FAR 40.202-5—Exceptions.
Plain-English Summary
FAR 40.202-5 identifies specific exceptions to the prohibitions in FAR 40.202 and explains when those prohibitions do not apply. It covers three exception categories: wildfire management operations and search and rescue operations, intelligence activities, and Tribal law enforcement or Tribal emergency service agencies. In each case, the exception is tied to a determination by an authorized official, and in two of the three cases that determination must be made in consultation with the Secretary of Homeland Security. The section exists to preserve mission-critical operational flexibility where the general prohibitions would otherwise interfere with urgent public safety, national security, or Tribal emergency response needs. In practice, this means agencies must not assume the prohibitions are absolute; instead, they must evaluate whether the procurement or operation falls within one of these narrowly defined exceptions and document the required determination before proceeding.
Key Rules
Wildfire and rescue exception
The prohibitions in FAR 40.202 do not apply when an authorized official of an appropriate Federal agency determines, in consultation with the Secretary of Homeland Security, that the procurement or operation is necessary to support the full range of wildfire management operations or search and rescue operations. The exception is limited to what is necessary for those missions.
Intelligence activities exception
The prohibitions do not apply to activities subject to the reporting requirements under title V of the National Security Act of 1947, any authorized intelligence activities of the United States, or any procurement or activity that supports an authorized intelligence activity. This exception is broad in subject matter but limited to authorized intelligence-related work.
Tribal emergency and law enforcement exception
The prohibitions do not apply to Tribal law enforcement or Tribal emergency service agencies when an authorized official determines, in consultation with the Secretary of Homeland Security, that the procurement or operation is necessary to support the full range of law enforcement operations or search and rescue operations on Indian lands. The exception is mission-based and land-specific.
Authorized official determination required
Each exception depends on a determination by an authorized official at the relevant agency or entity. The determination is not automatic; it must be made by someone with authority and should be supported by the operational facts showing necessity.
Consultation with Homeland Security
For the wildfire/search and rescue exception and the Tribal law enforcement/emergency service exception, the authorized official must consult with the Secretary of Homeland Security. That consultation is a required procedural step before relying on the exception.
Responsibilities
Contracting Officer
Confirm whether the procurement or operation falls within one of the listed exceptions before applying FAR 40.202 prohibitions. Ensure the file reflects the required authorized-official determination and any required consultation with the Secretary of Homeland Security.
Authorized Official at the Federal Agency
Make the necessity determination for wildfire management or search and rescue operations, or for Tribal law enforcement or Tribal emergency service operations, as applicable. The official must ensure the procurement or operation is necessary for the covered mission and must consult with the Secretary of Homeland Security where required.
Intelligence Community / Authorized Intelligence Activity Officials
Determine whether the activity is subject to title V reporting, is an authorized intelligence activity, or supports an authorized intelligence activity. Ensure the procurement or activity is properly tied to authorized intelligence work before relying on the exception.
Tribal Law Enforcement or Tribal Emergency Service Agencies
Use the exception only when the procurement or operation is necessary to support law enforcement or search and rescue operations on Indian lands, and only after the required authorized-official determination and consultation with the Secretary of Homeland Security.
Agency Legal / Policy Staff
Advise on whether the facts fit the exception, whether the decision-maker is authorized, and whether the required consultation and documentation are complete. Help ensure the exception is applied narrowly and consistently with the regulation.
Practical Implications
These exceptions are narrow and mission-specific, so users should not treat them as a general waiver of FAR 40.202. The key question is whether the procurement or operation is truly necessary for one of the listed missions.
Documentation matters. If the file does not show the authorized official’s determination, and where required the consultation with the Secretary of Homeland Security, the exception may be vulnerable to challenge.
The intelligence exception is broader in scope than the wildfire and Tribal exceptions, but it still depends on the activity being authorized intelligence work or supporting such work. Contractors and contracting officers should verify the intelligence nexus rather than assume coverage.
For Tribal agencies, the exception applies only to law enforcement or emergency service agencies and only for operations on Indian lands. Scope creep outside those boundaries can create compliance risk.
A common pitfall is using the exception after the fact. The determination and consultation should occur before the procurement or operation proceeds, not as a post hoc justification.
Official Regulatory Text
The prohibitions in this section do not apply to the following (section 1832 of Pub. L. 118-31, 41 U.S.C. 3901 note prec.): (a) Wildfire management operations and search and rescue operations exception. The prohibitions in section 40.202 do not apply to an appropriate Federal agency to the extent that an authorized official at the agency, in consultation with the Secretary of Homeland Security, determines that the procurement or operation is necessary for the purposes of supporting the full range of wildfire management operations or search and rescue operations. (b) Intelligence activities exception. The prohibitions of 40.202 do not apply to any activity subject to the reporting requirements under title V of the National Security Act of 1947 ( 50 U.S.C. 3091 et seq.), any authorized intelligence activities of the United States, or any activity or procurement that supports an authorized intelligence activity. (c) Tribal law enforcement or emergency service agency exception. The prohibitions in 40.202 do not apply to Tribal law enforcement or Tribal emergency service agencies to the extent that an authorized official at the agency, in consultation with the Secretary of Homeland Security, determines that the procurement or operation is necessary for the purposes of supporting the full range of law enforcement operations or search and rescue operations on Indian lands.