Class Deviation 2018-O0017
Determining Contract Type for FMS Contracts

Effective immediately, when determining contract type for FMS procurements, Contracting Officers shall comply with section 830 of the NDAA for FY 2017; the policy expressed in the Director, Defense Pricing/Defense Procurement and Acquisition Policy (DPAP), memorandum dated June 28, 2018, "Negotiations of Sole Source Major Systems for U.S. and U.S./FMS Combined Procurements;" and the guidance provided at DFARS PGI 216.403-l(l)(ii)(B).

Section 830 provides requirements, exceptions, and waiver authority for the use of firm fixed-price contracts for foreign military sales. Therefore contracting officers shall-

  • In accordance with section 830(a), unless one of the following exceptions or waivers apply, use firm fixed-price contracts for foreign military sales.
  • In accordance with section 830(b), Exceptions, use a different contract type if the FMS customer has established in writing a preference for a different contract type or has requested in writing that a different contract type be used for a specific foreign military sale.
  • In accordance with section 830(c), Waiver Authority, request a waiver on a case-by­ case basis when a contract type other than firm fixed-price is in the best interests of the United States and American taxpayers. The determination of best interest must be made on a case-by-case basis. The waiver approval authority is the Chief of the Contracting Office.

The aforementioned June 28, 2018 memorandum and DFARS PGI 216.403-l(l)(ii)(B) provide additional guidance to be considered in determining whether a contract type other than firm fixed­ price is in the best interest of the U.S. and the taxpayer.

This class deviation remains in effect until it is incorporated in the DFARS, or until it is otherwise rescinded.

Effective Date: June 28, 2018 (4 years ago)
Expire Date: None Given
Incorporated: November 27, 2019 (3 years ago)
Official Documents: Memo
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