Sexual and other Harassment provisions or clauses

There are plenty of laws already on the books addressing sexual and other harrassment, and your contractors already have to comply with those laws as a fact of doing business in the United States. A contract clause requiring contractors to "train" employees on sexual and other harrassment will be worthless, not even worth the value of the ink to print it on the paper.

Here is text we use in our attachment to contracts where contractor employees require access to our facilities or automated systems--

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

But here is a more important note for the original poster -- those contractor employees are contractor employees, not Government employees -- whatever "rules, training, disciplanary (sic.) processes and appeal processes" cover those contractor employees is a matter between those employees and the contractors whose employees they are. Why would a Government employee care?

This won't answer your question directly, but see previous thread dealing with instances of sexual harassment by contractor employees ( in this case, the sole proprietor contractor, itself). /threads/6581-sexual-harrassment

Boof has touched on an interesting issue. Sexual harassment is a form of sex discrimination that is prohibited by the Civil Rights Act of 1964. As interpreted by the courts, employers, including both the government and contractors, have an obligation to protect their employees from an offensive or intimidating workplace. This requirement raises some unique issues when government employees work side by side in the workplace. In this situation, it is fairly easy for the government to protect its employees who may be subject to harassment from a contractor employee. However, contractors are placed in a sensitive position in regard to protecting their employees from harassment by government employees regardless of whether the workplace is the contractor's or a government site.

Boof has touched on an interesting issue. Sexual harassment is a form of sex discrimination that is prohibited by the Civil Rights Act of 1964. As interpreted by the courts, employers, including both the government and contractors, have an obligation to protect their employees from an offensive or intimidating workplace. This requirement raises some unique issues when government employees work side by side in the workplace. In this situation, it is fairly easy for the government to protect its employees who may be subject to harassment from a contractor employee. However, contractors are placed in a sensitive position in regard to protecting their employees from harassment by government employees regardless of whether the workplace is the contractor's or a government site.

Sensitive position, yes. But that doesn't negate an employer's duties to take steps to prevent the sexual harassment of its employees by the government or sexual harassment of others (gov't, it's own or outside) by its own employees. That includes direct harassment or by toleration of a threatening work environment. The contractor should not fear discussing the situation with the appropriate government chain of command.

All,

I am trying to research what provisions or clauses are in Federal contracts that address sexual harassment but also other types of harassment (e.g. race, religion, age, etc) by members of the the contract workforce. I researched the FAR and only found equal opportunity provisions and clauses concerning the contractors own hiring practices.

The specific question from my front office asked what we put in our contracts to force the contractor to provide sexual harassment and/or other harassment training to their employees?. I thought that the FAR would have addressed this by now buy my searcch isn't turining up anything. I am still searching some of our contracts for verbiage in SOW, PWS, etc but that is also coming up with zero. I am thinking there may be some agency or locally written clauses available at other agencies that could be shared to save me time.

This is a big issue in an organization that may have over half the professional personnel in an office as contract hires. In one case we have 17 Direct Hires managing the workload distribution to over 350 contract personnel. Feds have rules, training, disciplanary processes and appeal processes. What does the contract hire workforce, which may be a conglomeration of employees from a dozen companies in one cube farm have?

Why not informally ask a couple of your current contractors what policies, training and procedures they have?

The specific question from my front office asked what we put in our contracts to force the contractor to provide sexual harassment and/or other harassment training to their employees?. I thought that the FAR would have addressed this by now buy my searcch isn't turining up anything. I am still searching some of our contracts for verbiage in SOW, PWS, etc but that is also coming up with zero. I am thinking there may be some agency or locally written clauses available at other agencies that could be shared to save me time.

Boof,

I don't think you have the authority to write your own clause and start inserting it in your contracts. 41 U.S.C. 1707 would require you to go through the rulemaking process. See also FAR 1.301( b ).

Boof,

I don't think you have the authority to write your own clause and start inserting it in your contracts. 41 U.S.C. 1707 would require you to go through the rulemaking process. See also FAR 1.301( b ).

Nor does the agency need to add clause or clauses when conduct by contractor employees affect the workplace environment of gov't employees or possible gov't liability to contractor employees per the referenced WIFCON thread above. Read it ALL the way through. If you have an EEO office or attorney, they should be able to advise you. I see that BOOF is in the Capitol area.

Based on this CBCA case and the conclusions that CBCA at page 14 does not have jurisdiction with regard to civil rights matter I wonder if putting a clause in a contract is a good idea as there may be standards and course of action that already apply?

http://www.cbca.gsa.gov/files/decisions/2007/SHERIDAN_09-27-07_12-33-365-366-367__INNOVATIVE_(PBX)_TELEPHONE_SERVICES,_INC._508.pdf

I would think that any Army military or civilian supervisor here should be able to chime in as it applies to the Army. As a supervisor for 18 years with the Army, my performance evaluation included an EEO factor and all Army employees are requied to take annual EEO training As of two years ago that training included maintaining a non-threatening workplace environment.

Joel, going back to your post #5, what should/can a contractor do if the government refuses to take action against the offending government employee? If the conduct is occurring at a government site, unilaterally reassigning the contractor employee may be considered an adverse action by the contractor. More importantly, if the conduct is occurring at a contractor site, can the contractor bar the government employee from its premises?

[Format edited] Joel, going back to your post #5, what should/can a contractor do if the government refuses to take action against the offending government employee?

If the conduct is occurring at a government site, unilaterally reassigning the contractor employee may be considered an adverse action by the contractor.

More importantly, if the conduct is occurring at a contractor site, can the contractor bar the government employee from its premises?

Retreadfed, I'm not a lawyer and we don't know the hypothetical or actual facts. You didn't say 'who' with "the government" refuses to take action. However, regarding your second question - if the Contractor has a legal duty to maintain a workplace free from the threat of sexual discrimination and sexual harassment and thereby cannot tolerate such behavior, I think that it has some legal-contractual leverage with the Government. It is the Contractor's property. and workplace and - by law - must take appropropriate action to avoid such behavior ocurring in its workplace. If the company has a lawyer, consult with them as to whether it could bar the employee from your premises. There may be other, lessor actions that could be taken to resolve the situation, depending upon the nature of the offense.

Regardless of where the behavior takes place, there is apparently an alleged threatening work environment, no? I would probably go back to "the government" (who?) and explain to the KO that the company is at risk and that the government employee is(?) affecting the morale, safety and even the efficiency of the work force. The Government has the good faith duty to cooperate with the contractor in the performance of its contract. The government might be found liable for increased costs. It might possibly also be liable to the threatened employee(s) as a"co-employer", if the action is taking place in a government office. You should demand, as the right of an employer, that immediate action be taken to resolve the situation. I would think that the KO would then consult with the appropriate government offices and get the problem resolved - not bury their head in the sand using the excuse that it isn't their employee or other such nonsense.

What would a contractor do if the KO or its organization refused to comply with other contractual or legal duties? I'm sure that at least one or a few of the hundreds of Forum members here who are current government employees should be able to help answer your question. Or perhaps other contractor employees have faced such situations.

Answeres to "what if" questions depend up on the specific facts of the situation and the resources available to the contractor. Small firms sometimes can't afford extensive legal or cionsulting fees. Is there an ADR or other informal method available under the contract to work out differences, short of a claim? I don't have direct access to government EEO office or legal counsel to answer your general questions.

Wow, Big response in a short time.

The issue is that our agency provides mandatory harassment training to all Government Employees. Our Office of Civil Rights wants to know how we mandate this training on contractors. We haven't in the past and some of you would say we should never try. I agree that we have no legal requirment to provide this training to contractor employees as they do not work for us. I also know that we can request the replacement of anyone who we find out is violating any of our workplace rules and the contractors have done so for various reasons without major protest.

However, everyone inside the Beltway knows that there is the legal answer and the political answer. How we deploy and protect our contract hires is a common Congressional inquiry theme and we get a lot of FOIA from the press about contractor treatment too. I was just curious what others may have done to provide top cover on this issue.

Don,

I agree about not being able to just write my own clause per se, but we could use standard verbiage in the statement of work or as an added requirment in section H like on many other topics. We could also have our policy shop go through the Agency clause approval process.

Boof - Reading your most recent post started dragging me back into recollections of having conversations with folks about whether their contract is for personal versus non-personal services. If I were the one having the conversation with the front office and even acknowledging that they probably want the matter cussed and discussed the quick of it is there is a reason the Government has defined personal versus non-personal services. This is brought up the Wifcon thread that Joel referenced as well.

