Distinction between Sections C and H in UCF

If it doesn't fit anywhere else, put it in Section H.

Is that sufficiently concise?

Wouldn't your rule of thumb lead to problems with the Order of Precedence clause?  Your seemingly catch-all Section H requirements would take precedence over the Section C specifications.

Quote

FAR 52.215-8 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.

To bolster the importance of this distinction, take the following example.  You work for an agency that issues numerous, voluminous Directives, Orders or other policy-making devices that direct how the agency conducts its business.  You are in service acquisition awarding a contract with SMEs that conduct that business for said agency.  Consider now whether you would want to write out the contents of your agency's policy into a special clause or into an additional SOW paragraph.  Assume you do not incorporate the whole policy.  Assume the contract is for performance-based services.

This is potentially a benign distinction, but I am nonetheless interested in learning the standard and any tricks of the trade.

A rule of thumb would be: If a term of a contract specifies the product to be delivered or the service to be performed, put it in Section C. If it describes other kinds of terms, put it in Section H.

Those distinctions are not sharp, but the fuzziness allows the CO to put things where she or he thinks makes the most sense.

Do you know why the specifications are last in the order of precedence?

First, generally, you should not want to prepare a solicitation package with inconsistencies between its various parts.

That said, YES, of course! Section H takes precedence over Section C's specifications! Always! Section C is sometimes boilerplate, but Section H is always carefully tailored for that solicitation, right?

If something could fit in both sections, take your pick.  Example:

Section C. The contractor shall comply with Agency Policy 1-1 in the performance of the work, except that Sections 4 and 5 do not apply.

Section H. The contractor shall comply with Agency Policy 1-1 in the performance of the work, except that Sections 4 and 5 do not apply.

Vern Edwards said:

Do you know why the specifications are last in the order of precedence?

To establish that the specs in a construction contract that were written by an AE design firm do not precede the agency's SOW in Section C or its instructions to bidders in Section L (which is included in representations and other instructions as second in the order of precedence)?

I could see this being especially useful in the defense against brand-name purchase description protests.

Voyager said:

To establishes that the specs in a construction contract that were written by an AE design firm do not precede the agency's SOW in Section C or its instructions to bidders in Part L (which is included in representations and other instructions as second in the order of precedence)?

I could see this being especially useful in the defense against brand-name purchase description protests.

What? No.

Under the common law. terms specifically negotiated for a contract take precedence over standard terms. See Restatement, Contracts, Second § 203(d):

"separately negotiated or added terms aare given greater weight than standardized terms or other terms not separately negotiated."

These days, specifications and statements or work are commonly developed specifically for a contract, while contract clauses are boilerplate, including many clauses in Section H. So why does the Order of Precedence clause, FAR 52.215-8, reverse the common law order of precedence? Think!

ji20874 said:

YES, of course! Section H takes precedence over Section C's specifications! Always! Section C is sometimes boilerplate, but Section H is always carefully tailored for that solicitation, right?

Please help me understand this.  The definitions of "Specifications" and "Statement of Work" per The Government Contracts Reference Book, 3rd ed. make clear to me that a SOW is, "The portion of a contract that establishes and defines all nonspecification requirements for contractor's efforts either directly or with the use of specific cited documents." (emphasis added).  So the order of precedence clause states that the Schedule's Section C SOW is top in the order of precedence and its cited specs are last, right?

The definition of "statement of work" in the The Government Contracts Reference Book, 5th ed., says:

Quote

STATEMENT OF WORK (SOW) The generic term for the description in a SOLICITATION of the work that will be required to be performed. The SOW is frequently called the SPECIFICATION...

Thank you, that clears that up.  Since my 3rd ed. cites DAU at my above quoted statement, it apparently perpetuated an untruth DAU published.  Solzhenitsyn was right! 😉

I will mark it up in my version now.

Vern Edwards said:

Under the common law. terms specifically negotiated for a contract take precedence over standard terms. See Restatement, Contracts, Second § 203(d):

"separately negotiated or added terms aare given greater weight than standardized terms or other terms not separately negotiated."

These days, specifications and statements or work are commonly developed specifically for a contract, while contract clauses are boilerplate, including many clauses in Section H. So why does the Order of Precedence clause, FAR 52.215-8, reverse the common law order of precedence? Think!

According to Cibinic, Nash, and Nagle, Administration of Government Contracts 180 (4th ed. 2006), citing Hydracon Corp., ENGBCA 3462, 75-2 BCA para. 11,489:

Quote

It is an established canon that standard clauses for Government contracts, which are required by law and by regulations having the effect of law, cannot be contradicted by other specially drafted provisions so that they are, in effect, written out of the contract or subordinated to such special provisions.  Thompson Ramo Wooldridge, Inc. v. U.S., 175 Ct. Cl. 527, 536, 361 F.2d 222.

From this I conclude that the clause's reversal of common law is the FAR System intuitively protecting COs from accidentally writing individual deviations during the drafting process.

The order of precedence clause puts specifications last in the order because they are drafted at the operational level, while contract clauses and other such terms are usually drafted at the policy level, and some are prescribed by regulations in the CFR that have the force and effect of law.

