Local Clauses

Don,

Can you define "local clause"? Does it reach to cover Section H Special Contract Requirements? or Section G Contract Administration Data? Or just Section I Contract Clauses? You see, one can suggest that a special contract requirement is not a contract clause. Your answer to this question might help determine the breadth of the answers others give you.

By "local clause", I mean a solicitation provision or contract clause written and used by a particular contracting activity or subordinate contracting office that is not contained in the Federal Acquisition Regulation (FAR) or the agency’s FAR supplement(s).

Please explain how one can suggest that a special contract requirement is not a contract clause. How does a Section H SCR not meet the definition of contract clause in FAR 2.101?

How does a Section H SCR not meet the definition of contract clause in FAR 2.101?

Oh, you want to use the FAR 2.101 definition of contract clause? That makes sense, but FAR 15.204-1 suggests that there might be some differentiation between contract clauses and special contract requirements, because it provides a different UCF section for each.

When I was in DOD, I used home-made words especially in UCF Sections G, H, L, and M, without going through the DFARS 201.304 process. They may have had some cost or administrative impact on contractors or offerors, but it wasn't significant. I still do, but I'm not in DOD anymore and FAR 1.304 doesn't reach to contract clauses. Anyway, we can't have an intelligent discussion about contract clauses until we have defined the term.

Oh, you want to use the FAR 2.101 definition of contract clause? That makes sense, but FAR 15.204-1 suggests that there might be some differentiation between contract clauses and special contract requirements, because it provides a different UCF section for each.

Yes, I want to use the official definition in FAR 2.101.

The only thing that FAR 15.204-1 "suggests" is that some clauses are in Section H and some are in Section I. If you check the clause matrix in FAR Subpart 52.3, you'll see that some go in Section E, e.g., 52.246-2, and some go in Section F, e.g., 52.211-8.

And what do you mean when you say "FAR 1.304 doesn't reach to contract clauses"? As for the definition of contract clause, the term has been defined by the FAR councils in FAR 2.101. So let the intelligent discussion begin.

FAR 15.204-1 stands for the proposition that some words in a contract are special contract requirements that go in Section H and some words are contract clauses that go in Section I. The clause at FAR 52.215-8 (Order of Precedence--Uniform Contact Format) also maintains a distinction between The Schedule (including special contract requirements) covered by paragraph (a) with the highest precedence and contract clauses covered by paragraph © with a lower precedence. For purpose of the clause at FAR 52.215-8, there is a meaningful difference between a special contract requirement and a contract clause, because the first clearly has precedence over the second. The clause at FAR 52.214-29 (Order of Precedence--Sealed Bidding) makes the same distinction.

But I wonder what the original poster is looking for? Maybe this is exactly that he is looking for, Section H SCRs (local clauses, if you will) that impose "significant cost or administrative impact on contractors or offerors." If so, I have some I can share, such as SCRs that require a contractor to maintain a fire-fighting capability while doing non-fire work in the nation's forests, to obtain permits from state and other federal agencies, to comply with state and federal requirements for solid waste management, to repair government-owned roads for damage caused by the contractor's use, to have traffic control procedures when operations interfere with normal operation of roads, and to provide certain sanitary and other conditions for migrant seasonal workers. Well, we might quibble over whether they impose a significant impact -- obviously these don't, because if they did they already would have been subject to rulemaking .

FAR 15.204-1 stands for no such proposition, nor is itself a proposition. It is an instruction:

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.

The clauses in Section I are contract clauses that are requirements prescribed for inclusion in Section I by the clause matrix, the only part of FAR that tells COs where to put the standard FAR contract clauses. Section H is to contain contract clauses that are not prescribed for inclusion in any other part of the Uniform Contract Format. They are supposedly unique to the contract in question, rather than standard, which is what makes them special. The boards and the Court of Federal Claims and its predecessors have long known this, and so, I think, do you.

See e.g., SUFI Network Services, Inc. v. U.S. --- Fed. Cl. ---, 2012 WL 5448957, Nov. 8, 2012:

"The “Performance Period” clause, found at section H.29 of the contract, states as follows... ."

System Planning Corp. v. U.S., --- Fed. Cl. ---, 2012 WL 2856070, July 12, 2012:

"[T]he DFARS does not describe what rights the Government has with respect to the source code that could be obtained through exercise of the option clause at Section H.9 of the contract... ."

Dynamics Corp. of America v. U.S., 17 Ct. Cl. 60, May 18, 1989:

"Paragraph g.(1) of the EPA clause, contract section H-6, provides... ."

Fluor Intercontinental, Inc. v. Department of State, CBCA 490, 2012 WL 1144972, Mar. 28, 2012:

"Section H, identified as "Special Contract Requirements," contained the following clauses concerning temporary facilities and services... ."

I've made my point. This is not a trivial matter, because the FAR Definitions clause, 52.202-1, applies the official definitions in FAR only to solicitation provisions and contract clauses, not to other FAR texts, such as statements of work and specifications. If you classify the texts in Section H as something other than contract clauses, then the meanings of many terms in those special contract requirements will be open to dispute.

Don,

Can you define "local clause"? Does it reach to cover Section H Special Contract Requirements? or Section G Contract Administration Data? Or just Section I Contract Clauses? You see, one can suggest that a special contract requirement is not a contract clause. Your answer to this question might help determine the breadth of the answers others give you.

ji20874,

For purposes of my question, "local clause" means a solicitation provision or contract clause written and used by a particular contracting activity or subordinate contracting office that is not contained in the Federal Acquisition Regulation (FAR) or the agency’s FAR supplement(s). I'm using the terms "solicitation provision" and "contract clause" as those terms are defined in FAR 2.101. As such, they need not be in a particular section of the UCF.