ability to use contractor support while still protecting procurement integrity, impartiality, and public trust. Contractors should read this as a narrow, high-level approval path, and contracting personnel should treat it as a controlled exception requiring careful documentation and senior-level judgment.
Key Rules
Exceptional circumstances only
A contractor may seek mitigation or waiver only when it cannot satisfactorily prevent a personal conflict of interest as required by FAR 52.203-16(b)(2)(i). This is not a general permission to relax conflict controls; it is reserved for unusual situations where prevention cannot be achieved.
Request must go through CO
The contractor must submit the request through the contracting officer. This ensures the Government has an official point of review and that the request is handled within the contract administration chain.
HCA decides best interest
Only the head of the contracting activity may agree to a mitigation plan or waive the prevention requirement, and only if the HCA determines in writing that the action is in the best interest of the Government. The decision must be documented and based on Government interest, not contractor convenience.
Mitigation conditions allowed
If the HCA approves relief, the HCA may impose conditions to mitigate the personal conflict of interest. The approval can therefore be tailored, with safeguards such as restrictions, screening, or other controls.
Waiver is permitted
The HCA may also waive the requirement to prevent personal conflicts of interest. A waiver is a stronger form of relief than mitigation and should be used only when the Government concludes that prevention is not required in the particular circumstance.
No redelegation
The authority to approve mitigation or grant a waiver may not be redelegated. This means the HCA must personally exercise the authority and cannot pass it to a subordinate official.
Responsibilities
Contractor
Identify when a personal conflict of interest cannot be satisfactorily prevented, prepare a request for mitigation or waiver, and submit it through the contracting officer. The contractor must support the request with enough facts for the Government to evaluate the risk and proposed controls.
Contracting Officer
Receive the contractor’s request, route it appropriately, and ensure the matter is handled under the contract administration process. The contracting officer should also help ensure the request is complete and that any approved conditions are incorporated or enforced as needed.
Head of the Contracting Activity
Review the request, make a written determination that mitigation or waiver is in the best interest of the Government, and either impose mitigation conditions or grant a waiver. The HCA must personally exercise this authority and may not redelegate it.
Agency/Contracting Activity
Maintain internal controls so that requests are elevated to the proper official, decisions are documented, and any approved mitigation measures are monitored for compliance. The organization must also ensure the non-redelegable nature of the authority is respected.
Practical Implications
This section is a narrow exception process, so contractors should not assume a conflict can be waived just because it is inconvenient to prevent. The default rule remains prevention under FAR 52.203-16.
Requests should be well documented and specific. Vague statements that a conflict is hard to manage will not be enough; the Government needs facts, proposed mitigation, and a clear explanation of why prevention is not feasible.
Because the HCA must make a written best-interest determination, approvals may take time and require senior review. Contractors should plan early if a potential conflict is identified.
A mitigation approval is not a free pass. If conditions are imposed, the contractor must follow them exactly, and failure to do so can create compliance, performance, or integrity problems.
The no-redelegation rule is important operationally: if a subordinate official purports to approve the mitigation or waiver, the approval may be invalid. Contracting offices should verify that the decision came from the proper HCA and is properly documented.
Official Regulatory Text
(a) In exceptional circumstances, if the contractor cannot satisfactorily prevent a personal conflict of interest as required by paragraph (b)(2)(i) of the clause at 52.203-16 , Preventing Personal Conflicts of Interest, the contractor may submit a request, through the contracting officer, for the head of the contracting activity to- (1) Agree to a plan to mitigate the personal conflict of interest; or (2) Waive the requirement to prevent personal conflicts of interest. (b) If the head of the contracting activity determines in writing that such action is in the best interest of the Government, the head of the contracting activity may impose conditions that provide mitigation of a personal conflict of interest or grant a waiver. (c) This authority shall not be redelegated.