The government does not want specification writers to override higher level policies.

Your OP question was:

Voyager said:

[W]hat concise distinction should contract drafters make when deciding if they will impose a contract requirement on their contractor in Uniform Contract Format Section C or in Section H?

Put stuff in Section C that specifies the work to be done (who, what, when, where, and how). Put stuff in Section H that prescribes broader and higher-level policy that transcends specific product or service requirements.

Here is a list of stuff that the old Defense Acquisition Regulation (DAR), 32 CFR § 3.501 (1984), prescribed for inclusion in UCF Sections C and H:

Quote

SECTION C—Description/Specifications.

(i) when the NSN/part number and noun or brief description is not in sufficient detail to permit full and free competition, a sufficient description (including any necessary specifications) of the supplies and services to be furnished shall be provided in this Section C. Reference to specifications shall include identification of all amendments or revisions thereof, applicable to the acquisition and dates of both the specifications and the revisions (see Section 1, Part 12);

(ii) in accordance with 1–1206, the statement in 7–2003.10 for a “brand name or equal” item.

SECTION H—Special Provisions.

(i) if the contract is to include option provisions, a clear statement of the provisions (see 1–1506);

(ii) if the contract is to include design-to-cost requirements, provisions in accordance with 1–338;

(iii) if 1–1503(d) applies, a conspicuous notice cautioning offerors that an offer containing an option price higher than the base price may be accepted only if the acceptance does not prejudice any other offeror (this may be placed elsewhere as long as the notice is adjacent to the limitation as to option price);

(iv) if the price negotiated is not predicated on allowability of the cost of money for facilities capital employed, the contract shall include a statement that: the cost of money for facilities capital (15–205.50) is unallowable.

(v) if the contract is to be conditioned on the availability of funds, include one of the clauses in 7–104.91;

(vi) if the contract is multiyear, the provisions required by 1–322.2(a), (b), or (f);

(vii) any progress payments provisions (see Appendix E);

(viii) any applicable Service Contract Act wage determinations of the Secretary of Labor (see Section XII, Part 10);

(ix) any special provisions relating to the Government's providing Government production and research property (see Section XIII, Part 3);

(x) when the clause in 7–104.62 is included in the contract and Appendix I, Table 2, does not list addresses of the required special distribution recipients, the applicable names and addresses shall be included in this Section H. The contracting office issuing the contract shall reference the line item as necessary, the addresses of the status control activity/inventory manager, and, if applicable, the processing contracting office cited in the Military Interdepartmental Purchase Request (MIPR);

(xi) in accordance with 1–1208, the clause in 7–104.48 and the clause in 7–104.49;

(xii) if the contract is to contain the Safety Precautions for Ammunition and Explosives clause in 7–104.79, a specific list of any of the mandatory requirements of DoD Manual 4145.26–M that are being waived;

(xiii) when the contract is expected to contain requirements for provisioned items, include the information prescribed in 4–302.1;

(xiv) for acquisitions involving Military Assistance Program (MAP) (Grant Aid), include the MAP Record Control/Program/Directive Number identifier and special markings, if appropriate. For Foreign Military Sales (FMS) acquisitions, include the special markings, if appropriate, and specify the FMS case identifier code by line/subline item number, e.g., FMS Case Identifier GY-D-DCA. These identification entries are required to permit the contractor to comply with Appendix I–301, Block 16(12), and to facilitate collection of contract administration charges from foreign governments on FMS acquisitions.

(xv) if the contract is for supplies acquired for resale, include the clause in 7–104.88;

(xvi) if international air transportation of personnel and cargo is possible during performance of the contract, include the clause in 7–104.95;

(xvii) in accordance with 9–603(b), insert the Identification of Restricted Rights Computer Software provision in 7–2003.76;

(xviii) if the contract is to involve materials of a hazardous nature, include the clause in 7–104.98 as prescribed by 1–323.2;

(xix) when the proposed contract is to require the contractor to prepare production progress reporting in accordance with the clause in 7–104.51, the contract schedule shall contain instructions as prescribed in 25–202; and

(xx) if the contract is expected to exceed $500,000, include the clause in 7–104.78 (Overseas Distribution of Defense Subcontracts) when required by 1–340.

Voyager said:

Therefore, what concise distinction should contract drafters make when deciding if they will impose a contract requirement on their contractor in Uniform Contract Format Section C or in Section H?

I read through all the comments and have no general disagreement with thread as it evolved. But has the discussion perfected precedence via 52.215-8?    Has not the conversation  overlooked FAR 15.204-1 through -5.  "The Schedule" includes both Section C and H therefore they are of equal precedence except that part of C that are  specifications (also SOW) which become last in precedence.  The directions of the FAR is bolstered if the SF-33 is used as the award document as  the "Table of Contents" of the SF-33 places both C and H in "The Schedule".  When C and H wording are at odds with each other I believe the instant facts of the contract along with case law regarding other legal concepts would come into play to determine whether wording in C or H is concluded to have precedence.   Following the FAR clause 52.215-8 further what has been provided as detail in the thread supports why Sections A through H, and any clauses there in demanded by the specifics of the contract (example inspection, delivery, and there are others) have precedence over FAR (regulation) clauses or in other words those that shall be placed in Section I.   

