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1 hour ago, Vern Edwards said:

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

No, I don't say that. If "all the text in a contract, including the SOW or specification, CDRLs, etc." are terms or conditions that apply after contract award, then they would meet the definition of "contract clause".

Where is the term "clause" or "contract clause" being used in the FAR that would make the definition a problem? 

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ji20874:

If we hold firm to the definition of contract clause found at FAR 2.101 we know what a contract clause is, but we don't know what a contract clause is not. I think that is important.

For practical purposes, clearance authorities, in my experience, don't process nuance well. If it resembles what is instinctively believed is a clause or is placed anywhere in sections A thru M it will not be approved. On some occasions, it seems like a matter of form over substance in some cases. For example, if you use an attachment as a place for inserting non-standard clauses you could get approval.

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Jamaal,

A text in Sec. H describing a mandatory material testing requirement and report format would likely be rejected, but the exact same text in an attachment would likely be approved?

I understand, and regret that reality.  Some people act on form rather than substance.  The review process will often screen out initiative, innovation, and common sense, while contributing little or nothing of value to help the Government achieve anything with the acquisition.

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Guest Vern Edwards
19 hours ago, Don Mansfield said:

Where is the term "clause" or "contract clause" being used in the FAR that would make the definition a problem? 

What immediately comes to mind is FAR 52.202-1, Definitions (NOV 2013): "When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued.... ."

If "contract clause" includes statements of work, specifications, data item descriptions, etc., then the authors of those documents, COs, and offerors/contractors had better check word usage closely. And people who must interpret those documents four or five years after contract award had better have access to the edition of FAR in effect at the time the solicitation was issued, perhaps one to three years before contract award. There are about 240 +/- definitions in FAR 2.101.

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Guest Vern Edwards
16 hours ago, Jamaal Valentine said:

ji20874:

If we hold firm to the definition of contract clause found at FAR 2.101 we know what a contract clause is, but we don't know what a contract clause is not. I think that is important.

Jamaal: If we know what it is, then everything that isn't that is not it. Right?

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Guest Vern Edwards
16 hours ago, ji20874 said:

Some people act on form rather than substance.

Please explain. Are you saying that literal interpretation of a definition, rather than interpretation based on historical or commonplace usage, places form over substance?

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19 hours ago, Don Mansfield said:

No, I don't say that. If "all the text in a contract, including the SOW or specification, CDRLs, etc." are terms or conditions that apply after contract award, then they would meet the definition of "contract clause".

Where is the term "clause" or "contract clause" being used in the FAR that would make the definition a problem? 

Perhaps the Order of Precedence clauses, FAR 52.214-29 and 52.215-8?

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9 minutes ago, Navy_Contracting_4 said:

Perhaps the Order of Precedence clauses, FAR 52.214-29 and 52.215-8?

According to FAR 2.101(a)(1), the definitions in 2.101 apply to the entire regulation unless "The context in which the word or term is used clearly requires a different meaning". I think in the context of FAR subpart 14.2 and 15.2, which cover the UCF, "contract clauses" in both clauses refers to Part II of a contract in UCF. Note the other entries on the list that are other parts of the UCF. 

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Guest Vern Edwards

It's amazing, when you think about it, how passive (or, if you want to be generous, cagey) the FAR councils have been in not clearing up inconsistencies in word usage in the FAR. All the more remarkable, because people who write and negotiate contracts in a litigious society like ours ought to be very sensitive about word usage.

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8 hours ago, Vern Edwards said:

Jamaal: If we know what it is, then everything that isn't that is not it. Right?

Yes, but only if your knowledge of the thing is complete. A partial definition may not work and could lead to a hasty generalization (association fallacy).

What I wanted to convey is, although a contract clause is "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 necessary that all things with those attributes are contract clauses.

A dog is an animal - all animals are dogs

Plus the definition doesn't say "any" or "all" terms and conditions...Just thinking it through, may or may not be the correct interpretation, but it keeps things lively.

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A perfect example of taking a policy to the extreme is when everything in the contract is subject to being considered a "clause".  !  I know of organizations that don't use "local clauses" in the "Special Contract Requirements" for construction contracts on specific Military Installations because someone in Contracting told them that all such  "clauses" must be publicly announced for comment and "approved" by someone in Contracting. So they bury the requirements  in technical specs, statements of work, appendices, etc. in fact, I know of at least one Military Department (not mine) that does this for that reason.

It's all a bunch of crap.  If an Installation Commander needs to include standard requirements for all contracts that prescribe access to the Base, working hours, limitations on haul routes, dump or borrow pits, etc. or other necessary restrictions on that Installation, it's generally their prerogative as long as they aren't ridiculously wasteful. If they were, I challenged them and often was able to negotiate an alternative solution. 