And to support my quick response to the front office I would quote this from FAR 37.101...."“Nonpersonal services contract” means a contract under which the personnel rendering the services are not subject, either by the contract’s terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees"..and then state that there are other terms and conditions in contracts prescribed by the FAR that address the responsibilities of the contractor.

No wonder the rank and file gets confused everyday about whether the contracted resource is an employee or not!!!!!!!!! Geez.

Carl,

I read the case you linked -- thanks!

Boof,

You really should read the case cited by C Culham above. Harrassment between a Government employee and a contractor employee is a matter of tort between thecontractor (and/or its employee) and the Government (and/or its employee) -- it is not a matter than should be resolved within the contract. In that case, a Government employee used curse words and racial epithets to a contractor employee, and a claim resulted (such as Joel suggested might happen), but the CBCA said the matter was nonjusticiable as a claim under the Contract Disputes Act because the harrassment was a tort, not a breach of contract.

EVERY contractor doing business with the Government or not is fully aware of liabilities that arise for harrassment matters -- EVERY contractor in your facility probably already provides training to its employees. The text I recommend in my comment above is not a "clause" but is a blurb in the standard attachment we use in all of our contracts where contractor employees have access to Government facilities.

Thanks for the information. This is a case where the Government is worried the contract hire will violate the harassment laws because they have not been trained on the subject by their company management.and it will end up being blamed on the Government managers in the court of public opinion for not doing enough to prevent it.

I suppose you could include a blurb in your SOW that before the contractor shall provide two hours of sexual harrassment training to every employee working in a Government facility within two months of reporting and again in every calendar year of that employee's tenure. Generally, I prefer for contractor training of contractor employees to occur on contractor time and at contractor expense -- but if an agency wants to shift all of this to the Government side, I suppose it can do so.

It sounds like your Government organization has already decided that it will be liable if a contractor employee harrasses other contractor employees or Government employees. It also sounds like your organization has decided that mandating "training" will address the liability problem. I think your organization errs on both points.

EVERY contractor doing business with the Government or not is fully aware of liabilities that arise for harrassment matters -- EVERY contractor in your facility probably already provides training to its employees. The text I recommend in my comment above is not a "clause" but is a blurb in the standard attachment we use in all of our contracts where contractor employees have access to Government facilities.

What is the difference between a "blurb" and a clause?

I agree we should stay out of it and right now only only one office is requesting something be done but that office is high up the chain. So I am putting together the reasons we should not perform training ourselves or force it on the contractor since Federal Law already requires they comply with EEO statutes. We shall see if we can avoid it or not.

It is stuff like this that frustrates the contact specialists and causes more work for everyone than required by law.

A blurb, as I used it, is a brief statement inside of something larger.

A contract clause has a definition in FAR 2.101.

jj20874: In post #15, you recommend a “blurb” of general applicable (used in a “standard attachment”). How does this not meet the definition of a “clause" in FAR Part 2? How does it not represent a term of the contract? Put differently, why should it matter where in the contract the requirement is placed, if someone somewhere in the agency is making it a policy that the requirement be included in all contracts (or all contracts meeting certain conditions)? Wouldn’t FAR Subpart 1.3 have something to say about this policy?

Boof, in reference to you Post #19:

Don't train contractor employees. The government training is based upon application of govt regulations and processes that apply to govt employees and and you'd have to research and adapt it for application to nongovernment employees. In addition, the company should have processes and procedures and tell its employees how avoid, report incidents, etc.

Then the question is why should the government directly bear the cost of training that should apply across the company's business.

EDIT - ADD: Why repeat the existing requirement to avoid sexual harassment (unless simply to stress the importance of complying with law)? The contract normally requires that the Contractor comply with all applicable laws doesn't it?

This is a matter of expected compliance with the law - a performance requirement. It is something that should be routinely discussed with everyone after contract performance commences. As a supervisor, I was expected to express my personal policy regarding support for Army and Organizational policies and to make my own expectations and non-toleration clear to my employees. I also expressed an open door policy if anyone felt threatened or observed inappropriate behavior. It seemed to work well. If I had a situation where there were a mix of government and contractor employees, I would discuss a coordinated approach with the supervisor of the contract employees. Since the government can be held liable for tolerating an unsafe work environment, the government can make clear to the contractor that it won't tolerate sexual harassment or unwelcome behavior, pictures, jokes and the like by its employees in the government workplace, even if the employer is personally exempt from the law due to size or other exemptions.*

I offer this practical application approach as an alternative to prescribing additional requirements for training, etc.

*See, for instance: http://www.eeoc.gov/laws/practices/index.cfm

"The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone 👏who is not an employee of the employer, such as a client or customer."

Jacques,

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

If someone wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

jj20874: If no policy prescribes the use of the language, then I can accept your argument that FAR Subpart 1.3 does not apply. I don't think that is the original poster's context, though.

To the extent you are suggesting that something that would otherwise qualify as a contract clause under FAR Part 2 (i.e., a term or condition) is no longer a contract clause for purposes of FAR Subpart 1.3 by including it in an attachment, I haven't seen any support in any statute, regulation, case, or decision for the proposition. If you can cite any authority for your conclusion, I would love to see it.

Jacques,

There's nothing for me to prove. Similarly, no one else can prove that every term and condition in a contract must be part of a contract clause, or that terms and conditions may be only in contract clauses. We have contract clauses in our contracts, and we also have special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract.

Jacques,

There's nothing for me to prove. Similarly, no one else can prove that every term and condition in a contract must be part of a contract clause, or that terms and conditions may be only in contract clauses. We have contract clauses in our contracts, and we also have special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract.

ji20874,

Here's the definition of contract clause from FAR 2.101:

“Contract clause” or “clause” means a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award.

Are you trying to say that a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award is not a contract clause if it is contained in "special contract requirements, attachments, exhibits, schedules, specifications, and so forth"? If so, what is the basis of your assertion? Such a stipulation is not contained in the definition.

Oh, thank you, Don -- now I know there is a definition of contract clause! Actually, I already knew it -- see my post no. 20.

Here's what I'm saying:

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

But if someone else wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

Moving away from FAR Subparts 1.3 & 1.5 for a second, I'm curious whether jj20874 believes it does not amount to a deviation when a contract attachment includes terms or conditions inconsistent with the FAR. See definition of "deviation" at FAR 1.401, which includes "the issuance or use of a...contract clause...that is inconsistent with the FAR." If one can avoid the requirements of FAR Subpart 1.4 by just putting the terms and conditions in an attachment, then extending the definition to include contract clauses is illusory.

Edit: From what I could find, the Boards wouldn't take such a narrow view. In E.L. Hamm & Assocs, 2003 BCA p 32,259, the contractor argued that language in an attachment amounted to an unapproved deviation from 52.211-16. The Board didn't reject the argument based on the fact that the language was contained in an attachment, instead going to the merits as to whether the clause was prescribed. In ICI Ams., Inc., 2007-1 BCA p 33,583, at 166,361 (May 23, 2007), in interpreting the meaning of certain language, the Board assumed that a deviation would have been required to support the contractor's interpretation of language in a contract attachment, and, based at least in part on the absence of that deviation, did not agree with the contractor's proposed interpretation.

Oh, thank you, Don -- now I know there is a definition of contract clause! Actually, I already knew it -- see my post no. 20.

Here's what I'm saying:

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

But if someone else wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

ji20874,

So, following your logic, a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award is not a contract clause if such a term or condition is included as an attachment or is included as a brief statement within an attachment. Is that correct?

FAR 1.401 references use of a "contract clause." Conversely, it seems clear that terms and conditions can appear throughout a contract. For instance, FAR 12.302© provides in part, "The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures." In JRS Staffing Servs., B-410098 et seq., Oct. 22, 2014, 2014 CPD ¶ 312 at 3, the protester argued language relating to the permanent substitution of personnel was inconsistent with customary commercial practice. That language appeared in the Statement of Work, a contract attachment. The GAO didn't dismiss the protest. Its rejection of the allegation wasn't based on where the terms and conditions were located in the contract. If whatever appears in an attachment (e.g., a Statement of Work) is by definition--or fiat--not terms and conditions, which seems to be jj20864's position (or the implication of his position), then the GAO could have easily resolved the protest on that basis. Similarly, in Crescent Helicopters, B-284706, May 30, 2000, 2000 CPD ¶ 90, pilot and mechanic qualification requirements were included in the technical specifications, yet the GAO heard the protest, finding the terms were consistent with commercial practice. Likewise, in Aalco Forwarding, B-277241.8, Oct. 21, 1997, 97-2 CPD ¶ 110, the agency's waiver allowed it to include language in its performance work statement that departed from customary commercial practice.