Added as an edited afterthought.   I attempted to use the FAR matrix tool to see if it would place any FAR clauses in H.  It did not.   Others may be able to but I was not successful.

C Culham said:

"The Schedule" includes both Section C and H therefore they are of equal precedence except that part of C that are  specifications (also SOW) which become last in precedence.

@C CulhamSection C of the Schedule is entitled, "Descriptions/specifications/work statement." Are you saying that "specifications" in clause paragraph (e) does not cover "descriptions" and "work statement"?

@C CulhamYou might get a kick out of this: I just called two very prominent and very experienced government contract attorneys and asked them if "specifications" as used in 52.215-8(e) includes "descriptions" and "work statements." One was adamant that it does. The other was adamant that it does not.

I have done a quick search and could not find a board decision that addressed the question.

One attorney told me that the clause has been around since before I was born.

😂

Vern Edwards said:

Are you saying

It does cover the descriptions and work statement.   Off topic of your question I would note the SF-33 is counter to FAR 15.204 where all references regarding Section C use "statement of work".     

Now to clarify, if Section C is only the Specifications, also  could be called a Statement of Work, and that's it then Section C would in effect pursuant to 52.215-8 (if in the contract) become last in precedence.   But if Section C also had a standalone clause, paragraph, whatever you wanted to call it that by example says - "This contract is for the cleaning of all restrooms in building X", and then had a whole bunch of paragraphs saying what, how, etc (statement of work) the latter bunch of paragraphs would be last in precedence.   That is my easy interpretation of how I read the FAR.

Just now, Vern Edwards said:

You might get a kick out of this:

Yep I am sure it depends on the specifics of a particular contract.    I fear the lack formatting a solicitation/contract specific to FAR Part 15 when required has caused all types of interpretations.

I did some looking and could not easily find an example in SAM.gov but in another search I found this example.  In this case it would seem that the Section C Performance Work Statement is akin to specifications/statement of work and therefore its contents become last in precedence.  52.215-8 was in this back when solicitation. 

Ref. https://www.nsf.gov/policies/contracts/asc/contract_award_sf_33_and_sections_a_through_j_through_section_j_table_of_contents_1_redacted.pdf

 SECTION C – DESCRIPTION/SPECIFICTIONS/WORK STATEMENT The contractor shall provide the materials and services required to support the United States Antarctic Program (USAP) in accordance with the Performance Work Statement (PWS) located at Section J, Attachment 2. The contractor shall provide transition-in requirements in accordance with the Transitionin Statement of Work located at Section J, Attachment 11.

I found some solicitations at SAM.gov in which Section H included DFARS clauses and some that included what appeared to be local clauses.

C Culham said:

It does cover the descriptions and work statement.

So then the order of precedence unfolded from its higher UCF Parts is this?

1. Sections A, B, D, E, F, G, and H
2. Sections K, L, and M
3. Section I
4. Section J
5. Section C

Does anyone think it is instead this?

1. Sections A, B, C (less anything that can be defined as a specification pursuant to FAR Part 11), D, E, F, G, and H
2. Sections K, L, and M
3. Section I
4. Section J
5. Anything that can be defined as a specification pursuant to FAR Part 11

Voyager said:

Does anyone think it is instead this?

Yes.  Exception would be beyond FAR Part 11, the beyond could be per case law as well.

Voyager, If you prepare a quality solicitation and contract, with no inconsistencies, then you don't have to worry about order of precedence.

ji20874 said:

Voyager, If you prepare a quality solicitation and contract, with no inconsistencies, then you don't have to worry about order of precedence.

I agree we can accomplish an unambiguous solicitation through our Herculean efforts against an intense operations tempo lasting weeks or even a month.  We call this "RFP development" at work, but in my family they know it as the dark days when Dad disappears to work 12- or 14-hour days.  Happens every time due to some drive in me.

However, we are discussing the times this doesn't happen.  See Administration of Government Contracts 176 (4th ed. 2006), at its part relevant to the Order of Precedence:

Quote

Government contract documents are long and complex, containing many clauses that are drafted independently of each other.  Consequently, it is frequently impossible to arrive at an interpretation that gives reasonable effect to all parts of the contract document.  Such conflicts may be resolved by use of interpretation rules establishing an order of precedence.

We also have other interpretation rules, for example the prior course of dealing interpretation, custom and trade usage interpretation, and the contra preferentem interpretation.  My point is, ambiguities happen.  I'm with you on ironing them out pre-award.  I am just furthermore realistically for approaching the contractor post-award armed with all available interpretation rules.

Voyager said:

So then the order of precedence unfolded from its higher UCF Parts is this?

1. Sections A, B, D, E, F, G, and H
2. Sections K, L, and M
3. Section I
4. Section J
5. Section C

Does anyone think it is instead this?

