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Sexual and other Harassment provisions or clauses

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Jacques,

There's nothing for me to prove. Similarly, no one else can prove that every term and condition in a contract must be part of a contract clause, or that terms and conditions may be only in contract clauses. We have contract clauses in our contracts, and we also have special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract.

ji20874,

Here's the definition of contract clause from FAR 2.101:

“Contract clause” or “clause” means a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award.

Are you trying to say that a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award is not a contract clause if it is contained in "special contract requirements, attachments, exhibits, schedules, specifications, and so forth"? If so, what is the basis of your assertion? Such a stipulation is not contained in the definition.

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Oh, thank you, Don -- now I know there is a definition of contract clause! Actually, I already knew it -- see my post no. 20.

Here's what I'm saying:

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

But if someone else wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

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Moving away from FAR Subparts 1.3 & 1.5 for a second, I'm curious whether jj20874 believes it does not amount to a deviation when a contract attachment includes terms or conditions inconsistent with the FAR. See definition of "deviation" at FAR 1.401, which includes "the issuance or use of a...contract clause...that is inconsistent with the FAR." If one can avoid the requirements of FAR Subpart 1.4 by just putting the terms and conditions in an attachment, then extending the definition to include contract clauses is illusory.

Edit: From what I could find, the Boards wouldn't take such a narrow view. In E.L. Hamm & Assocs, 2003 BCA p 32,259, the contractor argued that language in an attachment amounted to an unapproved deviation from 52.211-16. The Board didn't reject the argument based on the fact that the language was contained in an attachment, instead going to the merits as to whether the clause was prescribed. In ICI Ams., Inc., 2007-1 BCA p 33,583, at 166,361 (May 23, 2007), in interpreting the meaning of certain language, the Board assumed that a deviation would have been required to support the contractor's interpretation of language in a contract attachment, and, based at least in part on the absence of that deviation, did not agree with the contractor's proposed interpretation.

Edited by Jacques

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Oh, thank you, Don -- now I know there is a definition of contract clause! Actually, I already knew it -- see my post no. 20.

Here's what I'm saying:

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

But if someone else wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

ji20874,

So, following your logic, a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award is not a contract clause if such a term or condition is included as an attachment or is included as a brief statement within an attachment. Is that correct?

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FAR 1.401 references use of a "contract clause." Conversely, it seems clear that terms and conditions can appear throughout a contract. For instance, FAR 12.302© provides in part, "The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures." In JRS Staffing Servs., B-410098 et seq., Oct. 22, 2014, 2014 CPD ¶ 312 at 3, the protester argued language relating to the permanent substitution of personnel was inconsistent with customary commercial practice. That language appeared in the Statement of Work, a contract attachment. The GAO didn't dismiss the protest. Its rejection of the allegation wasn't based on where the terms and conditions were located in the contract. If whatever appears in an attachment (e.g., a Statement of Work) is by definition--or fiat--not terms and conditions, which seems to be jj20864's position (or the implication of his position), then the GAO could have easily resolved the protest on that basis. Similarly, in Crescent Helicopters, B-284706, May 30, 2000, 2000 CPD ¶ 90, pilot and mechanic qualification requirements were included in the technical specifications, yet the GAO heard the protest, finding the terms were consistent with commercial practice. Likewise, in Aalco Forwarding, B-277241.8, Oct. 21, 1997, 97-2 CPD ¶ 110, the agency's waiver allowed it to include language in its performance work statement that departed from customary commercial practice.

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Don,

You're trying to hard to torture the logic.

Terms and conditions may be found in what we traditionally think of as contract clauses, and terms and conditions may also be found in other places not commonly thought of or described as contract clauses.

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jj20874, humor Don and me. Can you provide a straight answer to the question he poses in Post #29. Your Post #31 doesn't seem responsive. What does "traditionally think of as contract clauses" have to do with anything? Your discussion reminds me of the Army's implementation of DFARS 201.304(4) at AFARS Appendix FF, where a "clause" is defined for purposes of that Appendix as "a term or condition of the type set forth in FAR part 52 and DFARS part 252."

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Don,

You're trying to hard to torture the logic.

Terms and conditions may be found in what we traditionally think of as contract clauses, and terms and conditions may also be found in other places not commonly thought of or described as contract clauses.

ji20874,

What's the difference between "what we traditionally think of as contract clauses" and "contract clause" as defined at FAR 2.101?

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May I ask you to humor me?

If a statement of work contains terms and conditions (such as in the cases Jacques cited above), does that mean the SOW itself is a contract clause? or that each individual paragraph in the SOW is a contract clause?

We don't normally think of special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract, as contract clauses. Well, I don't -- maybe you do?

