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52.212-5 Tailoring..


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When using 52.212-5, what is your interpretation of "tailoring" the clause? I interpret this as meaning one cannot change ANY portion of the clause, including deleting the unchecked, not applicable clauses. I can't find any clarification on this issue and am hoping someone out there knows something!

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Guest carl r culham

By my read of FAR 12.301(B)(4) your interpretation is correct. This reference requires the indication of which clauses are applicable, "fill-in" as applicable, and addendum if applicable. This reference does not indicate that one should "delete" anything and notes specifically that the clause "may not" be tailored.

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We do tailor 52.212-5 and 52.212-3. We had legal review and they agreed that if we met the requirements of 52.102?, it could be tailored.

Oh, well if legal reviewed it, then it must be ok. Is that how that works?

FAR 52.102( c ) has nothing to do with tailoring. It has to do with incorporating provisions and clauses. This is what it says:

Agency approved provisions and clauses prescribed in agency acquisition regulations, and provisions and clauses not authorized by Subpart 52.3 to be incorporated by reference, need not be incorporated in full text, provided the contracting officer includes in the solicitation and contract a statement that?

(1) Identifies all provisions and clauses that require completion by the offeror or prospective contractor;

(2) Specifies that the provisions and clauses must be completed by the offeror or prospective contractor and must be submitted with the quotation or offer; and

(3) Identifies to the offeror or prospective contractor at least one electronic address where the full text may be accessed.

Are you trying to say that you don't incorporate the full text of FAR 52.212-3 and -5 into your solicitation? If so, that is not tailoring.

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Guest Vern Edwards
When using 52.212-5, what is your interpretation of "tailoring" the clause?

As a general rule, any change to a prescribed clause is a deviation unless the FAR provides otherwise. See FAR 1.401:

1.401 Definition. ?Deviation? means any one or combination of the following:

* * *

( c) The use of any solicitation provision or contract clause with modified or alternate language that is not authorized by the FAR (see definition of ?modification? in 52.101(a) and definition of ?alternate? in 2.101(a)).

(d) The use of a solicitation provision or contract clause prescribed by the FAR on a ?substantially as follows? or ?substantially the same as? basis (see definitions in 2.101 and 52.101(a)), if such use is inconsistent with the intent, principle, or substance of the prescription or related coverage on the subject matter in the FAR... .

FAR 12.302 contains the rules about tailoring provisions and clauses for commercial item contracts and permits tailoring only of 52.212-1 and 52.212-4. I know of nothing in FAR that permits tailoring of 52.212-5, except to check applicable terms as provided by FAR 12.301(B)(4), which, technically, is not "tailoring." Any other tailoring of that clause would require approval to deviate from FAR in accordance with FAR 1.402. Any tailoring without such approval would be an unauthorized devision.

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When using 52.212-5, what is your interpretation of "tailoring" the clause? I interpret this as meaning one cannot change ANY portion of the clause, including deleting the unchecked, not applicable clauses. I can't find any clarification on this issue and am hoping someone out there knows something!

My practice has been that we do not tailor the -5. If we need to tailor (and we have in order to add option clause or something...) then we place addendum to the -4. We leave the -5 as is and check what is applicable.

We have also created addendum to the -2 to inform offerors of evaluation criteria.

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Oh, well if legal reviewed it, then it must be ok. Is that how that works?

FAR 52.102( c ) has nothing to do with tailoring. It has to do with incorporating provisions and clauses. This is what it says:

Are you trying to say that you don't incorporate the full text of FAR 52.212-3 and -5 into your solicitation? If so, that is not tailoring.

Since I'm sure the sarcasm was completely necessary to make your point, I won't take offense. No, legal review does not necessarily make something right. As for tailoring, in the true sense of the word, making changes to minimize something would be considered tailoring. However, in how tailoring is used in the FAR, you are correct in that simply not incorporting full text is not necessarily tailoring. We do not include either clause in full text. As for FAR 52.212-5, we only include the applicable clauses in solicitations and delete all all unchecked clauses. Is that considered tailoring? I guess it depends on who you ask...

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Guest Vern Edwards

Some old-time 1102s, like Don, bristle when a contracting person says that he or she did or did not do something because a lawyer said it was or was not consistent with FAR. Their attitude is that COs are the interpreters of FAR, not lawyers. Lawyers, they think, can advise a CO about case law that might affect an interpretation of FAR, but are otherwise no more qualified to say what FAR means than a competent CO. Contrary to what might be popular belief, not all attorneys are well-versed in FAR or in the law of statutory and regulatory interpretation. Such old timers are disdainful of COs who go to a lawyer to ask about what FAR says or means.

Too many COs know nothing about the FAR and so go to a lawyer to ask what the FAR says about this or that. I consider that to be shameful in many cases, and lawyers have complained to me that COs do it too often. I cannot imagine a competent CO going to a lawyer to ask about the rules for tailoring commercial item terms and conditions, even though GAO has addressed that issue on a very few occasions. See, e.g., Crescent Helicopters, B-284734, 2000 CPD ? 90. I would expect a competent CO who buys commercial items to be familiar with those few decisions. However, I can imagine a first-rate CO asking a lawyer for advice about GAO and Court of Federal Claims decisions on the distinction between clarification and discussion in source selection. A competent CO who does source selections should know that to be a complex area of law and to seek out competent legal advice. He or she should seek out a lawyer not because the lawyer is necessarily expert in such matters, but because he or she has been professionally trained to do legal research and interpret case law.

Anyway, I don't think Don intended any offense. He simply was reacting like an old-time CO.

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