Lack of FAR clauses in Federal procurements

So my questions are: 1- Is there language in the FAR permitting these agencies to not include even the most basic FAR clauses in solicitations and contracts? and 2 - Is the Christian Doctrine relevant to this situation?

1. Can't say without a lot more information. Each clause has a "prescription," and the applicability of a clause to a particular procurement contract depends on the characteristics of the procurement -- dollar value, nature of the purchase, etc.

2. If inclusion of a clause is mandatory, and if it is an important clause, then the Christian Doctrine probably applies. But you really have to answer that question on a clause-by-clause basis.

Good evening. My company is pursuing opportunities with multiple Federal agencies. The agencies are releasing solicitations with very few FAR clauses in the solicitation documents. They're not following the UCF, which I understand is permitted under certain circumstances, but I am curious as to the lack of FAR clauses in the solicitations, as well as the actual contract awards. For instance, if by going by the matrix in FAR Part 53, I'd expect to see the appropriate clauses in the actual contracts, but they're not in the contract.

So my questions are: 1- Is there language in the FAR permitting these agencies to not include even the most basic FAR clauses in solicitations and contracts? and 2 - Is the Christian Doctrine relevant to this situation?

Any help is appreciated. I hope I have posted in the appropriate forum.

Thanks.

Can you please provide an example of a solicitation that doesn't follow the UCF and that contains very few clauses and an example of a contract that doesn't contain many clauses? Your post wasn't specific enough to provide a clearer answer.

FAR Part 53 contains forms. Were you referring to the FAR Clause Matrix in Part 52?

There are not enough details provided to give a conclusive answer.

For example, if agencies place an order against a GSA Federal Supply Schedule or Government Wide Acquisition Contract, they could be violating the terms of that contract if they include some clauses. These types of contracts already included clauses when the servicing agency awarded them, and new clauses would possibly conflict with the existing clauses. There is typically not a prescribed solicitation/contract format for these types of acquisitions, and it is up to the discretion of the CO.

Further, for commercial items, the agency need only include FAR clauses 52.212-4 and 52.212-5. FAR clause 52.212-4 is included by reference on the SF-1449 so you will rarely see it included by full text. The CO may include clauses listed as optional in the matrix as applicable. Further, commercial item contracts require the CO to not use the UCF, instead FAR 12 instructs them to use the 5-addenda commercial item format to the maximum extent practicable.

It could also be that the CO neglected to include the proper clauses.

Perhaps everyone will jump in here and provide some type of advice but without more information or better yet, an example of one or more solicitations that don't conform in format or contain required clauses, there will be much speculation.

As noted, there is not enough detail to provide meaningful answers. In addition to what has already been noted, are you sure the clauses are not incorporated by reference, which would make them part of the solicitation?

Okay, so now four of us have told the OP that he has not provided better information. I encourage every member to chime in on that. Maybe we could circulate some sort of declaration.

The OP asked two questions: First, is there any language in FAR permitting an agency to omit "even the most basic clauses," whatever that means? The answer is: No, there is no such across the board language.

His second question was whether the Christian Doctrine might apply. The answer is: Maybe. It depends. Perhaps.

What do you want to do, ask for a complete description of the procurement and provide a list of the clauses you think should be in the contract? Do you want the OP to give you a description of the procurement and tell you which clauses he thinks are missing so you can verify his analysis? If you want to do either of those things, give the OP a list of the specific information you want, so you don't have to go back and forth asking for more. For all we know the OP has seen a commercial items contract for the first time and doesn't understand why it's not in the UCF and doesn't have a changes clause.

I have noticed that more and more often the clueless are coming here looking for a clue on a topic so general and vast that nothing short of an essay or a book could be of any help. They see something they don't understand, which is almost everything they see, and the first thing they do is reach for their keyboard and their mouse. They know so little that they cannot even write specific questions. They don't know what they don't know. You can answer specific questions the way I did above in my first post and at the beginning of this one, but if you want to provide free consulting you'll have to devote a big part of your life to Wifcon Forum. Maybe Bob should add an 1-800 number help desk and solicit volunteers to take shifts.

Or... some of the more knowledgable members could write short pieces about specific topics, like, say, clause selection, which Bob could then post in a Wifcon encyclopedia. wvanpup?

Thanks for the replies, it's helpful info.