Jacques, Let's not talk about a special contract requirement, attachment, exhibit, schedule, specification, or so forth that includes terms and conditions inconsistent with the FAR -- that muddies the discussion too much. It would seem to me that such could reasonably be seen as a deviation. Here, we're talking about special contract requirements, attachments, exhibits, schedules, specifications, and so forth that include terms and conditions which are not inconsistent with the FAR.

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I have seen Part C - Contract Clauses, included as an addenda to a commercial item solicitation. Just because you take the skunk out of the forest doesn't mean it will stop the stench.

A clause is any term or condition that... Applies both before and after award. If an attachment contains a term or condition, then by that logic, it must be a clause.

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"Any part of a statement of work that meets the definition of 'contract clause' at FAR 2.101 is a contract clause."

Okay, if you say so.

But what is your point?

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I agree we should stay out of it and right now only only one office is requesting something be done but that office is high up the chain. So I am putting together the reasons we should not perform training ourselves or force it on the contractor since Federal Law already requires they comply with EEO statutes. We shall see if we can avoid it or not.

It is stuff like this that frustrates the contact specialists and causes more work for everyone than required by law.

I'm wondering how the debate over whether a spec or attachment is or isn't a "clause" relates to Boof's efforts to put together reasons why his organization shouldn't train contractor employees concerning prevention of sexual harassment...

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We don't normally think of special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract, as contract clauses. Well, I don't -- maybe you do?

How is that relevant? You were the one who referenced the definition of "clause" at FAR 2.101 to distinguish it from a "blurb". Now it seems you are using a different criteria--what we normally think of as a clause--to determine if something is a clause.

"Any part of a statement of work that meets the definition of 'contract clause' at FAR 2.101 is a contract clause."

Okay, if you say so.

But what is your point?

You have been making a point of saying that statements of work, attachments, exhibits, special contract requirements, blurbs, etc., are not clauses. You say that you need not prove these points, as if they are self-evident. It should be clear to you by now that you were wrong. Parts of a contract that you may not typically refer to as clauses may be clauses as defined at FAR 2.101. The definition of "clause" at FAR 2.101 is much broader than you thought. Anything that meets the definition of "clause" at FAR 2.101 is a clause regardless of how you refer to it in practice.

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I'm wondering how the debate over whether a spec or attachment is or isn't a "clause" relates to Boof's efforts to put together reasons why his organization shouldn't train contractor employees concerning prevention of sexual harassment...

joel,

This is post #40. When was the last time we stayed on the original topic of a discussion this far?

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Don, I don't mean to put words in your mouth, but I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

Based upon that, the idea that by making your sexual harassment deviation language an attachment (as recommended in post 2) is not sufficient to avoid the requirements of FAR 1.4.

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Any part of a statement of work that meets the definition of "contract clause" at FAR 2.101 is a contract clause.

Don:

I understand where you're coming from, but I disagree with you.

When first published in 1983, FAR 52.100, Scope of subpart, said:

This subpart (a) gives instructions for using Part 52, including the explanation and use of provision and clause numbers, prescriptions, prefaces, and matrices; ( b ) prescribes procedures for incorporating, identifying, and modifying provisions and clauses in solicitations and contracts, and for using alternates; and ( c ) describes the derivation of FAR provisions and clauses.

48 FR 42482, Sept. 19, 1983.

At that time the definition of "contract clause" appeared in FAR 52.101(a) and was the same as it is today. 48 FR 42482, Sept. 19, 1983. In 2001, the definition was moved to FAR 2.101 "to clarify the applicability of definitions, eliminate redundant or conflicting definitions, and make definitions easier to find." 56 FR 2117 et. seq., Jan. 10, 2001. "To clarify the applicability," not to change the meaning.

Originally, FAR 52.101( b )(1) said: "Subpart 52.2 sets forth the texts of all FAR provisions and clauses, each in its own separate subsection." 48 FR 42483, Sept. 19, 1983. Today, FAR 52.200 says, "This subpart sets forth the text of all FAR provisions and clauses."

You must read a regulation as a whole. ( I can provide citations to at least a dozen Court of Federal Claims decisions to that effect, if you insist.) I believe that when FAR is read as a whole the term "contract clause" refers to texts taken from FAR Subpart 52.2 that are identified as contract clauses. I do not believe that FAR can properly be understood to mean that a statement of work, any part of a statement of work, or an attachment, is a "contract clause." That would be inconsistent with the way FAR has used the terms "contract clause" and "statement of work" since its issuance in 1983 and with the way it uses it today throughout. And it would be just plain silly.

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Don - I would pose that with regard to the definition of a "clause" carried in that FAR Part 2 would only apply to the solicitation/contract if the solicitation/contract specifically states that FAR definitions in 2.101 apply to solicitation contract. I do understand that the the FAR clause relating to FAR definitions is ® required in most contracts but not all (ref. FAR Part 53 -Matrix). Further absent a definition of clause in the contract I would reason that the common definition of "clause" would then apply.

