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Distinction between Sections C and H in UCF


Voyager

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12 hours 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.

@ji20874I don't find that helpful. In fact, I find it absurd.

That is a goal, of course, but as a practical matter it is impossible to do except by accident, and impossible to guarantee, even for the simplest solicitation over the SAT, even for someone like me, who has been in the business for almost 50 years and who writes about and teaches contracting.

If you are honest, you cannot say with certainty that you or anyone you know has prepared a solicitation or contract written in the UCF that has had no inconsistencies. And if you are honest, you cannot say that you have read every sentence contained in every solicitation or contract written in the UCF that you have ever prepared. You cannot even say that you have seen every sentence. No one has.

That's why the clause is mandatory!

And even if someone could see them all, identifying inconsistencies among the many thousands of sentences𑁋perhaps millions𑁋in a solicitation or contract would require access to a supercomputer programmed to perform legal analyses, interpret solicitations and contracts, and identify inconsistencies.

Your comment is ridiculous.

 

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41 minutes ago, Vern Edwards said:

If you are honest, you cannot say with certainty that you or anyone you know has prepared a solicitation or contract written in the UCF that has had no inconsistencies. And if you are honest, you cannot say that you have read every sentence contained in every solicitation or contract written in the UCF that you have ever prepared. You cannot even say that you have seen every sentence. No one has.

That's why the clause is mandatory!

In particular, since many or most contract clauses are included by many organizations by reference, I wonder if many people actually read or know them. Those who have to administer contracts after award usually aren’t the same personnel as the solicitation writers. 

Especially fun (NOT) to try to determine and find the specific dated version of a clause that was applicable at the time of the solicitation and award, if updated since, or even discern whether or not they are the same version…

I believe that, if you don’t want to clutter up a solicitation, you should include the clauses as an attachment or at least have a link to a document containing the applicable edition of the clauses. 

Edited by joel hoffman
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18 hours ago, Voyager said:

construction contract

 

42 minutes ago, joel hoffman said:

construction contracts

 

43 minutes ago, joel hoffman said:

design-build contracts

I have difficulty applying these examples with regard to the discussion when FAR clause 52.215-8 is not mandatory to, and most likely rarely found in construction and A-E contracts.  I suggest it confuses the concepts being discussed.

 

 

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Just now, C Culham said:

I have difficulty applying these examples with regard to the discussion when FAR clause 52.215-8 is not mandatory to, and most likely rarely found in construction and A-E contracts.

The FAR clause matrix says that FAR 52.215-8 is required in construction and A-E contracts when applicable. I presume that means when such contracts are prepared in the UCF. I have seen a few construction contracts prepared in the UCF.

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23 minutes ago, C Culham said:

 

 

I have difficulty applying these examples with regard to the discussion when FAR clause 52.215-8 is not mandatory to, and most likely rarely found in construction and A-E contracts.  I suggest it confuses the concepts being discussed.

 

 

Unfortunately, there are many organizations using the UCF for construction and D-B contracts. It definitely appears so to me as a member here over the years.

From reading his past posts over the years, even Vern isn’t completely familiar with the CSI format for construction contracts. 

When using the UCF, the order of precedence clause at 52.215-8 is mandatory.

“FAR 15.209 

…(h) The contracting officer shall insert the clause at 52.215-8, Order of Precedence - Uniform Contract Format, in solicitations and contracts using the format at 15.204.”

And USACE A/E contracts use the UCF. 

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Vern,

Your vitriol and challenging of my honesty are not needed and do not contribute positively to the discussion.  If you will read from the beginning, you will see that the original poster is not talking about using order of precedence to resolve an unforeseen inconsistency in an already-awarded contract -- indeed, he or she is not talking about any real circumstance at all, but is just engaging in an academic exercise of whether some unspecified text should go in C or H -- that is the context.  In that context, and the OP's continued questioning, I gave good advice -- if he or she already knows there is an inconsistency before the solicitation or contract is even written, he or she shouldn't rely on order of precedence but should simply resolve the inconsistency as part of the drafting/assembly process.  The order of precedence clause works best to help resolve unseen inconsistencies after contract award.

And I never said anything at all about whether any clause is mandatory.

But, if letting you vent your spleen has made you feel better, good for you.  

