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I really like the effort to do the Government's business in plain language, but find myself foot dragging rather heavily on a major tenet: The historical Government use of "shall" vs the plain language use of "must".

Please first see
https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/

I've reviewed quite a few draft work statements over a number of years. It's easy to spot and deal with a lot of ambiguous wording up front.  I won't say anything more about that. My concern is with the ambiguities which can emerge later during performance  as unforeseen circumstances arise (to be clear, I'll call these, latent ambiguities).   

I'm  of the opinion that widespread  replacement of  the term "shall" ("the contractor shall") with the the command "must" ("the contractor must") in the spirit of implementing plain language in work statements, would have a downside not touched upon in the linked article.

I think that using "must" in place of "shall" in work statements would run a considerable risk of prompting thoughtless or given human nature, even sometimes malicious, compliance on the part of the contractor in situations where latent ambiguities arise.

Let's contrast the two approaches:

First, let's consider the current commonplace contracting environment with the contractor performing under a "shall" statement. When the contractor encounters, due to previously unforeseen circumstances, a latent ambiguity, my view is that the contractor is more inclined to turn to the Government for clarity before performance and this can more quickly result in simple resolution of a latent ambiguity. In fact, the contractor might even see foresee the circumstance earlier than the Government, for example when reading through the work statement with the Government at a Post Award/Pre-Performance Conference.

Next, let's consider a contracting environment where the government routinely prepares a statement of work with many, perhaps hundreds, of "the contractor must" statements within the statement of work. By using "must" the Government is being both more definite (though not necessarily correctly so) and less open to other considerations. A contractor faced with the same latent ambiguity may see (indeed may actually have) less need to seek clarity from the Government before performance. The full result of the latent ambiguity will surface only after performance and given the conventions of contract interpretation may be the Government's responsibility to bear. When iterated for years over many performances on many contracts, I think the cumulative effect of a decreasing use of "shall" and an accompanying increased use of "must" would be significant and not in a good way.

 The risk of harm from latent ambiguities seems to me to be both greater and more common than the incremental benefit from any amount of Government wins before deliberative bodies that could reasonably come from universal adoption of "must" over the current use of "shall". Maybe the chief benefit of "must" over "shall" is an avoidance of conflict that I have yet to see and understand. If any of you see that as the case, then please help me see how it is so.  Otherwise, it would seem that the linked article  should really be counter-balanced by the kind of marginal analysis I've hinted at in this paragraph.

Even a little practice in this field will quickly show us that it is hard when preparing work statements to adequately cover all situations that could arise, whether in the fog of war or other emergent conditions. So, latent ambiguities in a work statement are both a hazard and a fact of life. Prevention measures against latent ambiguities in a work statement (by way of spending additional time to consider more careful, particular language, yet avoid pedantry) will have a modicum of success, but will also serve as a time sink, a cost to be paid now toward  an uncertain benefit to be paid back later in greater or lesser amounts, and as such would not and should not be a 100% solution. if we're efficient and smart we'll always recognize this ever-present tradeoff...and so we don't want to just assume away the harm from latent ambiguities. It will always be with us to one degree or another, to serve as a counterpoint to any agressive use of "must" language in the work statements written by the Government.

i understand that what I have stated is largely notional and I haven't provided evidence, but what else is weak with this thinking? 

We really are faced with this decision and, unless i've missed something, we aren't likely to get meaningful data for a while...

What will you decide to do?

Why?
 

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@FAR-flung 1102

56 minutes ago, FAR-flung 1102 said:

Next, let's consider a contracting environment where the government routinely prepares a statement of work with many, perhaps hundreds, of "the contractor must" statements within the statement of work. By using "must" the Government is being both more definite (though not necessarily correctly so) and less open to other considerations.

Emphasis added.

