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Incorporating As Many Clauses As You Want?

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Hi,

I have a question about the pre-award process, and incorporating clauses into contract terms.  Granted,  conwrite systems will provide a menu of potentially applicable clauses for acquisition staff to choose from and incorporate into the contract, limiting the scope of clauses and making life easier....  I wondered though, if I wanted to be  absolutely sure that all the clauses are in the contract that I need, so as to avoid a time-consuming modification to add a missing clause down the road, is there any rule or otherwise practical constraint, stopping me from incorporating as many clauses  into the contract as a I can whether I think they'll be applicable or not?  

Thank you.

 

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5 hours ago, WifDan said:

...is there any rule or otherwise practical constraint, stopping me from incorporating as many clauses  into the contract as a I can whether I think they'll be applicable or not?  

I hope your boss will be a constraint.  And your own sense of professionalism.  

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Echoed.  Unbelievable. Must be a joke. 

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To determine if a clause or provision should be full text or incorporated by reference see the policy at FAR 52.102 Incorporating provisions and clauses.  To determine if a clause or provision should be in a solicitation or contract you need to review the prescription for each clause or provision to determine whether or not it should be included.  I have not worked by the adage that a clause is self deleting.  If a clause in a contract does not apply then it should have not been included in the first place or it should be removed by contract modification.  I hope this helps.

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Sadly, the question probably was not a joke. At my small DoD agency there is no OJT for specialists, just templates (a lot of templates). The procurement analyst that writes the templates stated, "The templates are written that way to act as OJT because the managers are too busy to train people".  A GS-15 Manager has said she has so many new specialists that she sends them to the agency supplement and templates when they have a question.  At my agency, specialists use the same solicitation over and over again, regardless of the requirement, dollar amount, strategy, or contract type, and of course the KO signs everything.  Then when a Contractor challenges a clause after award, the specialists ask the Policy shop how to respond.   

 

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Just now, policyguy said:

To determine if a clause or provision should be full text or incorporated by reference see the policy at FAR 52.102 Incorporating provisions and clauses.  To determine if a clause or provision should be in a solicitation or contract you need to review the prescription for each clause or provision to determine whether or not it should be included.  I have not worked by the adage that a clause is self deleting.  If a clause in a contract does not apply then it should have not been included in the first place or it should be removed by contract modification.  I hope this helps.

WifDan - I believe @policyguy has provided the best response.   Let me expand just a little acknowledging that I am not an expert.  

In the commercial sector a "contract severability' clause or term is sometimes used.   In fact from the Federal governments perspective they even address contract severability ( not to be confused with fund severability) in a few places like FAR Part 27 (27.304-2)  and FAR 52.232-39.

So following behind policyguy should you include clauses and/or provisions in an awarded contract that are not applicable you would be tasked with removing as based on some limited research and experience I know of no FAR mandated contract severability clause that applies to the whole of a Federal contract.   So it makes more sense to try and do the best up front.  Removing a non-applicable clause/provision after contract award could be very messy.   By example consider a commercial item contract where it would take the written agreement of both parties to remove the clause/provision which could give the contractor a leg up in some kind of request for consideration.

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Quote

Sadly, the question probably was not a joke. At my small DoD agency there is no OJT for specialists, just templates (a lot of templates). The procurement analyst that writes the templates stated, "The templates are written that way to act as OJT because the managers are too busy to train people".  A GS-15 Manager has said she has so many new specialists that she sends them to the agency supplement and templates when they have a question.  At my agency, specialists use the same solicitation over and over again, regardless of the requirement, dollar amount, strategy, or contract type, and of course the KO signs everything.  Then when a Contractor challenges a clause after award, the specialists ask the Policy shop how to respond.   

LorenaCC:

Depressing.

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Junior Contract Specialists could go years without ever having to consider more than a handful of FAR clauses (mostly options and 212-5).  Nearly everything the civilian Government buys is:

a) available via a IDIQ/GWAC/IDC/IAA/FSS/MAS/BPA/etc. and/or

b) commercial.

So my intuition is that if you are considering more than a few FAR clauses, you are making it too complicated.

 

That said, the rule is "apply the clause if its applicable."

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3 hours ago, LorenaCC said:

At my small DoD agency there is no OJT for specialists, just templates (a lot of templates).

 

A good template or boilerplate ought to come with an introduction and/or instructions providing guidance on how to tailor to specific acquisitions. 

3 hours ago, policyguy said:

I have not worked by the adage that a clause is self deleting.  If a clause in a contract does not apply then it should have not been included in the first place or it should be removed by contract modification. 

No one should work with the view that a clause is "self-deleting".  A clause cannot self-delete.  It might be found illegal, unenforceable, or unworkable, but relying on the fiction that a clause is self-deleting is unprofessional and opens the risk door wide to the prospect of claims.