Don,

You're trying to hard to torture the logic.

Terms and conditions may be found in what we traditionally think of as contract clauses, and terms and conditions may also be found in other places not commonly thought of or described as contract clauses.

jj20874, humor Don and me. Can you provide a straight answer to the question he poses in Post #29. Your Post #31 doesn't seem responsive. What does "traditionally think of as contract clauses" have to do with anything? Your discussion reminds me of the Army's implementation of DFARS 201.304(4) at AFARS Appendix FF, where a "clause" is defined for purposes of that Appendix as "a term or condition of the type set forth in FAR part 52 and DFARS part 252."

Don,

You're trying to hard to torture the logic.

Terms and conditions may be found in what we traditionally think of as contract clauses, and terms and conditions may also be found in other places not commonly thought of or described as contract clauses.

ji20874,

What's the difference between "what we traditionally think of as contract clauses" and "contract clause" as defined at FAR 2.101?

May I ask you to humor me?

If a statement of work contains terms and conditions (such as in the cases Jacques cited above), does that mean the SOW itself is a contract clause? or that each individual paragraph in the SOW is a contract clause?

We don't normally think of special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract, as contract clauses. Well, I don't -- maybe you do?

Jacques, Let's not talk about a special contract requirement, attachment, exhibit, schedule, specification, or so forth that includes terms and conditions inconsistent with the FAR -- that muddies the discussion too much. It would seem to me that such could reasonably be seen as a deviation. Here, we're talking about special contract requirements, attachments, exhibits, schedules, specifications, and so forth that include terms and conditions which are not inconsistent with the FAR.

Any part of a statement of work that meets the definition of "contract clause" at FAR 2.101 is a contract clause.

I have seen Part C - Contract Clauses, included as an addenda to a commercial item solicitation. Just because you take the skunk out of the forest doesn't mean it will stop the stench.

A clause is any term or condition that... Applies both before and after award. If an attachment contains a term or condition, then by that logic, it must be a clause.

"Any part of a statement of work that meets the definition of 'contract clause' at FAR 2.101 is a contract clause."

Okay, if you say so.

But what is your point?

I agree we should stay out of it and right now only only one office is requesting something be done but that office is high up the chain. So I am putting together the reasons we should not perform training ourselves or force it on the contractor since Federal Law already requires they comply with EEO statutes. We shall see if we can avoid it or not.

It is stuff like this that frustrates the contact specialists and causes more work for everyone than required by law.

I'm wondering how the debate over whether a spec or attachment is or isn't a "clause" relates to Boof's efforts to put together reasons why his organization shouldn't train contractor employees concerning prevention of sexual harassment...

We don't normally think of special contract requirements, attachments, exhibits, schedules, specifications, and so forth, all of which contain terms and conditions and all of which collectively form the contract, as contract clauses. Well, I don't -- maybe you do?

How is that relevant? You were the one who referenced the definition of "clause" at FAR 2.101 to distinguish it from a "blurb". Now it seems you are using a different criteria--what we normally think of as a clause--to determine if something is a clause.

"Any part of a statement of work that meets the definition of 'contract clause' at FAR 2.101 is a contract clause."

Okay, if you say so.

But what is your point?

You have been making a point of saying that statements of work, attachments, exhibits, special contract requirements, blurbs, etc., are not clauses. You say that you need not prove these points, as if they are self-evident. It should be clear to you by now that you were wrong. Parts of a contract that you may not typically refer to as clauses may be clauses as defined at FAR 2.101. The definition of "clause" at FAR 2.101 is much broader than you thought. Anything that meets the definition of "clause" at FAR 2.101 is a clause regardless of how you refer to it in practice.

I'm wondering how the debate over whether a spec or attachment is or isn't a "clause" relates to Boof's efforts to put together reasons why his organization shouldn't train contractor employees concerning prevention of sexual harassment...

joel,

This is post #40. When was the last time we stayed on the original topic of a discussion this far?

Don, I don't mean to put words in your mouth, but I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

Based upon that, the idea that by making your sexual harassment deviation language an attachment (as recommended in post 2) is not sufficient to avoid the requirements of FAR 1.4.

Any part of a statement of work that meets the definition of "contract clause" at FAR 2.101 is a contract clause.

Don:

I understand where you're coming from, but I disagree with you.

When first published in 1983, FAR 52.100, Scope of subpart, said:

This subpart (a) gives instructions for using Part 52, including the explanation and use of provision and clause numbers, prescriptions, prefaces, and matrices; ( b ) prescribes procedures for incorporating, identifying, and modifying provisions and clauses in solicitations and contracts, and for using alternates; and ( c ) describes the derivation of FAR provisions and clauses.

48 FR 42482, Sept. 19, 1983.

At that time the definition of "contract clause" appeared in FAR 52.101(a) and was the same as it is today. 48 FR 42482, Sept. 19, 1983. In 2001, the definition was moved to FAR 2.101 "to clarify the applicability of definitions, eliminate redundant or conflicting definitions, and make definitions easier to find." 56 FR 2117 et. seq., Jan. 10, 2001. "To clarify the applicability," not to change the meaning.

Originally, FAR 52.101( b )(1) said: "Subpart 52.2 sets forth the texts of all FAR provisions and clauses, each in its own separate subsection." 48 FR 42483, Sept. 19, 1983. Today, FAR 52.200 says, "This subpart sets forth the text of all FAR provisions and clauses."

You must read a regulation as a whole. ( I can provide citations to at least a dozen Court of Federal Claims decisions to that effect, if you insist.) I believe that when FAR is read as a whole the term "contract clause" refers to texts taken from FAR Subpart 52.2 that are identified as contract clauses. I do not believe that FAR can properly be understood to mean that a statement of work, any part of a statement of work, or an attachment, is a "contract clause." That would be inconsistent with the way FAR has used the terms "contract clause" and "statement of work" since its issuance in 1983 and with the way it uses it today throughout. And it would be just plain silly.

Don - I would pose that with regard to the definition of a "clause" carried in that FAR Part 2 would only apply to the solicitation/contract if the solicitation/contract specifically states that FAR definitions in 2.101 apply to solicitation contract. I do understand that the the FAR clause relating to FAR definitions is ® required in most contracts but not all (ref. FAR Part 53 -Matrix). Further absent a definition of clause in the contract I would reason that the common definition of "clause" would then apply.

Noting the above it would seem that your post #35 needs clarification. In the end the clarification may end with the same conclusion that you are attempting to support

Look at FAR 52.214-29, Order of Precedence--Sealed Bidding (JAN 1986) and at FAR 52.215-8, Order of Precedence--Uniform Contract Format (OCT 1997) and note the distinction that they make between "contract clauses," on the one hand, and "other documents, exhibits, and attachments" and "specifications" on the other. It is clear that other documents, exhibits, attachments and specifications (including SOWs) are not contract clauses.

See also the instructions at FAR 12.303, especially the distinction between paragraphs ( c ) and (d), and the instructions at FAR 14.201-3 and 15.204-3.

Read regulations as a whole.

I appreciate the need to read regulations as a whole, and I appreciate the "legislative history" in Post #42, but I do not believe either of the order of precedence clauses would lead one to conclude that the government can either be subject to (or avoid the requirements of) FAR Subparts 1.3 and 1.5, simply by virtue of where in the contract the agency chooses to place the language.

As to Subpart 1.4, it may be that, when the order of precedence clause applies, whether "contract clause" is interpreted narrowly or broadly, both lead to the same result, because under the narrow interpretation, the prescribed/included “traditional” (well-understood) contract clause would take precedence over the attachment language that conflicts with the "traditional" clause. I can’t recall off the top of my head whether all government contracts include an order of precedence clause, so it would be interesting to consider the implications of that difference if I never need to obtain a deviation for language contained in a contract attachment.

It should be clear to you by now that you were wrong.

No, it's not clear that I am wrong.

