Selection of Provisions and Clauses

[Jamaal Valentine]

What are the procedures for selecting provisions and clauses? Thus far I have heard or have personal experience with the following:

1 - Using the FAR Matrix (doesnt help with DFARS, or Ageny clauses and the Matrix in general is of little practical use with all of its blank, as applicable, optional or inaccurate annotations)

2 - Comb through every applicable FAR Part, Subpart, Section, and Subsection and examine each provision/clause prescription

3 - Use the various clause logic systems avabile (http://pklunx.hill.af.mil/demo_clslogic/app/frameset.htm - FAR, DFAR, and Agency; PD2 Auto Select; http://farsite.hill.af.mil/clauselogic/Clauselogic.html - AFFARS Clauses, etc.)

4 - Create and maintain your own Matrix using the method outlined in # 2

5 - Use a previous solicitation as a template

[Guest Vern Edwards]

Do you want an accurate selection, or do you just want a list of provisions and clauses of the kind produced by the matrix and clause logic systems?

#4 is beyond the logical capability of 99.9 percent of 1102s.

#5 is for idiots with no professional pride.

[Matthew Fleharty]

Jamaal,

This depends on your requirement. If commercial, I'd go to FAR Subpart 12.3 (and the respective supplements for the agency I work for) and use those clauses there (these clauses, 52.212-5 in particular, are essentially your commercial "matrix"). Then, based on the particular requirement, it may warrant the consideration of additional clauses IAW FAR 12.301(e). At this point, you'd want to comb through other FAR Parts to identify what additional clauses may or may not be needed for the acquisition at hand. I'm not sure what type of contracting office you work in, but when I was in an operational contracting squadron, 100% of the requirements I saw for services and commodities were commercial (I usually say that 99% of the requirements you'll see in an operational squadron are commercial because there are exceptions to most rules). For that reason, I tried my best to get all my buyers and COs to become intimately familiar with and follow the language of FAR Subpart 12.3 and DFARS Subpart 212.3 - I encourage others to do the same at every opportunity.

As for other procurements, I think the only meaningful way is to use the Matrix provided for the FAR and comb through all the DFARS clauses to assess applicability (so a mix of #1 & #2, though reliance on the coding in the cells should be minimal). I say that as a relatively younger professional - I've tried to assess which FAR Parts are applicable and evaluate only those clauses. What I found was that after double checking by combing the FAR there we numerous other provisions/clauses that were required (hence why I mentioned in the other thread the creation of the DFARS Matrix so I can quickly locate prescriptions to evaluate).

#3 unfortunately has never worked well for me - I've tried it numerous times only to have to spend more time analyzing each of the clauses anyways (so I feel like the time spent using the system/tool is just wasted effort). I'm also not reassured by the fact that the bottom of the website states "Last updated: OCT 2011 by ESC/HIBB-KSL." I'd go a step further and state that I don't think any system or "logic tool" will ever be able to accurately and reliably replace the judgment of a good contracting professional - when/if that day comes, we might all be out of a job.

[Don Mansfield]

What are the procedures for selecting provisions and clauses? Thus far I have heard or have personal experience with the following:

1 - Using the FAR Matrix (doesnt help with DFARS, or Ageny clauses and the Matrix in general is of little practical use with all of its blank, as applicable, optional or inaccurate annotations)

2 - Comb through every applicable FAR Part, Subpart, Section, and Subsection and examine each provision/clause prescription

3 - Use the various clause logic systems avabile (http://pklunx.hill.af.mil/demo_clslogic/app/frameset.htm - FAR, DFAR, and Agency; PD2 Auto Select; http://farsite.hill.af.mil/clauselogic/Clauselogic.html - AFFARS Clauses, etc.)

4 - Create and maintain your own Matrix using the method outlined in # 3

5 - Use a previous solicitation as a template

Jamaal,

When I was a contracting officer, I created a clause book that contained the title, date, and prescription for every FAR and DFARS clause. It was a lot of work, but it was worth it. I expected my contract specialists to use the clause book when creating their solicitations (and they did). Every time the FAR or DFARS changed, I would change my clause book (if necessary).

I encourage you to do the same.

[Jamaal Valentine]

Vern: Always seeking accuracy. I'm currently pursuing #4 and it's been challenging.

Matt: Dollar wise the unit spends more on non-commercial requirements (primarily construction).

