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Distinction between Sections C and H in UCF


Voyager

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I would like to refine my understanding of the standards we typically follow in drafting a government contract.  The Uniform Contract Format of FAR Part 15 makes separate the contract Sections C and H, with the following descriptions as guidance:

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15.204-2 Part I - The Schedule.

The contracting officer shall prepare the contract Schedule as follows:

...

(c) Section C, Description/specifications/statement of work. Include any description or specifications needed in addition to Section B (see part 11, Describing Agency Needs).

...

(h) Section H, Special contract requirements. Include a clear statement of any special contract requirements that are not included in Section I, Contract clauses, or in other sections of the uniform contract format.

I think the modifier "special" in Section H's title is not explanatory enough to make a distinction to drafters, due to that term's ubiquity.  This is backed up by the facts that:

  1. Black's Law Dictionary defines "Special" as, "Relating to or designating a species, kind, or sort; designed for a particular purpose; confined to a particular purpose, object, person or class. The opposite of 'general'."  This dictionary then goes on to use it as a modifier in no fewer than 85 terms - from the banal "Special Tooling" to the obscure "Saturday Night Special".
  2. Oxford Advanced Learners Dictionary defines "Special" as any of the following:
    • [usually before noun] not ordinary or usual; different from what is normal
    • more important than others; deserving or getting more attention than usual
    • organized or intended for a particular purpose
    • used by or intended for one particular person or group of people
    • [only before noun] better or more than usual

Therefore, what concise distinction should contract drafters make when deciding if they will impose a contract requirement on their contractor in Uniform Contract Format Section C or in Section H? 

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Wouldn't your rule of thumb lead to problems with the Order of Precedence clause?  Your seemingly catch-all Section H requirements would take precedence over the Section C specifications.

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FAR 52.215-8 Order of Precedence - Uniform Contract Format (OCT 1997)

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

(a) The Schedule (excluding the specifications).

(b) Representations and other instructions.

(c) Contract clauses.

(d) Other documents, exhibits, and attachments.

(e) The specifications.

 

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To bolster the importance of this distinction, take the following example.  You work for an agency that issues numerous, voluminous Directives, Orders or other policy-making devices that direct how the agency conducts its business.  You are in service acquisition awarding a contract with SMEs that conduct that business for said agency.  Consider now whether you would want to write out the contents of your agency's policy into a special clause or into an additional SOW paragraph.  Assume you do not incorporate the whole policy.  Assume the contract is for performance-based services.

This is potentially a benign distinction, but I am nonetheless interested in learning the standard and any tricks of the trade.

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A rule of thumb would be: If a term of a contract specifies the product to be delivered or the service to be performed, put it in Section C. If it describes other kinds of terms, put it in Section H.

Those distinctions are not sharp, but the fuzziness allows the CO to put things where she or he thinks makes the most sense.

Do you know why the specifications are last in the order of precedence?

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First, generally, you should not want to prepare a solicitation package with inconsistencies between its various parts.

That said, YES, of course! Section H takes precedence over Section C's specifications! Always! Section C is sometimes boilerplate, but Section H is always carefully tailored for that solicitation, right?

If something could fit in both sections, take your pick.  Example:

Section C. The contractor shall comply with Agency Policy 1-1 in the performance of the work, except that Sections 4 and 5 do not apply.

Section H. The contractor shall comply with Agency Policy 1-1 in the performance of the work, except that Sections 4 and 5 do not apply.

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2 hours ago, Vern Edwards said:

Do you know why the specifications are last in the order of precedence?

To establish that the specs in a construction contract that were written by an AE design firm do not precede the agency's SOW in Section C or its instructions to bidders in Section L (which is included in representations and other instructions as second in the order of precedence)?

I could see this being especially useful in the defense against brand-name purchase description protests.

Edited by Voyager
typos
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1 hour ago, Voyager said:

To establishes that the specs in a construction contract that were written by an AE design firm do not precede the agency's SOW in Section C or its instructions to bidders in Part L (which is included in representations and other instructions as second in the order of precedence)?

I could see this being especially useful in the defense against brand-name purchase description protests.

What? No.

Under the common law. terms specifically negotiated for a contract take precedence over standard terms. See Restatement, Contracts, Second § 203(d):

"separately negotiated or added terms aare given greater weight than standardized terms or other terms not separately negotiated."