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Guest Vern Edwards

Jamaal:

FAR 2.101:

Quote

“Contract clause” or “clause” means a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award.

So you think "a term or condition used in contracts" should not be understood to mean "any" term or condition. Right? In the same way that "dog means a mammalian quadruped," also applies to tigers.

Works for me. I like it. So we know what general kind of thing a clause is, but not what specific kind. And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

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Vern:

3 hours ago, Vern Edwards said:

And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

I'm tempted to bring that up given the next opportunity and see how it goes...would be interesting to hear the impromptu responses!

For the discussion here, unfortunately, FAR 52.301 (Matrix) prescribes Section H as the UCF location for FAR clause 52.234-4, Earned Value Management System (MAY 2014). Oddly enough, it is the only FAR clause I found that belongs in Section H.

 

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Guest Vern Edwards

:angry: What's the matter with you? Shut up about 52.234-4 and the matrix. It's obviously a typo. They typed H when they meant I. Just accept what I'm saying. Don't ask questions. Go away. Go to bed.

You just can't help some people. 

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Vern,

You're pushing your line of reasoning to the extreme with the effect of making a disingenuous argument.

Don maintains a clause is a clause no matter its location in the document.  Your counter is that he's asserting all text in the contract is a clause.

But your suggestion that sent us down this rabbit hole was to put the text that would otherwise be considered a clause somewhere else in the document.  You suggested moving a clause so it wouldn't be considered a clause.  Don stated it would still be a clause, regardless of relocation.

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Guest Vern Edwards
1 hour ago, illzoni said:

Vern,

You're pushing your line of reasoning to the extreme with the effect of making a disingenuous argument.

Don maintains a clause is a clause no matter its location in the document.  Your counter is that he's asserting all text in the contract is a clause.

But your suggestion that sent us down this rabbit hole was to put the text that would otherwise be considered a clause somewhere else in the document.  You suggested moving a clause so it wouldn't be considered a clause.  Don stated it would still be a clause, regardless of relocation.

Illzoni:

Who cares what Don maintains? I was proceeding on the basis of Jamaal's analysis of the definition of contract clause, not Don's. Jamaal proposed an alternative analysis, and I like it.

In any case, I like pushing disingenuous arguments in order to get a rise out of folks and to prompt debate. I'm enjoying it now for the rise I've apparently gotten out of you. Why can't I try out different arguments? Why can't I have fun?

If it weren't for this kind of thing, this forum would be brain dead. All we'd be doing is answering endlessly repeated questions about things like options in FSS task orders.

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15 hours ago, Vern Edwards said:

Jamaal:

FAR 2.101:

So you think "a term or condition used in contracts" should not be understood to mean "any" term or condition. Right? In the same way that "dog means a mammalian quadruped," also applies to tigers.

Works for me. I like it. So we know what general kind of thing a clause is, but not what specific kind. And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

I might buy too.

First, let me ask a question, is it too much to ask for a solid FAR definition of "Definition"? What could that be? I suppose it could not be self-referential, so that would rule out the language at FAR 2.101 (a). I think it might be new ground and might not solve much, but without it there might be a danger that we know less than we think we do. 

More about the point I may buy. To the strawman (no one I know) who might think to declare all existing definitions somehow characteristically "definitive"...I would ask, "In what ways? or how so?"  For example, I think of the FAR definition of "contract clause" is something less than "definitive" in at least one meaningful way. It does qualify as a "descriptive" definition, but is different from a "prescriptive" definition. this difference is, on account of, as Vern points out, the use of the indefinite article "a" appearing in the midst of the definition "a  term or condition used in contracts".  

A prescriptive definition dictates "the" meaning of a word or term as contrasted with a descriptive definition which would give "a" meaning of a word or term. In short a descriptive definition fits only if it describes what we are trying to find.

Consider that the FAR usually uses a prescriptive format for definitions. The FAR definitions at 2.101,and elsewhere in the FAR are presented in language that gives us to know what a word or term does mean without equivocation, unless caveats (1) or (2), below, apply (emphasis added) : 

"FAR 2.101 Definitions (a) A word or term, defined in this section, has the same meaning throughout this regulation (48 CFR Chapter 1), unless-

(1) The context in which the word or term is used clearly requires a different meaning or

(2) Another FAR part, subpart, or section provides a different definition for the particular part or portion of the part."

