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Sexual and other Harassment provisions or clauses

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Jacques,

I was referring to ji20874's assertion that "A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation" when I said that it was not true.

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Don:

I'm having some fun, that's what I'm doing. :D

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.

I agree that "contract clause" includes agency and subagency provisions and clauses that supplement FAR Part 52. But the term does not include statements of work and contract attachments and it never has.

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's one thing to say that contract clauses appear in the UCF in places other than Part II. It's another thing entirely to say that the schedule and documents, exhibits, and other attachments are contract clauses.

In any case, the only place in FAR that tells a CO to put a contract clause in any section of the UCF other than Section I is the clause matrix. Nothing in FAR requires compliance with what the clause matrix says about the placement of contract clauses in the UCF.

Other than the matrix, I am not aware of any statement in FAR requiring that clauses be inserted into any section of the UCF other than Section I. For example, nothing in FAR 15.204, Part 46, or Part 52 (other than the nonmandatory matrix) requires that the inspection clause be placed in Section E. FAR 15.204-2(e) says: "Section E, Inspection and acceptance. Include inspection, acceptance, quality assurance, and reliability requirements (see part 46, Quality Assurance)." That does not say to place an inspection clause in E. I take "requirements" to mean technical requirements.

Bottom line for me: "contract clause" does not include specifications, statements of work, or other documents, exhibits, and attachments.

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I still don't understand Don's point.

Everything I've written here is about terms and conditions drafted by contracting officers as a matter of contracting officer practice, not written by agency heads as part of agency regulations.

The following statements, drawn from FAR 1.401( a ), are true:

A homemade contract clause or other text elsewhere in a contract that is inconsistent with the FAR is a deviation.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.

Don's reference to FAR 1.401( f ) is inappropriate to the current discussion. If EVERYTHING a contracting officer does is covered by FAR 1.401( f ) and FAR 1.301, then the statement of guiding principles in FAR 1.102 related to the contracting officer's role is meaningless -- if we relied on Don's logic, then EVERY term and condition drafted by a contracting officer in a contract (including all those contained in specifications, statements of work, special contract requirements, or other documents, exhibits, and attachments) would require deviations or application of the rule-making process. But the outcome of applying Don's logic is absurd, so Don's logic is absurd, too.

Contracting officers draft terms and conditions for use in contracts all the time without deviations and without the rule-making process, and we include them all over the place in our contracts: in clauses, in special contract requirements, in statements of work, in attachments, and so forth. Some agency regulations and some agency cultures seek to restrict this capability, but the FAR allows it. Indeed, to me, the FAR demands it. And the ability to draft these homemade clauses, if you will, in the approropriate circumstances is one of the factors that sets an excellent contracting officer apart from an ordinary contracting officer.

But if someone else is talking about contract clauses written by agency heads as part of agency regulations, then Don has a good point.

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It's one thing to say that contract clauses appear in the UCF in places other than Part II. It's another thing entirely to say that the schedule and documents, exhibits, and other attachments are contract clauses.

Vern,

Just to be clear, I did not say that the schedule and documents, exhibits, and other attachments are contract clauses, per se. I said that they may contain contract clauses. For example, ji20874 puts the following paragraph in an attachment to his contracts:

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

He says that it is not a "clause", but a "blurb". I think that no matter where he places this text in the contract, it's a "clause" as defined at FAR 2.101.

In any case, the only place in FAR that tells a CO to put a contract clause in any section of the UCF other than Section I is the clause matrix. Nothing in FAR requires compliance with what the clause matrix says about the placement of contract clauses in the UCF.

Other than the matrix, I am not aware of any statement in FAR requiring that clauses be inserted into any section of the UCF other than Section I. For example, nothing in FAR 15.204, Part 46, or Part 52 (other than the nonmandatory matrix) requires that the inspection clause be placed in Section E. FAR 15.204-2(e) says: "Section E, Inspection and acceptance. Include inspection, acceptance, quality assurance, and reliability requirements (see part 46, Quality Assurance)." That does not say to place an inspection clause in E. I take "requirements" to mean technical requirements.

