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Prezmil2020

I MUST use the word SHALL or they WILL not approve

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Good Afternoon,

I was taught that I needed to use the word 'Shall' when describing a Contractor's obligation and the word 'Will' when describing a Government obligation. The reason told to me is that shall is imperative, as per the FAR and will is open to discretion. What that discretion is I don't know. Furthermore, the FAR states for one to look up shall when defining the word 'must'. My personal take on this is that:

1. Must and Will are interchangeable when talking about an obligation by any party in the present tense.

2. Must and Shall are interchangeable when talking about an obligation by any party in the future tense.

Any opinions?

Prezmil2020

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Forget what you were taught. It's bull.

First, look at the definitions of shall and must in FAR 2.101, in which they are defined as denoting the imperative. FAR does not define will.

Then look at the Federal Acquisition Regulation Drafting Guide (3/15/00) https://www.acquisition.gov/far/draftingguide.htm, Ch. 5 under Shall/must/should/will/may:

Shall/must/ should/will/may.

(a) Use the terms "shall" and "must" to indicate an obligation to act. In the FAR "shall" and "must" have the same meaning. "Must" is the preferred term to use in FAR text other than provisions and clauses.

(B) Use the term "should" to indicate an expected course of action or policy to be followed unless inappropriate for a particular circumstance.

? Use "will" to indicate an anticipated future action or result.

(d) Use "may" to indicate a discretionary action.

Next, see A Dictionary of Modern Legal Usage, 2d ed., by Bryan A. Garner (Oxford Univ. Press, 1995), under the entry Words of Authority, pp. 939 - 942. With reference to shall, the author says, "This word runs afoul of several basic principles of good drafting," and goes on to point out that the word "commonly shifts its meaning even in midsentence." The author says, "The advantage of must over shall is that its meaning is fastened down more tightly in any given sentence." (In anticipation of your question, I don't know why the FAR drafting guide prefers must over shall in all but provisions and clauses. That makes no sense to me.)

As for will, the author says:

In private drafting--contracts as opposed to statutes, rules, and regulations--some drafters consider must inappropriately bossy. The word may strike the wrong tone particularly when both parties to the contract are known quantities, such as two well-known corporations... The word will is probably the best solution here.

In a later discussion of will, the author says, "This word, like any other, ought to bear a consistent meaning within any drafted document. Two of its possible meanings are discussed [in the entry for must]: it may express one's own client's obligations in an adhesion contract (as in a residential lease), or it may express both parties' obligations when the relationship is a delicate one (as in a corporate joint venture).

According to Black's Law Dictionary, 9th ed., shall means: "Has a duty to; more broadly, is required to... . This is the mandatory sense that drafter's typically intend and that courts will typically uphold." Black's does not discuss will in the sense in which we're discussing it here.

The ordinary dictionary definitions of will as an auxiliary verb include both "used to indicate simple future time..." and "used to express determination, compulsion, or obligation..." The legal interpretation will certainly reflect context.

The notion that a CO should write "the Contractor shall" and "the Government will" strikes me as groundless and silly. If a contract says that the Government "will" do something, then the contractor has the right to rely on that and the Government's failure to do it will be a breach of contract. I know of no case law to the contrary.

I know of no basis in meaning or grammar for your notions about shall, must, and will in the present and future tenses.

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Good Afternoon,

I was taught that I needed to use the word 'Shall' when describing a Contractor's obligation and the word 'Will' when describing a Government obligation. The reason told to me is that shall is imperative, as per the FAR and will is open to discretion. What that discretion is I don't know. Furthermore, the FAR states for one to look up shall when defining the word 'must'. My personal take on this is that:

1. Must and Will are interchangeable when talking about an obligation by any party in the present tense.

2. Must and Shall are interchangeable when talking about an obligation by any party in the future tense.

Any opinions?

Prezmil2020

Thats kinda silly. Is it a part of your agency's SOP or something? Im curious?

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Better yet, drop the language "The Contractor shall..." altogether in statements of work, unless absolutely necessary to distinguish the roles and responsibilities of the Contractor(s) and/or the Government office(s).

It is usually extraneous wording when describing the Contractor's contractual roles and duties to remind the Contractor that it is the Contractor.

Use the active voice whenever possible, not the passive voice.

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For DFARS users, the DoD 5025.1-M (DoD Directives System Procedures) states the use of helping verbs in DoD Directives, Instructions and Publications:

Helping Verbs - Degree of Restriction

Must, shall - Action is mandatory.

Should - Action is required, unless justifiable reason exists for not taking action.

May, can - Action is optional.

Will - Is not restrictive; applies only to a statement of future condition or an expression of time. Do not use in place of "shall."

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For DFARS users, the DoD 5025.1-M (DoD Directives System Procedures) states the use of helping verbs in DoD Directives, Instructions and Publications:

Helping Verbs - Degree of Restriction

Must, shall - Action is mandatory.

Should - Action is required, unless justifiable reason exists for not taking action.

May, can - Action is optional.

Will - Is not restrictive; applies only to a statement of future condition or an expression of time. Do not use in place of "shall."

Note that DoD Directives, Instructions and Publications are general in nature and will often identify the responsible subject(s) in sentences.

When specifying, specs and statements of work are generally intended for "the Contractor". Thus, there is no need to keep identifying the subject unless you are mixing different subjects (for example, the contractor and the government or different contractors).

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