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Let us end the confusion -- difference between Attachments vs Technical Exhibits for DoD

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So, this question has been brought up numerous times amongst my colleagues, in DAU, and other contracting forums.

What is the difference between Attachments vs Technical Exhibits “Exhibits”?

I emphasized for DoD, as some non-DoD agencies identify Attachments vs Exhibits as no difference/synonymous.

DAU postings relative to the inquire are as follows:

https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=109437

https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=110417

Wifcon:

http://www.wifcon.com/discussion/index.php?/topic/1639-exhibits-and-attachments-what-is-the-difference/

When I first started, I asked the question to our legal advisor regarding the difference. They said that Attachments are not legally binding vs. Exhibits, which are. I remember reading a legal article about this, which validated their statement and I carried that thought process throughout my acquisition career.

Reference to DFARS 204-7101 – Definitions.

“Attachments” means any documentation, appended to a contract or incorporated by reference, which DOES NOT (emphasis given) establish a requirement for deliverables.

“Exhibit” means a document, referred to in a contract, which is attached and establishes requirements for deliverables. The term shall not be used to refer to any other kind of attachments to a contract. The DD Form 1423, Contract Data Requirements List, is always an exhibit, rather than an attachment.

I’ve seen agencies post solicitations under Section J or even in non UCF contracts referencing CDRLS, SOW/PWS, Performance Requirements Summary (PRS), to name a few as Attachments rather than identifying them correctly, as I feel to be Technical Exhibits…

So, what is DoD’s standard other than what is stated in DFARS 204-7101. Is the claim that one is “legally binding” than the other a true statement in its regard?

And please do not give me the speech that this is trivial… using the proper terms to me is important. Such as saying “this is a request for quote… all proposals shall…” which I’ve seen a lot in FBO.

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OK, I will admit not knowing about the DFARS 204.7101 definitions of attachments and exhibits. The US Army Corps of Engineers uses CSI's "MasterFormat" for construction contracts rather than the Uniform Contract Format, which is more suitable for supply and services contracting. We have exhibits within individual technical specification sections and attachments to the RFP, either of which may contain requirements or information. At any rate, there is a need to distinguish between the two. The attachments might apply to several or all work, while the exhibits apply to an individual spec section.

The CSI format is widely used for construction contracting beyond the Federal Government.

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I am equally ignorant of the DFAR definition at 204.7101. However, it seems to me that the solicitation and contract should be explicit as to the purpose and effect of all documents exchanged by the parties during the contract formation phase. In this case, a reference to the DFAR definition may suffice in informing the parties to the contract, but without it you are just asking for a problem down the road. The underlying problem here (lack of contract clarity) goes beyond the distinction between attachments and exhibits.

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So, what is DoD’s standard other than what is stated in DFARS 204-7101. Is the claim that one is “legally binding” than the other a true statement in its regard?

And please do not give me the speech that this is trivial… using the proper terms to me is important. Such as saying “this is a request for quote… all proposals shall…” which I’ve seen a lot in FBO.

The question is based upon the false premise that there is a single definition for all of DOD and that there is a "proper" usage. In fact, there is no single definition except for the one in DFARS 204.7101, which applies only with respect to the establishment of contract line items, is instructional, and has never had any legal effect on contract interpretation at the boards of contract appeals or the Court of Federal Claims. So in my opinion, the question is trivial. Using the proper term is important only if there is a proper term. (By the way, why say, "technical" exhibit? What distinction do you make between technical and nontechnical?)

Should there be a single "proper" definition? I don't have an opinion. If you think there should be, tell us why, if you care to. As long as each contract is clear with respect to the function and legal effect of an attachment or exhibit, why should everyone have to use the same terminology? Supposed distinctions between attachments and exhibits have not been an issue at the boards and courts. So making such a standard distinction is not likely to improve operational effectiveness or efficiency. Whether I would object to such a distinction would depend on its nature and effect.

If you are concerned about using the terms properly, then define them when you use them and be consistent in your usage.

As for the question of whether an attachment is contractually binding, the answer is that it depends on what the contract says. It strikes me as slightly absurd to debate whether a part of a contract that describes a right, a duty, or a condition is or is not binding based upon what you call that part -- attachment or exhibit. And if the part does not describe a right, a duty, or a condition, then why bother with the question?

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Just an note to reinforce the advice from Vern--

If you are concerned about using the terms properly, then define them when you use them and be consistent in your usage.

We did run into problems with a SOFTWARE purchase, a case of what we felt we were entitled to get VS what the salesman wanted to deliver.

It turned out the government defined specific technical needs under an ATTACHMENT, while the contractor defined what they wanted to deliver under their LICENSE AGREEMENT, included as an ADDENDUM.

See 52.212-4 Contract Terms and Conditions—Commercial Items (Dec 2014)

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

Ugly feelings all around.

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