1. Sections A, B, C (less anything that can be defined as a specification pursuant to FAR Part 11), D, E, F, G, and H
2. Sections K, L, and M
3. Section I
4. Section J
5. Anything that can be defined as a specification pursuant to FAR Part 11

I don't see a definition of "specification" in FAR part 11.

Voyager said:

(h) Section H, Special contract requirements. Include a clear statement of any special contract requirements that are not included in Section I, Contract clauses, or in other sections of the uniform contract format.

Section I contains requirements that generally apply to contracts.

Section H would or could contain requirements specific to an installation or agency for its contracts, as applicable for that type contract(e.g., construction contracts, work on an airfield, work in restricted or security areas, State or other environmental requirements).

Normally expected adverse weather for each month also comes to mind, for a specific installation or location.

Other similar requirements, specific to types of contracts, an organization or location come to mind.

Another example would be some of the unique, non-traditional general roles and responsibilities of the parties for design-build contracts that were never incotrporated into the FAR. 

Why write or re-write general type of project or other location specific requirements in Section C each time??

…and the section H requirements are meant to take precedence over the proposal or section C as Vern mentioned above.

ji20874 said:

Voyager, If you prepare a quality solicitation and contract, with no inconsistencies, then you don't have to worry about order of precedence.

@ji20874I don't find that helpful. In fact, I find it absurd.

That is a goal, of course, but as a practical matter it is impossible to do except by accident, and impossible to guarantee, even for the simplest solicitation over the SAT, even for someone like me, who has been in the business for almost 50 years and who writes about and teaches contracting.

If you are honest, you cannot say with certainty that you or anyone you know has prepared a solicitation or contract written in the UCF that has had no inconsistencies. And if you are honest, you cannot say that you have read every sentence contained in every solicitation or contract written in the UCF that you have ever prepared. You cannot even say that you have seen every sentence. No one has.

That's why the clause is mandatory!

And even if someone could see them all, identifying inconsistencies among the many thousands of sentences𑁋perhaps millions𑁋in a solicitation or contract would require access to a supercomputer programmed to perform legal analyses, interpret solicitations and contracts, and identify inconsistencies.

Your comment is ridiculous.

Vern Edwards said:

If you are honest, you cannot say with certainty that you or anyone you know has prepared a solicitation or contract written in the UCF that has had no inconsistencies. And if you are honest, you cannot say that you have read every sentence contained in every solicitation or contract written in the UCF that you have ever prepared. You cannot even say that you have seen every sentence. No one has.

That's why the clause is mandatory!

In particular, since many or most contract clauses are included by many organizations by reference, I wonder if many people actually read or know them. Those who have to administer contracts after award usually aren’t the same personnel as the solicitation writers. 

Especially fun (NOT) to try to determine and find the specific dated version of a clause that was applicable at the time of the solicitation and award, if updated since, or even discern whether or not they are the same version…

I believe that, if you don’t want to clutter up a solicitation, you should include the clauses as an attachment or at least have a link to a document containing the applicable edition of the clauses.

Voyager said:

construction contract

joel hoffman said:

construction contracts

joel hoffman said:

design-build contracts

I have difficulty applying these examples with regard to the discussion when FAR clause 52.215-8 is not mandatory to, and most likely rarely found in construction and A-E contracts.  I suggest it confuses the concepts being discussed.

Just now, C Culham said:

I have difficulty applying these examples with regard to the discussion when FAR clause 52.215-8 is not mandatory to, and most likely rarely found in construction and A-E contracts.

The FAR clause matrix says that FAR 52.215-8 is required in construction and A-E contracts when applicable. I presume that means when such contracts are prepared in the UCF. I have seen a few construction contracts prepared in the UCF.

C Culham said:

I have difficulty applying these examples with regard to the discussion when FAR clause 52.215-8 is not mandatory to, and most likely rarely found in construction and A-E contracts.  I suggest it confuses the concepts being discussed.

Unfortunately, there are many organizations using the UCF for construction and D-B contracts. It definitely appears so to me as a member here over the years.

From reading his past posts over the years, even Vern isn’t completely familiar with the CSI format for construction contracts. 

When using the UCF, the order of precedence clause at 52.215-8 is mandatory.

“FAR 15.209 

…(h) The contracting officer shall insert the clause at 52.215-8, Order of Precedence - Uniform Contract Format, in solicitations and contracts using the format at 15.204.”

And USACE A/E contracts use the UCF.

Vern,

Your vitriol and challenging of my honesty are not needed and do not contribute positively to the discussion.  If you will read from the beginning, you will see that the original poster is not talking about using order of precedence to resolve an unforeseen inconsistency in an already-awarded contract -- indeed, he or she is not talking about any real circumstance at all, but is just engaging in an academic exercise of whether some unspecified text should go in C or H -- that is the context.  In that context, and the OP's continued questioning, I gave good advice -- if he or she already knows there is an inconsistency before the solicitation or contract is even written, he or she shouldn't rely on order of precedence but should simply resolve the inconsistency as part of the drafting/assembly process.  The order of precedence clause works best to help resolve unseen inconsistencies after contract award.

And I never said anything at all about whether any clause is mandatory.