These days, specifications and statements or work are commonly developed specifically for a contract, while contract clauses are boilerplate, including many clauses in Section H. So why does the Order of Precedence clause, FAR 52.215-8, reverse the common law order of precedence? Think!

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1 hour ago, ji20874 said:

YES, of course! Section H takes precedence over Section C's specifications! Always! Section C is sometimes boilerplate, but Section H is always carefully tailored for that solicitation, right?

Please help me understand this.  The definitions of "Specifications" and "Statement of Work" per The Government Contracts Reference Book, 3rd ed. make clear to me that a SOW is, "The portion of a contract that establishes and defines all nonspecification requirements for contractor's efforts either directly or with the use of specific cited documents." (emphasis added).  So the order of precedence clause states that the Schedule's Section C SOW is top in the order of precedence and its cited specs are last, right?

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43 minutes ago, Vern Edwards said:

Under the common law. terms specifically negotiated for a contract take precedence over standard terms. See Restatement, Contracts, Second § 203(d):

"separately negotiated or added terms aare given greater weight than standardized terms or other terms not separately negotiated."

These days, specifications and statements or work are commonly developed specifically for a contract, while contract clauses are boilerplate, including many clauses in Section H. So why does the Order of Precedence clause, FAR 52.215-8, reverse the common law order of precedence? Think!

According to Cibinic, Nash, and Nagle, Administration of Government Contracts 180 (4th ed. 2006), citing Hydracon Corp., ENGBCA 3462, 75-2 BCA para. 11,489:

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It is an established canon that standard clauses for Government contracts, which are required by law and by regulations having the effect of law, cannot be contradicted by other specially drafted provisions so that they are, in effect, written out of the contract or subordinated to such special provisions.  Thompson Ramo Wooldridge, Inc. v. U.S., 175 Ct. Cl. 527, 536, 361 F.2d 222.

From this I conclude that the clause's reversal of common law is the FAR System intuitively protecting COs from accidentally writing individual deviations during the drafting process.

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The order of precedence clause puts specifications last in the order because they are drafted at the operational level, while contract clauses and other such terms are usually drafted at the policy level, and some are prescribed by regulations in the CFR that have the force and effect of law.

The government does not want specification writers to override higher level policies.

Your OP question was:

5 hours ago, Voyager said:

[W]hat concise distinction should contract drafters make when deciding if they will impose a contract requirement on their contractor in Uniform Contract Format Section C or in Section H? 

Put stuff in Section C that specifies the work to be done (who, what, when, where, and how). Put stuff in Section H that prescribes broader and higher-level policy that transcends specific product or service requirements.

Here is a list of stuff that the old Defense Acquisition Regulation (DAR), 32 CFR § 3.501 (1984), prescribed for inclusion in UCF Sections C and H:

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SECTION C—Description/Specifications.

(i) when the NSN/part number and noun or brief description is not in sufficient detail to permit full and free competition, a sufficient description (including any necessary specifications) of the supplies and services to be furnished shall be provided in this Section C. Reference to specifications shall include identification of all amendments or revisions thereof, applicable to the acquisition and dates of both the specifications and the revisions (see Section 1, Part 12);

(ii) in accordance with 1–1206, the statement in 7–2003.10 for a “brand name or equal” item.

SECTION H—Special Provisions.

(i) if the contract is to include option provisions, a clear statement of the provisions (see 1–1506);

(ii) if the contract is to include design-to-cost requirements, provisions in accordance with 1–338;

(iii) if 1–1503(d) applies, a conspicuous notice cautioning offerors that an offer containing an option price higher than the base price may be accepted only if the acceptance does not prejudice any other offeror (this may be placed elsewhere as long as the notice is adjacent to the limitation as to option price);

(iv) if the price negotiated is not predicated on allowability of the cost of money for facilities capital employed, the contract shall include a statement that: the cost of money for facilities capital (15–205.50) is unallowable.