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14 hours ago, Vern Edwards said:

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

As the thread winds on certain things in a re-read get me to looking.    I found this to be interesting as related to the question, maybe they can be both?

( Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.)

AGAR 452.211-72 Statement of Work/Specifications.

As prescribed in 411.171, insert the following clause:

Statement of Work/Specifications (FEB 1988)

The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J.

(End of clause)

Here there is reference to 52.215-8 and in "Discussion" a short paragraph (in relation to the decision as a whole) about order of precedence.     https://www.cbca.gov/files/decisions/2019/KULLBERG_07-01-19_4968__OPTIMUM_SERVICES_INC.pdf

5 minutes ago, Vern Edwards said:

The FAR clause matrix says that FAR 52.215-8 is required in construction and A-E contracts when applicable. I presume that means when such contracts are prepared in the UCF. I have seen a few construction contracts prepared in the UCF.

Just now, joel hoffman said:

And USACE A/E contracts use the UCF. 


Thanks for the clarification but I get the feeling that even the USACE likes confusing things.    A quote from this - https://www.publications.usace.army.mil/portals/76/publications/engineerpamphlets/ep_715-1-7.pdf

"2. PRECEDENCE. This Scope of Work (SOW) and the accompanying Exhibit A provide specific instructions for the design of this project and, in case of conflicts, take precedence over the requirements of Section C of the IDC."

My takeaway is this which seems to be a takeaway that can be leaned on a lot.  Order of precedence in the end will be dictated by the specific facts of the contract.   While generally a clause like 52.215-8 will help should there be a dispute about order the parties either figure it out by mutual agreement or they end up in a court and let the court make the final decision.  

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12 hours 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.

@ji20874That was something I'd expect from a snotty staff reviewer.

It deserved every word that I wrote, and I stand by those words. I like them. Here they are again:

21 minutes ago, Vern Edwards said:

That is a goal, of course, but as a practical matter it is impossible to do except by accident, and impossible to guarantee, even for the simplest solicitation over the SAT, even for someone like me, who has been in the business for almost 50 years and who writes about and teaches contracting.

If you are honest, you cannot say with certainty that you or anyone you know has prepared a solicitation or contract written in the UCF that has had no inconsistencies. And if you are honest, you cannot say that you have read every sentence contained in every solicitation or contract written in the UCF that you have ever prepared. You cannot even say that you have seen every sentence. No one has.

That's why the clause is mandatory!

And even if someone could see them all, identifying inconsistencies among the many thousands of sentences𑁋perhaps millions𑁋in a solicitation or contract would require access to a supercomputer programmed to perform legal analyses, interpret solicitations and contracts, and identify inconsistencies.

Your comment is ridiculous.

Absurd and ridiculous do not sound sulphurous to me.

And I will add that your comment suggests a remarkable degree of ignorance of the complexities of contract interpretation and the often difficult task of identifying inconsistencies in contract terms in the absence of performance context.

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11 minutes ago, C Culham said:

As the thread winds on certain things in a re-read get me to looking.    I found this to be interesting as related to the question, maybe they can be both?

( Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.)

AGAR 452.211-72 Statement of Work/Specifications.

As prescribed in 411.171, insert the following clause:

Statement of Work/Specifications (FEB 1988)

The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J.

(End of clause)

Here there is reference to 52.215-8 and in "Discussion" a short paragraph (in relation to the decision as a whole) about order of precedence.     https://www.cbca.gov/files/decisions/2019/KULLBERG_07-01-19_4968__OPTIMUM_SERVICES_INC.pdf


Thanks for the clarification but I get the feeling that even the USACE likes confusing things.    A quote from this - https://www.publications.usace.army.mil/portals/76/publications/engineerpamphlets/ep_715-1-7.pdf

"2. PRECEDENCE. This Scope of Work (SOW) and the accompanying Exhibit A provide specific instructions for the design of this project and, in case of conflicts, take precedence over the requirements of Section C of the IDC."

My takeaway is this which seems to be a takeaway that can be leaned on a lot.  Order of precedence in the end will be dictated by the specific facts of the contract.   While generally a clause like 52.215-8 will help should there be a dispute about order the parties either figure it out by mutual agreement or they end up in a court and let the court make the final decision.  

Carl, I wasn’t debating the order of precedence. My initial post was in response the the OP’s question concerning what goes in Section H vs. Section C - or in essence, what is Section H for?