Hey, wait a minute! Didn't you say that we need to read regulations as a whole? Doesn't the FAR include the FAR Matrix? I agree that nothing requires a CO to place clauses in a solicitation in accordance with the matrix. However, the FAR, when read as a whole, contemplates the placement of some clauses in the schedule.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.

ji20874,

That's not necessarily true. The clause need not be inconsistent with the FAR to be a deviation.

Let's say Boof's contracting office develops a homegrown clause requiring contractor employees to take sexual harassment training and includes it in the local clausebook for use in certain contracts. Assume the clause is not inconsistent with the FAR, but its use has a significant cost impact on contractors. Although the use of the clause would not be inconsistent with the FAR, its use would be a deviation under FAR 1.401(f).

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I think that one must be very careful when it comes to mandating training of contractor employees. Tittle VII of the Civil Rights Act doesn't apply to firms with less than 15 employees, for instance.

I do think that the government could describe what would be unacceptable behavior on government premises or when interacting with government employees in order to avoid creating a hostile work environment for government employees. However, I don't think that Congress intended that a contracting office could apply the Law to exempt firms or require the firm to train its employees for purposes of compliance with the law.

Boof, I highly recommend that you coordinate with your counsel.

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Thanks everyone. The clause debate was interesting. I don't think anyone at our agency has really thought much about our local "clauses" that usually go in section H or as provisions in sections L and M. Whenever the use of certain contract language becomes used by a lot of COs, we add it to our contract writing system for use by everyone. We consider them added information or instructions for the contractors. The provisions usually standardize RFP language based on legal guidance on how to best avoid protests. They do not contradict other FAR or Agency clauses.

We have always called them Provisions and clauses but perhaps they are just prewritten guidance for the contractors.

As for the Harassment training, we are all in agreement on not requiring it for contractors but have to finesse a way to tell our Office of the Secretary that thier idea isn't a good one.

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For example, ji20874 puts the following paragraph in an attachment to his contracts:

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

He says that it is not a "clause", but a "blurb". I think that no matter where he places this text in the contract, it's a "clause" as defined at FAR 2.101.

Don, you're at the heart of the matter. What makes that a clause? What distinguishes a clause from other contract text?

Hey, wait a minute! Didn't you say that we need to read regulations as a whole? Doesn't the FAR include the FAR Matrix? I agree that nothing requires a CO to place clauses in a solicitation in accordance with the matrix. However, the FAR, when read as a whole, contemplates the placement of some clauses in the schedule.

I cited the order of precedence clauses to show that they distinguish contract clauses from other texts, which tells me that not all contract terms are contract clauses. The fact that the matrix calls for inserting what are indisputably contract clauses into sections of the UCF other than I doesn't show that other texts are contract clauses.

My key points are (1) that "contract clauses" are texts from FAR Subpart 52.2 and agency supplements thereto and (2) that specifications, SOWs, attachments, etc., are not contract clauses, notwithstanding the definition of "contract clause" in FAR 2.101.

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As for the Harassment training, we are all in agreement on not requiring it for contractors but have to finesse a way to tell our Office of the Secretary that thier idea isn't a good one.

Boof, I'd start out by explaining to them that it isn't the government's function to train contractor employees "how to behave". Then go from there. I would add that not all firms are subject to Title VII so it would be difficult to mandate that the companies train their employees and have procedures to deal with harassment under the Civil Rights Act.

If you think that you have to specify anything, it would primarily be needed to stress what is considered to be unacceptable behavior for those firms that aren't subject to Title VII. The reason? To make it clear that the government won't tolerate a hostile work environment for any employee. The government doesn't want to be held partly or totally liable as an employer (in government employee complaints) due to unacceptable behavior by contractor employee(s). The government doesn't want to be put at risk to be considered a co-employer (in contractor employee complaints) due to unacceptable behavior by contractor employee(s). In my layman opinion, avoidance of putting the government at risk of liability in a complaint would fall under complying with existing law, even if the firm itself isn't directly subject to Title VII.

You could also tell them that the government will stress this as a point in the post award conference and periodically in joint meetings, where applicable.

Consult your lawyers, good luck and I hope this is helpful.

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Do we care about worthless (and improvident) training requirements, or actual results?

If Boof cares about results, then let's focus on actions and results -- how about a blurb such as below for inclusion in Boof's contracts (as a clause, special contract requirement, SOW statement, or so forth), as a matter of contracting officer practice?

