DAU Clause Matrix, Commercial items/services, and SAT Clauses

[Portland1102]

Good Morning! I typically use the DAU Clause Matrix to select clauses. A lot of my procurements are commercial items/services under Part 13 or 13.5. I realized when I select 'Commercial' (whether supply or service) in the matrix, it removes a lot of provisions/clauses as expected. However, I realized some of these removed provisions/clauses seem to plainly state that they apply to procurements over SAT. This causes me concern when dealing with a 13.5 SAP buy over SAT. Some of the removed clauses are 52.202-1, Definitions; 52.203-3, Gratuities, 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights; 52.204-4, Printed or Copied Double-Sided on Postconsumer Fiber Content Paper, & many others. The prescription for these is to include in everything over SAT; however, the DAU Clause Matrix infers to not use them in commercial procurements regardless of dollar value. I couldn't find any language in 52.212-1 thru -5 regarding gratuities or fiber content paper so it doesn't appear these are covered by the commercial provisions/clauses. I looked at the 2.101 definition for SAT but it appears to confirm that it does not increase along with the SAP threshold when utilizing 13.5. Could you point me to the regulation that permits the omission of 52.202-1, 52.203-3, 52.203-17, 52.204-4, 52.237-1, 52.237-2, 52.253-1, etc. when utilizing commercial procedures - or is there a big issue with the DAU Clause Matrix? My guess is that the folks at DAU are smarter than I, so please don't roast me if the answer is simple. I truly appreciate all of the guidance! If this belongs in the beginner section, please let me know and I will delete this and repost.

[Vern Edwards]

You have to look at more than the matrix. See FAR 12.301, Solicitation provisions and contract clauses for the acquisition of commercial products and commercial services. Note paragraph (a), which says: 

Quote

 

(a) In accordance with 41 U.S.C. 3307, contracts for the acquisition of commercial products or commercial services shall, to the maximum extent practicable, include only those clauses—

           (1) Required to implement provisions of law or executive orders applicable to the acquisition of commercial products or commercial services; or

           (2) Determined to be consistent with customary commercial practice.

 

Then see paragraphs (b) through (f).

Does FAR 12.301 answer your question?

As for the folks at DAU being smarter than you... Don't be so sure. 😆

 

[Jamaal Valentine]

@Portland1102

In addition to what Vern mentioned, you may need to look at DFARS 212.301(f). This is a reminder to always check any applicable FAR supplements.

For example, DFARS states the following:

“Use the FAR clause at 52.203-3, Gratuities, as prescribed in FAR 3.202, to comply with 10 U.S.C. 2207.“ Id.

The matrix is not a perfect tool and can lead to issues for those that don’t understand how it works and its limitations. It’s common to need the DoD’s COR clause (252.201-7000), but it might get missed if relying on the matrix.

You can reach out to the person who maintains DAU’s matrix. He will provide training, discussion, and insights. The tool is useful. It’s usefulness increases the more you understand it intended use and limitations.

[MarkusJ]

Jamaal and Portland 1102, 

I manage the DAU Provision & Clause matrix. Thanks for your comments. Often, when selecting commercial clauses users have the same question as the one Portland1102 posed, "Why don't I include this or that provision or clause on my commercial contract?" I always try to point them to the guidance in FAR 12.301 as well as DFARS 212.301. Typically an "A Ha" moment follows. If you have any other specific questions please feel free to send them my way.

And sometimes there is an error. That's why there is a feedback button and the matrix is updated frequently. As with any kind of job-support-aid, the key is being responsive to our users and keeping it updated. And yes... I'm not as smart as Vern, but I am younger. 😜

Check out the DAU Provision & Clause Matrix. There's even an instructional video. 

https://www.dau.edu/tools/t/FAR,-DFARS,-VAAR,-DEAR-Provision-and-Clause-Matrix 

MJ

PS: Shout out to DonAcquisition for creating the DAU matrix (which is a fantastic tool). I know he frequents these parts. 

 

 

[National Park CO]

To MarkusJ, is there a sure fire way to know which clauses (R, A, or O) are not already part of FAR 52.212-5?  A wise person would not include the same clause or provision (for that matter) more than once.  I am new to this tool, so maybe I miss a step or two.  If the tool does not yet perform this function, it would be a nice feature to streamline review of Matrix.

[National Park CO]

Another example of this would be as follows:

FAR 3.804 Policy.
The contracting officer shall obtain certifications and disclosures as required by the provision at 52.203-11, Certification
and Disclosure Regarding Payments to Influence Certain Federal Transactions, prior to the award of any contract exceeding
$150,000.

Yet FAR 4.1202 Solicitation provision and contract clause. When the provision at 52.204-7, System for Award Management, is included in the solicitation, do not separately include the following representations and certifications:
(1) 52.203-2, Certificate of Independent Price Determination.
(2) 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions.
(3) 52.203-18, Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or
Statements-Representation.
(4) 52.204-3, Taxpayer Identification.
(5) among others listed in this Subpart

[joel hoffman]

On 4/7/2022 at 8:27 AM, MarkusJ said:

Check out the DAU Provision & Clause Matrix. There's even an instructional video. 

https://www.dau.edu/tools/t/FAR,-DFARS,-VAAR,-DEAR-Provision-and-Clause-Matrix 

 

Is access to this https site restricted?

“Sorry, something went wrong

 

 

An unexpected error has occurred.

TECHNICAL DETAILS

 

 

---

GO BACK TO SITE “

If so, is there another way to view the DAU Clause Matrix?

Edit: I was able to go to the site today, although haven’t been able to view the matrix. I don’t have a .gov or .mil email address any more. 

Edited April 12, 2022 by joel hoffman

[Jamaal Valentine]

On 4/8/2022 at 6:11 AM, National Park CO said:

To MarkusJ, is there a sure fire way to know which clauses (R, A, or O) are not already part of FAR 52.212-5?  A wise person would not include the same clause or provision (for that matter) more than once.  I am new to this tool, so maybe I miss a step or two.  If the tool does not yet perform this function, it would be a nice feature to streamline review of Matrix.

The matrix identifies which clauses are already included in FAR 52.212-5. Check the legend.

[National Park CO]

Thanks, have a nice day.

[MarkusJ]

Correct, Jamaal Valentine. Thanks. 

[Jamaal Valentine]

@Portland1102 @MarkusJ FAR 52.203-3 goes away when you filter for SAP actions because the SAP applicability is blank...FAR 12.301(d) and DFARS 212.301(f)(i)(A) only address the commercial aspect, not the SAP aspect.