A search of FAR Part 52, Solicitation Provisions and Contract Clauses, reveals that:

• "the contractor shall" appears 1,250 times;

• "the government shall" appears 165 times;

• "the contracting officer shall" appears 141 times;

• "the contractor may" appears 117 times;

• "the government may" appears 160 times;

• the contracting officer may" appears 213 times;

• "the contractor must" must appears 14 times;

• "the government must" appears 4 times;

• "the contracting officer must" appears 4 times;

• "the contractor should" appears 6 times;

• "the government should" appears 0 times;

• "the contracting officer should" appears 3 times;

• "the contractor will" appears 46 times;

• "the government will" appears 163 times; and

• the contracting officer will" appears 77 times.

Check the FAR definitions of shall, may, must, should, and will.

What if anything does that say about government contracts?

"Should" was underutilized all these years. A missed opportunity given all the "judgment" allowances in FAR Part 1. These turned out to be only platitudes and theory, because Part 52's practice, and especially its DFARS supplement, undermined us every step of the way. That one supplemented in another 760 instances of "contractor shall" and precisely 0 instances of "contracting officer should".

The authors of the Buying Guides within the current overhaul effort should take note:

Should means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance.

Oh I don't know.......

Could it be that the FAR is as inconsistent as those that apply it in reality as "will" by example is not defined. Application of any of the words during the whole acquisition process seems to enjoy what happens at application when a solicitation/contract hits the streets. Reference FAR 52.202-1(b) or in other words just modal verbs.

And tongue in check for @WifWaf is it must, shall, or may take note?

The first block of the bullet points alone regarding "shall" is telling - not that it's a surprise. If I am a business entertaining the idea of doing business with the Government, this would be intimidating to me from the get-go and make me think of the costs of consultants required to make sure what would it look like for my business to be in compliance with 1,250 times of "Contractor shall." Could contribute to missed opportunities for the Government or I suppose one could argue that it serves as a discriminator of less-serious/capable businesses. My instincts point me to the former.

@KOiFish I was just going to post very similar comments. “Intimidating” is the right description and the added use of shall in DFARS WifWaf just compounds the issue for DoD contracts.

28 minutes ago, KOiFish said:

The first block of the bullet points alone regarding "shall" is telling - not that it's a surprise. If I am a business entertaining the idea of doing business with the Government, this would be intimidating to me from the get-go and make me think of the costs of consultants required to make sure what would it look like for my business to be in compliance with 1,250 times of "Contractor shall." Could contribute to missed opportunities for the Government or I suppose one could argue that it serves as a discriminator of less-serious/capable businesses. My instincts point me to the former.

What contract contains every FAR provision and clause?

If I employ the NMCARS definition of "clause" as language which imposes a duty on the Government or contractor and is not directly related to the production or performance of a contract deliverable it makes sense to me that the majority of the clause language would be imperative and not permissive if the goal is to write a contract which is rigid, risk-averse, (paraphrasing from Contracting in the New Economy by Frydlinger, et al.) and attempts to protect the government against all pitfalls, seen, and unseen, (paraphrasing from the Agile Contracts Primer, Arbogast, Larman, and Vodde) through the imposing of duties.

Note that I'm not saying that I agree with that goal, which is why I have those two references close at hand, but I do think that in the current very transactional government contracting environment you would expect to see contract clauses constructed of rigid, inflexible language.

Edit to add: So it tells me that that the government's goal is to create rigid, risk-averse contracts which attempt to guard against all pitfalls, seen and unseen...

2 hours ago, KOiFish said:

The first block of the bullet points alone regarding "shall" is telling - not that it's a surprise. If I am a business entertaining the idea of doing business with the Government, this would be intimidating to me from the get-go and make me think of the costs of consultants required to make sure what would it look like for my business to be in compliance with 1,250 times of "Contractor shall." Could contribute to missed opportunities for the Government or I suppose one could argue that it serves as a discriminator of less-serious/capable businesses. My instincts point me to the former.

@KOiFish Very perceptive. Thank you.

4 hours ago, joel hoffman said:

What contract contains every FAR provision and clause?

@joel hoffman Did not suggest that a single contract would contain every FAR provision and clause and subject to all 1,250 "shalls". Just looking at what was provided by the OP, overall, the burden of "shall" falls 4 times more on Contractor than Government and CO combined. From a perspective of a business with no experience doing business with USG, those numbers are not exactly inviting nor enticing. To me, it looks like a good area to look into whether or not too much is asked of contractors and not enough of USG and whether we can do away some red tapes here.