By the way, there are over 200 pages in EP-1-7. What page were you referring to?

For an A-E contract, there are numerous mandatory references applicable and there will be an attached specific Project Development Booklet or similar name, as well as the approved congressional authorized MCP (Air Force) or MCA (Army) scope and PA (I have forgotten the DD Form number). Also any site plans and geotechnical or other test reports, previously performed. .

 

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21 minutes ago, joel hoffman said:

Carl, I wasn’t debating the order of precedence. My initial post was in response the the OP’s question concerning what goes in Section H vs. Section C - or in essence, what is Section H for?

Yes I know.

22 minutes ago, joel hoffman said:

By the way, there are over 200 pages in EP-1-7. What page were you referring to?

Page W-1 which is an example of a Task Order SOW.   Of interest to me is if 52.215-8 is in the parent then how can a Task Order change the precedence.   My read of case law, admittedly limited, suggests that the ordering clause (52.216-18) would set the precedence.  It states - "All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control."   I find nothing in the USACE instruction that provides something other than 52.216-18 should be used for the ordering clause.   So the conundrum by my read of at least the instruction is use UCF, therefore put 52.215-8 in the parent contract but oh by the way in a order lets restate precedence and make Exhibit A be precedent to Section C.  So the order says Exhibit A, the contract says Section C so per 52.216-18 does not Section C have precedent?

You can hash it out in your own mind, I will just stick to my view, if the parties can not work what has precedent even in light of the language of the contract that tries to set precedence then the dispute will be taken to the courts and a court will decide.

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I'm looking at a 105-page RFP issued by the Army Contracting Command for the concept design phase of the optimally-manned fighting vehicle. Section J lists 74 attachments. Some of them will incorporate additional documents. The SOW also lists documents.

It would be impossible to review all of that material during RFP preparation in search of actual or potential inconsistencies that might emerge in various circumstances.

That's why FAR 52.215-8 exists and is mandatory. 

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3 hours ago, Vern Edwards said:

And I will add that your comment suggests a remarkable degree of ignorance of the complexities of contract interpretation and the often difficult task of identifying inconsistencies in contract terms in the absence of performance context.

That may be true, but what's a guy to do when the discussion starts going over his head and he still wants to contribute and seem wise?

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2 hours ago, dsmith101abn said:

Some construction industries use this format. others use modified formats, some use the AASHTO format. Maybe unrelated to this forum.

True, true (first statement)

Regarding second statement, the title of this thread is Distinction Between Sections C and H in UCF.

The original poster made reference to construction contracts.  My initial reply explained some differences between Sections C and H for construction or design-build. But it could be applied to services, too.

Then someone mentioned that he thought that construction, design-build construction and A/E contracts would rarely use the UCF.

The USACE uses the UCF for its A/E contracts. Other than for DOT/State Highway department work, USACE probably awards more government A/E contracts than most other agencies.

As for construction, numerous agencies use  the UCF. Many of my non-DoD students in my D-B class over a period of 20 years confirmed that.

In fact, my last program before retiring involved six huge Systems Contracts to build (1/2 of them were design-build) , systemize, pilot test and operate, full operations and de-construct Chemical Weapons Demilitarization Plants around the US. The contracts were in the UCF format. Construction alone was many hundreds of millions of dollars.

I personally don’t like the UCF for construction and especially for D-B, which involves non-traditional roles and responsibilities for both government and design-builder. The FAR clause for Order of Precedence doesn’t make sense for design-build contracts in either CSI or UCF. 

I think the UCF fits services and supply contracts better than construction or D-B. But the fact is that it is also being used for construction and D-B.

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23 minutes ago, joel hoffman said:

 for construction, numerous agencies use  the UCF. Many of my non-DoD students in my D-B class over a period of 20 years confirmed that.

Understood, do attachments have a different contract meaning vs being included as part of a contract full text? I know we're talking about C vs H but what about J?

 

Reason for my quote, I'm non-DOD and  i'd like to take a D-B class sometime. If you can let me know what you teach (if you still do) or otherwise recommend I'd appreciate it. I don't do a lot of D/B stuff but once in a while it presents itself. 

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15 hours ago, dsmith101abn said:

dsmith, I no longer teach the class.

