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Laxity in Lexicography

Emptor Cautus

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In acquisition we have a tendency to use a number of “nonexistent" words and terms. Well, that might be overstating the issue somewhat, so let’s try again. In acquisition we have a tendency to use a number of terms that are not defined in the Federal Acquisition Regulation (FAR), but are in the FAR. I have no particular problem with that. However, I do have a wee bit of a problem when people in our business use terms as if they were in the FAR, even though they are not there. My concern is compounded by the fact that the people who use the terms don’t even realize that they are not in the FAR. I often wonder whether this is some strange twist of thinking based on the Christian Doctrine.

  • Independent Cost Estimate (ICE) – Appears zero times in the FAR. The terms used in the FAR, in descending order are: cost estimate(s) (27 times), independent Government estimate (4 times), and independent Government cost estimate (3 times). Of the 27 cost estimate references, 15 are to contractor or subcontractor cost estimates. The only requirements on the Government to actually create estimates are for independent Government estimates at FAR 36.203(a) and ( b ) and FAR 36.605(a).
  • Splitting Requirements, as used in avoiding the simplified acquisition threshold – Appears zero times in the FAR. The term used in FAR 13.003©(2) is break down
  • Source Selection Plan – Appears zero times in the FAR. The only reference to a related document in the regulation is at FAR 15.303( b )(2), where the source selection authority shall “Approve the source selection strategy or acquisition plan, if applicable, before solicitation release.”
  • Neutral, as used in past performance – Appears zero times in the FAR. The term used in FAR 15.305(a)(2)(iv) “may not be evaluated favorably or unfavorably on past performance.”
  • Warrant, as used in contracting officer authority – Appears once, incorrectly, at FAR 33.210 Contracting officer’s authority. The term used in FAR 1.603 and elsewhere is “Certificate of Appointment.”

The good news, such as it is, is that the vast majority of the people involved in acquisition don’t even realize that the words and terms are not in the FAR. And, if both the sender and the receiver are ignorant, well, they say ignorance is bliss. Those who do know, try, usually unsuccessfully, to correct the errors.

On occasion, the FAR Council will address the issue, through capitulation. For instance, in what was called the FAR Part 15 Rewrite, “Greatest Value” was changed to “Best Value,” and “Work Statement” was changed to “Statement of Work.” These are what we generally refer to as happy-to-glad changes, but they did align the FAR with current usage. But, don’t necessarily count on it happening for your pet term any time soon. For example, the term “neutral” was eliminated from the FAR in 1997, in favor of complying with the statute. Imagine that. And, as for the venerated “warrant,” the term “Certificate of Appointment” goes back to the Armed Services Procurement Regulation (ASPR) 1-405 Selection, Appointment, and Termination of Appointment of Contracting Officers. Under the ASPR, contracting officers were appointed using a DD Form 1539, Certificate of Appointment. Now, under the Federal Acquisition Regulation (FAR), contracting officers are appointed using a SF 1402 Certificate of Appointment. Having lasted over half a century, I suspect it is here to stay.



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In some cases are not the terms defined or utilized in the Federal Acquisition Regulations System (Title 48 of the Code of Federal Regulations) and therefore are "existent" with regard to use in the acquisition community?

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I think Best and Final Offers is one of these as well, though there is a rogue reference to it in FAR 22.404-2. I keep trying to say Final Proposal Revision but it's not easy fighting habit. Still, it doesn't appear to bother the GAO folks:

http://www.gao.gov/search?search_type=Solr&o=0&facets=&q=%22Best+and+Final+Offer%22&adv=0&criteriaCounter=1&shownCriteriaCounter=1&referenceSearch=1&adv_begin_date=mm%2Fdd%2Fyyyy&adv_end_date=mm%2Fdd%2Fyyyy

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The Federal Acquisition Regulation (FAR) is part of 48 CFR, arguably the most important part. The FAR is codified at 48 CFR Chapter 1. The focus of the blog posting is to point out that people in our acquisition business routinely use a number of terms as if they are in the FAR, when they are not, essentially ignoring the actual FAR terms. I suspect that in many cases the people who use the terms believe them to be in the FAR. There are many such terms.