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On 7/31/2019 at 8:06 AM, bob7947 said:

LorenaCC:

Depressing.

agreed. 

This is in response to the original question :

“...is there any [1] rule or otherwise [2] practical constraint, stopping me from incorporating as many clauses  into the contract as I can [“as you want”, per title of this thread] whether I think they'll be applicable or not? “

Answer:

[1] Rule:

For FAR clauses, use the FAR Matrix.  Read the prescription for each provision or clause possibly applicable to the contract type. Comply with said prescriptions.

There are reasons why there are prescriptions for WRITING contract solicitations, not for sorting them out during the solicitation period or after award.

[2]  Practical constraint(s):

If  one simply puts clauses in the contract without any knowledge of what they are for or what they mean, how would you know how to administer a contract?

How would you expect someone else to know?

How could you know whether the contractor is in compliance with the contract?

How would a contractor know what is applicable?

How will they price their quote or proposal for a contract,’? 

Wouldn’t you expect them to be as confused as you are, thus possibly consider adding contingencies to their pricing?

Do you think that indiscriminately including clauses to avoid the possibility that you miss some exhibits professionalism???  

IMO, that would make the government, the “specialist”, the KO, the “specialist’s” “supervisor”(?)  and the administrators look like dumbasses and rightly so. Do you want yourself and the rest of those involved in the contracting process to appear to be lazy?

IMO, it may likely appear that whoever wrote the solicitation is ignorant, lazy and indifferent to the possible ramifications of the inclusion of inapplicable clauses and provisions.

Whoever has to administer the contract for both parties would have to sort what the actual contract requirements are. 

Talk about waste of time and resources and abuse!!!!

Sorry if this is too harsh for a beginner. However, one must learn the job that the taxpayers are paying them to do. There is a difference between a “clerk” and a “specialist”.

After all, you are DRAFTING a significant portion of a GOVERNMENT CONTRACT. Do it in a responsible, professional manner.

if your supervisory and management let’s you get away with what you state that you would like to , shame on them.

Don’t make yourself or them appear to be nincompoops. 

I made it clear to my supervisors throughout the years  that it was part of my job to make the organization and them “look good”. That included providing feedback...

 

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My major  pet peeves included those PM’s and others involved in the contract formation, selection and award processes being concerned only about getting contracts awarded and letting the ACO and contract administrators sort out the mistakes, problems and weaknesses. 

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On ‎7‎/‎31‎/‎2019 at 8:19 AM, MBrown said:

No one should work with the view that a clause is "self-deleting".  A clause cannot self-delete.  It might be found illegal, unenforceable, or unworkable, but relying on the fiction that a clause is self-deleting is unprofessional and opens the risk door wide to the prospect of claims.

What do you mean by "self-deleting"? Do you mean a clause that is included in a contract that may turn out to be inapplicable?

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On ‎7‎/‎30‎/‎2019 at 11:21 AM, WifDan said:

Hi,

I have a question about the pre-award process, and incorporating clauses into contract terms.  Granted,  conwrite systems will provide a menu of potentially applicable clauses for acquisition staff to choose from and incorporate into the contract, limiting the scope of clauses and making life easier....  I wondered though, if I wanted to be  absolutely sure that all the clauses are in the contract that I need, so as to avoid a time-consuming modification to add a missing clause down the road, is there any rule or otherwise practical constraint, stopping me from incorporating as many clauses  into the contract as a I can whether I think they'll be applicable or not?  

Thank you.

 

I think this is a thoughtful question for a beginner.

First, the rule that you would have to consider is whether incorporating a clause that isn't required would be a deviation from the FAR. See FAR subpart 1.4 for coverage of deviations.

Second, I think that including as many clauses as possible so that you don't have to do a modification in the future is a good example of local optimization at the expense of system optimization. Those clauses impose administrative burdens on contractors and increase costs. These costs are passed on to the Government in the form of higher prices/costs. I think it would be a good idea to have a shopping cart feature on screens where contract specialists are selecting clauses, so they can see the increased costs as they select.

Third, since you're a beginner, I'm going to assume that you're young and more tech savvy than me. Get together with some of your friends and develop a computer algorithm for selecting contract clauses. Humans are not good at selecting clauses--we'd be better off with robots.

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45 minutes ago, Don Mansfield said:

I think this is a thoughtful question for a beginner.

Don, I’m sorry but I don’t agree with that thought. 

One of the common definitions of thoughtful is 

“showing consideration for the needs of other people

"he was attentive and thoughtful"

“synonyms:considerate, attentive, caring, understanding, sympathetic, solicitous, concerned, helpful, friendly, obliging, accommodating, neighborly, unselfish, kind, kindly, compassionate, tender, charitable, benevolent”

"how very thoughtful of you!"

