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Redundant Contract Terms & Conditions?


Troy

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I have been trying to locate written guidance to substantiate a recommendation for the elimination of redundant contract terms & conditions. A recommendation, I should note, I am making as a voting member of an IPT and that is being met with subtle opposition. I recall reading this principle some years ago but can’t put my finger on the source. I’ll preface by saying, I generally encounter this and find it to be most prevalent with regard to commercial acquisitions that include the clauses 52.212-4 and 52.212-5.

Collectively these clauses give preference to the commercial terms contained in them, as opposed to also referencing those terms elsewhere in the contract. However, I see CO’s typically revert to inserting redundant terms like T4C, inspections/acceptance clauses, despite the fact that 52.212-4 already contains both of these terms.

In addition, I find CO’s requiring the program offices to include in their work statements, terms typically inserted in other sections of the solicitation/contract. I understand that there isn’t a universally accepted rule regarding what should or should not be included in a SOW/PWS per se. My primary concern is with the duplication or in addressing the same terms in different places of the contract, which could potentially create inconsistences.

I have found where the FAR Council on various occasions, in the Federal Register, speak of changes they’ve made to eliminate such redundancies in the FAR. However, I feel that by relying solely on this evidence it may prove too circumstantial to bolster my position. I’m looking for other published guidance specific to the issue of duplicate coverage, that anyone might be aware of, to further support the recommendation.

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Guest Vern Edwards

There is a long standing rule of thumb: Never address the same topic in different places in a contract. The reason is to avoid possible conflicts and resultant ambiguities. There are other reasons, as well. But as far as I know, the principle has never been written down in a contracting regulation. This kind of knowledge is what you are expected to know based on legal reasoning from "rules" of contract interpretation.

If you address the same topic twice in different places and/or in different contexts, and perhaps with minor word variations, you could end up, under the principle of interpreting the contract as a whole, with an ambiguity, which would be construed against the drafter under the legal doctrine of "contra proferentem." This is something you should be taught early in your career by people who know.

If the people you are dealing with don't know this already, and if you don't know enough to make a coherent case, then you probably are not going to get very far with them.

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