But, if letting you vent your spleen has made you feel better, good for you.

Vern Edwards said:

I have done a quick search and could not find a board decision that addressed the question.

As the thread winds on certain things in a re-read get me to looking.    I found this to be interesting as related to the question, maybe they can be both?

( Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.)

AGAR 452.211-72 Statement of Work/Specifications.

As prescribed in 411.171, insert the following clause:

Statement of Work/Specifications (FEB 1988)

The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J.

(End of clause)

Here there is reference to 52.215-8 and in "Discussion" a short paragraph (in relation to the decision as a whole) about order of precedence.     https://www.cbca.gov/files/decisions/2019/KULLBERG_07-01-19_4968__OPTIMUM_SERVICES_INC.pdf

Vern Edwards said:

The FAR clause matrix says that FAR 52.215-8 is required in construction and A-E contracts when applicable. I presume that means when such contracts are prepared in the UCF. I have seen a few construction contracts prepared in the UCF.

Just now, joel hoffman said:

And USACE A/E contracts use the UCF.

Thanks for the clarification but I get the feeling that even the USACE likes confusing things.    A quote from this - https://www.publications.usace.army.mil/portals/76/publications/engineerpamphlets/ep_715-1-7.pdf

"2. PRECEDENCE. This Scope of Work (SOW) and the accompanying Exhibit A provide specific instructions for the design of this project and, in case of conflicts, take precedence over the requirements of Section C of the IDC."

My takeaway is this which seems to be a takeaway that can be leaned on a lot.  Order of precedence in the end will be dictated by the specific facts of the contract.   While generally a clause like 52.215-8 will help should there be a dispute about order the parties either figure it out by mutual agreement or they end up in a court and let the court make the final decision.

ji20874 said:

Voyager, If you prepare a quality solicitation and contract, with no inconsistencies, then you don't have to worry about order of precedence.

@ji20874That was something I'd expect from a snotty staff reviewer.

It deserved every word that I wrote, and I stand by those words. I like them. Here they are again:

Vern Edwards said:

That is a goal, of course, but as a practical matter it is impossible to do except by accident, and impossible to guarantee, even for the simplest solicitation over the SAT, even for someone like me, who has been in the business for almost 50 years and who writes about and teaches contracting.

If you are honest, you cannot say with certainty that you or anyone you know has prepared a solicitation or contract written in the UCF that has had no inconsistencies. And if you are honest, you cannot say that you have read every sentence contained in every solicitation or contract written in the UCF that you have ever prepared. You cannot even say that you have seen every sentence. No one has.

That's why the clause is mandatory!

And even if someone could see them all, identifying inconsistencies among the many thousands of sentences𑁋perhaps millions𑁋in a solicitation or contract would require access to a supercomputer programmed to perform legal analyses, interpret solicitations and contracts, and identify inconsistencies.

Your comment is ridiculous.

Absurd and ridiculous do not sound sulphurous to me.

And I will add that your comment suggests a remarkable degree of ignorance of the complexities of contract interpretation and the often difficult task of identifying inconsistencies in contract terms in the absence of performance context.

C Culham said:

As the thread winds on certain things in a re-read get me to looking.    I found this to be interesting as related to the question, maybe they can be both?

( Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.)

AGAR 452.211-72 Statement of Work/Specifications.

As prescribed in 411.171, insert the following clause:

Statement of Work/Specifications (FEB 1988)

The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J.

(End of clause)

Here there is reference to 52.215-8 and in "Discussion" a short paragraph (in relation to the decision as a whole) about order of precedence.     https://www.cbca.gov/files/decisions/2019/KULLBERG_07-01-19_4968__OPTIMUM_SERVICES_INC.pdf

Thanks for the clarification but I get the feeling that even the USACE likes confusing things.    A quote from this - https://www.publications.usace.army.mil/portals/76/publications/engineerpamphlets/ep_715-1-7.pdf

"2. PRECEDENCE. This Scope of Work (SOW) and the accompanying Exhibit A provide specific instructions for the design of this project and, in case of conflicts, take precedence over the requirements of Section C of the IDC."

My takeaway is this which seems to be a takeaway that can be leaned on a lot.  Order of precedence in the end will be dictated by the specific facts of the contract.   While generally a clause like 52.215-8 will help should there be a dispute about order the parties either figure it out by mutual agreement or they end up in a court and let the court make the final decision.

Carl, I wasn’t debating the order of precedence. My initial post was in response the the OP’s question concerning what goes in Section H vs. Section C - or in essence, what is Section H for?

By the way, there are over 200 pages in EP-1-7. What page were you referring to?

For an A-E contract, there are numerous mandatory references applicable and there will be an attached specific Project Development Booklet or similar name, as well as the approved congressional authorized MCP (Air Force) or MCA (Army) scope and PA (I have forgotten the DD Form number). Also any site plans and geotechnical or other test reports, previously performed. .

joel hoffman said:

Carl, I wasn’t debating the order of precedence. My initial post was in response the the OP’s question concerning what goes in Section H vs. Section C - or in essence, what is Section H for?

