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Order of Precedence?


j_dude77

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The agency I currently work for is setting up BPAs/IDIQs for software licenses and maintenance. For every contract/BPA they attached a rider (508 compliance, VPATs,). I have an issue with several parts of this rider, but one part in particular. They state in this rider that the order of precedence is 1) Federal Law 2) the FAR 3) this agreement 4) the Rider 5) The Manufacturer's EULA.

My issue is with the clause 52.212-4 and the order of precedence. I consider this rider an attachment. If there was a disagreement between the manufacturer's EULA and the rider, I am of the opinion that the rider is stating that the contract would prevail before the rider. If this is the case, and 52.212-4 was never tailored to change the order of precedence, would the manufacturer's EULA trump the rider?

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I agree with you that the order of precedence stated in the attachment vis-a-vis FAR Clause 52.212-4 conflicting and is ambiguous. The agency would need to have a deviation to FAR Clause 52.212-4 or state the revised order of precedent is a standard commercial practice per FAR Section 12.302 or seek a waiver.

However, the ambiguity here is a patent ambiguity and the Offeror has a duty to inquire. By failing to inquire, the contractor forfeits the opportunity to rely on its unilateral, uninformed interpretation and bears the risk of misinterpretation, Triax Pac., Inc. v. West, 130 F.3d 1469 (Fed. Cir. 1997); Nielsen-Dillingham Builders, J.V. v. United States, 43 Fed. Cl. 5 (1999). Further, if the Offeror responds to the BPA solicitation and agrees to the terms in its proposal, it could be considered that it accepted a negotiated agreement, thereby accepting the Government's interpretation of the agreement, Cray Research, Inc. v. United States, 44 Fed. Cl. 327 (1999).

One possible solution to circumvent the issue is to include the order of precedence language as part of the schedule on the SF1449.

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I don't see a conflict, or to the degree that I might, it isn't a big deal -- obviously, the order of precedence mentioned in the original posting is not a complete order of precedence -- the effect of the text is to move the rider from ( 8 ) to ( 4 ) in the FAR 52.212-4 order of precedence, and the text in the original posting sort of works for ordering within 52.212-4's ( 4 ).

If I were re-writing it, I might approach it differently as an author -- but there is no reason for conflict here -- if the matter ever goes to dispute, the judge will easily see that the intent of the parties was for the rider takes precedence over the EULA. He or she wouldn't get hung up over the thought that the rider is an attachment and therefore must remain in ( 8 ). Look at the SF-1449 -- the addenda, 52.212-1, -4, and -5 are all attachments, but none of them are relegated to ( 8 ) in the order of precedence.

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