Clauses · FAR · Administration and definitions
FAR 52.232-39 Unenforceability of Unauthorized Obligations
Does the regulation require it to flow down?
No
No mandate: the JUN 2013 text runs to two paragraphs, (a) and (b), and contains no subcontract paragraph; 32.706-3 imposes none. Primes flow it down anyway because the exposure is created at the bottom of the chain — the EULA is signed by whoever installs or resells the software, usually a lower tier. If the Government's indemnity is void under the Anti-Deficiency Act and the prime cannot pass the liability up, the prime pushes the unenforceability down to where the agreement is actually accepted. It rides in six corpus documents across four primes (AAR Jan-2026, Northrop R05-26 FFP/T&M/CR, Raytheon TC002, Lockheed), which is high penetration for a clause with no mandate.
A clause can reach your subcontract without a mandate. Once it is in your document, it is a contract term all the same. The missing mandate is a fact about the regulation. It is not a ruling on your order.
Checked against acquisition.gov on 2026-08-05 · edition JUN 2013 · base v0.9.3 Read the text ↗
What it makes you produce
One item for your checklist.
Nothing to send, ever
There is no paperwork here. It is a rule you follow while you perform the work.
Nothing to hand over. A license term that would make the Government indemnify anyone is unenforceable against it, is not agreed to by a Government user clicking through, and is deemed stricken
FAR 52.232-39(a)
When it is used
FAR 32.706-3, one sentence: 'The contracting officer shall insert the clause at 52.232-39, Unenforceability of Unauthorized Obligations in all solicitations and contracts.' No dollar threshold, no contract-type restriction, no commercial or COTS carve-out, no place-of-performance condition. It becomes operative in fact whenever any supply or service acquired under the contract is subject to a EULA, Terms of Service or similar instrument. In a commercial acquisition the same substance arrives through 52.212-4(u) instead.
Read closely
(b) is the only exception and it is cumulative: indemnification expressly authorized by statute and also authorized under the agency's own regulations and procedures. The cost sits in the upstream vendor agreement rather than in a deliverable — where the Government's side of an indemnity is void and the vendor's demand against you is not, the gap ends up with whoever signed the license.
The 5 templates that name it, with the line
Source: acquisition.gov, FAR 52.232-39, FAR 32.706-3 and FAR 52.212-4(u), (s)(2) (verified 2026-08-05)
This is research, not legal advice. It states what the regulation says about this clause and cites the paragraph behind it. It does not rule on your order, and it does not rule on whether a prime's markings are correct.