The Contracting Officer may, by written notice to the Contractor, restrict or prohibit a Contractor employee's access to Government facilities if that employee's previous conduct within the facilities has not been consistent with the professional standards expected in the workplace. The imposition of a restriction or prohibition shall not excuse the Contractor from performance of obligations under the contract.

It seems an approach such as this would be allowed by FAR 1.102( d ), 1.102-2( a )( 2 ), 1.102-2( c )( 2 ), 1.102-4( a ), and 1.102-4( e ).

This would solve Boof's problems. In the spirit of the FAR Guiding Principles, I recommend he try it in one or two solicitations and see what feedback he or she gets from prospective offerors, and then as those solicitations turn into contracts, see if the text is helpful or not in managing the rampant sexual harrassment by contractor employees that is occurring in Boof's workplaces. If it works, then maybe Don's process of codification might be appropriate.

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All,

I am trying to research what provisions or clauses are in Federal contracts that address sexual harassment but also other types of harassment (e.g. race, religion, age, etc) by members of the the contract workforce. I researched the FAR and only found equal opportunity provisions and clauses concerning the contractors own hiring practices.

The specific question from my front office asked what we put in our contracts to force the contractor to provide sexual harassment and/or other harassment training to their employees?. I thought that the FAR would have addressed this by now buy my searcch isn't turining up anything. I am still searching some of our contracts for verbiage in SOW, PWS, etc but that is also coming up with zero. I am thinking there may be some agency or locally written clauses available at other agencies that could be shared to save me time.

This is a big issue in an organization that may have over half the professional personnel in an office as contract hires. In one case we have 17 Direct Hires managing the workload distribution to over 350 contract personnel. Feds have rules, training, disciplanary processes and appeal processes. What does the contract hire workforce, which may be a conglomeration of employees from a dozen companies in one cube farm have?

I don't know what agency Boof works for, but whatever agency it is it should not get involved in providing training to contractors about matters in which it is not functionally expert and has no legal authority. The agency is entering a legal minefield, and it is blind. The fact that Boof asked here instead of talking to the EEOC is proof of his front office's ignorance.

http://www.eeoc.gov/laws/types/sexual_harassment.cfm

The contract clause discussion was more interesting and fun.

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Don, you're at the heart of the matter. What makes that a clause? What distinguishes a clause from other contract text?

ji20874's blurb is a clause because it is a "a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award." It's not much different than the clause at FAR 52.236-5( c ):

All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable.

What distinguishes a clause from other contract text is that not all contract text is a term or a condition. In the definitions contest, you defined contract term and condition as follows:

contract term (as in they won’t accept that contract term)

Contract term (n.) means any part of a contract that imposes an obligation or confers a right.

condition (as in terms and conditions)

Condition (n.) means a contract term that requires that an event occur, or not occur, before a specific contractual obligation is imposed or a specific contractual right is conferred.

I think that the text that ji20874 includes as an attachment to his contract meets your definition of both contract term and condition. I don't think a list of attachments, while important, would meet either of those definitions, for example.

I cited the order of precedence clauses to show that they distinguish contract clauses from other texts, which tells me that not all contract terms are contract clauses. The fact that the matrix calls for inserting what are indisputably contract clauses into sections of the UCF other than I doesn't show that other texts are contract clauses.

I think that the order of precedence clauses are distinguishing Parts I-IV of the UCF--not the different types of texts contained in a contract. We'll have to agree to disagree on that. Further, I agree that inserting contract clauses into sections of the UCF other than I doesn't make those entire sections contract clauses. However, I would say that those other sections include some contract clauses.

My key points are (1) that "contract clauses" are texts from FAR Subpart 52.2 and agency supplements thereto and (2) that specifications, SOWs, attachments, etc., are not contract clauses, notwithstanding the definition of "contract clause" in FAR 2.101.

My bottom line--

I say "contract clauses" include

(1) texts from FAR subpart 52.2,

(2) agency supplements thereto,

(3) those prescribed and included in a regulation issued by a suborganization of an agency to satisfy the needs of that particular suborganization, and

(4) those developed for use at a suborganizational level of an agency, 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.

Those in categories (3) and (4) can, and often are, inserted in the schedule (Section H is a popular place), in statements of work, as attachments, etc. When they are inserted thusly, they do not lose their identity as contract clauses.

