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Vern Edwards

What is the worst sentence in FAR?

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According to The New York Times, April 14, 2011, the following sentence from the U.S. tax code is considered the most difficult to understand:

For purposes of Paragraph (3), an organization described in Paragraph (2) shall be deemed to include an organization described in Section 501( c) (4), (5), or (6) which would be described in Paragraph (2) if it were an organization described in Section 509(a)(3).
That is the last sentence in 26 USC 509(a).

I'm taking nominations for the most difficult sentence to understand in the FAR or in an agency FAR supplement. I don't think there is anything as bad as the one quoted above, but who knows?

Please don't clutter up your post with a lot of analysis or opinion. Just cite and quote the sentence. My panel of judges with choose the best worst sentence submitted.

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This may be stretching things but I'm nominating a CAS requirement from the FAR Appendix at 9904.403-40?(3)--

Where a particular segment receives significantly more or less benefit from residual expenses than would be reflected by the allocation of such expenses pursuant to paragraph ?(1) or (2) of this subsection (see 9904.403-50(d)), the Government and the contractor may agree to a special allocation of residual expenses to such segment commensurate with the benefits received.

There's a very similar provision at 9904.418-50(f) that also uses the term "may agree".

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27.401

Limited rights means the rights of the Government in limited rights data as set forth in a Limited Rights Notice.

[Well, that just clears it up for us...]

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Take your pick from most of FAR Part 25.

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I always "liked" this sentence:

19.602-1 Referral.

(a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting, but for sureties see 28.101-3(f) and 28.203(c )), the contracting officer shall?

(1) Withhold contract award (see 19.602-3); and

(2) Refer the matter to the cognizant SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern?

(i) Is determined to be unqualified and ineligible because it does not meet the standard in 9.104-1(g), provided, that the determination is approved by the chief of the contracting office; or

(ii) Is suspended or debarred under Executive Order 11246 or Subpart 9.4.

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In general, I think the FAR is fairly understandable, though the CAS requirements are an exception. I don't know any other FARs that include a math problem...

FAR 52.215-15 Pension Adjustments and Asset Reversions.

(B)(2) For contracts and subcontracts that are not subject to full coverage under the CAS, the amount measured, assigned, and allocated in accordance with 48 CFR 9904.413-50?(12), except the numerator of the fraction at 48 CFR 9904.413-50?(12)(vi) shall be the sum of the pension plan costs allocated to all non-CAS covered contracts and subcontracts that are subject to Federal Acquisition Regulation (FAR) Subpart 31.2 or for which certified cost or pricing data were submitted.

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I don't know about the worst, but it sure is a funny one. Almost an oxymoron.

"FAR 44.403 Contract clause.

The contracting officer shall insert the clause at 52.244-6, Subcontracts for Commercial Items, in solicitations and contracts other than those for commercial items."

What the????

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Came across this one yesterday.

From FAR 22.401:

?Site of the work.??

(1) Means?

(i) The primary site of the work. The physical place or places where the construction called for in the contract will remain when work on it is completed; and

(ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is?

(A) Located in the United States; and

(B) Established specifically for the performance of the contract or project;

(2) Except as provided in paragraph (3) of this definition, includes fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided?

(i) They are dedicated exclusively, or nearly so, to performance of the contract or project; and

(ii) They are adjacent or virtually adjacent to the ?primary site of the work? as defined in paragraphs (1)(i) of ?the secondary site of the work? as defined in paragraph (1)(ii) of this definition;

(3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards of a contractor or subcontractor whose locations and continuance in operation are determined wholly without regard to a particular Federal contract or project.

That's one sentence. The bolded text contains two mistakes. See if you can find them.

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Came across this one yesterday.

From FAR 22.401:

That's one sentence. The bolded text contains two mistakes. See if you can find them.

I think the first appearance of the word "of" may be a typo and it's meant to be "or". But are you talking about that kind of mistake?

I don't know if it's a mistake or not, but it does seem a little circular to define something as being part of the secondary site of work so long as it is adjacent to the secondary site of work.

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I think the first appearance of the word "of" may be a typo and it's meant to be "or". But are you talking about that kind of mistake?

I don't know if it's a mistake or not, but it does seem a little circular to define something as being part of the secondary site of work so long as it is adjacent to the secondary site of work.