I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation. A contracting officer who does something different that is not inconsistent with the FAR does not need a deviation. Note that I didn't say consistent with the FAR; rather, I said not inconsistent with the FAR -- there is a difference, and this subtlety may be lost on some persons, but the nuance is important. A contract clause or other contract text such I shared with the original poster is not inconsistent with the FAR (at least, no one here has suggested that it is), and may be included in a contract without a deviation. It is perfectly fine to include that text in a contract attachment rather than as a contract clause. Some agencies may impose tighter guidelines in their own regulations.

Jacques:

I am not addressing your issue. The order of precedence clauses address order of precedence and have no bearing on the requirements of FAR 1.3 and 1.5. I am addressing only the proper interpretation of the definition of "contract clause" in FAR 2.101, and I am citing the order of precedence clauses as evidence of the correctness of my interpretation.

To reiterate: The term "contract clause," as used in FAR and defined in 2.101, does not include statements of work and contract attachments, etc. The term refers to the contract clause texts in FAR Part 52 and in agency supplements to Part 52. It's been that way since 1983 and it's still that way. Although the definition in FAR 2.101 appears to be more expansive, I do not doubt that my interpretation of the definition is correct when it is read in the context of the regulation as a whole.

The definitions in FAR are important, but they are not perfect. Before FAR, we used to call specially written clauses applicable to a contract "special provisions." FAR changed that when it applied the term provisions to non-contractual texts. i have no problem with the idea of special "clauses" or "contract clauses" written by an agency. FAR 1.401 seems to use the term "contract clauses" with that notion in mind. But the FAR definition does not clearly define the concept of a "clause" as opposed to other contract texts, like specifications. I don't know anyone who thinks of a specification as a contract clause. It's clear to me that FAR makes a distinction, I'm just not sure what the distinction is if it isn't the source of the text, as opposed to the content.

What would be worthwhile is an attempt to explain what a "contract clause" is and how such a text is to be distinguished from other parts of contracts such as DD254s, DD1423s, and statements of work and specifications. To what texts should we as pros apply the term "contract clause"? Is the term really necessary? if so, why? Black's Law Dictionary does not even include the term "clause" or "contract clause."

Don, I don't mean to put words in your mouth, but I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

Based upon that, the idea that by making your sexual harassment deviation language an attachment (as recommended in post 2) is not sufficient to avoid the requirements of FAR 1.4.

That's a valid argument, but I was thinking more about the requirement for notification and public comment in FAR subpart 1.3. I don't think an agency can start a policy of imposing requirements for sexual harassment training on contractor employees without going through the rulemaking process.

Don:

I understand where you're coming from, but I disagree with you.

When first published in 1983, FAR 52.100, Scope of subpart, said:

48 FR 42482, Sept. 19, 1983.

At that time the definition of "contract clause" appeared in FAR 52.101(a) and was the same as it is today. 48 FR 42482, Sept. 19, 1983. In 2001, the definition was moved to FAR 2.101 "to clarify the applicability of definitions, eliminate redundant or conflicting definitions, and make definitions easier to find." 56 FR 2117 et. seq., Jan. 10, 2001. "To clarify the applicability," not to change the meaning.

Originally, FAR 52.101( b )(1) said: "Subpart 52.2 sets forth the texts of all FAR provisions and clauses, each in its own separate subsection." 48 FR 42483, Sept. 19, 1983. Today, FAR 52.200 says, "This subpart sets forth the text of all FAR provisions and clauses."

You must read a regulation as a whole. ( I can provide citations to at least a dozen Court of Federal Claims decisions to that effect, if you insist.) I believe that when FAR is read as a whole the term "contract clause" refers to texts taken from FAR Subpart 52.2 that are identified as contract clauses. I do not believe that FAR can properly be understood to mean that a statement of work, any part of a statement of work, or an attachment, is a "contract clause." That would be inconsistent with the way FAR has used the terms "contract clause" and "statement of work" since its issuance in 1983 and with the way it uses it today throughout. And it would be just plain silly.

Vern,

What are you doing to me? You were the one who convinced me of the interpretation of "clause" that I have. This should be fun.

It's clear from the original FAR that the word "clause" refers to more than just texts from FAR subpart 52.2 and agency supplements to FAR subpart 52.2. From the original FAR 52.101( b )(2)( i )( B ) and ( C ):

Provisions and clauses that supplement the FAR.

(i) Provisions or clauses that supplement the FAR are--

(A) Prescribed and included in authorized agency acquisition regulations issued within an agency to satisfy the specific needs of the agency as a whole;

( B ) Prescribed and included in a regulation issued by a suborganization of an agency to satisfy the needs of that particular suborganization; or

( C ) Developed for use at a suborganizational level, not meant for repetitive use, but intended to meet the needs of an individual acquisition and, thus, impractical to include in either an agency or suborganization acquisition regulation.

This would include the type of homegrown clause that ji20874 incorporates in his contracts as an attachment (see his post #2).

Look at FAR 52.214-29, Order of Precedence--Sealed Bidding (JAN 1986) and at FAR 52.215-8, Order of Precedence--Uniform Contract Format (OCT 1997) and note the distinction that they make between "contract clauses," on the one hand, and "other documents, exhibits, and attachments" and "specifications" on the other. It is clear that other documents, exhibits, attachments and specifications (including SOWs) are not contract clauses.

See also the instructions at FAR 12.303, especially the distinction between paragraphs ( c ) and (d), and the instructions at FAR 14.201-3 and 15.204-3.

Read regulations as a whole.

The two clauses that you refer to are for use when using the Uniform Contract Format. The items in the list refer to Parts I-IV of the UCF. From this list, I would conclude that Part II of a contract in UCF titled "Contract Clauses" comes third in the prescribed order of precedence. I would not conclude from this that clauses as defined in FAR 2.101 are distinct from the other items on the list (the schedule, specifications, attachments, representations & instructions), because clauses can be found in the other listed UCF parts. For example, the inspection clauses prescribed in FAR part 46 are to be placed in the schedule (Section E) according to the FAR matrix. Some of the delivery clauses prescribed in FAR part 11 are to also be placed in the schedule (Section F) according to the FAR matrix. Advance agreements can be contained in the schedule or attached to contracts.

It should be clear to you by now that you were wrong.

No, it's not clear that I am wrong.

I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation. A contracting officer who does something different that is not inconsistent with the FAR does not need a deviation. Note that I didn't say consistent with the FAR; rather, I said not inconsistent with the FAR -- there is a difference, and this subtlety may be lost on some persons, but the nuance is important. A contract clause or other contract text such I shared with the original poster is not inconsistent with the FAR (at least, no one here has suggested that it is), and may be included in a contract without a deviation. It is perfectly fine to include that text in a contract attachment rather than as a contract clause. Some agencies may impose tighter guidelines in their own regulations.

That's not true. The use of a homemade contract clause does not need to be inconsistent with the FAR to be a deviation. The definition of deviation at FAR 1.401 includes "The issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations in accordance with 1.301(a)."

What would be worthwhile is an attempt to explain what a "contract clause" is and how such a text is to be distinguished from other parts of contracts such as DD254s, DD1423s, and statements of work and specifications. To what texts should we as pros apply the term "contract clause"? Is the term really necessary? if so, why? Black's Law Dictionary does not even include the term "clause" or "contract clause."

I agree that it would be worthwhile.

Don, you quote jj20874's paragraph that begins, "A homemade contract clause..." and respond my stating his quote isn't true. I would offer that his quote is often true, but is incomplete. In the quote, jj20874 focuses on actions by a "contracting officer." An individual PCO's preferences do not amount to the 'issuance of a policy or procedure' for purposes of FAR 1.401(f). You are also correct when you say, "The use of a homemade contract clause does not need to be inconsistent with the FAR to be a deviation." Of course, it does not inevitably follow that all clauses drafted by a contracting officer require deviations.

Jacques,

I was referring to ji20874's assertion that "A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation" when I said that it was not true.

Don:

I'm having some fun, that's what I'm doing.

It's clear from the original FAR that the word "clause" refers to more than just texts from FAR subpart 52.2 and agency supplements to FAR subpart 52.2.

I agree that "contract clause" includes agency and subagency provisions and clauses that supplement FAR Part 52. But the term does not include statements of work and contract attachments and it never has.