Good discussion. Not sure we're going to get resolution.

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I don't interpret item 4 as including statements of work or specifications, per se. I think that item 4 would include something like an advance agreement. However, if ji20874 were to put his blurb in a statement of work, I would still say the blurb is a clause (but not necessarily the entire SOW would be a clause).

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Don:

What distinguishes a clause from other contract text is that not all contract text is a term or a condition. In the definitions contest, you defined contract term and condition as follows....

I see. FAR 2.101 says: "Contract clause or clause means a term or condition used in contracts and applying after contract award or both before and after contract award," and I said that a contract term is any part of a contract that imposes an obligation or confers a right," so it follows that a contract clause is any part of a contract that imposes a right or confers a right.

The FAR definition says that a contract clause is "a" term or condition used in contracts. It does not say that all terms and conditions are contract clauses.

It seems clear that you think that contracts consists of texts that are contract clauses and texts that are not. Since you think that all contract terms and conditions are contract clauses and that contract clauses are thus those texts that impose and obligation or confer a right, then the only contract texts that are not clauses are those that are strictly informational in nature. Since SOWs describe a contractor's performance obligations, then SOWs are contract clauses. Either that, or that only those statements in SOWs that impose an obligation or confer a right are contract clauses.

I do not believe that the FAR definition of contract clause includes SOWs and specifications or that it was intended to do so. That would be inconsistent with long-established usages and operation practices, and I refuse to accept it. It would be needlessly confusing. A contract clause is certainly a contract term or condition, but not all terms and conditions are contract clauses. Some are SOWs, some are specifications, some are contract data requirements lists, some are DOD standards, some are regulations in other titles of the CFR that are incorporated by reference.

I want to interpret the FAR 2.101 in a sensible way. I want to figure out what attributes of a text make it a "clause" and distinguish it from other texts, such as SOWs, etc. What did the FAR councils have in mind, if anything, when they wrote that definition way back when? What makes sense. You lose me when you insist that any contract text that imposes an obligation or confers a right is a contract clause, including some paragraphs in a SOW, but not others.

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Vern writes, “The FAR definition says that a contract clause is ‘a’ term or condition used in contracts. It does not say that all terms and conditions are contract clauses.”

I appreciate that FAR Part 2 first and foremost assists in understanding the language of the FAR. The reader, when trying to interpret the meaning of say, FAR 1.401(a), reads that a deviation includes, "The issuance or use of a policy, procedure, solicitation provision (see definition in 2.101), contract clause (see definition in 2.101), method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR.” In trying to understand what is meant, the reader turns to FAR Part 2 as applicable to see whether the reach of the language is broader or narrower than what the reader would have expected. Here, given the broad definition of “contract clause,” the reader cannot rely on the definition of “contract clause” to narrow the reach of FAR 1.401(a). (Obviously, the reader doesn’t need the specific invitation to look to Part 2 that happens to appear in FAR 1.401(a).)

However, that isn’t the only time definitions sections are used. Sometimes we need them to properly apply the rules to our facts, not just to understand the basic meaning of the language. Sometimes, when it ‘quacks like a duck,’ etc., we have to call it what it is--a duck. For instance, if someone wants to create a “new” contract type, and he calls it, “Tom Peterson’s Haircut contract type,” but it meets all the definitional elements of a firm fixed price arrangement,* and contains no additional elements, the contract type is “firm fixed price,” and all the requirements associated with the use of that contract type must be met.

In other words, sometimes we have to start with the definition to work back to the term.

* Admittedly not found in Part 2, but hopefully you get my point

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I don't get your point. That reads like something from an obscurest 19th professor of literature. What does it have to do with what I wrote.

Try again, in plain English, please. Do you think SOWs are clauses?

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I could probably be clearer if I wrote in my native tongue :), but I'll try again in English.

As I read the posts, it sounds like what you're saying is in the case of the definition of "contract clause," it would be a mistake to use the second approach--to look to the definition first in trying to apply the rules to a particular set of facts. It sounds like what you're saying is that doing so would be incomplete and could lead to incorrect results, and that the definition of "contract clause" just isn't written in such a way that it can "carry that water," (and perhaps the history in the Federal Register supports that the definition shouldn't be used in that manner). It sounds like what you're suggesting is that instead of using this second approach ("Does it quack like a duck?") or just using it to the exclusion of everything else, one needs to also look to the FAR as a whole, including the Order of Precedence clauses, to get a more complete understanding of the term.

