FAR 9.108-4—Waiver.
Plain-English Summary
FAR 9.108-4 provides a narrow waiver authority for the restrictions in FAR 9.108-2 and the requirement in FAR 9.108-3 when a specific contract must proceed despite those provisions. It addresses who may grant the waiver, the standard that must be met, the need for a written determination, the requirement to document the decision, and the obligation to report the waiver to Congress. In practical terms, this section exists to preserve a national-security escape valve while keeping the exception tightly controlled and transparent. It means the normal prohibition and related requirement remain in force unless the agency head personally concludes, in writing, that bypassing them is necessary for national security. For contractors and contracting officials, the section signals that waivers are extraordinary, contract-specific, and not something that can be assumed, delegated casually, or applied broadly across an agency.
Key Rules
Agency head may waive
Only the agency head has authority to waive the prohibition in FAR 9.108-2 and the requirement in FAR 9.108-3. The waiver applies only to a specific contract, not to a class of contracts or a general procurement program.
National security standard
The agency head must determine that the waiver is required in the interest of national security. This is a substantive threshold, meaning the waiver cannot be granted for convenience, schedule pressure, or ordinary mission preference.
Written determination required
The decision must be made in writing. A written determination creates the official record showing the basis for the waiver and helps demonstrate that the agency met the regulatory standard.
Decision must be documented
The agency must document the determination, which means retaining the rationale and supporting facts in the contract file or other official records. Documentation is essential for accountability, review, and auditability.
Congress must be notified
The waiver must be reported to Congress. This reporting requirement adds oversight and ensures that use of the waiver authority is visible outside the agency.
Responsibilities
Agency Head
Determine whether a waiver is necessary for a specific contract, make the determination in writing, ensure the decision is documented, and report the waiver to Congress.
Contracting Officer
Recognize that the waiver authority is limited and cannot be assumed; elevate requests or issues to the agency head through the proper chain and ensure the contract file reflects the waiver if granted.
Agency Acquisition/Legal Staff
Support the agency head with the factual, legal, and policy analysis needed to justify the national-security determination, prepare documentation, and assist with congressional reporting.
Contractor
Understand that the waiver is exceptional and contract-specific; do not rely on it unless it has been formally granted and incorporated into the procurement record as applicable.
Practical Implications
This is an exception, not a routine workaround. If a procurement appears to need relief from FAR 9.108-2 or 9.108-3, the agency must treat it as a high-level national-security decision, not a contracting officer-level judgment.
The waiver must be tied to one specific contract. Agencies should not use it as a blanket policy tool, and contractors should not assume a waiver for one action carries over to future awards.
Documentation matters as much as the decision itself. Missing or weak written support can create protest, audit, or oversight risk even if the agency believed the waiver was justified.
Congressional reporting adds visibility and can slow the process. Agencies should plan for internal review, approval routing, and reporting lead time if a waiver is being considered.
A common pitfall is treating urgency as equivalent to national security. The regulation requires a national-security necessity, so agencies should be prepared to explain why the waiver is essential to that interest, not merely helpful or expedient.
Official Regulatory Text
Any agency head may waive the prohibition in subsection 9.108-2 and the requirement of subsection 9.108-3 for a specific contract if the agency head determines in writing that the waiver is required in the interest of national security, documents the determination, and reports it to the Congress.