The two clauses that you refer to are for use when using the Uniform Contract Format. The items in the list refer to Parts I-IV of the UCF. From this list, I would conclude that Part II of a contract in UCF titled "Contract Clauses" comes third in the prescribed order of precedence. I would not conclude from this that clauses as defined in FAR 2.101 are distinct from the other items on the list (the schedule, specifications, attachments, representations & instructions), because clauses can be found in the other listed UCF parts. For example, the inspection clauses prescribed in FAR part 46 are to be placed in the schedule (Section E) according to the FAR matrix. Some of the delivery clauses prescribed in FAR part 11 are to also be placed in the schedule (Section F) according to the FAR matrix. Advance agreements can be contained in the schedule or attached to contracts.

It's one thing to say that contract clauses appear in the UCF in places other than Part II. It's another thing entirely to say that the schedule and documents, exhibits, and other attachments are contract clauses.

In any case, the only place in FAR that tells a CO to put a contract clause in any section of the UCF other than Section I is the clause matrix. Nothing in FAR requires compliance with what the clause matrix says about the placement of contract clauses in the UCF.

Other than the matrix, I am not aware of any statement in FAR requiring that clauses be inserted into any section of the UCF other than Section I. For example, nothing in FAR 15.204, Part 46, or Part 52 (other than the nonmandatory matrix) requires that the inspection clause be placed in Section E. FAR 15.204-2(e) says: "Section E, Inspection and acceptance. Include inspection, acceptance, quality assurance, and reliability requirements (see part 46, Quality Assurance)." That does not say to place an inspection clause in E. I take "requirements" to mean technical requirements.

Bottom line for me: "contract clause" does not include specifications, statements of work, or other documents, exhibits, and attachments.

I still don't understand Don's point.

Everything I've written here is about terms and conditions drafted by contracting officers as a matter of contracting officer practice, not written by agency heads as part of agency regulations.

The following statements, drawn from FAR 1.401( a ), are true:

A homemade contract clause or other text elsewhere in a contract that is inconsistent with the FAR is a deviation.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.

Don's reference to FAR 1.401( f ) is inappropriate to the current discussion. If EVERYTHING a contracting officer does is covered by FAR 1.401( f ) and FAR 1.301, then the statement of guiding principles in FAR 1.102 related to the contracting officer's role is meaningless -- if we relied on Don's logic, then EVERY term and condition drafted by a contracting officer in a contract (including all those contained in specifications, statements of work, special contract requirements, or other documents, exhibits, and attachments) would require deviations or application of the rule-making process. But the outcome of applying Don's logic is absurd, so Don's logic is absurd, too.

Contracting officers draft terms and conditions for use in contracts all the time without deviations and without the rule-making process, and we include them all over the place in our contracts: in clauses, in special contract requirements, in statements of work, in attachments, and so forth. Some agency regulations and some agency cultures seek to restrict this capability, but the FAR allows it. Indeed, to me, the FAR demands it. And the ability to draft these homemade clauses, if you will, in the approropriate circumstances is one of the factors that sets an excellent contracting officer apart from an ordinary contracting officer.

But if someone else is talking about contract clauses written by agency heads as part of agency regulations, then Don has a good point.

It's one thing to say that contract clauses appear in the UCF in places other than Part II. It's another thing entirely to say that the schedule and documents, exhibits, and other attachments are contract clauses.

Vern,

Just to be clear, I did not say that the schedule and documents, exhibits, and other attachments are contract clauses, per se. I said that they may contain contract clauses. For example, ji20874 puts the following paragraph in an attachment to his contracts:

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

He says that it is not a "clause", but a "blurb". I think that no matter where he places this text in the contract, it's a "clause" as defined at FAR 2.101.

In any case, the only place in FAR that tells a CO to put a contract clause in any section of the UCF other than Section I is the clause matrix. Nothing in FAR requires compliance with what the clause matrix says about the placement of contract clauses in the UCF.

Other than the matrix, I am not aware of any statement in FAR requiring that clauses be inserted into any section of the UCF other than Section I. For example, nothing in FAR 15.204, Part 46, or Part 52 (other than the nonmandatory matrix) requires that the inspection clause be placed in Section E. FAR 15.204-2(e) says: "Section E, Inspection and acceptance. Include inspection, acceptance, quality assurance, and reliability requirements (see part 46, Quality Assurance)." That does not say to place an inspection clause in E. I take "requirements" to mean technical requirements.

Hey, wait a minute! Didn't you say that we need to read regulations as a whole? Doesn't the FAR include the FAR Matrix? I agree that nothing requires a CO to place clauses in a solicitation in accordance with the matrix. However, the FAR, when read as a whole, contemplates the placement of some clauses in the schedule.

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.

ji20874,

That's not necessarily true. The clause need not be inconsistent with the FAR to be a deviation.

Let's say Boof's contracting office develops a homegrown clause requiring contractor employees to take sexual harassment training and includes it in the local clausebook for use in certain contracts. Assume the clause is not inconsistent with the FAR, but its use has a significant cost impact on contractors. Although the use of the clause would not be inconsistent with the FAR, its use would be a deviation under FAR 1.401(f).

I think that one must be very careful when it comes to mandating training of contractor employees. Tittle VII of the Civil Rights Act doesn't apply to firms with less than 15 employees, for instance.

I do think that the government could describe what would be unacceptable behavior on government premises or when interacting with government employees in order to avoid creating a hostile work environment for government employees. However, I don't think that Congress intended that a contracting office could apply the Law to exempt firms or require the firm to train its employees for purposes of compliance with the law.

Boof, I highly recommend that you coordinate with your counsel.

Thanks everyone. The clause debate was interesting. I don't think anyone at our agency has really thought much about our local "clauses" that usually go in section H or as provisions in sections L and M. Whenever the use of certain contract language becomes used by a lot of COs, we add it to our contract writing system for use by everyone. We consider them added information or instructions for the contractors. The provisions usually standardize RFP language based on legal guidance on how to best avoid protests. They do not contradict other FAR or Agency clauses.

We have always called them Provisions and clauses but perhaps they are just prewritten guidance for the contractors.

As for the Harassment training, we are all in agreement on not requiring it for contractors but have to finesse a way to tell our Office of the Secretary that thier idea isn't a good one.

For example, ji20874 puts the following paragraph in an attachment to his contracts:

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

He says that it is not a "clause", but a "blurb". I think that no matter where he places this text in the contract, it's a "clause" as defined at FAR 2.101.

Don, you're at the heart of the matter. What makes that a clause? What distinguishes a clause from other contract text?

Hey, wait a minute! Didn't you say that we need to read regulations as a whole? Doesn't the FAR include the FAR Matrix? I agree that nothing requires a CO to place clauses in a solicitation in accordance with the matrix. However, the FAR, when read as a whole, contemplates the placement of some clauses in the schedule.

I cited the order of precedence clauses to show that they distinguish contract clauses from other texts, which tells me that not all contract terms are contract clauses. The fact that the matrix calls for inserting what are indisputably contract clauses into sections of the UCF other than I doesn't show that other texts are contract clauses.

My key points are (1) that "contract clauses" are texts from FAR Subpart 52.2 and agency supplements thereto and (2) that specifications, SOWs, attachments, etc., are not contract clauses, notwithstanding the definition of "contract clause" in FAR 2.101.

As for the Harassment training, we are all in agreement on not requiring it for contractors but have to finesse a way to tell our Office of the Secretary that thier idea isn't a good one.

Boof, I'd start out by explaining to them that it isn't the government's function to train contractor employees "how to behave". Then go from there. I would add that not all firms are subject to Title VII so it would be difficult to mandate that the companies train their employees and have procedures to deal with harassment under the Civil Rights Act.

If you think that you have to specify anything, it would primarily be needed to stress what is considered to be unacceptable behavior for those firms that aren't subject to Title VII. The reason? To make it clear that the government won't tolerate a hostile work environment for any employee. The government doesn't want to be held partly or totally liable as an employer (in government employee complaints) due to unacceptable behavior by contractor employee(s). The government doesn't want to be put at risk to be considered a co-employer (in contractor employee complaints) due to unacceptable behavior by contractor employee(s). In my layman opinion, avoidance of putting the government at risk of liability in a complaint would fall under complying with existing law, even if the firm itself isn't directly subject to Title VII.

You could also tell them that the government will stress this as a point in the post award conference and periodically in joint meetings, where applicable.

Consult your lawyers, good luck and I hope this is helpful.