The class uses the CSI Format.

Our Army Chem-Demil Systems Contracts, using the UCF were under a Service Contract Umbrella. The PCO was in Rock Island, IL. Their organizational name changed so much, I don’t remember what they were called.

Some systems contracts were a combination of FFP construction and CPFF services. Others were CPFF for both. Others were single award ID/IQ task order contracts with CPFF design tasks and CPAF construction and operations, etc. tasks.

Mixed bag, based upon the maturity and type of De-Mil Process designs and the types of Chemical Weapons and the chemical weapons agents being destroyed. Mustard, Sarin, and VX.

Whoever designed those weapons never designed them to be de-militarized.  MAD scientists!!!!

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Going back to the original topic...

I just looked at a Department of Energy RFP, written in the UCF and seeking proposals for management and operation of a waste isolation plant. The procurement is the subject of a new GAO protest decision just posted to Wifcon: B-420913. GAO denied the protest.

Section C, the PWS, is 60 pages long. Section H is 113 pages long. It is the longest section in the RFP. It contains 89 separate texts—clauses, etc. Judging from the titles, most appear to be special DOE provisions.

For example:

Quote

 

H.76 SUBCONTRACTS

Prior to the placement of subcontracts and in accordance with the clause in Section I entitled, DEAR 970.5244-1 Contractor Purchasing System, the Contractor shall ensure that any required prior notice and description of the subcontract is given to the CO and any required consent is received. Except as may be expressly set forth therein, any consent by the CO to the placement of subcontracts shall not be construed to constitute approval of the Subcontractor or any subcontract terms or conditions, determination of the allowability of any cost, revision of this contract or any of the respective obligations of the parties thereunder, or creation of any Subcontractor privity of contract with the Government.

 

and

Quote

 

H.72 ORGANIZATIONAL CONFLICT OF INTEREST – AFFILIATES(S)

The Contractor, [offeror fill-in] (Offeror to insert name of Contractor) comprised of [offeror fill-in] (Offeror to insert names of partner companies), is responsible for the completion of all aspects of this contract. In order to effectively and satisfactorily execute its responsibility to manage and accomplish the contract work, the Contractor must have complete objectivity in its oversight and management of its subcontractors. Therefore, consistent with the principle contained in Federal Acquisition Regulation subpart 9.5 and specifically section 9.505(a), and notwithstanding any other provision of this Contract, the Contractor is, absent prior written consent from the CO as provided herein, prohibited from entering into a subcontract arrangement with any affiliate or any affiliate of its partners, or utilize any affiliate or affiliate of its partners, to perform work under a subcontract. Such contractual relationship(s) are presumed to create an impaired objectivity type conflict of interest. If the Contractor believes the capabilities of an affiliate could be utilized in such a manner as to neutralize or avoid the existence of an organizational conflict of interest, the Contractor must obtain the CO’s written consent prior to placing the subcontract.

For the purpose of this clause, affiliation occurs when a business concern is controlled by or has the power to control another or when a third party has the power to control both.

 

I have seen several DOD RFPs written in the UCF in which Section H had no content.

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1 hour ago, Vern Edwards said:

Going back to the original topic...

I just looked at a Department of Energy RFP, written in the UCF and seeking proposals for management and operation of a waste isolation plant. The procurement is the subject of a new GAO protest decision just posted to Wifcon: B-420913. GAO denied the protest.

Section C, the PWS, is 60 pages long. Section H is 113 pages long. It is the longest section in the RFP. It contains 89 separate texts—clauses, etc. Judging from the titles, most appear to be special DOE provisions.

I believe placement of many clauses in Section H is driven by decisions from years ago when their contract writing systems were developed.

I can understand why DOE has so many special provisions in their management and operations contracts.  They are very large contracts where the contractor has a wide range of duties functioning as an extension of the government.  For example, they have latitude to conduct extensive procurements for the operation and their procurement procedures and practices are periodically reviewed for FAR and DEAR compliance by DOE headquarters.

https://www.acquisition.gov/dears/part-970-doe-management-and-operating-contracts

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1 hour ago, Vern Edwards said:

Going back to the original topic...

So here is an interesting tidbit.   