1 - Yes, I meant Part 52 for the Matrix, rather than 53.

2 - In further review, I believe meteec hit it on the head. Some of the programs were under GSA schedules.

3 - If this is the case, that they are under GSA schedules, I will abide by the Ts and Cs of the schedule, also.

4 - Here is one, it's with NCUA. http://www.ncua.gov/about/Pages/RFP.aspx

5 - No clauses incorporated by reference. Or, if there are, there are very few, and generally agency specific.

Vern, all I wanted the original poster to do at this point is to provide a link to one or more examples of what he or she is referring to.

Edit. The above post by hopscotch appeared during my posting of this response to Vern.

Hopscotch, NCUA is not subject to the FAR per information on its website. How about another example?

Also, If you are looking at existing schedule contracts you apparently aren't a contract holder anyway. What participation are you looking for?

Actually in this case Vern hit the nail on the head. NCUA is a nonappropriated agency and therefore not subject to the FAR.

Thanks. The other solicitations I have seen are/were under Schedule contracts.

The answer was quite simple, so I appreciate the assistance. No essays or books necessary. Thanks all.

Yes, essays and books needed. Desperately. For instance, people need to know that there are quite a number of "executive agencies" that are not subject to the FAR. That would be a good essay.

FAR 1.101 says: "The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies." That simply is not true. The FAA and the Bonneville Power Administration are parts of executive agencies, but they are not covered by the FAR. Many if not most people do not know that it is not true, and I don't know of any official list of the executive agencies that are not under the FAR. We need an essay about that. wvanpup?

We need a Wifcon Encyclopedia.

That's very fair. I haven't found a list of agencies not under the FAR, either. I hadn't even thought to consider NCUA not being subject to the FAR.

That's very fair. I haven't found a list of agencies not under the FAR, either. I hadn't even thought to consider NCUA not being subject to the FAR.

I found a tab under their website that described their procurement system. It explained that they aren't subject to FAR. I found it doing a quick scan of a few pages. It seems to me that one should familiarize themselves with the agency if you want to do business with them. Just a suggestion.

I found a tab under their website that described their procurement system. It explained that they aren't subject to FAR. I found it doing a quick scan of a few pages. It seems to me that one should familiarize themselves with the agency if you want to do business with them. Just a suggestion.

Agree. I recently joined a new company with customers I'm unfamiliar with. I'm getting there, and appreciate the help here.

I suggest that the FAR Council take the approach illustrated by FAR 32.705 and clause 52.232-39 – Unenforceability of Unauthorized Obligations. The approach is to create a clause for use in every Government solicitation or contract that says this “The Government is not bound by any provision or clause included in, or excluded from, this solicitation or contract if an appropriate Government bureaucrat later determines that a provision or clause was incorrectly used in, or excluded from, the solicitation or contract. The appropriate Government bureaucrat possesses the authority to exclude or insert a provision or clause if the bureaucrat believes the provision or clause was required by the correct application of the FAR matrix or by good business sense.”

This will increase the likelihood, but may not guarantee, that every solicitation and contract, sooner or later, contains the words necessary to protect the Government's interest.

A DOJ report on Sec. 508 reported the following--

"Most agencies in all size categories are covered by the Federal Acquisition Regulation (FAR). These include 138 of 144 components of cabinet level and large agencies (79.2%*), 16 of 19 components of mid-sized agencies (79.4%*), 18 of 21 small agencies (92.2%*), and 18 of 22 very small agencies (85.7%*)." http://www.justice.gov/crt/508/report/pa.htm

We work in the era of regulations as a proxy for competence. What a sad state of affairs. So now we need a clause to protect the government from the incompetence of COs who don't follow the regulations. What happens if a CO doesn't include Napolik's incompetence clause?

Once upon a time COs negotiated contracts pretty much like other business people. Then came the boilerplate forms, like the old, old SF 33 for supply contracts that contained the required clauses. Now we no longer have the forms, but FAR Part 53 and its matrix.

