FAR 40.202-6—Waivers.
Plain-English Summary
FAR 40.202-6 explains when and how an agency may waive the prohibitions in FAR 40.202 on a case-by-case basis. It covers the authority of the head of the agency, the need to follow agency-specific waiver procedures, and the requirement that any waiver be grounded in the statutory waiver provisions in sections 1823, 1824, and 1825 of Public Law 118-31 (41 U.S.C. 3901 note prec.). The section also identifies the approvals and notifications that must occur before a waiver can take effect: approval by the Director of the Office of Management and Budget after consultation with the Federal Acquisition Security Council, and notice to specified congressional committees. In practice, this means the prohibition is not absolute, but waivers are tightly controlled, exceptional, and subject to high-level executive and congressional oversight. Contractors should understand that waivers are not routine exceptions and cannot be assumed unless the agency has completed all required steps.
Key Rules
Case-by-case waiver only
The agency head may waive the prohibitions in FAR 40.202 only on a case-by-case basis. This means there is no blanket or standing waiver authority under this section; each request must be evaluated individually.
Follow agency procedures
Any waiver must be made in accordance with the agency’s own procedures. Agencies therefore need internal processes for preparing, reviewing, approving, and documenting waiver requests.
Must rest on statutory authority
The waiver must be based on the statutory waiver provisions in sections 1823, 1824, and 1825 of Public Law 118-31. The FAR section does not create independent waiver authority; it implements the statute.
OMB approval required
The waiver requires approval by the Director of the Office of Management and Budget. This is a mandatory external approval step and is not optional or delegable under this section.
FASC consultation required
OMB approval must occur after consultation with the Federal Acquisition Security Council. The consultation requirement ensures the waiver is reviewed in light of federal acquisition security considerations.
Congressional notification required
The agency must notify the Senate Committee on Homeland Security and Governmental Affairs, the House Committee on Oversight and Accountability, and other appropriate congressional committees of jurisdiction. Notification is a condition tied to the waiver process and supports congressional oversight.
Responsibilities
Head of Agency
May grant a waiver only on a case-by-case basis, only under agency procedures, and only when the statutory waiver conditions are satisfied. The agency head must ensure the required OMB approval and congressional notifications are obtained before the waiver is treated as effective.
Office of Management and Budget Director
Must approve the waiver after consultation with the Federal Acquisition Security Council. OMB serves as the required executive-level approver for the waiver.
Federal Acquisition Security Council
Must be consulted before OMB approves the waiver. The council provides security-related input into whether the waiver should be allowed.
Agency acquisition and legal staff
Should prepare the waiver package, verify that the request fits the statutory basis, document the rationale, route the request through agency procedures, and coordinate approvals and notifications.
Congressional committees of jurisdiction
Must be notified of the waiver, including the Senate Committee on Homeland Security and Governmental Affairs, the House Committee on Oversight and Accountability, and any other appropriate committees with jurisdiction.
Practical Implications
Waivers are exceptional, not routine. Contractors and contracting officials should treat FAR 40.202 as a default prohibition unless a formal waiver has been processed through all required channels.
Documentation matters. Agencies should expect to justify why the waiver is needed, how it fits the statute, and why the security and acquisition risks are acceptable.
Do not rely on informal assurances. A waiver is not valid just because an office says it is possible; the required approvals and notifications must actually occur.
Coordination can take time. Because the process involves agency procedures, OMB approval, FASC consultation, and congressional notification, waiver requests may require significant lead time.
Watch for authority gaps. A contracting officer or program office cannot create a waiver on its own; the authority sits with the agency head and is constrained by statute and oversight requirements.
Official Regulatory Text
The head of the agency may waive the prohibitions under 40.202 on a case-by-case basis in accordance with agency procedures and based on the statutory waiver provisions (sections 1823, 1824, and 1825 of Pub. L. 118-31, 41 U.S.C. 3901 note prec.)— (a) With the approval of the Director of the Office of Management and Budget, after consultation with the FASC; and (b) Upon notification to- (1) The Committee on Homeland Security and Governmental Affairs of the Senate; (2) The Committee on Oversight and Accountability in the House of Representatives; and (3) Other appropriate congressional committees of jurisdiction.