When Does a Regulation Have the "Force and Effect of Law"?
Started by Vern Edwards · Sep 2, 2021 · 5 replies
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Vern Edwards
Sep 2, 2021 · 4y ago
When does an agency regulation have the "force and effect of law"?
See LAX ELECTRONICS, INC. d/b/a AUTOMATIC CONNECTOR v. United States, Court of Federal Claims No. 19-1668C, June 10, 2021, in which the Court cites the Federal Circuit.
https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv1668-36-0
The discussion is on pages 5 - 8.
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Don Mansfield
Sep 2, 2021 · 4y ago
The Court references the procedural requirements of the Administrative Procedures Act (5 U.S.C. § 552) in its discussion. However, I don't see how that's relevant. 5 U.S.C. § 553(a)(2) exempts matters relating to contracts from the APA's rule making requirements. That's why we have 41 U.S.C. 1707 (to require publication of procurement rules).
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Vern Edwards
Sep 3, 2021 · 4y ago
@Don MansfieldDid you see footnote 6? And do you think DODM 4120.24 is covered by 5 USC 553(a)(2).?
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Don Mansfield
Sep 3, 2021 · 4y ago
Vern Edwards said:
Did you see footnote 6?
Yes, what about it?
Vern Edwards said:
And do you think DODM 4120.24 is covered by 5 USC 553(a)(2).?
I don't know about the entire document, but I do think some parts are (e.g., Enclosure 4 (Standardization in the Acquisition Process), Enclosure 12 (DIDs), and Enclosure 14 (Qualification)). FAR 11.102 refers to the guidance in the Manual when prescribing a policy for selecting requirements documents, so I think that is a matter related to contracts.
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Vern Edwards
Sep 3, 2021 · 4y ago
Yes, well...
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Retreadfed
Sep 3, 2021 · 4y ago
Don Mansfield said:
5 U.S.C. § 553(a)(2) exempts matters relating to contracts from the APA's rule making requirements. That's why we have 41 U.S.C. 1707 (to require publication of procurement rules).
If the manual is a matter relating to contracts so that it is exempt from the APA's rule making requirements, what impact would failure to publish under 1707 have on its validity?