Allow me to point out that FAR 2.201 requires insertion of the clause at FAR 52.202-1, Definitions (JUN 2020), in all solicitations and contracts valued at more than the simplified acquisition threshold. That clause says:

Quote

 

DEFINITIONS (JUN 2020)

When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless -

(a) The solicitation, or amended solicitation, provides a different definition;

(b) The contracting parties agree to a different definition;

(c) The part, subpart, or section of the FAR where the provision or clause is prescribed provides a different meaning;

(d) The word or term is defined in FAR part 31, for use in the cost principles and procedures; or

(e) The word or term defines an acquisition-related threshold, and if the threshold is adjusted for inflation as set forth in FAR 1.109(a), then the changed threshold applies throughout the remaining term of the contract, unless there is a subsequent threshold adjustment; see FAR 1.109(d).

 

So the definitions in FAR 2.101 are contractually binding in accordance with the terms of all contracts that include the definitions clause.

Now look up the words "must" and "shall" in FAR 2.101 and tell us why you think "must" is more definite than "shall."

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15 minutes ago, Vern Edwards said:

@FAR-flung 1102

Emphasis added.

Allow me to point out that FAR 2.201 requires insertion of the clause at FAR 52.202-1, Definitions (JUN 2020), in all solicitations and contracts valued at more than the simplified acquisition threshold. That clause says:

So the definitions in FAR 2.101 are contractually binding in accordance with the terms of all contracts that include the definitions clause.

Now look up the words "must" and "shall" in FAR 2.101 and tell us why you think "must" is more definite than "shall."

I no longer think that. You're right, I had not been going with FAR definitions...and I've been taught in the past to check on that to!

Thank you. I'll do my homework better.  That's a quick lesson...

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1 hour ago, FAR-flung 1102 said:

The risk of harm from latent ambiguities seems to me to be both greater and more common than the incremental benefit from any amount of Government wins before deliberative bodies that could reasonably come from universal adoption of "must" over the current use of "shall". Maybe the chief benefit of "must" over "shall" is an avoidance of conflict that I have yet to see and understand. If any of you see that as the case, then please help me see how it is so.  Otherwise, it would seem that the linked article  should really be counter-balanced by the kind of marginal analysis I've hinted at in this paragraph.

FYI, Bryan Garner, the expert on legal language and general English usage, says that shall is more likely to give rise to ambiguities than must. See the entry, "Words of Authority" in Garner's Dictionary of Legal Usage, 3d ed. Discussing shall, he says, "This word runs afoul of several basic principles of good drafting." About must, he says, "The advantage of must over shall is that its meaning is fastened down more tightly in any given sentence."

FAR apparently puts the issue to bed by defining must as meaning the same as shall.

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The real problem isn’t “shall” vs. “must”. It is the fact that, in my opinion, most government spec writers, Solicitation writers, etc. use the passive voice rather than the active voice. There is little need to say shall or must. Just tell the contractor what to do or what the requirement is. And you don’t have to continue to say “the contractor shall” or …”shall be done”…, “shall be done by the contractor”… “shall be sent”, “shall be…” etc. Eliminates the ambiguity of who is the actor or whether something is required or is recommended, etc. 

I edited several large model RFP’s , including each spec section, from the passive to active voice and deleted wording like the contractor shall, the contractor must, shall be done, shall be done by the contractor, etc. USACE used those Model RFP’s Corps-wide for all Design-Build contracts for the $40-50 billion Army Transformation Program. We shortened each of the models by many tens of pages and it was much more readable.

The Army revised its Writing Manual or reg back in the 1980’s to emphasize writing in the active voice and being direct. However, few if any in the Army followed (or perhaps weren’t even aware of the Reg/Manual).

I was in an office in Germany in the late 80’s where at least half the employees were German. Since English was their second language, they had some challenges writing correspondence, reports etc. in English. Our Commander didn’t want to single the Germans out. So, he sent us all to a class, which was based on “The New Army Writing Style”. It was eye opening for me, having worked in and for the Military for almost 15 years at that point. 

Edited by joel hoffman
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19 minutes ago, joel hoffman said:

I edited several model RFP’s , including each spec section, that the USACE was using Corpswide, from the passive to active voice and deleted wording like the contractor shall, the contractor must, shall be done, shall be done by the contractor, etc. We shortened each of the models by many tens of pages and it was much more readable. 