A 1964 article by Elmer J. Stone in Law and Contemporary Problems, Vol. 29, No. 1, entitled, "Contract by Regulation," tells the story of the old Armed Services Procurement Regulation. Here are some excerpts:

One can say without fear of substantial disagreement that the flower of "contract by regulation" is blooming proliferously. No longer are government procurements effected through across-the-table negotiation and bargaining on all contract terms. Today ninety per cent or more of every contract is prescribed by law, regulation, or government requests for proposals. Several billions of dollars of annual procurement is effected by no more than half-a-dozen basic and unalterable contract forms. This rigidity leaves little or no room for negotiation and "tailoring" the contract to the transaction. It not infrequently causes hardships in performance and financial results. While a system such as this is inconceivable in the pure commercial world, it is accepted with some apathy by many government contractors. Perhaps a belief in the benevolence of government has caused some contractors to sign contracts without even reading the "boiler plate," a practice which can lead to grief, losses, and not infrequently, bankruptcy.

***

Section seven of the ASPR is devoted to contract clauses of two categories, namely, "required" clauses and "clauses to be used when applicable." Whether a required clause is appropriate to a transaction or whether circumstances, equity or good judgment dictate a modification to the clause is quite immaterial; it must go in the contract. Deviations from ASPR are permitted, however, but, except in emergency situations, only after a contracting officer notice is processed in advance to the office of the secretary of the procuring establishment. Experience has taught that contracting officers are loath to process requests for deviations and when they do the requests mire in administrative procedure, are generally opposed by interested departments and are so time consuming that contract performance may have been completed before the almost inevitable denial is received. The result of this is that negotiators resort to oral understandings, side agreements and other devices which, though of little contractual effect, lead to misunderstandings, arguments and disputes, further deteriorating the relationship between buyer and seller.

… The Department of Defense has established a group known as the ASPR Committee with the mission of studying, drafting, coordinating and issuing (over the name of the Secretary of Defense) the procurement regulations and changes thereto. This committee (under which there are specialist subcommittees) is staffed with exceptionally capable experts in law, pro- curement, accountancy, and other technical fields. The members are loyal, dedicated, and generally reasonable in their consideration of the sellers' problems. However, there are some important factors which affect substantially the committee's work: (1) it represents the government and, in the final analysis, is bound to favor a government position, (2) it is subject to strong and not always objective representations by individuals within the Department of Defense who are recognized as experts on a subject under consideration by the committee, and, it is submitted, (3) man is not gifted with the prescience to enable him to draft contract clauses which will fit every future transaction.

In the very next issue of Law and Contemporary Problems, John R. Donnelly analyzed and complained about the then recently created "Christian Doctrine" and expressed the hope that the Supreme Court would limit or overturn it. It didn't, of course. And it seems that even that was not enough. The CD was recently applied to a subcontract.

I would do away with the Christian Doctrine if I could. The government should have to live with the results of its CO appointments and its contracting processes.

Interesting. My first exposure to the ASPR, minimal as it was, was in 1964. As I recall, at that time, it filled only one 3 ring binder.

Interesting. My first exposure to the ASPR, minimal as it was, was in 1964. As I recall, at that time, it filled only one 3 ring binder.

I remember the ASPR, too. I kept mine in 4, 3 ring binders. I used the extra room to keep track of the hard copy changes made to the ASPR.

It was the reading and filing of changes that kept me up to date on the current state and content of ASPR policies and clauses. Today, most 1102s do not know when a FAC or DAC is issued, much less its contents. Today, more 1102s are encouraged to try to stay up to date on changes in key strokes for the operation of automated procurement systems than on the substance of procurement law and regulations.

Sadly, today, there has been a very substantial change in emphasis in procurement. Correct key stokes outweigh correct application of FAR policies and clauses. Errors are to be corrected by expanded usage of automated systems, not by intense on the job training on the FAR.

I would do away with the Christian Doctrine if I could. The government should have to live with the results of its CO appointments and its contracting processes.

I am not sure I agree with this.

More years ago than I care to remember, I was involved in an on-line discussion about jury nullification. Someone was pushing for an instruction telling juries they had the legal right to ignore the judge's instructions and, in essence, acquit someone because they thought the law was unfair (as a perhaps extreme example, if the juror thought selling marijuana should be legal the juror would be advised of the right to acquit on that basis, even where the sale of marijuana was proven beyond a reasonable doubt). I did not like the idea of 12 relatively randomly chosen members of society overturning the laws enacted by the elected representatives of the people. I don't find much difference in contracting officers ignoring the requirements of acquisition statutes and regulations.