Do we care about worthless (and improvident) training requirements, or actual results?

If Boof cares about results, then let's focus on actions and results -- how about a blurb such as below for inclusion in Boof's contracts (as a clause, special contract requirement, SOW statement, or so forth), as a matter of contracting officer practice?

The Contracting Officer may, by written notice to the Contractor, restrict or prohibit a Contractor employee's access to Government facilities if that employee's previous conduct within the facilities has not been consistent with the professional standards expected in the workplace. The imposition of a restriction or prohibition shall not excuse the Contractor from performance of obligations under the contract.

It seems an approach such as this would be allowed by FAR 1.102( d ), 1.102-2( a )( 2 ), 1.102-2( c )( 2 ), 1.102-4( a ), and 1.102-4( e ).

This would solve Boof's problems. In the spirit of the FAR Guiding Principles, I recommend he try it in one or two solicitations and see what feedback he or she gets from prospective offerors, and then as those solicitations turn into contracts, see if the text is helpful or not in managing the rampant sexual harrassment by contractor employees that is occurring in Boof's workplaces. If it works, then maybe Don's process of codification might be appropriate.

All,

I am trying to research what provisions or clauses are in Federal contracts that address sexual harassment but also other types of harassment (e.g. race, religion, age, etc) by members of the the contract workforce. I researched the FAR and only found equal opportunity provisions and clauses concerning the contractors own hiring practices.

The specific question from my front office asked what we put in our contracts to force the contractor to provide sexual harassment and/or other harassment training to their employees?. I thought that the FAR would have addressed this by now buy my searcch isn't turining up anything. I am still searching some of our contracts for verbiage in SOW, PWS, etc but that is also coming up with zero. I am thinking there may be some agency or locally written clauses available at other agencies that could be shared to save me time.

This is a big issue in an organization that may have over half the professional personnel in an office as contract hires. In one case we have 17 Direct Hires managing the workload distribution to over 350 contract personnel. Feds have rules, training, disciplanary processes and appeal processes. What does the contract hire workforce, which may be a conglomeration of employees from a dozen companies in one cube farm have?

I don't know what agency Boof works for, but whatever agency it is it should not get involved in providing training to contractors about matters in which it is not functionally expert and has no legal authority. The agency is entering a legal minefield, and it is blind. The fact that Boof asked here instead of talking to the EEOC is proof of his front office's ignorance.

http://www.eeoc.gov/laws/types/sexual_harassment.cfm

The contract clause discussion was more interesting and fun.

Don, you're at the heart of the matter. What makes that a clause? What distinguishes a clause from other contract text?

ji20874's blurb is a clause because it is a "a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award." It's not much different than the clause at FAR 52.236-5( c ):

All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable.

What distinguishes a clause from other contract text is that not all contract text is a term or a condition. In the definitions contest, you defined contract term and condition as follows:

contract term (as in they won’t accept that contract term****)

Contract term (n.) means any part of a contract that imposes an obligation or confers a right.

condition (as in terms and conditions****)

Condition (n.) means a contract term that requires that an event occur, or not occur, before a specific contractual obligation is imposed or a specific contractual right is conferred.

I think that the text that ji20874 includes as an attachment to his contract meets your definition of both contract term and condition. I don't think a list of attachments, while important, would meet either of those definitions, for example.

I cited the order of precedence clauses to show that they distinguish contract clauses from other texts, which tells me that not all contract terms are contract clauses. The fact that the matrix calls for inserting what are indisputably contract clauses into sections of the UCF other than I doesn't show that other texts are contract clauses.

I think that the order of precedence clauses are distinguishing Parts I-IV of the UCF--not the different types of texts contained in a contract. We'll have to agree to disagree on that. Further, I agree that inserting contract clauses into sections of the UCF other than I doesn't make those entire sections contract clauses. However, I would say that those other sections include some contract clauses.

My key points are (1) that "contract clauses" are texts from FAR Subpart 52.2 and agency supplements thereto and (2) that specifications, SOWs, attachments, etc., are not contract clauses, notwithstanding the definition of "contract clause" in FAR 2.101.

My bottom line--

I say "contract clauses" include

(1) texts from FAR subpart 52.2,

(2) agency supplements thereto,

(3) those prescribed and included in a regulation issued by a suborganization of an agency to satisfy the needs of that particular suborganization, and

(4) those developed for use at a suborganizational level of an agency, not meant for repetitive use, but intended to meet the needs of an individual acquisition and, thus, impractical to include in either an agency or suborganization acquisition regulation.

Those in categories (3) and (4) can, and often are, inserted in the schedule (Section H is a popular place), in statements of work, as attachments, etc. When they are inserted thusly, they do not lose their identity as contract clauses.

Good discussion. Not sure we're going to get resolution.

Actually, I accept Items 1 - 3. I'm not sure about Item 4. Might that include a statement of work or a specification?

I don't interpret item 4 as including statements of work or specifications, per se. I think that item 4 would include something like an advance agreement. However, if ji20874 were to put his blurb in a statement of work, I would still say the blurb is a clause (but not necessarily the entire SOW would be a clause).

Don:

What distinguishes a clause from other contract text is that not all contract text is a term or a condition. In the definitions contest, you defined contract term and condition as follows....

I see. FAR 2.101 says: "Contract clause or clause means a term or condition used in contracts and applying after contract award or both before and after contract award," and I said that a contract term is any part of a contract that imposes an obligation or confers a right," so it follows that a contract clause is any part of a contract that imposes a right or confers a right.

The FAR definition says that a contract clause is "a" term or condition used in contracts. It does not say that all terms and conditions are contract clauses.

It seems clear that you think that contracts consists of texts that are contract clauses and texts that are not. Since you think that all contract terms and conditions are contract clauses and that contract clauses are thus those texts that impose and obligation or confer a right, then the only contract texts that are not clauses are those that are strictly informational in nature. Since SOWs describe a contractor's performance obligations, then SOWs are contract clauses. Either that, or that only those statements in SOWs that impose an obligation or confer a right are contract clauses.

I do not believe that the FAR definition of contract clause includes SOWs and specifications or that it was intended to do so. That would be inconsistent with long-established usages and operation practices, and I refuse to accept it. It would be needlessly confusing. A contract clause is certainly a contract term or condition, but not all terms and conditions are contract clauses. Some are SOWs, some are specifications, some are contract data requirements lists, some are DOD standards, some are regulations in other titles of the CFR that are incorporated by reference.

I want to interpret the FAR 2.101 in a sensible way. I want to figure out what attributes of a text make it a "clause" and distinguish it from other texts, such as SOWs, etc. What did the FAR councils have in mind, if anything, when they wrote that definition way back when? What makes sense. You lose me when you insist that any contract text that imposes an obligation or confers a right is a contract clause, including some paragraphs in a SOW, but not others.

Vern writes, “The FAR definition says that a contract clause is ‘a’ term or condition used in contracts. It does not say that all terms and conditions are contract clauses.”

I appreciate that FAR Part 2 first and foremost assists in understanding the language of the FAR. The reader, when trying to interpret the meaning of say, FAR 1.401(a), reads that a deviation includes, "The issuance or use of a policy, procedure, solicitation provision (see definition in 2.101), contract clause (see definition in 2.101), method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR.” In trying to understand what is meant, the reader turns to FAR Part 2 as applicable to see whether the reach of the language is broader or narrower than what the reader would have expected. Here, given the broad definition of “contract clause,” the reader cannot rely on the definition of “contract clause” to narrow the reach of FAR 1.401(a). (Obviously, the reader doesn’t need the specific invitation to look to Part 2 that happens to appear in FAR 1.401(a).)

However, that isn’t the only time definitions sections are used. Sometimes we need them to properly apply the rules to our facts, not just to understand the basic meaning of the language. Sometimes, when it ‘quacks like a duck,’ etc., we have to call it what it is--a duck. For instance, if someone wants to create a “new” contract type, and he calls it, “Tom Peterson’s Haircut contract type,” but it meets all the definitional elements of a firm fixed price arrangement,* and contains no additional elements, the contract type is “firm fixed price,” and all the requirements associated with the use of that contract type must be met.

In other words, sometimes we have to start with the definition to work back to the term.

* Admittedly not found in Part 2, but hopefully you get my point

I don't get your point. That reads like something from an obscurest 19th professor of literature. What does it have to do with what I wrote.