Don: I am in the process of building a clause matrix, which prompted this post. #2 and #4 have been tough, but I'm learning. I figured there had to be a better way, or at least I hoped. In your book, was the prescription a narrative or reference?

[metteec]

We have mostly commercial acquisitions (non-DOD). Per Don's method, I maintain a clause book for my staff to assist in completing FAR Clause 52.212-5. I wonder how many other agencies do the same thing? Lots of hours could probably be saved if one agency decided to make public the clause book for all agencies to use. Even better, it could be part of the FAR Matrix (which, based upon WIFCON feedback, I hope I can be a catalyst for change).

For all other clauses, we use approach #1.

[Matthew Fleharty]

Metteec,

I've seen the proliferation and sharing of clause matrices that included descriptions or highlights of what clauses to include and when. In most instances, those tools got users other than the creator into trouble. I imagine we could both agree that your clause book is imperfect, but since you created it, you're intimately familiar with any/all shortcomings so you know how to use it as effectively and as accurately as possible. Others that may use it will presumably have a more difficult time because they'll need to spend time familiarizing themselves with your format, choices, etc. which could lead to inaccuracies (at least that is what my observations have led me to believe thus far).

When I led the services/commodities flight at my previous base, I encouraged everyone to go through the process of creating their own personal tool for the clauses in FAR Subpart 12.3 and DFARS Subpart 212.3. For those that took the task seriously, they learned the method (and difficulties) of evaluating clauses and, after multiple iterations of feedback to increase the tool's accuracy, they arrived at a tool that they were familiar with and could use more easily than something passed on to them from another buyer or found on the web. Vern is right - going through the process to develop a tool/matrix is no easy task. A suitable one takes considerable time and effort, but in our case, we were limited to a microcosm of the FAR because we only dealt with commercial item acquisitions so that simplified everything considerably.

I think the goal of a "one tool to rule them all" is admirable, but frankly since tools are based on interpretation and descriptions, they'll likely be prone to the same difficulties as the ones that float around today. Such tools will likely be no better than reviewing the clause prescription itself (i.e. one person's plain English is not necessarily another person's plain English). For this reason, I primarily use the current matrix for the ability to quickly access prescriptions without having to comb through the FAR completely and create my own tools so I know what strengths/weaknesses are present (which minimizes the potential for errors) - I'd encourage others to do the same.

[Guest Vern Edwards]

Look, if you find the FAR matrix (or another matrix) useful and you like it, then you like it. Your call. But some of you seem to think that selecting clauses is hard. it's not, if you know your business, except in a few cases. Anyone who knows the FAR and knows what they are buying can manually choose the clauses for most of their contracts in an hour or so, at most. In some cases they can choose them in less time.

There is never a need to read all of the clause prescriptions or go through the entire matix. For instance, if you are awarding a $1,000,000 firm-fixed-price contract for noncommercial supplies under Part 15, then you should know that there is no need to read any prescription from any of parts or subparts 12, 13, 14, 16.3 - 16.6, 22.4, 22.10, 34, 36, 37, 38, 39, 41, or 51, to name only a few obviously inapplicable parts and subparts. The applicability or inapplicability of many clauses to particular acquisitions is obvious from their titles.

Some FAR parts do not prescribe any clauses: 1, 5, 6, 18, 20 (Reserved), 21 (Reserved), 35, 38, and 40 (Reserved).

Some FAR parts prescribe only one (Parts 2, 10, 24, 39, and 53) or two clauses (Part 51).

Some prescriptions are very simple, e.g., 2.201 and 24.104, and after you've read them once or twice you'll not have to read them again.

Some prescriptions are frustrating, because you have to do some research to decide whether they apply. See e.g., 23.406. I suspect most COs just include such clauses, figuring that if they don't apply then inclusion won't be an issue. In some cases it's obvious when such clauses are or are not required.

The worst FAR parts in terms of numbers of prescriptions are 22 and 47, but after you've gone through them a few times you'll know which clauses you'll need for most acquisitions you handle.

Newbies should be required to work their way through manual clause selection a few times in order to get a feel for the process and for the clauses themselves. There are few better ways to learn about government contracts.

[Don Mansfield]

Don: I am in the process of building a clause matrix, which prompted this post. #2 and #4 have been tough, but I'm learning. I figured there had to be a better way, or at least I hoped. In your book, was the prescription a narrative or reference?

It was the actual prescription--not a reference.