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rpare001

Concurrence v. Approval

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Hi all,

I am writing up an Approval Matrix for my USAID funded contract (a matrix of virtually any decision we might need to make and what the approval process is under our contract). In reviewing the draft document, a colleague asked me "how do you differentiate between "approval" and "concurrence," since the contract is not always clear." This led me to include a small glossary where I detail this, but in defining the two, it led me to the question; how does the federal government define and differentiate the two?

I know this may seem self-explanatory, but when requesting approval and concurrence for different items from our CO and COR, it does seem like there is a gray area that is not as definitive as the strict definition of the two terms in the dictionary.

I also could not find any any pertinent regulations an explanation to help me. Any input you may have would be most welcome on this issue.

Thank you very much!

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[H]ow does the federal government define and differentiate the two?

I am not aware of any governmentwide definition or differentiation.

In an ordinary dictionary, both words connote agreement.

In Black's Law Dictionary 10th ed., approve is defined as meaning: "To give formal sanction to; to confirm authoritatively"; concur is defined as: "To agree; to consent."

In the Code of Federal Regulations, approve and its variations appear in 7,812 places; concur and its variations appear in 499 places.

In the United States Code, approve and its variations appear in more than 10,000 places; concur and its variations appear in 811.

In the FAR System, approve and its variations appear in 1,687 places; concur and its variations appear in 166. I found no official definitions in the FAR System.

I think that any distinction must be determined by dictionary and context. In any case, I think that when approval or concurrence are required, you cannot proceed without it.

Edited by Vern Edwards

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Vern, I think you meant "...you cannot proceed without it."

The Army Corps of Engineers attempts to employ the slight distinction that Vern points out above, where we expect the Contractor to assume more responsibility for design and performance in design-build projects (ala the Spearin Doctrine, wherein the drafter of the design specifications assumes the responsibility that the design will work as intended).

We want to use the term "concur, when the Contractor provides the design, to indicate that we feel that the design appears to meet the contract requirements but it is the design-builder's design, not ours and it becomes the design-builder's responsibility to make the design achieve the contract's performance requirements and to maintain the design integrity throughout the construction process. . EDIT: The design-builder's designers of record take the "approval" and "disapproval" responsibility while the government may "concur" or "non-concur" with the Contractor's actions within the bounds of the contract. The government approves or disapproves changes to the contract and anything that it specifically desires to retain certain responsibility for.

When we provide the design in a design-bid-build situation, we, as the designer of record, assume a more authoritarian role of approvals of all contractor provided extensions to our design ( e.g., rebar shop drawings) and material approvals, etc. because we are then primarily responsible for maintains design integrity and integration of our designs through construction.

Where it gets legally tricky is when we use the design-build method but provide the prescriptive design criteria or provide some design solutions but try to shift design responsibility to the Contractor. in my experience, the Air Force and the State Department tend to bei the most prescriptive owners and the Navy and Coast Guard tend to be the least prescriptive. The Corps, being composed of architects and engineers, if left to their own desires, will lean toward the Air Force extreme.

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As far as I can recall, I was the one who originated the use of the term "concur" vs. "approve" in an effort to capture the distinctions between design responsibility and responsibility for maintaining design integrity roles of the Government and Contractor in design-build and design-bid-build delivery systems, and to emphasize the attitude adjustment necessary on our part for design-build. That occurred sometime in the late 1980's or early 1990's, prior to the establishment of the Design-Build Institute of America.

It took twenty some years to get the USACE to officially publish the contract clauses that a few of us developed to distinguish the roles and responsibilities of the contractor and government between Design-build from design-bid-build. Implementing change in a large design and construction organization that is deeply entrenched in tradition is much more difficult than James indicated in Chapter 3: vs. 4 ( the tiny rudder turning the large ship). All of my fellow design-build proponents and pioneers in USACE retired, as did I. But I outlasted some of our major opponents.

The challenge is sustaining the gains that we made, considering that all of the few HQ design-build proponents are now gone ( retired or dead). 😊

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Be careful that you don't write a definition that shifts responsibility for outcomes from the contractor to the Government. The Boards of Contract Appeals have generally upheld the principle that the Government's "approval" of a contractor plan does not relieve the contractor responsibility for successful performance.

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ji, I don't disagree with you. However, the intent is to change the government's mindset from "control mentality" to true quality assurance in design- build and require and allow the designer of record to perform its role. Gov't approval doesn't relieve the contractor from meeting the contract requirements. And that is specifically stated in the contract.

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There is that subtle distinction between "approve" and "concur", as Vern pointed out . Ah, the richness of the English language and all of its resulting challenges.

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I don't think you can state any general proposition about the consequences for the parties of approval or cocurrence based on the definitions of those words. I think context is critical.

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I agree, Vern. Context is crucial. We just needed a different term than "approve".

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