Edit: Re-reading my initial post, I suppose you can read it as a single business trying to deal with all 1,250 shalls. To clarify, I meant it as a collective "business" side as a whole having to navigate through the possible 1,250 shalls in FAR Part 52.

Edited August 27Aug 27 by KOiFish
For clarification

I take responsibility for asking a vague question:

23 hours ago, Vern Edwards said:

What if anything does that say about government contracts?

What I should have asked is: What do those numbers say about the government's approach to contracting? Is it transactional (command style) or is it relational, i.e., a partnering approach?

@KOiFish , One way to think of it is to understand that the government hires contractors to do stuff, to perform services, and/or furnish stuff, and/or build, maintain, and repair stuff. So, it writes contracts to describe what it wants contractors to do before or after obtaining the contract. Each different type of contract effort has applicable provisions and clauses.

Many of them are social requirements, added by Congress or by Presidential directives.

Vern, as consumers, are sales contracts for goods or services, new home sales, etc. written by the providers/sellers in a partnership approach? Are insurance policies written in a partnership approach?

Hello no! They are written for the benefit of the seller, insurer, loan provider, service provider, etc.

The federal government isn’t unique in its approach. For that matter, state, local governments, and other public entities are not really different, except they don’t have nearly as many social requirements.

Just sayin’…

Edited August 27Aug 27 by joel hoffman
Added “not”

The government enters into contracts with companies in order to acccomplish various ends.

Some contracts are for simple, short-term transactions: Deliver 100 widgets to this place NLT this date for a price of $____________.

Some contract are for complex, long-term undertakings, aka, "megaprojects", that will entail years of close coordination and interaction between the parties. Design and develop a new ICBM system, within a specified budget, if possible.

Many legal experts think the terms of such contracts should reflect the nature of the contractual undertaking. What does the imposition of so many standard "the contractor shall" clauses suggest about the government's approach? What do SOWs and PWSs that focus on the contractor's responsibility for doing this or that suggest? And what do "negotiated" contract solicitations stating that any material departure from the government's terms will result in a determination of unacceptability and ineligibility for award, which will be made without discussions, suggest?

Just now, joel hoffman said:

The government isn’t unique in its approach.

Joel, the government is not a real estate firm and in its most important procurements it's not selling consumer goods and services and it's not selling insurance. I think it should be different! It should not write contracts of adhesion. Decades of unsatisfactory result for large projects, like the A-12 and Sentinel should make that clear.

Gee, remember the Corps of Engineers "partnering" approach?

https://www.publications.usace.army.mil/Portals/76/EP%2034-1-1_Partnering%20Playbook_10Sept2024.pdf

Why not write complex contracts as if between partners?

23 minutes ago, Vern Edwards said:

Many legal experts think the terms of such contracts should reflect the nature of the contractual undertaking. What does the imposition of so many standard "the contractor shall" clauses suggest about the government's approach? What do SPWs and PWSs that focus on the contractor's responsibility for doing this or that suggest? And what do "negotiated" contract solicitations stating that any material departure from the government's terms will result in a determination of unacceptability and ineligibility for award, which will be made without discussions, suggest?

A great example of a one-sided position in government contracting is Termination for Default. If the contractor fails to perform, the government may terminate the contract, reprocure, and assess the contractor excess costs. In addition, it effectively makes receiving future government business difficult. I wonder how much this threat alone discourages companies from doing business with the government?

See Cuneo & Crowell, Impossibility of Performance: Assumption of Risk or Act of Submission, 29 LAW & CONTEMP. PROBS. 531 (Spring 1964), p. 548-9:

The courts are now beginning to recognize that federal procurement can foster social (non-discrimination clause) and economic (Buy American Act) policy.' The Court of Claims has recently stated: "[I]t is important now, that procurement policies set by higher authority not be avoided or evaded (deliberately or negligently) by lesser officials, or by a concert of contractor and contracting officer."