The premise of the question didn’t appear to consider the effects or impacts on anyone else other than the convenience of the questioner. 

Then others started relating “how it is” in their organizations. 

Taking shortcuts without considering that somebody else will have to deal with it and without considering possible cost and time ramifications and make work for others (both government and industry) is not being thoughtful.

Sorry for not being kind,  considerate, sympathetic, compassionate or obliging. 

As I said above . Pet peeve...

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Here is a good training exercise for a supervisor or trainer to assign to a beginner or group of beginners:

1. Describe a procurement, e.g.:
    • noncommercial supplies,
    • negotiated,
    • sole source,
    • large business contractor,
    • estimated value $10 million,
    • firm-fixed-price,
    • etc.
2. Provide the beginner with a brief introduction to the FAR and to contract clauses. Then instruct the beginner to manually go through FAR Part 52 (just the FAR, not the agency supp), read the clause prescriptions, and develop a list of every contract clause (not solicitation provisions) that should be included in the request for proposals. Tell them not to rely on the clause/provision matrix, but to read every prescription. Tell them to write out the full name and date of each clause. Tell them to indicate whether a clause should be incorporated in full text (F) or by reference (R). Make sure they understand what they must do before you send them off.
 
3. Give them one week to do this. Tell them to come to you once a day, and only once a day, at the end of the day, with questions about the exercise. Tell them not to ask other people in the office for information or help.
 
4. When you receive their list of clauses, present them with the "school solution" list. Tell them to compare the lists and then come back to you with questions. Discuss the reasons for the differences.
 
5. Discuss the exercise. Give them a "grade."
The exercise will be a struggle, but it will force the beginner to come to grips with the FAR, to try to interpret the FAR's often vague or ambiguous language, to come to grips with terms definitions, etc.
 
If you have access to one, loan them a copy of The Government Contracts Reference Book or the DAU Glossary to use during the exercise.
 
Education is largely self-administered, when in college or at work. Someone teaches you, but you learn on your own.
 
After an exercise like the above, you'll know which of your beginners are thinkers and self-actuators and which are drones, and your good beginners will have learned a lot.

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I don't know that i'm smart enough to develop an algorithm, but i could probably come up with something for specific acquisitions. like small biz set-aside construction using sealed bid and get close. 

I just picked three random ones to test it out. If you knew every clause/provision you would want to look at in a specific acq, maybe reoccurring ones, you could probably make it dummy proof. Maybe just stash the individual clause/provision files in a folder and share the master document that pulls the clauses/provisions. 

The link will expire in 24 hours, but if you click it and then click download at the bottom you'll see what i'm getting at. 

https://s.amsu.ng/KHo7WJU3YgsN

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21 hours ago, Don Mansfield said:

What do you mean by "self-deleting"? Do you mean a clause that is included in a contract that may turn out to be inapplicable?

Don,

I was following up the (correct in my view) comment by policyguy that he has "not worked by the adage that a clause is self deleting."  What I mean is it is a false presumption that inclusion of an inapplicable, unenforceable, or inappropriate clause in a contract may done without harm, or the risk of harm.  The inclusion of unnecessary or improper words in a contract does not render those words meaningless.  The fact of their inclusion costs people time to read, as well as time and/or other resources to challenge or apply.  If you were the contractor, would you not price-in such costs when preparing a proposal or a claim?  The fact of the inclusion of unsuitable language in a contract does not mean that it will not be considered enforceable by a court of law.  Federal contracts may be written with word processors that contain features that auto-correct as the words are typed, but federal contracts once written do not auto-correct themselves. 

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@MBrown,

I agree. Contracting officers shouldn't be including clauses in contracts that are clearly inapplicable and claiming they are "self-deleting". However, some clauses are written to become inapplicable if certain conditions are met or an exception applies (what some call "self-deleting"). For example,

FAR 52.219-9(a): "This clause does not apply to small business concerns."

FAR 52.222-20 preamble: "If this contract is for the manufacture or furnishing of materials, supplies, articles or equipment in an amount that exceeds or may exceed $15,000, and is subject to 41 U.S.C. chapter 65, the following terms and conditions apply:"

FAR 52.230-2(a): "Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2, the provisions of 48 CFR Part 9903 are incorporated herein by reference and the Contractor, in connection with this contract, shall-"

FAR 52.230-6(l)(1) actually uses the term: "do not use self-deleting clauses".

Self-deleting clauses are a thing. 

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On 8/1/2019 at 10:59 AM, Don Mansfield said:

Third, since you're a beginner, I'm going to assume that you're young and more tech savvy than me. Get together with some of your friends and develop a computer algorithm for selecting contract clauses. Humans are not good at selecting clauses--we'd be better off with robots.

