FAR 3.805—Exemption.
Plain-English Summary
FAR 3.805 creates a narrow, high-level exemption authority for the Secretary of Defense from the prohibitions in this subpart. It applies only to a "covered Federal action," only on a case-by-case basis, and only when the Secretary makes a written determination that the exemption is in the national interest. The section also requires immediate congressional notification after the determination is made, which adds transparency and oversight to an otherwise discretionary exception. In practice, this means the rule is not a routine contracting tool; it is an extraordinary safeguard that can override the subpart’s restrictions only for specific Defense actions and only with formal justification. Contractors generally do not invoke this provision themselves, but they may be affected if a DoD procurement or related action is exempted. Contracting personnel should treat this as a rare, senior-level decision that must be documented, defensible, and promptly reported to Congress.
Key Rules
DoD-only exemption authority
Only the Secretary of Defense may grant this exemption, and only for a covered Federal action. The authority does not create a general waiver for agencies or contracting officers.
Case-by-case decision
The exemption must be made individually for each action, not as a blanket or standing waiver. Each request or situation must be evaluated on its own facts.
National interest finding
The Secretary must determine that the exemption is in the national interest. This requires an affirmative judgment, not merely convenience or administrative preference.
Written determination required
The national-interest determination must be made in writing. Written documentation is essential to show the basis for the exemption and to support oversight and audit review.
Immediate congressional notice
After making the determination, the Secretary must transmit a copy of the exemption to Congress immediately. This ensures prompt legislative awareness and oversight of the exception.
Responsibilities
Secretary of Defense
Decide whether a covered Federal action should be exempted, make a written finding that the exemption is in the national interest, and transmit a copy of the exemption to Congress immediately after the determination.
DoD contracting officials
Identify when a matter may involve this exemption, elevate it for appropriate senior review, and ensure the action is not treated as exempt unless the Secretary has made the required written determination.
Congress
Receive immediate notice of the exemption and exercise oversight based on the Secretary’s written determination.
Contractors
Recognize that this is an internal government exemption authority, not a contractor election or entitlement, and comply with the applicable subpart unless the government formally advises that an exemption has been granted.
Practical Implications
This is an extraordinary exception, not a routine procurement workaround. If a DoD action appears to need it, the issue should be escalated quickly and handled at senior levels.
The written record matters. Without a written national-interest determination, the exemption is not properly supported and may be vulnerable to challenge or oversight criticism.
Immediate congressional transmission creates a timing requirement that should be built into internal approval workflows; delays can create compliance problems.
Contractors should not assume an exemption exists just because a program is sensitive or urgent. They should ask for the formal basis if the government relies on this authority.
Because the authority is limited to covered Federal actions and the Secretary of Defense, other agencies and lower-level officials cannot use this section to bypass the subpart’s prohibitions.
Official Regulatory Text
The Secretary of Defense may exempt, on a case-by-case basis, a covered Federal action from the prohibitions of this subpart whenever the Secretary determines, in writing, that such an exemption is in the national interest. The Secretary shall transmit a copy of the exemption to Congress immediately after making the determination.