Joel, would a list under the heading Contractor Duties, each of them in a numbered paragraph (and maybe with sub-paragraphs as well), all using the active voice and no shall statements, fit what you are describing? 

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15 minutes ago, FAR-flung 1102 said:

Joel, would a list under the heading Contractor Duties, each of them in a numbered paragraph (and maybe with sub-paragraphs as well), all using the active voice and no shall statements, fit what you are describing? 

In the UCF, I think it would be beneficial for you to review the entire solicitation and where editable, revise it as necessary. Are you referring to Section C “Description/specifications/statement of work”? You might be able to do what you proposed.

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On 8/13/2022 at 6:57 PM, FAR-flung 1102 said:

Joel, would a list under the heading Contractor Duties, each of them in a numbered paragraph (and maybe with sub-paragraphs as well), all using the active voice and no shall statements, fit what you are describing? 

@FAR-flung 1102 Everybody seems to have an opinion about such things.

But do you know about Military Handbook (MIL-HDBK) 245E, Preparation of Statement of Work, 14 JUN 2021? If not, Google the name, download it, and read it. That venerable guide has been around since the 1960s. It is far from perfect, but it is widely used. Start there. Here is the Foreward:

Quote

1. This handbook is approved for use by all Departments and Agencies of the Department of Defense.

2. This handbook is for guidance only and cannot be cited as a requirement in any DoD contract. Contractors or suppliers may utilize this document for guidance in preparing responses to Government requests for proposals.

3. This handbook provides guidance to create a SOW applicable to the possible types of acquisitions across the acquisition life cycle. The SOW specifies the tasks, also referred to as work requirements, to be accomplished by the contractor. The execution of those tasks is left to the contractor's discretion.

4. A sample SOW, reflecting format and content expectations, is provided in the Appendix.

5. Tasks or Work requirements, should be specified in the SOW. All data requirements regarding delivery, format, and content should be in the Contract Data Requirements List (CDRL) in conjunction with the appropriate Data Item Description (DID) as described in this handbook. Redundancy invites conflict and must be avoided.

6. Comments, suggestions, or questions on this document should be addressed to the current POC in the ASSIST online database at https://assist.dla.mil since contact information can change.

 

Moreover, there is a ton of "guidance" available online. Just Google <statement of work guide>. Then take your pick.

Here's a link to an old NASA handbook: https://ntrs.nasa.gov/api/citations/19750015297/downloads/19750015297.pdf

Here's a link to a State of Texas guide for SOWs for IT services: https://dir.texas.gov/it-solutions-and-services/buying-through-dir/statement-work-sow

Here's a GSA guide: https://www.gsa.gov/cdnstatic/SOW_Application.Services.and.Component.Framework.pdf

This is not a new or unique work challenge.

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I apologize for the off topic comment but it’s amazing how many solicitations don’t adhere to this:

Quote

5. Tasks or Work requirements, should be specified in the SOW. All data requirements regarding delivery, format, and content should be in the Contract Data Requirements List (CDRL) in conjunction with the appropriate Data Item Description (DID) as described in this handbook. Redundancy invites conflict and must be avoided.

 

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My comments were limited to the style of writing rather than the content and layout of the solicitation. The original topic of discussion concerned whether or not to use plain language, use of “shall” vs. “must” and other ambiguities. The passive voice often invites ambiguities over who the subject or actor is. Plain writing includes the active voice and avoiding excessive, repetitive words (e.g., “the contractor shall (must)(should) (xxx shall be xxx), (xxxxxxxxxxx shall be provided or xxxxxxx shall be provided by the contractor) , etc. 