 

21 hours ago, frankie said:

Here is a good training exercise for a supervisor or trainer to assign to a beginner or group of beginners:

1. Describe a procurement, e.g.:
    • noncommercial supplies,
    • negotiated,
    • sole source,
    • large business contractor,
    • estimated value $10 million,
    • firm-fixed-price,
    • etc.
2. Provide the beginner with a brief introduction to the FAR and to contract clauses. Then instruct the beginner to manually go through FAR Part 52 (just the FAR, not the agency supp), read the clause prescriptions, and develop a list of every contract clause (not solicitation provisions) that should be included in the request for proposals. Tell them not to rely on the clause/provision matrix, but to read every prescription. Tell them to write out the full name and date of each clause. Tell them to indicate whether a clause should be incorporated in full text (F) or by reference (R). Make sure they understand what they must do before you send them off.
 
3. Give them one week to do this. Tell them to come to you once a day, and only once a day, at the end of the day, with questions about the exercise. Tell them not to ask other people in the office for information or help.
 
4. When you receive their list of clauses, present them with the "school solution" list. Tell them to compare the lists and then come back to you with questions. Discuss the reasons for the differences.
 
5. Discuss the exercise. Give them a "grade."
The exercise will be a struggle, but it will force the beginner to come to grips with the FAR, to try to interpret the FAR's often vague or ambiguous language, to come to grips with terms definitions, etc.
 
If you have access to one, loan them a copy of The Government Contracts Reference Book or the DAU Glossary to use during the exercise.
 
Education is largely self-administered, when in college or at work. Someone teaches you, but you learn on your own.
 
After an exercise like the above, you'll know which of your beginners are thinkers and self-actuators and which are drones, and your good beginners will have learned a lot.

These are thoughtful ideas.

The second plan is especially appealing from a supervisory perspective. 

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44 minutes ago, Don Mansfield said:

However, some clauses are written to become inapplicable if certain conditions are met or an exception applies (what some call "self-deleting").

What you described is not the problem of self-deleting clauses. What you described is just fine if the clause text itself provides for those conditions or exceptions. 

The problem of self-deleting clauses is when the clause text itself does NOT contain guidance for conditions or exceptions. Instead, you have to look elsewhere or use "common sense" to make the clause inapplicable (or "self-deleting"). Although there is nothing in the clause text itself to support it, the stupid or ignorant scrivener says "that clause is self-deleting, don't worry about it." 

Example A: clause text: "contractor shall deliver two kilos of gold" [yet there is some exception in the instructions to contracting officers or somewhere else in the FAR]

Example B: clause text: "contractor shall deliver two kilos of gold unless this is a construction contract in Spain" [the exception is clear and found within the clause itself]

Example A is where the problem of self-deleting clauses applies. Example B is fine.

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18 hours ago, Deaner said:

I don't know that i'm smart enough to develop an algorithm, but i could probably come up with something for specific acquisitions. like small biz set-aside construction using sealed bid and get close. 

I just picked three random ones to test it out. If you knew every clause/provision you would want to look at in a specific acq, maybe reoccurring ones, you could probably make it dummy proof. Maybe just stash the individual clause/provision files in a folder and share the master document that pulls the clauses/provisions. 

The link will expire in 24 hours, but if you click it and then click download at the bottom you'll see what i'm getting at. 

https://s.amsu.ng/KHo7WJU3YgsN

This has been done.  The Army had a pretty slick clause picker called Clause Logic Service, but sadly its gone now, or behind a firewall. 

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10 hours ago, General.Zhukov said:

This has been done.  The Army had a pretty slick clause picker called Clause Logic Service, but sadly its gone now, or behind a firewall. 

Clause Logic Service relies on human interaction with the program. I want something that can scan an acquisition plan and spit out all required FAR/DFARS provisions and clauses.

Here's a tool that scans contracts and spits out a list of required flowdowns: https://farclause.com/ That's what I'm talking about.

We're probably not that far from a tool that scans RFPs and can spit out a winning "technical/management approach".  

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On ‎7‎/‎30‎/‎2019 at 2:21 PM, WifDan said:

is there any rule or otherwise practical constraint, stopping me from incorporating as many clauses  into the contract as a I can whether I think they'll be applicable or not?  

Don has given you some good advice.  In addition, because you appear to be a newbie regarding contracting, I don't know if you have been taught the principles of contract interpretation.  One of the cardinal rules of contract interpretation is that whenever possible every term of a contract is to be given a reasonable interpretation so that no term is rendered superfluous, redundant or meaningless.  This means that the terms of a contract are to be harmonized if possible to avoid conflicts in the terms.  Applying this rule to a simple example, consider you have a FFP contract for commercial items.  The contract contains FAR 52.212-4, which it should.  However, the contract also includes FAR 52.246-2 and 52.249-2.  If you are an ACO, how would you administer this contract?

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