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Does anything in the following quote require an agency to develop, implement, maintain, and comply with a plan for controlling contracting officer use of clauses other than those prescribed by FAR or DFARS?

Does anything in the quote prohibit the local contracting office's use of clauses other than those prescribed by FAR or DFARS or otherwise prescribe an approval requirement?

I read this passage to apply only to Military Departments and Defense Agencies [and the component organizations] that promulgate FAR or DFARS supplements, not individual contracting offices adding nonstandard provisions and clauses into their solicitations and contracts.

Quote

201.304 Agency control and compliance procedures.

Departments and agencies and their component organizations may issue acquisition regulations as necessary to implement or supplement the FAR or DFARS.

(1)(i) Approval of the USD(AT&L) is required before including in a department/agency or component supplement, or any other contracting regulation document such as a policy letter or clause book, any policy, procedure, clause, or form that—

  • (A) Has a significant effect beyond the internal operating procedures of the agency; or
  • (B) Has a significant cost or administrative impact on contractors or offerors.

(ii) Except as provided in paragraph (2) of this section, the USD(AT&L) has delegated authority to the Director of Defense Procurement and Acquisition Policy (OUSD(AT&L)DPAP) to approve or disapprove the policies, procedures, clauses, and forms subject to paragraph (1)(i) of this section.

(2) In accordance with 41 U.S.C. 1304, a new requirement for a certification by a contractor or offeror may not be included in a department/agency or component procurement regulation unless

  • (i) The certification requirement is specifically imposed by statute; or
  • (ii) Written justification for such certification is provided to the Secretary of Defense by USD(AT&L), and the Secretary of Defense approves in writing the inclusion of such certification requirement.

(3) Contracting activities must obtain the appropriate approval (see 201.404) for any class deviation (as defined in FAR Subpart 1.4) from the FAR or DFARS, before its inclusion in a department/agency or component supplement or any other contracting regulation document such as a policy letter or clause book.

(4) Each department and agency must develop and, upon approval by OUSD(AT&L)DPAP, implement, maintain, and comply with a plan for controlling the use of clauses other than those prescribed by FAR or DFARS. Additional information on department and agency clause control plan requirements is available at PGI 201.304(4).

(5) Departments and agencies must submit requests for the Secretary of Defense, USD(AT&L), and OUSD(AT&L)DPAP approvals required by this section through the Director of the DAR Council. Procedures for requesting approval of department and agency clauses are provided at PGI 201.304(5).

(6) The Director of Defense Procurement and Acquisition Policy publishes changes to the DFARS in the Federal Register and electronically via the World Wide Web. Each change includes an effective date. Unless guidance accompanying a change states otherwise, contracting officers must include any new or revised clauses, provisions, or forms in solicitations issued on or after the effective date of the change.

 

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Guest Vern Edwards

See "Postscript II: Agency Policy Memos," by Donald E. Mansfield, in the February 2014 edition of The Nash & Cibinic Report. An excerpt:

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Agency contracting activities and contracting offices routinely issue local acquisition regulations to implement and supplement the FAR and the agency's FAR supplement and to incorporate policies, procedures, contract clauses, solicitation provisions, and forms unique to the contracting activity or contracting office that govern the contracting process or control relationships with contractors and prospective contractors. Such regulations typically take the form of policy letters, clause books, procedures manuals, etc. and often contain much more than internal agency guidance of the type described at FAR 1.301(a)(2) (i.e., designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements). The issuance of these regulations is not, itself, a problem. The problem occurs when these local acquisition regulations meet the criteria for notice and public comment in the publication statute (i.e., when they have a significant effect beyond the internal operating procedures of the agency or have a significant cost or administrative impact on contractors or offerors) or the Paperwork Reduction Act (i.e., collecting information from 10 or more members of the public), but do not go through the required notice and public comment process. Ever.

 

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PGI 201.301 and 304 applies to all DoD departments and agencies, so it wouldn't make sense for the policy to not apply to offices within those departments and agencies.  The process defined in the PGI also applies to clause and provisions that are not considered a significant revision as defined at FAR 1.501-1.  The PGI requires agencies to have control and compliance procedures in place for all clauses or provisions other than those prescribed by the FAR or DFARS.  It would appear to me that a local office developing its own clause or provision to use on a repetitive basis, without the department or agency exercising the control and compliance procedures required by the PGI, would not be compliant with the PGI.  It would seem to me the office would have to follow whatever control and compliance procedure the department or agency has established to ensure compliance with the PGI.