Try again, in plain English, please. Do you think SOWs are clauses?

I could probably be clearer if I wrote in my native tongue , but I'll try again in English.

As I read the posts, it sounds like what you're saying is in the case of the definition of "contract clause," it would be a mistake to use the second approach--to look to the definition first in trying to apply the rules to a particular set of facts. It sounds like what you're saying is that doing so would be incomplete and could lead to incorrect results, and that the definition of "contract clause" just isn't written in such a way that it can "carry that water," (and perhaps the history in the Federal Register supports that the definition shouldn't be used in that manner). It sounds like what you're suggesting is that instead of using this second approach ("Does it quack like a duck?") or just using it to the exclusion of everything else, one needs to also look to the FAR as a whole, including the Order of Precedence clauses, to get a more complete understanding of the term.

I'm not taking issue with your comments, I'm just trying to make sure I understand them and their implications.

It seems apparent to me from reading Subpart 1.4 and the definitions that one is deviating from the FAR when you confer a right or impose an obligation or use a procedure at any stage of the acquisition process that is inconsistent with the FAR and supplements thereto. Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

Maybe that is what Jacques was saying.

t sounds like what you're saying is in the case of the definition of "contract clause," it would be a mistake to use the second approach--to look to the definition first in trying to apply the rules to a particular set of facts.

That's not at all what I'm saying. Look to the definition first, by all means. But after you have done that you have to determine what it means, and I think that in order to do that you have to read the FAR as a whole (a bedrock legal principle -- do you need cases?) and integrate the literal definition with what else you find. In my opinion, seizing upon the literal definition and hanging on for dear life is, at best, fun, but unsophisticated.

Sometimes a definition means exactly what it says, and sometimes it doesn't. For instance, look at the definition of "claim" in FAR 2.101. According to the second sentence, only a demand or assertion "seeking the payment of money" in excess of $100,000 is not a claim unless certified as required by the Contract Disputes Act. So, if you take that literally, a claim in excess of $100,000 that seeks a price adjustment, but not payment, does not have to be certified. Right? Or is a claim demanding a price adjustment also a demand seeking payment because the contractor will eventually _seek payment? Well, look at FAR 33.207. It says that a contractor must certify "_any claim exceeding $100,000," not just claims for payment. FAR 33.207 is consistent with the CDA; FAR 2.101, taken literally, is not. So you have to look around and think before hanging too much weight on the literal meaning of a definition. Moreover, when a word or term is used in more than one place in the FAR, it might have different connotations in the different places.

Don:

See DFARS 223.370-3. Is DOD Manual 4145.26-M a contract clause?

Vern, I was unclear in the language you quoted. What I meant was, "It sounds like what you're saying is in the case of the definition of 'contract clause,' it would be a mistake to use the second approach that I described in Post #65, that is, to start with the definition (in our case, "a term of condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after contract award") in trying to apply the rules to a particular set of facts." To analogize to math, it would be a mistake to apply the transitive property: If A = B, then B = A. Or, in our case, if a "contract clause" is a "term or condition..." ( A = B ), then a "term or condition..." is a contract clause ( B = A ).

An elephant is an animal. Are all animals elephants?

In the particular case of the FAR definition of contract clause, all contract clauses are terms or conditions. So does it follow that all terms or conditions are contract clauses?

Look at how goofy that definition is: How can a contract clause apply before contract award? What the heck does that mean? Can you tell from the express language of the definition?

I believe deeply in the importance of definitions, but I don't think fuzzy definitions should be accorded the same respect as ones that are clear and definite. Maybe, just maybe, the FAR councils would do a better job if people like us got in their faces more often about the quality of their work.

Vern, you write, "An elephant is an animal," as if FAR Part 2 only purports to be a classification system, rather than a list of definitions. I see nothing in the definition of "contract clause" that would lead me to conclude it was intended to be a partial definition. Fortunately, we don't need to have a "meeting of the minds," so I'll stop trying to rephrase your words in a way that makes sense to me, at least for this thread.

Don:

See DFARS 223.370-3. Is DOD Manual 4145.26-M a contract clause?

No, but DFARS 252.223-7002 is a clause. Paragraph ( b )(1) states: "The Contractor shall comply with the requirements of the DoD Contractors' Safety Manual for Ammunition and Explosives, DoD 4145.26-M, hereafter referred to as “the manual,” in effect on the date of the solicitation for this contract. The Contractor shall also comply with any other additional requirements included in the schedule of this contract."

My turn. If ji20874's blurb is contained in Section I, is it a contract clause? If yes, then is the same blurb still a clause if it is contained in the SOW?

The FAR definition says that a contract clause is "a" term or condition used in contracts. It does not say that all terms and conditions are contract clauses.

If that's how we are to read FAR definitions, then would it follow that not all written demands or written assertions by one of the contracting parties seeking, as a matter of right, the adjustment or interpretation of contract terms are "claims"?

It seems apparent to me from reading Subpart 1.4 and the definitions that one is deviating from the FAR when you confer a right or impose an obligation or use a procedure at any stage of the acquisition process that is inconsistent with the FAR and supplements thereto. Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

Maybe that is what Jacques was saying.

Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

Not true. What is it about FAR 1.401(f) that you don't get?

Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

Huh, what am I missing here? I said:

...one is deviating from the FAR when you confer a right or impose an obligation or use a procedure at any stage of the acquisition process that is inconsistent with the FAR and supplements thereto.

And I didn't try to fully define or limit what a deviation is to the above. I just said that one is deviating from the FAR when doing the above..

Not true. What is it about FAR 1.401(f) that you don't get?

Don, Your fetish with FAR 1.401( f ) is troublesome. By its own words, FAR 1.401( f ) applies to "the issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations in accordance with 1.301( a )." In this thread, I have consistently talked about contracting officer practice. I'M NOT TALKING ABOUT AN AGENCY'S ISSUANCE OF POLICIES -- I'M TALKING ABOUT INDIVIDUAL CONTRACTING OFFICER PRACTICE. Application of your absurd viewpoint would shut down the entire federal acquisition process. Every single term and condition drafted by a contracting officer, whether in Section H or in a specification or in a statement of work or wherever would have to do through the deviation or rule-making process? That's absurd. The FAR encourages and expects contracting officers to draft terms and conditions appropriate for their contracts, including contract clauses, provided they aren't inconsistent with the FAR.

Here's the bottom line: Individual contracting officers can and should write terms and conditions, including contract clauses as well as statements in SOWs and other contract attachments, as may be needed to support their individual contract actions on an as-needed basis -- and those terms and conditions are not deviations unless they are inconsistent with the FAR.

Joel, I think we agree. My comment was based on your second sentence, not your first sentence. For clarity, I interpret your second sentence as,

Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. which are inconsistent with the FAR somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

Joel, I think we agree. My comment was based on your second sentence, not your first sentence. For clarity, I interpret your second sentence as,

Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. which are inconsistent with the FAR somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

ji, yes. My point in that sentence is that putting something that is inconsistent with the FAR - ANYWHERE - in the solicitation should be considered a deviation. It shouldn't matter whether or not it is a "clause" by some narrow definition, a provision, a bidding or proposal evaluation requirement or procedure, a basis of award, part of a statement of work, specification, on a drawing, in some attachment, etc.

The tremendously lonnnnnnnnnnnnnng debate here about what is and what isn't a "clause", seems somehow to me to lose focus on the intent of Subpart 1.4. Don't try to skirt around the real intent of 1.4 by not calling something in a solcitation a "clause", then conveniently include the inconsistency there.

And don't forget that billions of dollars of contracts each year use formats other than the UCF. The same intent and principles should apply, no matter what format is used.

From the Merriam Webster Dictionary definition of "inconsistent" at:http://www.merriam-webster.com/dictionary/inconsistent

...:having parts that disagree with each other : not in agreement with something"

and synonyms for inconsistent from the same Dictionary on-line reference at the same URL:

Synonyms clashing, conflicting, disagreeing, discordant, discrepant, incompatible, incongruous, inconsonant, inharmonious, mutually exclusive, repugnant, at odds, at variance

If we were limiting the discussion to deviations: A deviation would include "the use of...a practice of conducting acquisition actions of any kind AT ANY STAGE OF THE ACQUISITION PROCESS that is inconsistent with the FAR." Couldn't that also reach language in a contract attachment?