As apsofacto points out, "best and final offers" (BAFO) is another example, appearing in two rogue instances (i.e., FAR 22.404-2( b )(5) and FAR 22.404-4( c)). BAFO was eliminated from the FAR in the FAR Part 15 Rewrite in 1997. The current term is "final proposal revisions." It is somewhat interesting to note that there is one correct usage in FAR Part 22 (i.e., FAR 22.1003( c )(3)(I)). Apparently, the left hand doesn't know what the right hand is doing.

Perhaps the most interesting term is one I elected not to use, "procuring contracting officer" (PCO), which appears only once in the FAR (i.e., FAR 3.104-4(d)(1)(I). That makes it one instance out of 5,465. According to FAR 2.101, the correct term is "contracting officer," unless you need to specify either "Administrative contracting officer (ACO)" or "Termination contracting officer (TCO)."

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How many times have you heard "change order" or "amendment" used as a generic term for a contract modification?

(I learned the difference under the ASPR, but I'm not quite old enough to have fallen under the AFPI.)

How often do people use "provision" and "clause" interchangeably?

It's hard to encourage precision in terminology without sounding pedantic, but it is important to be precise.

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I pose the opposite problem: a term that does in fact exist in the FAR but, in my humble opinion, should be revisited. When I first started in contracting (only a couple of years ago) I was so confused when a teacher referred to "data other than certified cost and pricing data," and then proceeded to give examples of what it was. It looked just like...lo and behold...CERTIFIED cost and pricing data. In my limited experience, it is rarely anything other than cost and pricing data that simply has not been certified.

I would love to see them rename it "uncertified cost and pricing data" or maybe "cost and pricing information." Does anyone else find this term irksome?

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Perhaps the most interesting term is one I elected not to use, "procuring contracting officer" (PCO), which appears only once in the FAR (i.e., FAR 3.104-4(d)(1)(I). That makes it one instance out of 5,465. According to FAR 2.101, the correct term is "contracting officer," unless you need to specify either "Administrative contracting officer (ACO)" or "Termination contracting officer (TCO)."

Procuring Contracting Officer is defined in the DAU Glossary of Defense Acquisition Acronyms and Terms and is used in the DoD Procedures, Guidance and Information in several instances and in numerous Defense Agency supplements or other publications. Without taking the time to research my old DFARS, I'd venture to say that the PGI language was probably in DFARS before they moved it to PGI. (Jan1, 1997 DFARS at 204.201 uses it, for instance).

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The words do not need to be in the FAR to have meaning. The meaning can be obtained or inferred from a reference to Black's Law Dictionary, the Government Contracts Reference Book, or a dictionary. Government contract "professionals" need to use theses resources in addition to the definitions set out in FAR Part 2 and other FAR Parts and Subparts.

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I am afraid that the confusion KO2BE suffered from was the result of the failure of the instructor to properly distinguish "cost or pricing data" from "data other than cost or pricing data." The definitions, by the way, are actually relatively new, probably having entered federal Government service about the same time as KO2BE, October 1, 2010. That change to the FAR was six years and twenty-three days in the making. It was highly controversial with industry. I remember attending the special public session that was held on the change, where several industry speakers rose to the microphone to adamantly oppose the change because it gave too much power to contracting officers. In reality the change was designed to help contracting officers better understand the full extent of their authority to ask for data other than cost or pricing data, particularly when doing commercial item acquisition. So, the representatives from the FAR Council argued, equally adamantly, that the changes, for the most part, were only rearrangements of existing coverage, and realignment with statutory language.

