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I didn't see anything in those requirements in ji's blurb which require going through the public rule making process. The government has the right to restrict access to its facilities and information systems based upon standards of conduct and information security. I am assuming that the government would make those standards available somehow for prospective bidders/proposers.

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Don.

In my no. 23 that you quoted, you included my words "as a matter of contracting officer practice rather than agency head direction and regulation." And yet you are pretending like those words aren't there. But those words are there for anyone who has eyes to see.

Those words don't offer any clarification to your use of "individual contracting officer practice". Are you ever going to explain what you mean by that? Do you mean drafting clauses created for an individual acquisition and not used on a repetitive basis? Clauses in your local clausebook? Why don't you clarify what you mean? You wrote that the example blurb that you posted that it was used in your "agency's contracts". That suggests that you draft your own clauses and use them on a repetitive basis. Is that what you're talking about?

So we are agreed, then? A term or condition drafted by the contracting officer and not inconsistent with the FAR can be used in a contract without a deviation and without the rulemaking process?

No, I don't agree with that as a general proposition. You need to qualify that statement with how the clause is used.

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Don, you used the word, "rulemaking" in your Post #97. I thought the OFPPA, not the APA, applied to publication related to the FAR. See 5 USC 553(a)(2) (exempting matters relating to contracts from APA rulemaking requirements). Cf. Rand L. Allen & Christopher R. Yukins, Bid Protests and Contract Disputes Under the FAA's New Procurement System, 26 Pub. Cont. L.J. 135, 152 (Winter 1997). See also this thread on wifcon: http://www.wifcon.com/discussion/index.php?/topic/630-what-parts-of-the-far-apply-to-me/?p=6026

Correct. 41 U.S.C. 1707 requires notification and public comment of procurement rules, not APA. What's wrong with referring to the process of making procurement rules under 41 U.S.C. 1707 as "rulemaking"?

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No worries. It seemed pretty clear, and now it is obvious, that you weren't using it as a term of art. You wouldn't be the first. FAR 1.102-2( b ) talks about "rules" being "promulgated." FAR 3.104-8 provides in part, "See 33.102(f) for special rules regarding bid protests." FAR Subpart 9.5 contains several references to "general rules." According to the FAR, IFBs contain "rules." FAR 14.202-5©(1)(iv). The list goes on and on.

Edited by Jacques

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I hope this discourse has been helpful to the original poster...

Thanks, Joel...

Don,

There are clauses that supplement the FAR, and there are clauses that don't supplement the FAR. The term and condition I'm describing is used as a matter of contracting officer practice, is not a clause, does not implement or supplement the FAR, and is not inconsistent with the FAR. Accordingly, the term and condition I'm describing is not covered by FAR Subpart 52.101( b )( 2 )( i ) and is not subject to the deviation process of FAR Subpart 1.4 or the agency rulemaking process of FAR Subpart 1.3. It may be used by a contracting officer in a contract attachment as a matter of contracting officer practice without any supporting agency regulations.

Let's use an example to show how absurb your approach here is. A statement of work (SOW) in an awarded contract might have a requirement (a term and condition) that the contractor submit a product submittal for Government approval before installation -- this is a simple and straightforward term and condition inside the SOW. That term and condition is drafted by the contracting officer and is similar (or identical) to text used in other similarly-situated contracts. You would insist that this term and condition in the SOW is a clause, and that it is subject to the deviation and rulemaking process -- along with every other term and condition in the SOW and any other contract attachments. Your approach would shut down the entire acquisition process of every FAR-covered agency. You would be wrong.

[Note: I use the word "rulemaking" in some of my posts for convenience -- but really, the FAR Subpart 1.3 process is not rulemaking -- if we're serious about definitions, using the term "rulemaking" to describe the OFPPA process is imprecise and might even be error -- see AMERICAN MOVING AND STORAGE ASSOC., INC., et al., v. UNITED STATES DEPARTMENT OF DEFENSE, United States District Court, District of Columbia, March 29, 2000, 91 F.Supp.2d 132 (2000).]

I'll bow out of this discussion now.

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Here is ji20874’s original “blurb”:

[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.

Don’s initial reaction was that in order to use such a “clause” the CO would have to comply with the publication statute.

The requirement to publish in the Federal Register does not turn on whether a text is a clause or whether it deviates from FAR. 41 USC 1707 requires publication of a "policy, regulation, procedure, or form" only if it:

(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

(ii) has a significant cost or administrative impact on contractors or offerors.

Whether or not the blurb is a clause, I do not see how it would cause a significant effect, a significant cost, or a significant administrative impact. Therefore, I do not think it's use would require its publication.

Don, do you agree?

