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Significance of Contractor's Representations and Certifications


novice

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I would appreciate the opportunity to begin a general discussion of the significance of a contractor's representations and certifications throughout the whole contract management process (both pre-award  and post award).  Let me start off with a few brief summary of a few relevant FAR provisions:

1.       Contracting officers are required to incorporate Section K by reference in the contract [FAR 15.204-1(b)].

2.       For noncommercial acquisitions, FAR 52.204-19, Incorporation by Reference of Representations and Certifications, informs contractors that the “representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.” For acquisitions of commercial items see 52.212-4(v) (commercial contracts).

3.       4.1200 Scope - This subpart prescribes policies and procedures for requiring submission and maintenance of representations and certifications via the System for Award Management (SAM) to-

      (a) Eliminate the administrative burden for contractors of submitting the same information to various contracting offices;

 (b) Establish a common source for this information to procurement offices across the Government; and

(c) Incorporate by reference the contractor’s representations and certifications in the awarded contract.

4.       FAR 52.215-8 - Order of Precedence - Uniform Contract Format

As prescribed in 15.209(h), insert the following clause:

Order of Precedence - Uniform Contract Format (OCT 1997)

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

(a) The Schedule (excluding the specifications).

(b) Representations and other instructions.

(c) Contract clauses.

(d) Other documents, exhibits, and attachments.

(e) The specifications. - Notice that, excepting schedule, offeror’s representations rank above contract clauses, other documents, exhibits, attachments and the specifications. EVEN ABOVE CONTRACT CLAUSES

I would appreciate discussing how significant reps and certs are in affecting other contract administrative actions  such as in-scope vs out of scope determinations, ambiguities (patent or latent), defects (patent or latent)? Do they play a role in interpreting what are voluntary consensus standards and industry leading practices? See FAR part 45.103. Specifically are such reps and certs a way of binding the govt to a given interpretation if a claim  of dispute should arise. Do the subject matter experts in this forum see a linkages to other contract requirements/issues beyond the what I have suggested above? Thanks

 

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This is difficult to answer in the abstract. Is there a specific scenario that you have in mind?

If the contractor misrepresented or falsely certified in response to a solicitation provision, the Government could potentially argue that the contract was void ab initio. 

Some clauses are worded such that the applicability of certain requirements are dependent on how a rep or cert was completed.

Beyond that, I'm having a hard time imagining how reps and certs matter after award.

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Thanks Don - I know that I have stated it in abstract terms but what concerns me is how/why  the following is the case: 

FAR 52.215-8 - Order of Precedence - Uniform Contract Format

As prescribed in 15.209(h), insert the following clause:

Order of Precedence - Uniform Contract Format (OCT 1997)

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

(a) The Schedule (excluding the specifications).

(b) Representations and other instructions.

(c) Contract clauses.

(d) Other documents, exhibits, and attachments.

(e) The specifications. - Notice that, excepting schedule, offeror’s representations rank above contract clauses, other documents, exhibits, attachments and the specifications. EVEN ABOVE CONTRACT CLAUSES Why is the order of precedence provision have this hierarchy?     

Your statement that "some clauses are worded such that the applicability of certain requirements are dependent on how a rep or cert was completed", would you kindly provide some 

You succinctly identify my question in that I am seeking advice on how can reps and certs matter/ can have  application/influence on post-award issues? thanks

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3 hours ago, novice said:

Thanks Don - I know that I have stated it in abstract terms but what concerns me is how/why  the following is the case: 

FAR 52.215-8 - Order of Precedence - Uniform Contract Format

As prescribed in 15.209(h), insert the following clause:

Order of Precedence - Uniform Contract Format (OCT 1997)

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

(a) The Schedule (excluding the specifications).

(b) Representations and other instructions.

(c) Contract clauses.

(d) Other documents, exhibits, and attachments.

(e) The specifications. - Notice that, excepting schedule, offeror’s representations rank above contract clauses, other documents, exhibits, attachments and the specifications. EVEN ABOVE CONTRACT CLAUSES Why is the order of precedence provision have this hierarchy?     

Your statement that "some clauses are worded such that the applicability of certain requirements are dependent on how a rep or cert was completed", would you kindly provide some 

You succinctly identify my question in that I am seeking advice on how can reps and certs matter/ can have  application/influence on post-award issues? thanks

Don explained that the repResentations and certifications (which define things like the small business status or type of small business classification - e.g. “SDVOSB”, or certifications for other purposes, These Reps and Certs become operative for application under various Contract clauses after award. 

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In addition, Representations, Certifications (and Instructions) have practical and legal applications all the way through the contract formation, pre-award phase. 

One can read the WIFCON Homepage, right hand column to see instances of where misrepresentations and false certifications can have criminal and civil consequences, that may result in fines, Terminations, contract cancellations, forfeitures of payments, prison sentences, probations, debarments, etc.

Thus, for both pre and post award, Reps and Certs have applicability.

Whether discovered before or after award, false reps and/or certs have applicability.

 

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@novice See DFARS 252.247-7023(h):

Quote

 

(h) If the Contractor indicated in response to the solicitation provision, Representation of Extent of Transportation by Sea, that it did not anticipate transporting by sea any supplies; however, after the award of this contract, the Contractor learns that supplies will be transported by sea, the Contractor shall—

(1) Notify the Contracting Officer of that fact; and

(2) Comply with all the terms and conditions of this clause.

 

 

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To me, the Certification at 52.230-1 is critical. It establishes the contractor's (and the contract's) CAS coverage as well as whether a Disclosure Statement must be submitted and reviewed prior to contract award. (In that regard, see FAR 30.202.)

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