Yes I know.

joel hoffman said:

By the way, there are over 200 pages in EP-1-7. What page were you referring to?

Page W-1 which is an example of a Task Order SOW.   Of interest to me is if 52.215-8 is in the parent then how can a Task Order change the precedence.   My read of case law, admittedly limited, suggests that the ordering clause (52.216-18) would set the precedence.  It states - "All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control."   I find nothing in the USACE instruction that provides something other than 52.216-18 should be used for the ordering clause.   So the conundrum by my read of at least the instruction is use UCF, therefore put 52.215-8 in the parent contract but oh by the way in a order lets restate precedence and make Exhibit A be precedent to Section C.  So the order says Exhibit A, the contract says Section C so per 52.216-18 does not Section C have precedent?

You can hash it out in your own mind, I will just stick to my view, if the parties can not work what has precedent even in light of the language of the contract that tries to set precedence then the dispute will be taken to the courts and a court will decide.

I'm looking at a 105-page RFP issued by the Army Contracting Command for the concept design phase of the optimally-manned fighting vehicle. Section J lists 74 attachments. Some of them will incorporate additional documents. The SOW also lists documents.

It would be impossible to review all of that material during RFP preparation in search of actual or potential inconsistencies that might emerge in various circumstances.

That's why FAR 52.215-8 exists and is mandatory.

Vern Edwards said:

And I will add that your comment suggests a remarkable degree of ignorance of the complexities of contract interpretation and the often difficult task of identifying inconsistencies in contract terms in the absence of performance context.

That may be true, but what's a guy to do when the discussion starts going over his head and he still wants to contribute and seem wise?

joel hoffman said:

completely familiar with the CSI format for construction contracts

Some construction industries use this format. others use modified formats, some use the AASHTO format. Maybe unrelated to this forum.

dsmith101abn said:

Some construction industries use this format. others use modified formats, some use the AASHTO format. Maybe unrelated to this forum.

True, true (first statement)

Regarding second statement, the title of this thread is Distinction Between Sections C and H in UCF.

The original poster made reference to construction contracts.  My initial reply explained some differences between Sections C and H for construction or design-build. But it could be applied to services, too.

Then someone mentioned that he thought that construction, design-build construction and A/E contracts would rarely use the UCF.

The USACE uses the UCF for its A/E contracts. Other than for DOT/State Highway department work, USACE probably awards more government A/E contracts than most other agencies.

As for construction, numerous agencies use  the UCF. Many of my non-DoD students in my D-B class over a period of 20 years confirmed that.

In fact, my last program before retiring involved six huge Systems Contracts to build (1/2 of them were design-build) , systemize, pilot test and operate, full operations and de-construct Chemical Weapons Demilitarization Plants around the US. The contracts were in the UCF format. Construction alone was many hundreds of millions of dollars.

I personally don’t like the UCF for construction and especially for D-B, which involves non-traditional roles and responsibilities for both government and design-builder. The FAR clause for Order of Precedence doesn’t make sense for design-build contracts in either CSI or UCF. 

I think the UCF fits services and supply contracts better than construction or D-B. But the fact is that it is also being used for construction and D-B.

joel hoffman said:

for construction, numerous agencies use  the UCF. Many of my non-DoD students in my D-B class over a period of 20 years confirmed that.

Understood, do attachments have a different contract meaning vs being included as part of a contract full text? I know we're talking about C vs H but what about J?

Reason for my quote, I'm non-DOD and  i'd like to take a D-B class sometime. If you can let me know what you teach (if you still do) or otherwise recommend I'd appreciate it. I don't do a lot of D/B stuff but once in a while it presents itself.

dsmith101abn said:

dsmith, I no longer teach the class.

The class uses the CSI Format.

Our Army Chem-Demil Systems Contracts, using the UCF were under a Service Contract Umbrella. The PCO was in Rock Island, IL. Their organizational name changed so much, I don’t remember what they were called.

Some systems contracts were a combination of FFP construction and CPFF services. Others were CPFF for both. Others were single award ID/IQ task order contracts with CPFF design tasks and CPAF construction and operations, etc. tasks.

Mixed bag, based upon the maturity and type of De-Mil Process designs and the types of Chemical Weapons and the chemical weapons agents being destroyed. Mustard, Sarin, and VX.

Whoever designed those weapons never designed them to be de-militarized.  MAD scientists!!!!

Going back to the original topic...

I just looked at a Department of Energy RFP, written in the UCF and seeking proposals for management and operation of a waste isolation plant. The procurement is the subject of a new GAO protest decision just posted to Wifcon: B-420913. GAO denied the protest.

Section C, the PWS, is 60 pages long. Section H is 113 pages long. It is the longest section in the RFP. It contains 89 separate texts—clauses, etc. Judging from the titles, most appear to be special DOE provisions.