Noting the above it would seem that your post #35 needs clarification. In the end the clarification may end with the same conclusion that you are attempting to support

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Look at FAR 52.214-29, Order of Precedence--Sealed Bidding (JAN 1986) and at FAR 52.215-8, Order of Precedence--Uniform Contract Format (OCT 1997) and note the distinction that they make between "contract clauses," on the one hand, and "other documents, exhibits, and attachments" and "specifications" on the other. It is clear that other documents, exhibits, attachments and specifications (including SOWs) are not contract clauses.

See also the instructions at FAR 12.303, especially the distinction between paragraphs ( c ) and (d), and the instructions at FAR 14.201-3 and 15.204-3.

Read regulations as a whole.

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I appreciate the need to read regulations as a whole, and I appreciate the "legislative history" in Post #42, but I do not believe either of the order of precedence clauses would lead one to conclude that the government can either be subject to (or avoid the requirements of) FAR Subparts 1.3 and 1.5, simply by virtue of where in the contract the agency chooses to place the language.

As to Subpart 1.4, it may be that, when the order of precedence clause applies, whether "contract clause" is interpreted narrowly or broadly, both lead to the same result, because under the narrow interpretation, the prescribed/included “traditional” (well-understood) contract clause would take precedence over the attachment language that conflicts with the "traditional" clause. I can’t recall off the top of my head whether all government contracts include an order of precedence clause, so it would be interesting to consider the implications of that difference if I never need to obtain a deviation for language contained in a contract attachment.

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It should be clear to you by now that you were wrong.

No, it's not clear that I am wrong.

I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation. A contracting officer who does something different that is not inconsistent with the FAR does not need a deviation. Note that I didn't say consistent with the FAR; rather, I said not inconsistent with the FAR -- there is a difference, and this subtlety may be lost on some persons, but the nuance is important. A contract clause or other contract text such I shared with the original poster is not inconsistent with the FAR (at least, no one here has suggested that it is), and may be included in a contract without a deviation. It is perfectly fine to include that text in a contract attachment rather than as a contract clause. Some agencies may impose tighter guidelines in their own regulations.

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Jacques:

I am not addressing your issue. The order of precedence clauses address order of precedence and have no bearing on the requirements of FAR 1.3 and 1.5. I am addressing only the proper interpretation of the definition of "contract clause" in FAR 2.101, and I am citing the order of precedence clauses as evidence of the correctness of my interpretation.

To reiterate: The term "contract clause," as used in FAR and defined in 2.101, does not include statements of work and contract attachments, etc. The term refers to the contract clause texts in FAR Part 52 and in agency supplements to Part 52. It's been that way since 1983 and it's still that way. Although the definition in FAR 2.101 appears to be more expansive, I do not doubt that my interpretation of the definition is correct when it is read in the context of the regulation as a whole.

The definitions in FAR are important, but they are not perfect. Before FAR, we used to call specially written clauses applicable to a contract "special provisions." FAR changed that when it applied the term provisions to non-contractual texts. i have no problem with the idea of special "clauses" or "contract clauses" written by an agency. FAR 1.401 seems to use the term "contract clauses" with that notion in mind. But the FAR definition does not clearly define the concept of a "clause" as opposed to other contract texts, like specifications. I don't know anyone who thinks of a specification as a contract clause. It's clear to me that FAR makes a distinction, I'm just not sure what the distinction is if it isn't the source of the text, as opposed to the content.

What would be worthwhile is an attempt to explain what a "contract clause" is and how such a text is to be distinguished from other parts of contracts such as DD254s, DD1423s, and statements of work and specifications. To what texts should we as pros apply the term "contract clause"? Is the term really necessary? if so, why? Black's Law Dictionary does not even include the term "clause" or "contract clause."

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Don, I don't mean to put words in your mouth, but I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

Based upon that, the idea that by making your sexual harassment deviation language an attachment (as recommended in post 2) is not sufficient to avoid the requirements of FAR 1.4.

That's a valid argument, but I was thinking more about the requirement for notification and public comment in FAR subpart 1.3. I don't think an agency can start a policy of imposing requirements for sexual harassment training on contractor employees without going through the rulemaking process.

Don:

I understand where you're coming from, but I disagree with you.

When first published in 1983, FAR 52.100, Scope of subpart, said:

48 FR 42482, Sept. 19, 1983.

At that time the definition of "contract clause" appeared in FAR 52.101(a) and was the same as it is today. 48 FR 42482, Sept. 19, 1983. In 2001, the definition was moved to FAR 2.101 "to clarify the applicability of definitions, eliminate redundant or conflicting definitions, and make definitions easier to find." 56 FR 2117 et. seq., Jan. 10, 2001. "To clarify the applicability," not to change the meaning.