That is one of the mistakes. The other is that "paragraphs (1)(i)" should be singular. These mistakes are not present in the same definition at FAR 52.222-6(a).

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Yes, there are five periods, but what would be the five sentences? I don't think that "Site of Work." is a sentence. I missed the period in the middle of paragraph (3)--that's definitely a new sentence beginning with "Such permanent..."

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Came across this one yesterday.

From FAR 22.401:

That's one sentence. The bolded text contains two mistakes. See if you can find them.

Notwithstanding the two mistakes, can you tell what they meant by "secondary site of the work" for purposes of Davis-Bacon Act application and what is not considered to be a secondary site?

It can make a big difference as to a contractor's labor costs and productivity.

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Notwithstanding the two mistakes, can you tell what they meant by "secondary site of the work" for purposes of Davis-Bacon Act application and what is not considered to be a secondary site?

It can make a big difference as to a contractor's labor costs and productivity.

I think I get what they meant. A staging area in Tijuana would not be a "secondary site of the work" for a construction project in San Diego, for example.

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I think I get what they meant. A staging area in Tijuana would not be a "secondary site of the work" for a construction project in San Diego, for example.

Don, actually - Tijuana probably isn't a good example. The D-B Act doesn't apply in Mexico to my knowledge. However, a non-adjacent site that wasn't specifically set up for the project probably wouldn't be classified as a secondary site, for example.

I think that the text can reasonably be deciphered. I wont clutter the thread with discussion concerning the background and reasons for the coverage. But the FAR Council should be notified and can easily correct the errors. Of course, I'm not on the panel that decides what is the most difficult sentence to understand in the FAR or in an agency FAR supplement. But this one doesn't seem to be that goofy in comparison with some of the others mentioned.

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Here is a bad one that has caused some confusing litigation. FAR 52.215-1( c)(3)(ii)(A):

Any proposal, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ?late? and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and?(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or (2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government?s control prior to the time set for receipt of offers; or (3) It is the only proposal received.

On hundred and forty two words. See Watterson Const. Co. v. U.S., 98 Fed. Cl. 84 (March 2011).

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How about this, from 52.216-16(g).

"(1) Within 45 days after the end of each quarter of the Contractor?s fiscal year in which a delivery is first made (or services are first performed) and accepted by the Government under this contract, and for each quarter thereafter, the Contractor shall submit to the contract administration office (with a copy to the contracting office and the cognizant contract auditor) a statement, cumulative from the beginning of the contract, showing?(i) The total contract price of all supplies delivered (or services performed) and accepted by the Government and for which final prices have been established; (ii) The total costs (estimated to the extent necessary) reasonably incurred for, and properly allocable solely to, the supplies delivered (or services performed) and accepted by the Government and for which final prices have not been established; (iii) The portion of the total target profit (used in establishing the initial contract price or agreed to for the purpose of this paragraph (g)) that is in direct proportion to the supplies delivered (or services performed) and accepted by the Government and for which final prices have not been established?increased or decreased in accordance with paragraph (d)(2) of this clause, when the amount stated under subdivision (g)(1)(ii) of this clause differs from the aggregate target costs of the supplies or services; and (iv) The total amount of all invoices or vouchers for supplies delivered (or services performed) and accepted by the Government (including amounts applied or to be applied to liquidate progress payments)."

248 words. I don't understand "each quarter of the Contractor's fiscal year in which a delivery is first made". Would there be more than one quarter in a fiscal year in which a delivery is "first made"?

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I know, this is an old post and I'm sure your panel of judges already awarded the all expenses paid cruise award for the best answer, but I got a laugh out o fthe following (my nominated sentence is the last sentence contained in the quote below):

(a) Definitions. As used in this clause—

“Inverted domestic corporation” means a foreign incorporated entity which is treated as an inverted domestic corporation under 6 U.S.C. 395(B), i.e., a corporation that used to be incorporated in the United States, or used to be a partnership in the United States, but now is incorporated in a foreign country, or is a subsidiary whose parent corporation is incorporated in a foreign country, that meets the criteria specified in 6 U.S.C. 395(B), applied in accordance with the rules and definitions of 6 U.S.C. 395©. An inverted domestic corporation as herein defined does not meet the definition of an inverted domestic corporation as defined by the Internal Revenue Code at 26 U.S.C. 7874.

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