Although much of the data is the same, I would distinguish "cost or pricing data" from "data other than cost or pricing data" in these ways. First, "cost or pricing data are required to be certified, which is when they become "certified cost or pricing data." "Data other than certified cost or pricing data" are, obviously, not certified. Second, "data other than certified cost or pricing data" are obtained, for the most part, when "cost or pricing data" are not (see FAR 15.403-1 prohibition on obtaining certified cost or pricing data. I include that "for the most part" because of FAR 15.402 Pricing policy, where at (a)(1) it states that the contracting officer

Shall obtain certified cost or pricing data when required by 15.403-4, along with data other than certified cost or pricing data as necessary to establish a fair and reasonable price.

Third, according to the definitions in FAR 2.101, "cost or pricing data are "facts," whereas, "data other than certified cost or pricing data" also contain "judgmental information." The latter is why you have the policy at FAR 15.402(a)(1).

Would "cost and (sic) pricing information," as suggested, be a better term than "data other than certified cost or pricing information"? I won't address the issue, except to point out that the term "data other than certified cost or pricing data" was inserted in the FAR in place of the term "information other than cost or pricing data. That change, and a number of others, came about as a result of FAR Case 2005-036, with a final rule appearing in FAC 2005-45, dated August 30, 2010. The FAC was a huge change to the regulation, affecting 296 pages, although not all of those pages are attributable to the one case. Here is the explanation of the change that appeared in the FAC:

This final rule amends the FAR by redefining "cost or pricing data," adding a definition of "certified cost or pricing data," and changing the term "information other than cost or pricing data," to "data other than certified cost or pricing data." The rule clarifies the existing authority for contracting officers to require certified cost or pricing data or data other than certified cost or pricing data, and the existing requirements for submission of various types of pricing data. The rule is required to eliminate confusion and misunderstanding, especially regarding the authority of the contracting officer to request data other than certified cost or pricing data when there is no other means to determine the proposed prices are fair and reasonable. Most significantly, the rule clarifies that data other than certified cost or pricing data may include the identical types of data as certified cost or pricing data but without the certification. Because the rule clarifies existing requirements, it will have only minimal impact on the Government, offerors, and automated systems.

The changes to terminology were to better align to the statutory terms. FAR 2.101 refers the reader to 10 U.S.C. 2306a(h)(1) and 41 U.S.C. 254b. Note, however, that the second reference is outdated, and the information is now in 41 U.S.C. Chapter 35. Did the rule "eliminate confusion and misunderstanding"? Apparently not, at least not entirely.

How about the suggested "uncertified cost and (sic) pricing data"? My concern with that would be whether it would create confusion with "cost or pricing data," which are require certification, but have just not yet been certified.

Having lived the language on both sides of the change, I believe that we are better off with the language as changed. Could the language be improved? Well, that is for another day, and another FAR case.

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joel hoffman points out that the term "Procuring Contracting Officer" is defined in the DAU Glossary, and appears in the DFARS Procedures, Guidance and Information (PGI), and in other publications. Actually, in the latest edition of the Glossary, the Fifteenth Edition, the term that is defined is "'Procuring' Contracting Officer." The subtle difference is that the Defense Acquisition University has caught on to the need to put quotation marks around the word "Procuring," as it is not the standard term. Additionally, I would suggest you all take a look at the new Disclaimer that appears on page vii of the Fifteenth Edition. The Disclaimer addresses the fact that the Glossary may define words differently than in the Federal Acquisition Regulation (FAR).

Joel pointed out that Procuring Contracting Officer appears in the DoD PGI. In point of fact, it also appears in the DFARS. However, of the 1535 times "contracting officer" appears in the DFARS, only six are "procuring." In the PGI, it's 25 out of 620. As previously pointed out, the term appears in only one instance out of the 5,465 in the FAR. Perhaps, what we have here is a situation where the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council need to provide a little more training for their proofreaders and editors.

As an aside, if you read extensively in our business, you will find that PCO, in addition to standing for "procuring contracting," also stands for "procurement contracting officer" and "principal contracting officer," and who knows what all else.

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