For example:

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H.76 SUBCONTRACTS

Prior to the placement of subcontracts and in accordance with the clause in Section I entitled, DEAR 970.5244-1 Contractor Purchasing System, the Contractor shall ensure that any required prior notice and description of the subcontract is given to the CO and any required consent is received. Except as may be expressly set forth therein, any consent by the CO to the placement of subcontracts shall not be construed to constitute approval of the Subcontractor or any subcontract terms or conditions, determination of the allowability of any cost, revision of this contract or any of the respective obligations of the parties thereunder, or creation of any Subcontractor privity of contract with the Government.

and

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H.72 ORGANIZATIONAL CONFLICT OF INTEREST – AFFILIATES(S)

The Contractor, [offeror fill-in] (Offeror to insert name of Contractor) comprised of [offeror fill-in] (Offeror to insert names of partner companies), is responsible for the completion of all aspects of this contract. In order to effectively and satisfactorily execute its responsibility to manage and accomplish the contract work, the Contractor must have complete objectivity in its oversight and management of its subcontractors. Therefore, consistent with the principle contained in Federal Acquisition Regulation subpart 9.5 and specifically section 9.505(a), and notwithstanding any other provision of this Contract, the Contractor is, absent prior written consent from the CO as provided herein, prohibited from entering into a subcontract arrangement with any affiliate or any affiliate of its partners, or utilize any affiliate or affiliate of its partners, to perform work under a subcontract. Such contractual relationship(s) are presumed to create an impaired objectivity type conflict of interest. If the Contractor believes the capabilities of an affiliate could be utilized in such a manner as to neutralize or avoid the existence of an organizational conflict of interest, the Contractor must obtain the CO’s written consent prior to placing the subcontract.

For the purpose of this clause, affiliation occurs when a business concern is controlled by or has the power to control another or when a third party has the power to control both.

I have seen several DOD RFPs written in the UCF in which Section H had no content.

Vern Edwards said:

Going back to the original topic...

I just looked at a Department of Energy RFP, written in the UCF and seeking proposals for management and operation of a waste isolation plant. The procurement is the subject of a new GAO protest decision just posted to Wifcon: B-420913. GAO denied the protest.

Section C, the PWS, is 60 pages long. Section H is 113 pages long. It is the longest section in the RFP. It contains 89 separate texts—clauses, etc. Judging from the titles, most appear to be special DOE provisions.

I believe placement of many clauses in Section H is driven by decisions from years ago when their contract writing systems were developed.

I can understand why DOE has so many special provisions in their management and operations contracts.  They are very large contracts where the contractor has a wide range of duties functioning as an extension of the government.  For example, they have latitude to conduct extensive procurements for the operation and their procurement procedures and practices are periodically reviewed for FAR and DEAR compliance by DOE headquarters.

https://www.acquisition.gov/dears/part-970-doe-management-and-operating-contracts

Vern Edwards said:

Going back to the original topic...

So here is an interesting tidbit.   

When the FAR first came into being order of precedence was only applicable to solicitations.   The now clauses were provisions.   FAR 52.214-11 and FAR 52.215-18.  REF. https://tile.loc.gov/storage-services/service/ll/fedreg/fr048/fr048182/fr048182.pdf

In 1986 in the wisdom of the FAR Council they concluded the provisions regarding order of precedence "should be converted" to contract clauses.   Of note no public comments were solicited for the FAC (84-12).   REF. https://archives.federalregister.gov/issue_slice/1986/1/17/2623-2668.pdf#page=44

It would seem that the now 52.215-8 has an obscure origin as a contract clause and is more or less an attempt to provide a remedy matrix when parts of the contract are in conflict.   As I have concluded previously if the conflict can not be solved by mutual agreement through application of the clause then the contracting parties end up in court to figure it out and a whole bunch more is used to make a conclusion beyond the wording of FAR  52.215-8. 

My mind is not 100% made up but by all accounts of this thread, and other readings I have done regarding order of precedence clauses in the public sector (AIA being one) the hygienic application of the clause to less than hygienic contracts has its own life depending on the specifics of each contract.

@Vern EdwardsThat's my office, and I came from DOD.  It's why I wrote the OP.

C Culham said:

It would seem that the now 52.215-8 has an obscure origin as a contract clause...

The order of precedence clause has a long history. It appeared as a provision on SF33A (March 1969), Solicitation Instructions and Conditions. The text was as follows:

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ORDER OF PRECEDENCE. In the event of an inconsistency between provisions of this solicitation, the inconsistency shall be resolved by giving precedence in the following order: (a) the Schedule; (b) Solicitation Instructions and Conditions; (c) General Provisions; (d) other provisions of the contract whether incorporated by reference or otherwise; and (e) the specifications.

I don't think it had be a clause, because if an offer was submitted on the basis of SF33A, then I presume that any resultant contract would be interpreted on that basis. Remember, sealed bidding ("formal advertising") was the dominant method of contracting back them.

I presume that the FAR councils made the text a clause because the old bid forms went away and because of the distinction FAR made between solicitation provisions and contract clauses.

Voyager said:

@Vern EdwardsThat's my office, and I came from DOD.  It's why I wrote the OP.