I'm not taking issue with your comments, I'm just trying to make sure I understand them and their implications.

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It seems apparent to me from reading Subpart 1.4 and the definitions that one is deviating from the FAR when you confer a right or impose an obligation or use a procedure at any stage of the acquisition process that is inconsistent with the FAR and supplements thereto. Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

Maybe that is what Jacques was saying.

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t sounds like what you're saying is in the case of the definition of "contract clause," it would be a mistake to use the second approach--to look to the definition first in trying to apply the rules to a particular set of facts.

That's not at all what I'm saying. Look to the definition first, by all means. But after you have done that you have to determine what it means, and I think that in order to do that you have to read the FAR as a whole (a bedrock legal principle -- do you need cases?) and integrate the literal definition with what else you find. In my opinion, seizing upon the literal definition and hanging on for dear life is, at best, fun, but unsophisticated.

Sometimes a definition means exactly what it says, and sometimes it doesn't. For instance, look at the definition of "claim" in FAR 2.101. According to the second sentence, only a demand or assertion "seeking the payment of money" in excess of $100,000 is not a claim unless certified as required by the Contract Disputes Act. So, if you take that literally, a claim in excess of $100,000 that seeks a price adjustment, but not payment, does not have to be certified. Right? Or is a claim demanding a price adjustment also a demand seeking payment because the contractor will eventually seek payment? Well, look at FAR 33.207. It says that a contractor must certify "any claim exceeding $100,000," not just claims for payment. FAR 33.207 is consistent with the CDA; FAR 2.101, taken literally, is not. So you have to look around and think before hanging too much weight on the literal meaning of a definition. Moreover, when a word or term is used in more than one place in the FAR, it might have different connotations in the different places.

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Vern, I was unclear in the language you quoted. What I meant was, "It sounds like what you're saying is in the case of the definition of 'contract clause,' it would be a mistake to use the second approach that I described in Post #65, that is, to start with the definition (in our case, "a term of condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after contract award") in trying to apply the rules to a particular set of facts." To analogize to math, it would be a mistake to apply the transitive property: If A = B, then B = A. Or, in our case, if a "contract clause" is a "term or condition..." ( A = B ), then a "term or condition..." is a contract clause ( B = A ).

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An elephant is an animal. Are all animals elephants?

In the particular case of the FAR definition of contract clause, all contract clauses are terms or conditions. So does it follow that all terms or conditions are contract clauses?

Look at how goofy that definition is: How can a contract clause apply before contract award? What the heck does that mean? Can you tell from the express language of the definition?

I believe deeply in the importance of definitions, but I don't think fuzzy definitions should be accorded the same respect as ones that are clear and definite. Maybe, just maybe, the FAR councils would do a better job if people like us got in their faces more often about the quality of their work.

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Vern, you write, "An elephant is an animal," as if FAR Part 2 only purports to be a classification system, rather than a list of definitions. I see nothing in the definition of "contract clause" that would lead me to conclude it was intended to be a partial definition. Fortunately, we don't need to have a "meeting of the minds," so I'll stop trying to rephrase your words in a way that makes sense to me, at least for this thread.

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Don:

See DFARS 223.370-3. Is DOD Manual 4145.26-M a contract clause?

No, but DFARS 252.223-7002 is a clause. Paragraph ( b )(1) states: "The Contractor shall comply with the requirements of the DoD Contractors' Safety Manual for Ammunition and Explosives, DoD 4145.26-M, hereafter referred to as “the manual,” in effect on the date of the solicitation for this contract. The Contractor shall also comply with any other additional requirements included in the schedule of this contract."

My turn. If ji20874's blurb is contained in Section I, is it a contract clause? If yes, then is the same blurb still a clause if it is contained in the SOW?

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The FAR definition says that a contract clause is "a" term or condition used in contracts. It does not say that all terms and conditions are contract clauses.

If that's how we are to read FAR definitions, then would it follow that not all written demands or written assertions by one of the contracting parties seeking, as a matter of right, the adjustment or interpretation of contract terms are "claims"?

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