Thus the myth of the government descending to the market place and negotiating like any other businessman is being slowly exploded. Not only the standard clauses are now required to be incorporated into each and every government contract, but also all mandatory contractual regulations are incorporated by reference, regardless of the desires of the contracting parties.'' Therefore, the areas of negotiation are becoming more and more restricted. Conditions and clauses in a government contract are on a take-it-or-leave-it basis; there is no freedom of choice. Government contracts reflect a power relationship, and not a consensual agreement between equals' In spite of this fact the Court of Claims has been leary of granting relief in cases of economic duress,' 34 although it has indicated that relief would be granted where the government is guilty of deliberate harassment and dilatory tactics even though the contractor finished the work on time. A frank recognition of this power relationship leads to the conclusion that government contracts, just as insurance contracts, are contracts of adhesion.

Footnotes omitted. That was published in 1964.

Written by two of the most highly prestigious government contract attorneys of my time.

It's much, much worse today.

All the yadda yadda yadda about "reform" and FAR "overhaul" is empty political rhetoric unless Congress takes action to end its 19th Century thinking and repeal its 19th Century statutes and bring us into the 21st.

OFPP is a dead letter office and has been for years. The acquisition workforce (PMs and COs), which is obligating almost a trillion dollars per year, won't understand the above, or its importance to their work, until the government develops a decent professional education program.

My comments here may sound counter to what I previously posted but here goes anyways.

Vern beat me to the punch regarding USACE partnering which I was involved with formally during my few years of tenure with USACE. I always found it to be "interesting" from the view point that I always felt that Federal contracting was relational already so why have partnering. Why? The guiding principles of the Federal Acquisition System - FAR 1.102.

In my practice I, for the most part, tried to keep the guiding principle ideal in all my interaction with those that wanted to do business with the Federal government. I agree the realtional ideal gets lost quickly from say FAR part 2 and beyond. Again why? Like Vern implies to an extent the ideal gets lost from a misunderstanding of intent by many. I do not limit it to just CO's and PM's. I would offer that most of upper level management has no feeling of the ideal and the likes of many that educate the workforce along with yes the contractor in many cases. I offer my experiences with the aforementioned termination for default as one very quick example where management and program offices demanded a termination for default only to have such effort converted by the courts to termination for convenience. Or in other words a view of transactional by those players when in truth I would be trying my best to convince those demanding that the whole of the effort was relational.

The picking of which of the 19th Century statutes is tricky. I for one feel that there is necessity to foster social and economic policy. However I believe it has gone haywire because Congress has taken the social and economic to the outer limits due to special interests and their own misunderstanding of what Federal acquisition should look like.

And not to be forgotten is the individual CO who inserts their own values, motivations and biases into their application the bureaucratic regulation called. FAR.

The rewrite inclusive the "buying guides" is not going to solve any of this as I agree with Vern regarding a decent professional education program that uses as its base the ideal of guiding principles which by the way have been massaged in the rewirte but essentially remian the same. I do wonder if the 30 agencies that have adopted the "deviation" for FAR part 1 really have any idea of what they have adopted!

The government's approach to contracting in the recent past has been primarily transactional (vice relational) and based on contracts of adhesion (vice arms-length, bilateral, negotiated, etc.) at least in terms of clauses, where the government drafts the terms and conditions in advance and the vendor has to take it or leave it.

This works fine in markets where the government is the primary buyer, like traditional defense systems, but starts to break down in commercial markets, like information technology, where the government is a minority buyer competing for sellers who may well walk away from a deal rather than submit to onerous government terms and conditions.

1 hour ago, Witty_Username said:

This works fine in markets where the government is the primary buyer, like traditional defense systems, but starts to break down in commercial markets, like information technology, where the government is a minority buyer competing for sellers who may well walk away from a deal rather than submit to onerous government terms and conditions.

@Witty_Username

Maybe, but while the government is but one of many buyers, when it buys it tends to buy big.

Consider the JEDI acquisition, an information technology mega-project. The biggies fought so hard over the thing that they litigated it to death. They didn't seem to want to walk away from the onerous government terms and conditions.

3 hours ago, C Culham said:

My comments here may sound counter to what I previously posted but here goes anyways.

@C Culham Thanks, Carl.

6 hours ago, Vern Edwards said:

Consider the JEDI acquisition, an information technology mega-project. The biggies fought so hard over the thing that they litigated it to death. They didn't seem to want to walk away from the onerous government terms and conditions.