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Don,

There are clauses that supplement the FAR, and there are clauses that don't supplement the FAR. The term and condition I'm describing is used as a matter of contracting officer practice, is not a clause, does not implement or supplement the FAR, and is not inconsistent with the FAR. Accordingly, the term and condition I'm describing is not covered by FAR Subpart 52.101( b )( 2 )( i ) and is not subject to the deviation process of FAR Subpart 1.4 or the agency rulemaking process of FAR Subpart 1.3. It may be used by a contracting officer in a contract attachment as a matter of contracting officer practice without any supporting agency regulations.

What you don't seem to be getting is that it doesn't matter what you call it. You think that calling something a blurb instead of a clause gets you around FAR subpart 1.3 and 1.4. Now you think that saying your homegrown term or condition does not implement or supplement the FAR gets you something. It doesn't.

First, let me be clear that I'm responding to these assertions--

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.
The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

As far as the specific blurb you posted, my only comment is that it meets the definition of contract clause at FAR 2.101.

As far as "homemade contract clauses" that are not inconsistent with the FAR not being a deviation, your assertion is wrong as a general proposition. As I explained in prior posts, a deviation need not be inconsistent with the FAR to be a deviation. FAR 1.401(f) defines one category of "deviation" as:

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).

So, let's say that you include "homemade contract clauses" that are not inconsistent with the FAR in your agency's contracts and these terms and conditions have (1) a significant effect beyond the internal operating procedures of the agency or (2) have a significant cost or administrative impact on contractors or offerors. See FAR 1.301 and 41 U.S.C. 1707. Further, you use these homemade contract clauses on a repetitive basis. Guess what? That could be a deviation pursuant to FAR 1.401(f), even though your homemade contract clauses were not inconsistent with the FAR. (It seems like this is the third time I've explained this). As such, your first assertion is wrong.

As to your second assertion, you suggest that including something as a contract attachment instead of a contract clause relieves you of the requirements of FAR subpart 1.3 regarding notification and public comment. As Vern has pointed out in post #106, the requirement for publication does not turn on whether a text is a clause or whether it deviates from FAR. As such, your second assertion is also wrong.

Let's use an example to show how absurb your approach here is. A statement of work (SOW) in an awarded contract might have a requirement (a term and condition) that the contractor submit a product submittal for Government approval before installation -- this is a simple and straightforward term and condition inside the SOW. That term and condition is drafted by the contracting officer and is similar (or identical) to text used in other similarly-situated contracts. You would insist that this term and condition in the SOW is a clause, and that it is subject to the deviation and rulemaking process -- along with every other term and condition in the SOW and any other contract attachments. Your approach would shut down the entire acquisition process of every FAR-covered agency. You would be wrong.

Note that I have proven wrong two assertions that you have made. I actually went back and showed the exact words that you wrote. You did not do the same because you cannot. You continually argue against an argument that I did not make. This is what is called the straw man fallacy. I called you out on it in my last post, and here you are resorting to it again. Ironically, you called me out on not being "honest and honorable".

Irony of ironies, I looked in your agency supplement to see what your agency's policy was regarding clause control (If I remember correctly, you work for DHS). Here's what HSAR 3001.304( a ):

The HSAR is under the direct oversight and control of the Department of Homeland Security, Office of the Chief Procurement Officer (OCPO), which is responsible for evaluation, review, and issuance of all Department-wide acquisition regulations and guidance. Each HCA may supplement the HSAR with Component guidance. Supplementation should be kept to a minimum. Components proposing to issue regulatory supplements or use solicitation or contract clauses on a repetitive basis must obtain legal review by the Component’s legal counsel and forward supplements to the CPO for concurrence prior to publication in the Federal Register.

From what you've written, it doesn't seem that you are in compliance with your agency's policy.

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Here is ji20874’s original “blurb”:

Don’s initial reaction was that in order to use such a “clause” the CO would have to comply with the publication statute.

The requirement to publish in the Federal Register does not turn on whether a text is a clause or whether it deviates from FAR. 41 USC 1707 requires publication of a "policy, regulation, procedure, or form" only if it:

Whether or not the blurb is a clause, I do not see how it would cause a significant effect, a significant cost, or a significant administrative impact. Therefore, I do not think it's use would require its publication.

Don, do you agree?

Vern,

I do think that what ji20874 posted was a clause pursuant to FAR 2.101, but I never said that it met the standards for publication. I took issue with ji20874's apparent assertion that because his blurb was not a clause he did not have to comply with FAR subpart 1.3. This is what he wrote:

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

I asked him to explain what he meant and he never did.

As far as whether ji20874's blurb meets the standard for publication, I'm not sure. The blurb seems like an attempt to include the same right in a service contract that the Government has in a construction contract pursuant to FAR 52.236-5( c ). It doesn't seem like a big deal, but I'm sometimes surprised by what contractors and offerors consider a big deal. As such, I don't completely trust my judgment.

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