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jmj

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  1. Apologies, my question wasn't phrased clearly. I wasn't questioning the sense of including what is in 52.215-13 in 52.215-12. There are circumstances where it would be needed. I question the inclusion, in a contract, of a reference to a clause that is not in the contract. To me, it makes much more sense to simply include the language that is needed from 52.215-13 in the text of 52.215-12.
  2. Regarding the quote below, I have a comment--though not one that directly applies to the questions asked. The clauses at FAR 52.215-12 and 52.215-13 should not have both been added. I know this is common, but I believe it is wrong. Note that in FAR 15.408 you have the following: So, according to paragraph (e) you only use 52-215-13 if you have included 52.215-11. Per paragraph (d) you use 52.215-12 only if you have included 52.215-10, But, according to paragraph © you use 52.215-11 only when 52.215-10 is not included. So--52.215-10 and 52.215-11 are an either/or arrangement. You should not have both. Since 52.215-12 depends on the inclusion of 52.215-10 and since 52.215-13 depends on the inclusion of 52.215-11 you should not have both 52.215-12 and 52.215-13. If you look at the language of 52.215-12 you will see that it applies to modifications as well as the basic contract. 52.215-13 states that it applies to modifications only. I'll admit this is further confused because 52.215-12, in paragraph ©(2), references 52.215-13. I am not sure why the writers of the clause would reference a clause excluded from use with the clause making the reference--but that is how it is written. If I'm not sufficiently clear here, or if anyone wants to dispute my conclusions, please say so.
  3. Please see the memo signed by Shay Assad (and dated 4 December) found at http://www.acq.osd.mil/dpap/policy/policyv...857-09-DPAP.pdf and discuss. I know what I think of this, and I know it was a hot topic at the DOD Senior Leader Offsite this week, but I'm very curious what sort of discussion it will generate here. (It's short, by the way--only two pages.)
  4. Don, You're right. I was thinking of that in my first post and forgot about it in the second.
  5. Vern-- Sorry about the delay in response here. I typically only check this site once per (weekday) morning--if I have time. Looking at it further, and looking at the other comments, there are two other things I would add. First, law school deliberately teaches (or tries to teach, not all students learn) finding alternate interpretations of presumably clear language. This is done, in part, due to the assumption that the other guy's lawyers will do this and you need to learn it to avoid the problems that this can cause. You learn to find ambiguous language and fix it before it becomes an issue. You also learn case law about interpretations and the various rules and sources a court will use in interpreting seemingly clear statements. This gets to be a habit--you're always looking for the other way anything can be interpreted. But, and this leads to the second point, sometimes you forget a rule in the fun of the reinterpretation. Part of the language posted, and of the sentence in question, states, "if the Contractor or subcontractor knowingly submitted cost or pricing data that were incomplete, inaccurate, or noncurrent." Interpretation 2 basically requires that we pretend the words "that were incomplete, inaccurate, or noncurrent" were never there. If we go with interpretation 2 then those words no longer have meaning. They apply to nothing. That cannot be, and that is a rule the courts will follow. If an interpretation requires ignoring part of the language set forth then that interpretation cannot be correct. Or so the courts hold. Put another way; if a word or phrase is put into place it must be assumed it was put there for some purpose. It cannot be interpreted out of existence. NOTE--this is a separate situation from where there is conflicting language that requires some word, phrase, sentence, paragraph (and so on), be treated as if were not in the document.
  6. This is inartfully drafted, but not in an obvious way. The result is an ambiguous statement. It actually took me a few moments to understand how one could get interpretation number 2 out of that language. But it is definately there. I would still say the intent is for interpretation 1. Interpretation 2 doesn't really fit with the way we typically do things, or think we're doing things--that is, interpretation 2 holds contractors (or subcontractors) liable for a penalty for any mistake made in the cost or pricing data, even if done unintentionally. The language preceding that already states that the Government gets back any funds paid as a result of the mistake. To impose a penalty equal to the first amount for ANY mistake made in cost or pricing data does not seem to me to be reasonable where it was an honest mistake. And we are told that we are supposed to be reasonable. Problem is--looking only at the text presented here--there's really nothing else to back that interpretation; excepting perhaps that interpretation 1 is the more likely understanding of that language. But that doesn't hold well in court, generally. The phrasing is ambiguous and can be interpreted in conflicting ways. I guess the good news is you're sure of the penalty if the contractor did knowingly submit defective data. Of course, they could then argue the whole thing is void because it's ambiguous...
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