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Guest Vern Edwards

See 41 U.S.C. § 1302, "Contract clauses and certifications," paragraph (a), "Repetitive Nonstandard Contract Clauses Discouraged":

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(a)Repetitive Nonstandard Contract Clauses Discouraged.—The Council shall prescribe regulations to discourage the use of a nonstandard contract clause on a repetitive basis. The regulations shall include provisions that—

(1) clearly define what types of contract clauses are to be treated as nonstandard clauses; and

(2) require prior approval for the use of a nonstandard clause on a repetitive basis by an official at a level of responsibility above the contracting officer.

See also 41 U.S.C. § 1707, "Publication of proposed regulations," paragraph (a) "Covered Policies, Regulations, Procedures, and Forms":

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(a)Covered Policies, Regulations, Procedures, and Forms.—

(1)Required comment period.—Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it—(A)

relates to the expenditure of appropriated funds; and

(B)(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.

(2)Exception.—

A policy, regulation, procedure, or form may take effect earlier than 60 days after the publication date when there are compelling circumstances for the earlier effective date, but the effective date may not be less than 30 days after the publication date.

Those laws are implemented by FAR Subparts 1.1 through 1.5.

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Jamaal,

DFARS 201.304(1) implements what is now 41 U.S.C. 1707 within DoD. In congressional testimony introducing the legislation, then located in Section 302 of H.R. 4209, the following exchange took place:

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MR. COHEN. I would like to also clarify that section 302 would not only apply to proposed changes or additions to the Governmentwide Federal acquisition regulation, but also to agency supplements to the FAR as well as subagency supplements on down to the lowest level. In other words, for example, not only would proposed FAR regulations have to be published under section 302, but so would proposed DoD supplemental regulations to the FAR, Air Force supplemental regulations to the DoD supplement, and Air Force Logistics Command supplemental regulations to the Air Force supplements.

MR. WEICKER. That is also correct.

 

See p. 29976 of the attached.

19841004_CongRec_29976.pdf

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All:

Thanks for the info. It'll take a while to get through it, but meanwhile I want to clarify that I'm primarily interested in the rules placed on individual contracting officer's use of non-standard clauses.

ji20874:

Individual contracting officers who either -

1) use non-standard clauses to fit particular acquisitions (truly custom)

2) use non-standard clauses repetitively (generic use based on a set of recurring conditions - location, type of work, etc.)

An example of item 1 would be including an on/off-ramp clause is a major source selection.

An example of item 2 could be a clause detailing historical data on inclement weather that's used for evaluating unusually severe weather REAs.

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Jamaal, your example item 2 may refer to a local clause that describes what is to be considered "normal weather" for a particular installation or site. I would not personally consider such special contract requirements to be "covered clauses", that require public notice and comment under the Statute

 These are commonly used by the Corps of Engineers to establish baselines at each site and installation to compare actual delays versus "normally expected" delays due to inclement weather. Actual lost time for work on the critical path that exceeds historically expected delays forms the basis for granting time extensions due to unusually severe weather under the Defaults Clause. Those are not generally "Requests for Equitable Adjustment" (REAs). These are -again generally speaking- time extensions for excusable, but non-compensable delays that exceed expected weather delays. 

The clauses merely clarify what is considered to be normal expected weather or delays due to inclement weather for an individual site. From my experience, they might or might not reflect accurate data but they are necessary to establish a baseline for comparison purposes.

 I'm guessing that I was the last person to update the 10 year average weather data for the military and civil works installations in my then USACE District for the US South East region (back in the mid 1990's).  

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17 hours ago, Todd Davis said:

I get an error message from the Wifcon system when I try to open the attachment.  I think someone else had a similar problem with a different attachment recently.

 

"The page you are trying to access is not available for your account."

Error code: 2C171/1

Todd, I posted an excerpt of the Congressional Record of October 1, 1984. If you're interested in reading it, send me a message with your e-mail address and I will send it to you.

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1 hour ago, Don Mansfield said:

Todd, I posted an excerpt of the Congressional Record of October 1, 1984. If you're interested in reading it, send me a message with your e-mail address and I will send it to you.

Thanks for the offer Don.  I was able to find it on Westlaw after posting this message.  Learned something new today.  How to pull up Congressional records on Westlaw and other websites.

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Guest Vern Edwards
16 hours ago, Jamaal Valentine said:

All:

Thanks for the info. It'll take a while to get through it, but meanwhile I want to clarify that I'm primarily interested in the rules placed on individual contracting officer's use of non-standard clauses.

This topic is more interesting than we're making it.

Start with this: What's a clause? See the definition of "contract clause" in FAR 2.101. Read it carefully. Based on that definition, is a statement of work a "clause"? Are "special contract requirements" inserted in UCF Section H "clauses"? See FAR 15.204-2(h). Why isn't Section H called special contract clauses? Is there a reason? (What were Section H and Section I called in 1983, before issuance of the FAR?) 