The entire collection of biggies is a large reason why bringing the 19th Century laws into the 21st Century likely won’t happen. They represent an almost closed pool. They like the status quo. They don’t want newbies to break into the Federal marketplace for the added competition. Let’s face it, it’s time consuming and expensive to learn how to participate in the Federal sector. For many companies that have both money and time, it’s also just not worth it because they have many other customers.

On another point about education, there seems to be little interest in improving the workforce. When I stated as an Army Materiel Command intern, everyone new went through an intense training effort. My first two years involved several rotational assignments plus five weeks classroom of Basic Contracting course at Ft Lee, VA, three weeks of Cost/Price Analysis & Negotiation training in Arlington, VA, and two weeks of Contract Administration at Wright Patterson. Just the travel costs for three airline trips and about 70 days TDY wouldn’t get considered today. We just don’t invest in employees like that now.

37 minutes ago, formerfed said:

On another point about education, there seems to be little interest in improving the workforce.

Not true, as a general rule.

Next week I'll begin conducting a 50-day advanced reading seminar for acquisition personnel at the USSF Space Systems Command, at no charge. There was competition for the openings. People contended for the ten spots. They'll work their tookuses off, all in the pursuit of mastery.

It's all about the leadership, leadership, leadership.

1 hour ago, Vern Edwards said:

Not true, as a general rule.

I meant by senior policy, management, legislative, and political appointees. Most 1102s say they have no formal training plans, there’s no money for training, and if they want training it has to be no cost or online. I compare this to my time at the Patents and Trademark Office where patent examiners could go to law school at government expense.

It sounds like your seminar shows keen interest by employees, which I think is widespread across the government. But there are few opportunities for education outside of required CON courses because senior management does see funding contract related training as important.

12 hours ago, formerfed said:

The entire collection of biggies is a large reason why bringing the 19th Century laws into the 21st Century likely won’t happen. They represent an almost closed pool. They like the status quo. They don’t want newbies to break into the Federal marketplace for the added competition. Let’s face it, it’s time consuming and expensive to learn how to participate in the Federal sector. For many companies that have both money and time, it’s also just not worth it because they have many other customers.

On another point about education, there seems to be little interest in improving the workforce. When I stated as an Army Materiel Command intern, everyone new went through an intense training effort. My first two years involved several rotational assignments plus five weeks classroom of Basic Contracting course at Ft Lee, VA, three weeks of Cost/Price Analysis & Negotiation training in Arlington, VA, and two weeks of Contract Administration at Wright Patterson. Just the travel costs for three airline trips and about 70 days TDY wouldn’t get considered today. We just don’t invest in employees like that now.

Yep, this is how it is, bolded for emphasis. My agency is pretty much not paying for training, and hasn't been for quite some time. Instead, we are encouraged to earn as many CLPs utilizing VAO articles and free DAU courses - many of which focus on Pentagon-related requirements and not civilian. For a brief 2 year window, my agency went gung-ho with the DITAP cert process, encouraging as many folks as possible to take the training, which was VERY costly, and took a LOT of time. Thing is, at least 50% of the folks who participated in DITAP then took the DRP....they're gone. For a mid-sized contracting shop, I don't think we have anyone under the age of 30 as an 1102 (or even as a contractor). That is a problem.

2 hours ago, Motorcity said:

My agency is pretty much not paying for training, and hasn't been for quite some time.

But let's be completely honest: Part of the problem is the workforce itself. Many of them simply don't like school and a real challenge.

In the seminar I'm conducting, prospective applicants were told that they would have to read about 500 pages of difficult material over the course of 50 days,; keep notes and share their notes with the other participants; write a position paper (as described in the Air Force Tongue and Quill publication) on each reading,, and share it with the other participants; and, actively actively participate (no wallflowers) in Socratic discussion about each reading. The number of participants was limited to 10. Prospective applicants had to apply in writing. Their three-star commander reviewed and approved the program, and the applicants knew it. The seminar was filled in a week.

But that is at an elite acquisition organization with a very highly motivated and competitive workforce.

I have found that many persons who attend demanding training don't work hard at it and don't get full benefit. Many, if told that they would have to write anything or pass a final exam, would avoid it or attend in a state of terror rather than excitement. The fact is that a goodly number of Americans hate school.

In short, top notch training requires top notch trainees.

So, yes, it's true that many agencies have not provided first rate professional education and training, but it's often true that people don't take advantage of it when it's offered.