(v) if the contract is to be conditioned on the availability of funds, include one of the clauses in 7–104.91;

(vi) if the contract is multiyear, the provisions required by 1–322.2(a), (b), or (f);

(vii) any progress payments provisions (see Appendix E);

(viii) any applicable Service Contract Act wage determinations of the Secretary of Labor (see Section XII, Part 10);

(ix) any special provisions relating to the Government's providing Government production and research property (see Section XIII, Part 3);

(x) when the clause in 7–104.62 is included in the contract and Appendix I, Table 2, does not list addresses of the required special distribution recipients, the applicable names and addresses shall be included in this Section H. The contracting office issuing the contract shall reference the line item as necessary, the addresses of the status control activity/inventory manager, and, if applicable, the processing contracting office cited in the Military Interdepartmental Purchase Request (MIPR);

(xi) in accordance with 1–1208, the clause in 7–104.48 and the clause in 7–104.49;

(xii) if the contract is to contain the Safety Precautions for Ammunition and Explosives clause in 7–104.79, a specific list of any of the mandatory requirements of DoD Manual 4145.26–M that are being waived;

(xiii) when the contract is expected to contain requirements for provisioned items, include the information prescribed in 4–302.1;

(xiv) for acquisitions involving Military Assistance Program (MAP) (Grant Aid), include the MAP Record Control/Program/Directive Number identifier and special markings, if appropriate. For Foreign Military Sales (FMS) acquisitions, include the special markings, if appropriate, and specify the FMS case identifier code by line/subline item number, e.g., FMS Case Identifier GY-D-DCA. These identification entries are required to permit the contractor to comply with Appendix I–301, Block 16(12), and to facilitate collection of contract administration charges from foreign governments on FMS acquisitions.

(xv) if the contract is for supplies acquired for resale, include the clause in 7–104.88;

(xvi) if international air transportation of personnel and cargo is possible during performance of the contract, include the clause in 7–104.95;

(xvii) in accordance with 9–603(b), insert the Identification of Restricted Rights Computer Software provision in 7–2003.76;

(xviii) if the contract is to involve materials of a hazardous nature, include the clause in 7–104.98 as prescribed by 1–323.2;

(xix) when the proposed contract is to require the contractor to prepare production progress reporting in accordance with the clause in 7–104.51, the contract schedule shall contain instructions as prescribed in 25–202; and

(xx) if the contract is expected to exceed $500,000, include the clause in 7–104.78 (Overseas Distribution of Defense Subcontracts) when required by 1–340.

 

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6 hours ago, Voyager said:

Therefore, what concise distinction should contract drafters make when deciding if they will impose a contract requirement on their contractor in Uniform Contract Format Section C or in Section H? 

I read through all the comments and have no general disagreement with thread as it evolved. But has the discussion perfected precedence via 52.215-8?    Has not the conversation  overlooked FAR 15.204-1 through -5.  "The Schedule" includes both Section C and H therefore they are of equal precedence except that part of C that are  specifications (also SOW) which become last in precedence.  The directions of the FAR is bolstered if the SF-33 is used as the award document as  the "Table of Contents" of the SF-33 places both C and H in "The Schedule".  When C and H wording are at odds with each other I believe the instant facts of the contract along with case law regarding other legal concepts would come into play to determine whether wording in C or H is concluded to have precedence.   Following the FAR clause 52.215-8 further what has been provided as detail in the thread supports why Sections A through H, and any clauses there in demanded by the specifics of the contract (example inspection, delivery, and there are others) have precedence over FAR (regulation) clauses or in other words those that shall be placed in Section I.   

Added as an edited afterthought.   I attempted to use the FAR matrix tool to see if it would place any FAR clauses in H.  It did not.   Others may be able to but I was not successful.

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29 minutes ago, C Culham said:

"The Schedule" includes both Section C and H therefore they are of equal precedence except that part of C that are  specifications (also SOW) which become last in precedence. 

@C CulhamSection C of the Schedule is entitled, "Descriptions/specifications/work statement." Are you saying that "specifications" in clause paragraph (e) does not cover "descriptions" and "work statement"?

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@C CulhamYou might get a kick out of this: I just called two very prominent and very experienced government contract attorneys and asked them if "specifications" as used in 52.215-8(e) includes "descriptions" and "work statements." One was adamant that it does. The other was adamant that it does not.

I have done a quick search and could not find a board decision that addressed the question.

One attorney told me that the clause has been around since before I was born.

😂

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16 minutes ago, Vern Edwards said:

Are you saying

It does cover the descriptions and work statement.   Off topic of your question I would note the SF-33 is counter to FAR 15.204 where all references regarding Section C use "statement of work".     

Now to clarify, if Section C is only the Specifications, also  could be called a Statement of Work, and that's it then Section C would in effect pursuant to 52.215-8 (if in the contract) become last in precedence.   But if Section C also had a standalone clause, paragraph, whatever you wanted to call it that by example says - "This contract is for the cleaning of all restrooms in building X", and then had a whole bunch of paragraphs saying what, how, etc (statement of work) the latter bunch of paragraphs would be last in precedence.   That is my easy interpretation of how I read the FAR.

