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Formality and boilerplate in federal contracts


pracademic

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I am a Ph.D. student in public administration (and a former federal CO for 16 years) working on a dissertation related to federal procurement contracting.

Part of my work regards studying formality in the drafting of the federal procurement contract. I'm also interested in the historical development of federal boilerplate language in general (and in the Uniform Contract Format in particular), among other topics.

I've studied academic articles on boilerplate and various literatures related to contract form, but almost all the material I find is related to private sector contracts.

I don't want to go into details here about my search methodology and what sources I've already read (If asked I will expound), but I'm wondering if one of the more senior members with an interest in history and contract theory as it relates to federal procurement contracts might be willing to lend me a hand or help me see avenues of information that I have missed?

Thank you for time.

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Have you been able to view “old contracts” in detail and legislative history of procurement laws to develop any time frame or frames of reference? 

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Guest Vern Edwards
4 hours ago, pracademic said:

I'm also interested in the historical development of federal boilerplate language in general (and in the Uniform Contract Format in particular), among other topics.

A very big topic.

You would do well to narrow your focus to a particular contract clause or class of clauses (such as changes or inspection). Much of your research will be in the historical Federal Register and historical volumes of the Code of Federal Regulations. You may have to go to the National Archives and look at old military procurement regulations and contracts. I suggest that you contact the office of Defense Procurement and Acquisition Policy and ask about access to the archives of the Armed Services Procurement Regulation (ASPR)  Committee. (They published what might have been the first version of the Uniform Contract Format in the Federal Register on January 3, 1970.) You might also contact the library of the Defense Acquisition University about access and the Law Library of The George Washington University. A review of old GAO protest decisions and reports and decisions of the old Court of Claims might be in order, as well as 19th Century memoranda of the U.S. Attorney General. Keep in mind that practice usually precedes regulation. Regulation usually formalizes practice.

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1 hour ago, joel hoffman said:

Have you been able to view “old contracts” in detail and legislative history of procurement laws to develop any time frame or frames of reference? 

A little bit. My advisor has done a lot of archival work on the National Defense Research Committee and the Office of Scientific Research and Development and I've had a chance to go through her files (gleaned from the National Archives), but they are more related to the actual administrative process the Committee used to develop their special procurement forms during the build-up to WW II. Those files led me to a few other sources--but not to the actual contracts themselves (many of which are probably still classified?), or even to specific legislative histories, which wouldn't have related so much to the NDRC/OSRD work, which was special.  The NDRC materials and the quote from Nagle's book about there being 400 + forms used in WW I for military procurements is what prompted this interest (I'm away from my desk, so my exact reference is fuzzy).  I have ideas where to start but picking exactly where to dive in is daunting. A few early tries at this left me spinning my wheels pending more time and the ability to travel for archival research.

Time frame would be from the late 30's to the present. I realize that's huge and I need to narrow further, or to at least explore around the periods of more intense legislative activity that surrounded, for example, the promulgation of the ASPR or the FAR.  But essentially, I'm interested in how we went from 400+ forms to the documentary format prescribed (or recommended) in the FAR today.

Thank you.

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2 hours ago, Vern Edwards said:

A very big topic.

You would do well to narrow your focus to a particular contract clause or class of clauses (such as changes or inspection). Much of your research will be in the historical Federal Register and historical volumes of the Code of Federal Regulations. You may have to go to the National Archives and look at old military procurement regulations and contracts. I suggest that you contact the office of Defense Procurement and Acquisition Policy and ask about access to the archives of the Armed Services Procurement Regulation (ASPR)  Committee. (They published what might have been the first version of the Uniform Contract Format in the Federal Register on January 3, 1970.) You might also contact the library of the Defense Acquisition University about access and the Law Library of The George Washington University. A review of old GAO protest decisions and reports and decisions of the old Court of Claims might be in order, as well as 19th Century memoranda of the U.S. Attorney General. Keep in mind that practice usually precedes regulation. Regulation usually formalizes practice.

Vern:

First, thank you very much for your suggestions, your recommendation about practice preceding regulation, and also for your caution about narrowing (I'm trying to narrow, I swear). .

Second--the development of the UCF itself is my focus right now, so I very much appreciate your reference to that specific Federal Register cite.  (I'm not just interested in its historical development, though--I've interested in how it functions as a sort of heuristic device (or cognitive module) within the contract document itself, and for various audiences).

When I look more at the boilerplate language, I think I'm going to be looking at construction clauses.  The changes clause(s) are definitely ones I've been considering.

I'm not horribly far from D.C. and am hoping to get a chance to do some archival research this summer.

Again, thank you.

 

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Guest Vern Edwards

Thoughta about construction clauses. They were mainly developed by the military, which was doing construction contracting before most civilian agencies were created. Especially at the outset of the two world wars--camp construction. The FAR construction clauses are very similar to the ones used in the private sector, and I'm not sure which came first. Did the military model their clauses on the commercial sector or vice versa? The good news is that there is a massive amount of info about construction clauses, and a large amount of litigation of construction contracts, so reviews of court and board decisions might show how the clauses changed over time. You might want to focus on differences between AGC boilerplate and FAR boilerplate.

However, the UCF does not apply to construction contracts. So I don't know how your interest in construction clauses meshes with your interest in the UCF.

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Vern:

Great question--to explore concerning which clauses came first/influenced which.

A  really quick answer before a meeting.  I'm not just interested in the UCF where it's required--I'm also interested in it (maybe primarily interested in it) as an organizational learning tool or heuristic used in association with techniques of modularity in contract drafting. Like in my agency--we used the UCF a lot even when it wasn't required--particularly in construction.  Whether that was good practice or not--I don't know, and that may be part of my overall research question. 

There's a lot I WANT to say right now about form and formalism (required and not required) in association with the FAR but a lot of it is too free form and I'm still in the dumpster-dive process of learning about important things related to my question(s). 

Thank you again.

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