Originally, FAR 52.101( b )(1) said: "Subpart 52.2 sets forth the texts of all FAR provisions and clauses, each in its own separate subsection." 48 FR 42483, Sept. 19, 1983. Today, FAR 52.200 says, "This subpart sets forth the text of all FAR provisions and clauses."

You must read a regulation as a whole. ( I can provide citations to at least a dozen Court of Federal Claims decisions to that effect, if you insist.) I believe that when FAR is read as a whole the term "contract clause" refers to texts taken from FAR Subpart 52.2 that are identified as contract clauses. I do not believe that FAR can properly be understood to mean that a statement of work, any part of a statement of work, or an attachment, is a "contract clause." That would be inconsistent with the way FAR has used the terms "contract clause" and "statement of work" since its issuance in 1983 and with the way it uses it today throughout. And it would be just plain silly.

Vern,

What are you doing to me? You were the one who convinced me of the interpretation of "clause" that I have. :huh: This should be fun.

It's clear from the original FAR that the word "clause" refers to more than just texts from FAR subpart 52.2 and agency supplements to FAR subpart 52.2. From the original FAR 52.101( b )(2)( i )( B ) and ( C ):

Provisions and clauses that supplement the FAR.

(i) Provisions or clauses that supplement the FAR are--

(A) Prescribed and included in authorized agency acquisition regulations issued within an agency to satisfy the specific needs of the agency as a whole;

( B ) Prescribed and included in a regulation issued by a suborganization of an agency to satisfy the needs of that particular suborganization; or

( C ) Developed for use at a suborganizational level, not meant for repetitive use, but intended to meet the needs of an individual acquisition and, thus, impractical to include in either an agency or suborganization acquisition regulation.

This would include the type of homegrown clause that ji20874 incorporates in his contracts as an attachment (see his post #2).

Look at FAR 52.214-29, Order of Precedence--Sealed Bidding (JAN 1986) and at FAR 52.215-8, Order of Precedence--Uniform Contract Format (OCT 1997) and note the distinction that they make between "contract clauses," on the one hand, and "other documents, exhibits, and attachments" and "specifications" on the other. It is clear that other documents, exhibits, attachments and specifications (including SOWs) are not contract clauses.

See also the instructions at FAR 12.303, especially the distinction between paragraphs ( c ) and (d), and the instructions at FAR 14.201-3 and 15.204-3.

Read regulations as a whole.

The two clauses that you refer to are for use when using the Uniform Contract Format. The items in the list refer to Parts I-IV of the UCF. From this list, I would conclude that Part II of a contract in UCF titled "Contract Clauses" comes third in the prescribed order of precedence. I would not conclude from this that clauses as defined in FAR 2.101 are distinct from the other items on the list (the schedule, specifications, attachments, representations & instructions), because clauses can be found in the other listed UCF parts. For example, the inspection clauses prescribed in FAR part 46 are to be placed in the schedule (Section E) according to the FAR matrix. Some of the delivery clauses prescribed in FAR part 11 are to also be placed in the schedule (Section F) according to the FAR matrix. Advance agreements can be contained in the schedule or attached to contracts.

It should be clear to you by now that you were wrong.

No, it's not clear that I am wrong.

I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation. A contracting officer who does something different that is not inconsistent with the FAR does not need a deviation. Note that I didn't say consistent with the FAR; rather, I said not inconsistent with the FAR -- there is a difference, and this subtlety may be lost on some persons, but the nuance is important. A contract clause or other contract text such I shared with the original poster is not inconsistent with the FAR (at least, no one here has suggested that it is), and may be included in a contract without a deviation. It is perfectly fine to include that text in a contract attachment rather than as a contract clause. Some agencies may impose tighter guidelines in their own regulations.

That's not true. The use of a homemade contract clause does not need to be inconsistent with the FAR to be a deviation. The definition of deviation at FAR 1.401 includes "The issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations in accordance with 1.301(a)."

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What would be worthwhile is an attempt to explain what a "contract clause" is and how such a text is to be distinguished from other parts of contracts such as DD254s, DD1423s, and statements of work and specifications. To what texts should we as pros apply the term "contract clause"? Is the term really necessary? if so, why? Black's Law Dictionary does not even include the term "clause" or "contract clause."

I agree that it would be worthwhile.

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Don, you quote jj20874's paragraph that begins, "A homemade contract clause..." and respond my stating his quote isn't true. I would offer that his quote is often true, but is incomplete. In the quote, jj20874 focuses on actions by a "contracting officer." An individual PCO's preferences do not amount to the 'issuance of a policy or procedure' for purposes of FAR 1.401(f). You are also correct when you say, "The use of a homemade contract clause does not need to be inconsistent with the FAR to be a deviation." Of course, it does not inevitably follow that all clauses drafted by a contracting officer require deviations.

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