When the FAR first came into being order of precedence was only applicable to solicitations.   The now clauses were provisions.   FAR 52.214-11 and FAR 52.215-18.  REF. https://tile.loc.gov/storage-services/service/ll/fedreg/fr048/fr048182/fr048182.pdf

In 1986 in the wisdom of the FAR Council they concluded the provisions regarding order of precedence "should be converted" to contract clauses.   Of note no public comments were solicited for the FAC (84-12).   REF. https://archives.federalregister.gov/issue_slice/1986/1/17/2623-2668.pdf#page=44

It would seem that the now 52.215-8 has an obscure origin as a contract clause and is more or less an attempt to provide a remedy matrix when parts of the contract are in conflict.   As I have concluded previously if the conflict can not be solved by mutual agreement through application of the clause then the contracting parties end up in court to figure it out and a whole bunch more is used to make a conclusion beyond the wording of FAR  52.215-8. 

My mind is not 100% made up but by all accounts of this thread, and other readings I have done regarding order of precedence clauses in the public sector (AIA being one) the hygienic application of the clause to less than hygienic contracts has its own life depending on the specifics of each contract.    

 

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2 hours ago, C Culham said:

It would seem that the now 52.215-8 has an obscure origin as a contract clause...

The order of precedence clause has a long history. It appeared as a provision on SF33A (March 1969), Solicitation Instructions and Conditions. The text was as follows:

Quote

ORDER OF PRECEDENCE. In the event of an inconsistency between provisions of this solicitation, the inconsistency shall be resolved by giving precedence in the following order: (a) the Schedule; (b) Solicitation Instructions and Conditions; (c) General Provisions; (d) other provisions of the contract whether incorporated by reference or otherwise; and (e) the specifications.

I don't think it had be a clause, because if an offer was submitted on the basis of SF33A, then I presume that any resultant contract would be interpreted on that basis. Remember, sealed bidding ("formal advertising") was the dominant method of contracting back them.

I presume that the FAR councils made the text a clause because the old bid forms went away and because of the distinction FAR made between solicitation provisions and contract clauses.

 

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2 hours ago, Voyager said:

@Vern EdwardsThat's my office, and I came from DOD.  It's why I wrote the OP.

I suspected you had a DoD background when I read your original post and that you probably haven't been in the field more than 10 or so years. DoD cracked down on use of "local clauses" ~10 years ago, which culminated in the current policy stated in DFARS PGI 201.301. Going forward, any local clauses would have to go through the same rule making process as FAR or DFARS clauses if they met the stated criteria (most probably did). The belief that the Services and Defense agencies would comply with the publication requirements is adorable. What happened is the contents of Section H, traditionally the dumping ground for local clauses, became the focus of review teams.  Local clauses began to disappear from section H, which is probably why Vern was able to find a DoD RFP with nothing in that section. However, these clauses didn't go away, nor was a local clause ever published for comment in the Federal Register. Instead, they started appearing in SOWs. This was not because they describe the work in any meaningful way--it was merely a workaround. We're now at a point where the Navy prescribes standard "SOW language" in the NMCARS to implement policy.

So, what you are seeing in practice in DoD has less to do with a thoughtful application of UCF policy, and more to do with stealthy  bureaucratic maneuvering. 

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3 hours ago, Vern Edwards said:

The order of precedence clause has a long history.

Makes sense.  Your posts regarding common law are bolster the view as well.  With the addition of Don's post I guess I withdraw  obscure origin and just stick with obscure application.

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The oldest version of an order of precedence clause that I have thus far been able to find was one quoted by the old (appellate) U.S. Court of Claims, Dittmore-Freimuth Corp. v. U.S., 390 F.2d 664, Feb. 16, 1968. The contract was for rocket launcher adapters and spare parts, and the decision is on appeal from a decision of the ASBCA:

Quote

 

36. ORDER OF PRECEDENCE

(The following clause shall apply only in the event this contract is preceded by Formal Advertising.)

To the extent of any inconsistency between the Schedule or the Terms and Conditions of the Invitation for Bids or the General Provisions, and any specifications or other provisions which are made a part of this contract by reference or otherwise, the Schedule, the Terms and Conditions of the Invitations for Bids, and the General Provisions shall control. To the extent of any inconsistency between the Schedule and the Terms and Conditions of the Invitation for Bids or the General Provisions, the Schedule shall control. 

 

That clause existed as early as 1960.

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