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6 hours ago, formerfed said:

5. Tasks or Work requirements, should be specified in the SOW. All data requirements regarding delivery, format, and content should be in the Contract Data Requirements List (CDRL) in conjunction with the appropriate Data Item Description (DID) as described in this handbook. Redundancy invites conflict and must be avoided

Some examples of plain writing and using the active voice which could apply to the handbook that Vern cited :

“5. Specify tasks or work requirements in the SOW. Specify data requirements regarding delivery, format and content in the Contract Data Requirements List (CDRL) in conjunction with the appropriate Data Item Description (DID) as described in this handbook. Avoid redundancy, which invites conflict.”

“6.  Address comments, suggestions or questions on this document to the current POC in the ASSIST online database at https://assist.dla.mil since contact information can change.”

I admit that I’m out of practice 🤠

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Thanks All for hitting the target very well.

Vern, you for prompt me to renew  discovery of that SOW preparation guide. Not too long ago I had the same concern that formerfed brought up (needless overlap between work statement and CDRL) and found that SOW preparation guide by serendipity. The guide did  help me with that issue...yet it left me to wonder why I had not seen it years earlier in training or topical resources on in some other breadcrumb trail.

When I checked out the guide I was happy to see that earlier revisions are also available, so at least through comparison I can learn a little of the history of things. I'll also check out the other links.

Joel, you nailed an immediate concern...the need to clearly and simply establish the performing party.  As for elimination of shall statements, I think I may have some unlearning and unwinding to do. 

 

 

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43 minutes ago, FAR-flung 1102 said:

Joel, you nailed an immediate concern...the need to clearly and simply establish the performing party.  As for elimination of shall statements, I think I may have some unlearning and unwinding to do.

 

 

 

These are but examples. Of course, someone would develop and include the performance requirements for what constitutes acceptable cleanliness of hallways and restrooms…

No: “All restrooms shall be cleaned once per workday by the contractor…

No: All hallways shall be swept… and mopped…by the contractor.”

No: The contractor shall clean all restrooms once per workday day.

No: The contractor shall sweep and mop hallways…

Instead, say something like: 

Clean all restrooms [at least?] once per workday. [Add the performance requirements for acceptably cleaning and maintaining clean restrooms]

Sweep all hallways…. Mop hallways…[Add the desired performance standards for acceptably sweeping, mopping and perhaps other cleaning necessities, such as scuff removal or carpet cleaning].

Edited by joel hoffman
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For those of you who have access to law review articles through their office, the internet, or a library, look up Macneil, "A Primer of Contract Planning," Southern California Law Review, Vol. 48, page 627 (1975).

See Section II, Lawyer Functions: The Process of Performance and Risk Planning; C. Drafting: Reducing Planning to Media of Mutual Communication.

It's one of the best things of its kind ever written.

 

       

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18 hours ago, formerfed said:

I apologize for the off topic comment but it’s amazing how many solicitations don’t adhere to this:

"...All data requirements regarding delivery, format, and content should be in the Contract Data Requirements List (CDRL) in conjunction with the appropriate Data Item Description (DID) as described in this handbook..."

CDRL (DD 1423) use is mandated for all DoD Components by DoD Manual 5010.12-M (last changed in 2018).  See paragraph C2.5.1 and Section C3.3 of the Manual.

Except for one-time-DIDs (defined in the Manual), DID (DD 1664) use is also mandatory at DoD.  All OMB-approved DIDs are housed in one searchable repository: ASSIST-QuickSearch Basic Search (dla.mil).  We're supposed to tailor these standard DIDs down, by "specifying in block 16 of the [CDRL] those portions of the DID, or other data acquisition document, which are or are not applicable to the specific acquisition."  See paragraphs C2.3.3, DL1.1.2.7, C1.3.2.2, and Section C3.2.

Within DoD, enforcement of these practices really needs to be rejuvenated by a knowledgeable acquisition leader.  I'm not talking some Assistant Secretary - start with the first-line supervisors who can influence the 1101s and 1102s to work together on these documents.  Acquisition professionals should be aware that contractors might only be providing an extended warranty on data required in the CDRL (see DFARS 252.246-7001).

I think on the civilian agency side, these data practices are not even established.  Many agencies include a list of deliverables only.  I have found that makes the deliverable review process somewhat meaningless.

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