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jasonh

Self deleting FAR clauses?

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Is there any such thing as including FAR clauses in a federal subcontract if they don't apply to the subcontractor and labeling the nonapplicable clauses as "self deleting?" If so, what is the FAR definition of self deleting?

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You'll have to follow your company's rules on including clauses in your company's subcontracts. Personally, I have never liked the idea of self-deleting clauses, and I try to craft solicitations and contracts with the right clauses. To me, including the fixed-price, cost-reimbursement, and time-and-materials changes clauses (FAR 52.243-1, -2, and -3, respectively) in a contract that only contains fixed-price line items (under a notion that the cost-reimbursement and time-and-materials clauses don't apply and are therefore self-deleting) is sloppy workmanship.

I don't think the FAR has a definition of self-deleting. Rather, the FAR instructs contracting officers to select the right clause for their acquisitions.

ji

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I recall the FAR Councils had some tough words for contracting officers who put CAS clauses into contracts when they were not applicable, using the excuse that they were self-deleting. Somebody might want to look at the promulgating comments from the revisions to 30.6 from a few years ago. My recollection is that the Councils said such an approach was expressly prohibited with respect to CAS clauses. I'm thinking the logic would apply to other clauses as well.

That said, the Councils were talking about Government contracting officers not prime contractor subcontract managers/administrators. I guess primes can do pretty much what they want (as ji20874 said). It would be nice to think somebody aspired to a higher standard, but I can't think of any express requirement that says primes cannot use self-deleting clauses.

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Guest Vern Edwards
Is there any such thing as including FAR clauses in a federal subcontract if they don't apply to the subcontractor and labeling the nonapplicable clauses as "self deleting?" If so, what is the FAR definition of self deleting?

I think many primes do that to their subs, instead of tailoring flowdowns on a subcontract-by-subcontract basis. There is no law against it. The question is: What is the legal effect of a clause that is in a contract even though it is not required to be in the contract. Since prime-subcontractor relationships are usually settled under state law, that's an open question.

FAR does not define "self-deleting." The term is unofficial.

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The way that I view federal subcontracts is that there are very few "required flowdowns." Clauses or their prescription clauses will typically state clearly when a clause is a required flowdown; i.e. "required in all subcontracts over $5,000," or "this clause applies to subcontractors at all tiers." Otherwise, the prime contractor has the discretion as to whether or not to flow down a clause, naturally, it may be necessary for them to require that subcontractors follow some of the same clauses, in order to enable the prime contractor to comply with the clause.

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