I suspected you had a DoD background when I read your original post and that you probably haven't been in the field more than 10 or so years. DoD cracked down on use of "local clauses" ~10 years ago, which culminated in the current policy stated in DFARS PGI 201.301. Going forward, any local clauses would have to go through the same rule making process as FAR or DFARS clauses if they met the stated criteria (most probably did). The belief that the Services and Defense agencies would comply with the publication requirements is adorable. What happened is the contents of Section H, traditionally the dumping ground for local clauses, became the focus of review teams.  Local clauses began to disappear from section H, which is probably why Vern was able to find a DoD RFP with nothing in that section. However, these clauses didn't go away, nor was a local clause ever published for comment in the Federal Register. Instead, they started appearing in SOWs. This was not because they describe the work in any meaningful way--it was merely a workaround. We're now at a point where the Navy prescribes standard "SOW language" in the NMCARS to implement policy.

So, what you are seeing in practice in DoD has less to do with a thoughtful application of UCF policy, and more to do with stealthy  bureaucratic maneuvering.

@Don MansfieldGreat post! Thank you!

Vern Edwards said:

The order of precedence clause has a long history.

Makes sense.  Your posts regarding common law are bolster the view as well.  With the addition of Don's post I guess I withdraw  obscure origin and just stick with obscure application.

The oldest version of an order of precedence clause that I have thus far been able to find was one quoted by the old (appellate) U.S. Court of Claims, Dittmore-Freimuth Corp. v. U.S., 390 F.2d 664, Feb. 16, 1968. The contract was for rocket launcher adapters and spare parts, and the decision is on appeal from a decision of the ASBCA:

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36. ORDER OF PRECEDENCE

(The following clause shall apply only in the event this contract is preceded by Formal Advertising.)

To the extent of any inconsistency between the Schedule or the Terms and Conditions of the Invitation for Bids or the General Provisions, and any specifications or other provisions which are made a part of this contract by reference or otherwise, the Schedule, the Terms and Conditions of the Invitations for Bids, and the General Provisions shall control. To the extent of any inconsistency between the Schedule and the Terms and Conditions of the Invitation for Bids or the General Provisions, the Schedule shall control.

That clause existed as early as 1960.

Interesting article in the December 7, 2022 issue of The Government Contractor: "Unrecognized And Overt Pressure On Contractors’ Data And Software Rights: The Risks Posed By H Clauses, Innocuous Acronyms (IPT, IDE, SaaS, DAL), And The Cloud." An excerpt:

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H Clause Developments—Another trend these days is contracting activities using more aggressive and burdensome “Section H” clauses. There are variations, but generally the ones posing the most practical difficulties for contractors are those that (1) tend to blur distinctions between what is deliverable vs. rights regarding Operation, Maintenance, Installation, & Training (OMIT) data; (2) seek unlimited rights in “use cases”; (3) define data rights by deliverables; and (4) require commercial software vendors (at all tiers) to agree to unique modifications of their license agreements.

***

The Use Case Variation—In this H clause, offerors are required to identify Government rights by subsystem/subassembly, with “Unlimited” rights assumed if no restriction is asserted in the proposal. This means, of course, that contractors and subcontractors must assiduously understand and assert their limited, restricted, specially negotiated, and Government purpose rights (GPR) at the lowest component level.

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DFARS 227.7202-3 Rights in commercial computer software or commercial computer software documentation.

(a) The Government shall have only the rights specified in the license under which the commercial computer software or commercial computer software documentation was obtained.

(b) If the Government has a need for rights not conveyed under the license customarily provided to the public, the Government must negotiate with the contractor to determine if there are acceptable terms for transferring such rights. The specific rights granted to the Government shall be enumerated in the contract license agreement or an addendum thereto.

DFARS 227.7202-4 Contract clause.

A specific contract clause governing the Government's rights in commercial computer software or commercial computer software documentation is not prescribed. As required by 227.7202-3, the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation shall be identified in a license agreement.

Now you're talking commercial contracts, where UCF does not apply (so no order of precedence), and standard practices vary.  I wonder what the courts would do if a dispute came up over these bid-or-go-home H clauses, given the above "must" and "shall" in the DFARS I show in bold.  I don't think the H clauses would hold up since they aren't part of a license agreement.

Agencies do have to decide if they trust a standard user agreement to meet the Government's requirements.  I have read a little about the law around standard user agreements, enough to know the basics that the general public can sign them without reading them, trusting that anything a court determines unreasonable in them should be granted to the user as relief.  I doubt that's good enough for some requirements owners, if it even applies to federal commercial buys.

For certain contracts, such as construction or services, I place in Section H "general" requirements of my locality (state, county, etc).  In Section C, I place the requirements of the particular service(s) being performed. 

For example, fire protection requirements, which are issued by the state, go in Section H.  The statement of work/specifications go in Section C.

Section H is fairly boilerplate for my office.

Voyager said:

Agencies do have to decide if they trust a standard user agreement to meet the Government's requirements.  I have read a little about the law around standard user agreements, enough to know the basics that the general public can sign them without reading them, trusting that anything a court determines unreasonable in them should be granted to the user as relief.  I doubt that's good enough for some requirements owners, if it even applies to federal commercial buys.

GSA created their own order of precedence see MV-15-03 Supplement #1 (sorry, I could not get their link to copy).

Data rights matter.