Then: What do "standard" and "nonstandard" mean? How many times does a clause have to be used before its use is "standard"? Is it standard if one contracting officer uses it twice? Ten times? If four contracting officers each use it once? 

Then, see FAR 1.401(a). Read it carefully. Does "inconsistent with" mean different from, conflicts with, or both? If my lawyer tells me that a text in my RFP Section H is inconsistent with FAR and thus a deviation, can I solve the problem by moving it to the SOW or some other attachment?

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Guest Vern Edwards

By the way, Black's Law Dictionary, 10th ed., defines clause as follows: "A distinct section or provision of a legal document or instrument."

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I am having no problem downloading and seeing the Congressional Record page.  Is anyone having a problem?

I may be able to access it because I am the administrator.  There may be a hidden safety setting to prevent downloads by members.  

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Guest Vern Edwards

I can't get it. I get a message that says I don't have access.

Anyway, what would I see of interest that Don didn't quote? Moreover, what members of Congress say in the Record is not binding on anyone. it may not even be what they actually said.

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22 minutes ago, Vern Edwards said:

Anyway, what would I see of interest that Don didn't quote?

Nothing. I quoted the relevant part.

 

1 hour ago, Vern Edwards said:

This topic is more interesting than we're making it.

Start with this: What's a clause? See the definition of "contract clause" in FAR 2.101. Read it carefully. Based on that definition, is a statement of work a "clause"? Are "special contract requirements" inserted in UCF Section H "clauses"? See FAR 15.204-2(h). Why isn't Section H called special contract clauses? Is there a reason? (What were Section H and Section I called in 1983, before issuance of the FAR?) 

Then: What do "standard" and "nonstandard" mean? How many times does a clause have to be used before its use is "standard"? Is it standard if one contracting officer uses it twice? Ten times? If four contracting officers each use it once? 

Then, see FAR 1.401(a). Read it carefully. Does "inconsistent with" mean different from, conflicts with, or both? If my lawyer tells me that a text in my RFP Section H is inconsistent with FAR and thus a deviation, can I solve the problem by moving it to the SOW or some other attachment?

I think this is a gray area (popular term lately). I don't think the location of a contract term affects its status as a clause. There's nothing in the definition of "contract clause" to suggest that. As such, I don't think moving something from Section H to an attachment would make something that would otherwise be a deviation no longer be a deviation.

As far as standard and nonstandard, are you referring to how Jamaal is using the words or how Congress used it in 41 U.S.C. 1302? I think Jamaal was using it to mean clauses that are not in Title 48 of the CFR. As far as what "nonstandard" means in the statute, that's what the FAR Council was supposed to define, but didn't.

Jamaal,

Did this issue come up in an audit or something?

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Guest Vern Edwards
1 hour ago, Don Mansfield said:

I don't think the location of a contract term affects its status as a clause. There's nothing in the definition of "contract clause" to suggest that. As such, I don't think moving something from Section H to an attachment would make something that would otherwise be a deviation no longer be a deviation.

As far as standard and nonstandard, are you referring to how Jamaal is using the words or how Congress used it in 41 U.S.C. 1302? I think Jamaal was using it to mean clauses that are not in Title 48 of the CFR. As far as what "nonstandard" means in the statute, that's what the FAR Council was supposed to define, but didn't.

So any discrete piece of text in a contract is a "contract clause" within the meaning of FAR? A statement of work is a "contract clause"?

My reference to standard and nonstandard was to Jamaal's usage. But my questions apply equally to the use of those words in the statute.

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29 minutes ago, Vern Edwards said:

So any discrete piece of text in a contract is a "contract clause" within the meaning of FAR? A statement of work is a "contract clause"?

Potentially, yes. If that discrete piece of text is a term or condition that applies after contract award, then it would meet the definition of "contract clause".

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Guest Vern Edwards

Don:

So I can drop the "potentially" bit, since I said that the text is in a contract. In short, you say that all text in a contract is, or is part of, a contract clause, including the SOW or specification, a CDRL, etc. Right?

Vern

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Don:

This comes up time to time in the office. As of late, the contract clearance approval authority is not clearing/approving any contracts that include non-standard clauses (not in Title 48 of the CFR).

Bob:

I've previously received the same access error others have mentioned.

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Jamaal,

     But, I suppose, your contract clearance approval authority is approving terms and conditions that are not styled as clauses?  Such as all the terms and conditions inside your statements of work?  Are you allowed to have any homemade special contract requirements in your Section H?

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