 

Just now, Vern Edwards said:

You might get a kick out of this:

Yep I am sure it depends on the specifics of a particular contract.    I fear the lack formatting a solicitation/contract specific to FAR Part 15 when required has caused all types of interpretations.

I did some looking and could not easily find an example in SAM.gov but in another search I found this example.  In this case it would seem that the Section C Performance Work Statement is akin to specifications/statement of work and therefore its contents become last in precedence.  52.215-8 was in this back when solicitation. 

Ref. https://www.nsf.gov/policies/contracts/asc/contract_award_sf_33_and_sections_a_through_j_through_section_j_table_of_contents_1_redacted.pdf

 SECTION C – DESCRIPTION/SPECIFICTIONS/WORK STATEMENT The contractor shall provide the materials and services required to support the United States Antarctic Program (USAP) in accordance with the Performance Work Statement (PWS) located at Section J, Attachment 2. The contractor shall provide transition-in requirements in accordance with the Transitionin Statement of Work located at Section J, Attachment 11.

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53 minutes ago, C Culham said:

It does cover the descriptions and work statement.

So then the order of precedence unfolded from its higher UCF Parts is this?

  1. Sections A, B, D, E, F, G, and H
  2. Sections K, L, and M
  3. Section I
  4. Section J
  5. Section C

Does anyone think it is instead this?

  1. Sections A, B, C (less anything that can be defined as a specification pursuant to FAR Part 11), D, E, F, G, and H
  2. Sections K, L, and M
  3. Section I
  4. Section J
  5. Anything that can be defined as a specification pursuant to FAR Part 11
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33 minutes ago, ji20874 said:

Voyager, If you prepare a quality solicitation and contract, with no inconsistencies, then you don't have to worry about order of precedence.

I agree we can accomplish an unambiguous solicitation through our Herculean efforts against an intense operations tempo lasting weeks or even a month.  We call this "RFP development" at work, but in my family they know it as the dark days when Dad disappears to work 12- or 14-hour days.  Happens every time due to some drive in me.

However, we are discussing the times this doesn't happen.  See Administration of Government Contracts 176 (4th ed. 2006), at its part relevant to the Order of Precedence:

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Government contract documents are long and complex, containing many clauses that are drafted independently of each other.  Consequently, it is frequently impossible to arrive at an interpretation that gives reasonable effect to all parts of the contract document.  Such conflicts may be resolved by use of interpretation rules establishing an order of precedence.

We also have other interpretation rules, for example the prior course of dealing interpretation, custom and trade usage interpretation, and the contra preferentem interpretation.  My point is, ambiguities happen.  I'm with you on ironing them out pre-award.  I am just furthermore realistically for approaching the contractor post-award armed with all available interpretation rules.

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6 hours ago, Voyager said:

So then the order of precedence unfolded from its higher UCF Parts is this?

  1. Sections A, B, D, E, F, G, and H
  2. Sections K, L, and M
  3. Section I
  4. Section J
  5. Section C

Does anyone think it is instead this?

  1. Sections A, B, C (less anything that can be defined as a specification pursuant to FAR Part 11), D, E, F, G, and H
  2. Sections K, L, and M
  3. Section I
  4. Section J
  5. Anything that can be defined as a specification pursuant to FAR Part 11

I don't see a definition of "specification" in FAR part 11.

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20 hours ago, Voyager said:

(h) Section H, Special contract requirements. Include a clear statement of any special contract requirements that are not included in Section I, Contract clauses, or in other sections of the uniform contract format.

Section I contains requirements that generally apply to contracts.

Section H would or could contain requirements specific to an installation or agency for its contracts, as applicable for that type contract(e.g., construction contracts, work on an airfield, work in restricted or security areas, State or other environmental requirements).

Normally expected adverse weather for each month also comes to mind, for a specific installation or location.

Other similar requirements, specific to types of contracts, an organization or location come to mind.

Another example would be some of the unique, non-traditional general roles and responsibilities of the parties for design-build contracts that were never incotrporated into the FAR. 

Why write or re-write general type of project or other location specific requirements in Section C each time??

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…and the section H requirements are meant to take precedence over the proposal or section C as Vern mentioned above. 

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