Scope vs. Prescription

[brittaniya]

I am a new CO (5 years experience as a specialist) and have just taken a position as a team lead in pre-award service actions. Most of our acquisitions are Part 12 and Part 13 efforts. My question is in regards to scope or part or subpart. I recently disagreed with our procurement analyst in regards to DFAR 252.204-7012. The prescription leads us to 204.7303 and states "Use the clause at 252.204-7012, Safeguarding of Unclassified Controlled Technical Information, in all solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items."

The scope of subpart 204-7300, however, reads:

204.7300 Scope.

(a) This subpart applies to contracts and subcontracts requiring safeguarding of unclassified controlled technical information resident on or transiting through contractor unclassified information systems.

(b This subpart does not abrogate any existing contractor physical, personnel, or general administrative security operations governing the protection of unclassified DoD information, nor does it impact requirements of the National Industrial Security Program.

Most of the requirements we have are small, commercial custodial, grounds and snow removal contracts for Reserve Centers. There is no unclassfied controlled technical information and no contractor unclassified information systems are implicit to the performance of the contract.

I argued that if the scope does not apply to the requirements of my contract, I should ignore that part or subpart of the FAR or, in this case, the DFAR. I'm being told by the PA, our legal and the PA at our command that if the prescription itself says to use in all contracts then we will use it in all contracts.

I'm asking because I want to understand how to do my job better. I am getting quite a bit a push back from management for asking so many questions, but I'm trying to understand. I thought that if the Part or Subpart does not apply, we should not use it. It seems that I will have to use this particular clause in this position under this command, but I want to know for future reference.

Thank you.

[Guest Vern Edwards]

The scope section, DFARS 204.7300, specifies the contracts and solicitations to which the subpart, DFARS 204.73, applies. Thus, you apply the contract clause section, 204.7303, to only those contracts and solicitations. You cannot read the contract clause section as if it were independent of the rest of the subpart. That would violate the long and well-established legal principle of statutory and regulatory interpretation that says you must read a statute or regulation as a whole.

See, for example, Department of the Army -- Reconsideration, GAO Decision B-401472.2, 2009 CPD ¶ 250 (*Such an interpretation would be inconsistent with the fundamental principle that statutes and regulations must be read and interpreted as a whole, thereby giving effect to all provisions."); Glenn S. Podonsky, GSBCA 14207-TRAV, 97-2 BCA ¶ 29229 ("The regulation must be interpreted as a whole, in light of the overall regulatory and statutory scheme, and not to give force to one phrase in isolation."); Cameron v. U.S., 106 Fed. Cl. 551 (2006) (' “In interpreting a regulatory provision, we examine the text of the regulation as a whole, reconciling the section in question with sections related to it.” '); Lengerich v. Department of the Interior, 454 F.3d 1367 (Fed. Cir. 2006) ("In interpreting a regulatory provision, we examine the text of the regulation as a whole, reconciling the section in question with sections related to it. See Reflectone, 60 F.3d at 1577–78 (holding that the proper interpretation of the plain language of the regulation 'examines and reconciles the text of the entire regulation, not simply isolated sentences' ”).

In my opinion, if you have told your story accurately, and unless there is a published DOD policy to the contrary with which I am not familiar, your procurement analyst is wrong in saying that "if the prescription itself says to use in all contracts then we will use it in all contracts", and your legal office should be ashamed of itself for agreeing.

In conclusion: DFARS 204.7300, "Scope", specifies the contracts and solicitations to which DFARS Subpart 204.73 applies. DFARS 204.7303, "Contract Clause". is a section within that subpart. Therefore, you comply with DFARS 204.7303 if, and only if, the contract or solicitation in question is one to which the subpart applies.

Now you'll find out if your procurement analyst and legal are rational or simply insistent. Will they acknowledge that you were right, or give you a valid argument to the contrary, or just say that they disagree and insist that you bow to their interpretation?

[Don Mansfield]

I don't think the prescription was drafted properly. The FAR Drafting Guide states:

(6) Prescriptions.

(i) To make it easier to locate provision and clause prescriptions, consolidate the prescriptions in a subpart, section, or subsection with a separate heading at the end of the text that describes the subject matter.

(ii) Do not prescribe a provision or clause in more than one place in the FAR. Use cross-references if necessary.

(iii) Include in the prescription all conditions, requirements, and instructions for using the provision or clause and any alternates. Also include instructions for any optional use of the provision or clause. For example, consider the following:

(A) Where used (solicitation only, contract only, both).

( Requirement (mandatory, optional).

© Type of acquisition (purchase, lease).

(D) Purchase procedures (simplified acquisition, sealed bidding, negotiated, competitive, sole source, set-asides).

(E) Acquisition value (estimated, actual).

(F) Dollar threshold (micro-purchase, simplified acquisition, trade agreement).

(G) Type of commodity (e. g., supply, service, construction, research and development, architect-engineer, major system, commercial item).

(H) Type of contract (e.g., firm-fixed-price, fixed-price incentive, cost-plus-fixed-fee, award-fee, time-and-materials).

(I) Location of purchasing office (inside, outside U.S.).

(J) Location of item use (inside, outside U.S.).

(K) Contractor location/place of performance (inside, outside U.S.).

(L) Type of contractor (commercial, nonprofit, educational, Federally Funded Research and Development Center).

(M) Size and status of contractor (e.g., large, small, small disadvantaged, women-owned small business).

(iv) Do not use the word "all" in provision or clause prescriptions unless the provision or clause is required in all solicitations or contracts without exception.

(v) Include in the provision or clause prescription any directions for completing (filling in the blanks) or modifying the provision or clause.

I will suggest a technical amendment.

[Guest Vern Edwards]

If you read the prescription with the scope section, as you should, "all" is fine. The clause is to be included in all contracts and solicitations in which the statement of work requires the contractor to safeguard unclassified, controlled technical information that is on or passing through its unclassified information system. I don't think a technical amendment to the prescription is needed. If anything, a technical amendment to the scope section is needed to clarify "requiring".

[Don Mansfield]

FYI, I received the following response to my suggestion for technical amendment today:

The existing clause prescription is correct and this clause is required in all solicitations and contracts. All contractors will be required to implement the stated controls whenever they have marked controlled technical information on their information systems. Absent any marked controlled technical information the contractor will have no additional requirements.

As stated at 204-7300(a) the subpart does apply when controlled technical information is present on a contractors information systems, however it was decided that the clause would be included in all solicitations and contracts.

[Guest Vern Edwards]

Don,

That response, no matter who sent it or where he or she works, is not persuasive in the least.

Vern

[Jamaal Valentine]

If they didn't before, DoD clearly intends for this clause to apply to all solicitations and contracts now.

http://www.acq.osd.mil/dpap/policy/policyvault/USA000187-16-DPAP.pdf

I wanted to use the applicable DFARS Part, subpart, section, prescription, and clause for training and came across this thread. Previously, during clause selection I skipped the prescription because the scope appeared to be inapplicable. I have to wonder if clause selection will require more work (reading) now.