The fundamental basis of the Christian doctrine (at least to me) is the question of who bears the consequences of the contracting officer inadvertently or deliberately violating acquisition statutes or reglations, the contractor or the taxpayer. My vote is the contractor (particularly when the contractor is aware that requirements are not being followed). I recognize others may disagree; after all, the decision in Federal Crop Insurance Company v. Merrill, which is analagous in that it deals with the question of who should bear the consequences of a government agent that violates regulations, was 5-4 (Frankfurter wrote the majority opinion, and Jackson, Black, Douglas, and Rutledge dissented).

The case no doubt presents phases of hardship. We take for granted that, on the basis of what they were told by the Corporation's local agent, the respondents reasonably believed that their entire crop was covered by petitioner's insurance. And so we assume that recovery could be had against a private insurance company. But the Corporation is not a private insurance company. It is too late in the day to urge that the Government is just another private litigant, for purposes of charging it with liability, whenever it takes over a business theretofore conducted by private enterprise or engages in competition with private ventures. Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it. The Government may carry on its operations through conventional executive agencies or through corporate forms especially created for defined ends. See Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 390 , 518. Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority. See, e.g., Utah Power & Light Co. v. United States, 243 U.S. 389, 409 , 391; United States v. Stewart, 311 U.S. 60, 70 , 108, and see, generally, In re Floyd Acceptances, 7 Wall. 666.

If the Federal Crop Insurance Act had by explicit language prohibited the insurance of spring wheat which is reseeded on winter wheat acreage, the ignorance of of such a restriction, either by the respondents or the Corporation's agent, would be immaterial and recovery could not be had against the Corporation for loss of such reseeded wheat. Congress could hardly define the multitudinous details appropriate for the business of crop insurance when the Government entered it. Inevitably 'the terms and conditions' upon which valid governmental insurance can be had must be defined by the agency acting for the Government. And so Congress has legislated in this instance, as in modern regulatory enactments it so often does by conferring the rule-making power upon the agency created for carrying out its policy. See 516(B ), 52 Stat. 72, 77, 7 U.S.C. 1516(B ), 7 U.S.C.A. 1516(B ). Just as everyone is charged with knowledge of the United States Statutes at Large,Congress has provided that the appearance of rules and regulations in the Federal Register gives legal notice of their contents. 49 Stat. 502, 44 U. S.C. 307, 44 U.S.C.A. 307.

I don't think the comparison to jury nullification fits. Rather, a comparison would be for the prosecution to forget certain incriminating evidence and yet have the court introduce the evidence later in its decision and sentencing.

threadjack? I'm all in favor of jury nullification. It has a long history in our common law world. When tyrants sought after convictions, or when a law was being unjustly applied, a jury of one's peers was the last protection. If a policeman has discretion in arresting, and a prosecutor has discretion in charging, and a judge has discretion in docketing, who shouldn't a jury have discretion?

The jury nullification analogy is inapposite.

The government hires people to act as its agents. It tells everybody that only the agent can obligate the government and do this and that. Then, when the agent acts wrongfully, incompetently, deceitfully, whatever, the government says that the poor sap who was doing business with it should have known better than to trust the agent. Why? Because an often unintelligible regulation was promulgated that shows that the agent was exceeded his or her authority.

Here's the Christian Doctrine bottom line: You can't trust a contracting officer to know his or her job or to do it properly, so spend money to check up on them. You should know what the agent can or cannot do, even if the agent doesn't know. If you end up with the short end of the stick, maybe you can charge the cost of checking on the government's agent to the taxpayer, the lucky saps who get to pay twice for agency services.

The government is a scoundrel.

In the very next issue of Law and Contemporary Problems, John R. Donnelly analyzed and complained about the then recently created "Christian Doctrine" and expressed the hope that the Supreme Court would limit or overturn it. It didn't, of course. And it seems that even that was not enough. The CD was recently applied to a subcontract.

I would do away with the Christian Doctrine if I could. The government should have to live with the results of its CO appointments and its contracting processes.

The application of the CD to a subcontract is a travesty!

This will have lasting and terrible consequences:

"The hospitals have not provided any cogent reason why the government may impose terms on government contracts by operation of law but not on government subcontracts. They offer no persuasive explanation of why the same constructive knowledge of federal procurement regulations should not also be imputed to subcontractors who undertake to provide services that support a government contract."