We don't first turn to the dictionary, but let's mention it at last. In contrast to the prescriptive definitions I find in the FAR, the Oxford online dictionary is content with what I call descriptive definitions...(determined in this instance by looking up  the definition of "definition" in the Oxford online dictionary): " Astatement of the exact meaning of a word, especially in a dictionary..." (emphasis added). After consulting Oxford, in many instances we are left to choose among statements to arrive at "the exact meaning of a word". The Oxford  dictionary aspires to multiple statements  of the exact meaning of the word or term and leads parties only so far (admittedly it is often far enough) in the search for the definitive. Thus informed, general use of an Oxford dictionary enables us to reliably learn what a word MAY mean, depending, of course, upon a variety of factors that we must then assess in any particular instance. 

Personally, after this little search for understanding, I find myself wanting  to test the prescriptive definitions I find, such as those in the FAR definitions I want to see if I encounter a certain symmetry...to see if they can be run backward and forward to the same effect (Using this test, I don't think that dogs get to figure out that they are mammals).  Whether the definitions pass or fail this test, I would likely learn something. Anyway, it also seems likely to make plain any underlying assumptions that I may not discover in any other way. Ferreting out assumptions is almost always worth something.

Maybe this test of definitions for symmetry can be compared to a property in math described as the Reflexive Property of Equality....I don't recall hearing this one in school.   This property, simple as it is, boils down to the strikingly plain example of a=a ...I'm not convinced i will learn much more by trying it, but Mark Ryan at Dummies. com wrote something that has really me thinking it over. He gives at a test from the formal logic of theorems and proofs (emphasis added): 

"Definition: A definition defines or explains what a term means. Here’s an example: “A midpoint divides a segment into two congruent parts.”

You can write all definitions in if-then form in either direction: “If a point is a midpoint of a segment, then it divides that segment into two congruent parts” or “If a point divides a segment into two congruent parts, then it’s the midpoint of that segment.”

I am going to apply two way "if-then" statements to test definitions...and see where that kind of thinking takes me...

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17 hours ago, Vern Edwards said:

Jamaal:

FAR 2.101:

So you think "a term or condition used in contracts" should not be understood to mean "any" term or condition. Right? In the same way that "dog means a mammalian quadruped," also applies to tigers.

Works for me. I like it. So we know what general kind of thing a clause is, but not what specific kind. And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

I think the way to read the definition is that "clause" is in the general category of terms and conditions. What distinguishes it from other things in the category is that it is (1) used in contracts or solicitations and contracts and (2) it applies after award or both before and after award.

For the sake of argument, let's assume that the definition of "contract clause" is broad enough to include parts of a contract that we don't typically think of as contract clauses. What's the absurd consequence? You brought up that definitions in part 2 would apply to the SOW, CDRLs, etc. Ok, but I don't think it's that absurd. It's strange that the definition is that broad, but unless it is being used somewhere in the FAR that would make application of the definition absurd or impractical, I don't see it as a problem.

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Guest Vern Edwards

Don:

Quote

For the sake of argument, let's assume that the definition of "contract clause" is broad enough to include parts of a contract that we don't typically think of as contract clauses. What's the absurd consequence? You brought up that definitions in part 2 would apply to the SOW, CDRLs, etc. Ok, but I don't think it's that absurd. It's strange that the definition is that broad, but unless it is being used somewhere in the FAR that would make application of the definition absurd or impractical, I don't see it as a problem.

Don, I'm not going to debate that with you. I think it would be a significant practical problem, especially with respect to standardized documents like DIDs that are incorporated into contracts. Some of those documents were written many years ago with no thought of FAR definitions. We can't get COs to read FAR definitions. How are we going to get requirements folk to do it? If you want to disagree about it being a problem, then we'll disagree. The FAR is a mess. You know it as well as I. The only way it's not a problem is when everyone is ignorant or ignores what it seems to say.

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  • 3 months later...

Stumbled across a DPAP memo stating that if contract clauses are insufficient, include coverage as necessary, through revision of the performance work statement, statement of work, statement of objectives, or otherwise. 

DPAP was addressing DoD's use of non-DoD contracts and/or organizations and civilian agency use of DoD contracts.

See 'Clarification, Pages 3-4' here:  http://www.acq.osd.mil/dpap/policy/policyvault/2007-0203-DPAP.pdf

Edited by Jamaal Valentine
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7 hours ago, Jamaal Valentine said:

Stumbled across a DPAP memo stating that if contract clauses are insufficient, include coverage as necessary, through revision of the performance work statement, statement of work, statement of objectives, or otherwise. 

DPAP was addressing DoD's use of non-DoD contracts and/or organizations and civilian agency use of DoD contracts.

See 'Clarification, Pages 3-4' here:  DPAP Memo.

Try this link instead for the DPAP memorandum. The link above went to a log in page for DAU. 

http://www.acq.osd.mil/dpap/policy/policyvault/2007-0203-DPAP.pdf

note that the memo provides policy for issuing orders under another agency's existing contract that doesn't  include the necessary DoD contract requirements.  

 

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