My objection to doing away with the Christian Doctrine is that I do not want to give contracting officers the authority to disregard acquisition laws or regulations (remember, in Christian the contracting officer knowingly decided to omit a termination for convenience clause). If the FAR requires including something in a contract, or prohibits including something in a contract, there is a waiver process that should be followed (or perhaps a prohibition against a waiver) if the contracting officer believes it is not appropriate for a particular contract. In any event, whether the requirement is good policy or bad policy is not for the contracting officer to decide.

I recognize the difficulties that may be imposed on a contractor when the contracting officer inadvertently (either through ignorance or simple oversight) omits something required. My policy choice is that the contractor bears the consequences, not the taxpayer. I recognize that reasonable people may differ.

If the government does not want its COs to break the rules it should punish those who do by terminating their appointments and taking other disciplinary measures against them. It should not penalize contractors and then yap about business "partners." And it should make better CO appointments in the first place.

If the government does not want its COs to break the rules it should punish those who do by terminating their appointments and taking other disciplinary measures against them. It should not penalize contractors and then yap about business "partners." And it should make better CO appointments in the first place.

Vern, I agree with you that COs that break the rules should be punished and that agencies should be more judicious about their appointment decisions. Further, I think lazy COs should be punished, as well. I have had a CO from another agency tell me that it did not matter if they included the correct clauses in a contract because of the Christian Doctrine. Incompetence, laziness, or plain disregard of the regulations is not acceptable. I think what is worse though is that management that either is oblivious or fails to address the problem.

While I understand your position, I have to disagree that the Christian doctrine penalizes contractors unfairly.

Just to revisit the GL Christensen and Associates case, Christensen's claim for over $5 million in termination costs and anticipatory profit because the Army CO terminated its housing project contract for convenience. There CO had not physically included the termination for convenience clause in the solicitation or contract. Christensen said that the termination was a breach of contract because of the absence of the clause. The court held that Christensen was not entitled to anticipatory profit because the termination for convenience clause was incorporated in the contract by a matter of law. Thereby, the Army's termination for convenience did not represent a breach of contract, and the Contractor was not entitled to anticipatory profit.

The FAR is a substantive regulation that goes through public notice and hearing. The prudent business would at least familiarize itself with the policies of their customer to which they seek business. Further, that business has a duty to discover the laws and regulations that are applicable to a specific acquisition, just as they would determine the applicable laws in their specific trade. The business chooses to do dealings with the Federal Government, and thereby accepts the nuances/nuisances associated in exchange for the potential to earn profit. Let us not equate these businesses to fawns prancing in the proverbial FARest.

Like the Federal Government, Contractors should also have competent and knowledgeable representatives. We are a nation of laws. Neither a Contractor nor a CO may abridge these laws; they are beyond us, you, and me. Violating the law even in ignorance, and even if it is shared between two ignorant people, is still injustice. In this case, both CO and Contractor deserve the condemnation. The only innocent party here is the taxpayer, which would be punished if not for the Christian doctrine.

The Court of Federal Claims got it right. I think that your issue is not with their decision, but that the Army CO was not at least reprimanded for his incompetence.

For an example of how contracting officers can get wrapped around the axel when it comes to the Christian Doctrine, see

http://www.asbca.mil/Decisions/2000/49827a.pdf

Note the reference to an earlier decision involving the same claim where the government asserted the wrong Termination clause was incorporated into the contract by operation of the Christian Doctrine.

metteec:

I disagree. Most contractors are small entities. They are not Boeings and Lockheeds. Their personnel know little about the government's regulatory system. Don't criticize them for that. Most COs don't know the system either. Most contractors don't have large staffs and don't have money to spend on sending people to expensive government contracting courses. They just want to sell their products and services. What's the government's excuse for its own COs not knowing its own rules?

My experience has taught me that most COs do not know the FAR well and do not keep up with regulatory changes. They are lucky enough to have lawyers and procurement staffs to check much of their work. Even then they fail to comply with the law. Why should the government get a free ride when its own people cannot keep up with its regulations? Why should contractors have to suffer?

I don't think the Court of Federal Claims got it right. And by the way, not all courts of appeals have bought into the Christian Doctrine. The decisions of the Federal Circuit and its predecessors, such as the old Court of Claims, are not binding precedent outside of its jurisdiction.

It is either a sad commentary or a hilarious one, or maybe both, that a long-standing principle of government contracting law was best summed up in "Animal House":

"You f****d up. You trusted us."