In this thread, I have consistently talked about contracting officer practice. I'M NOT TALKING ABOUT AN AGENCY'S ISSUANCE OF POLICIES -- I'M TALKING ABOUT INDIVIDUAL CONTRACTING OFFICER PRACTICE.

That's not true. You made no such qualification in your post #46 when you wrote:

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.

After I provided a counterexample that proved your assertion incorrect in post #48, you then began to qualify your past statements in post #53:

Everything I've written here is about terms and conditions drafted by contracting officers as a matter of contracting officer practice, not written by agency heads as part of agency regulations.

This is still not clear, however. Are these terms and conditions "prescribed and included in a regulation issued by a suborganization of an agency to satisfy the needs of that particular suborganization", or are they "developed for use at a suborganizational level of an agency, not meant for repetitive use, but intended to meet the needs of an individual acquisition and, thus, impractical to include in either an agency or suborganization acquisition regulation." If the terms and conditions that you refer to fall into the former category, then their use could potentially be a deviation under FAR 1.401( f ), even if they are not inconsistent with the FAR.

Later, in post #76, you wrote the following without qualification:

Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

Those statements are not true as general propositions. Nothing in your post suggests that you are only referring to individual contract actions.

Application of your absurd viewpoint would shut down the entire federal acquisition process. Every single term and condition drafted by a contracting officer, whether in Section H or in a specification or in a statement of work or wherever would have to do through the deviation or rule-making process? That's absurd. The FAR encourages and expects contracting officers to draft terms and conditions appropriate for their contracts, including contract clauses, provided they aren't inconsistent with the FAR.

Hopefully, what I've written above has cleared up your misunderstanding.

Joel, I think we agree. My comment was based on your second sentence, not your first sentence. For clarity, I interpret your second sentence as,

Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. which are inconsistent with the FAR somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

So where something that is inconsistent with FAR is placed within a contract does not affect its status as a deviation. Good. With that in mind, do you want to explain what you meant when you wrote:

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

You seem to be saying that you can skirt the requirements of FAR subpart 1.3 by including something as a blurb in an attachment instead of as a contract clause. Maybe you can explain what you meant.

No, but DFARS 252.223-7002 is a clause. Paragraph ( b )(1) states: "The Contractor shall comply with the requirements of the DoD Contractors' Safety Manual for Ammunition and Explosives, DoD 4145.26-M, hereafter referred to as “the manual,” in effect on the date of the solicitation for this contract. The Contractor shall also comply with any other additional requirements included in the schedule of this contract."

The clause is making the manual a term of the contract by telling the contractor to comply with it. So if the manual is a term of the contract, isn't it a clause? And if it's a clause, doesn't DOD have to publish it in accordance with Title 41 of the USC and FAR Subpart 1.3?

My turn. If ji20874's blurb is contained in Section I, is it a contract clause? If yes, then is the same blurb still a clause if it is contained in the SOW?

I haven't read the blurb. I haven't been reading what others have been saying. I dabbled with Jacques this morning, but I don't understand him and he doesn't understand me, so I won't spend more time on him. I don't want to go back and read what Ji20874 said. I only want to discuss this with you. Otherwise, it gets too confusing.

No, they already published DFARS 252.223-7002, which required compliance with the manual. The public had the chance to comment on the manual.

Don:

I do not think that publication of a clause that only refers to the manual constitutes publication of the manual itself and an invitation to comment on its content. If that were the case, then why separately publish the cost principles and the cost accounting standards?

Boof - I do not know if you are still reading this thread but in going back to the beginning and reading through I wondered if you had seen this in 29 CFR 1604 regarding your post at #16 -

Appendix A to § 1604.11—Background InformationTHE COMMISSION HAS RESCINDED § 1604.11© OF THE GUIDELINES ON SEXUAL HARASSMENT, WHICH SET FORTH THE STANDARD OF EMPLOYER LIABILITY FOR HARASSMENT BY SUPERVISORS. THAT SECTION IS NO LONGER VALID, IN LIGHT OF THE SUPREME COURT DECISIONS IN BURLINGTON INDUSTRIES, INC. V. ELLERTH, 524 U.S. 742 (1998), ANDFARAGHER V. CITY OF BOCA RATON, 524 U.S. 775 (1998). THE COMMISSION HAS ISSUED A POLICY DOCUMENT THAT EXAMINES THE FARAGHER AND ELLERTH DECISIONS AND PROVIDES DETAILED GUIDANCE ON THE ISSUE OF VICARIOUS LIABILITY FOR HARASSMENT BY SUPERVISORS. EEOC ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS (6/18/99), EEOC COMPLIANCE MANUAL (BNA), N:4075 [bINDER 3]; ALSO AVAILABLE THROUGH E

While it may do little to resolve any disagreements reflected in this thread, the following bit of history might be relevant.

The Federal Acquisition Streamlining Act added to the Office of Federal Procurement Policy Act language currently codified at 41 U.S.C. 1304(a) (formerly at 41 U.S.C. 425(a)). The law, both at the time of passage and now, calls for including in the FAR “regulations to discourage the use of a nonstandard contract clause on a repetitive basis.” Importantly for this discussion, it requires that the regulation “clearly define what types of contract clauses are to be treated as nonstandard clauses.”

I could not find anything in the Federal Register claiming to implement this section of FASA (section 1093). Rather, I found GAO/NSIAD-96-139, which, at pages 26-27, states no regulatory implementation was required for sec. 1093, because “The FAR already had standard clauses, and FAR Part 1 allows for authorized deviations.”

While obviously the GAO report isn’t binding in any way, it may have reflected the views of the FAR Council at the time.

The views of the FAR councils have undoubtedly been influenced by Don Mansfield. In February 2014, The Nash & Cibinic Report published an article by Don about the problem of nonstandard "local" contract clauses. See 28 N&CR NL ¶ 8. It bore the uniquely Nash & Cibinic title, "Postscript II: Agency Policy Memos" and was one in a series about failures by agencies to obtain deviation approval and to comply with the publication statute when developing "homegrown" clauses. Don traces the history of the problem and industry complaints about it. The article is required reading for practitioners who want to know what they're talking about.

Don concluded his article as follows:

If one of the purposes of establishing the FAR System was to reduce the administrative burden on federal contractors and prospective contractors, then the system has failed in that respect. In the current environment, federal contractors must adapt to the unique tribal customs of each of the contracting activities with which they conduct business. These customs can vary significantly among contracting offices under the same contracting activity. Fearing reprisal, contractors tend to accept this reality and pass the increased administrative cost to the Government. As such, there is little likelihood that this problem will fix itself.

With acquisition reform on the agenda for the near future, it is a good time for an honest assessment of the state of the FAR System. I suggest that policymakers ask themselves the following questions when contemplating a way forward:

1. Should procurement rules be subject to the same level of administrative review as rules promulgated under the Administrative Procedure Act? (i.e., Should there be a more streamlined process for administrative review of procurement rules?)

2. Should agency heads be given the authority to make procurement rules effective for a limited amount time prior to their publication in the Federal Register?

3. Should the FAR Council prescribe regulations to control the repetitive use of nonstandard clauses as required by 41 USCA § 1304(a)?

4. Regarding the repetitive use of nonstandard clauses, should the law provide for a public protection provision similar to the Paperwork Reduction Act?

5. Should anything be done to control the proliferation of local acquisition regulations? If so, what can be done?

It is unacceptable, if not hypocritical, for the rulemaker to expect compliance with the rules they make when they do not to follow the rules that apply to them. Such behavior by the Government serves to erode the public's trust—a trust that is easy to lose and difficult to regain.

DOD launched a project earlier this year to control the propagation of clauses by DOD components. The project is undoubtedly due in part to Don's piece.

In the spirit of full disclosure to the others who have been posting on this topic, Don and I have been in contact offline and engaging in a Socratic role-play in this thread. ji20874 has unknowingly been playing the part of Thrasymachus in The Republic, right down to the red font and capital letters. (Thrasymachus translates as "fierce fighter.") I suspect that Don is trying to aggravate him to the point of posting entirely in red and caps.

I wish Don could be honest and honorable here.

That's not true. You made no such qualification in your post #46 when you wrote...

After I provided a counterexample that proved your assertion incorrect in post #48, you then began to qualify your past statements in post #53:...

No, Don. Go all the way back to my comment no. 23. I have been consistent from the beginning.

I believe contracting officers can (and when appropriate, must) write homemade terms and conditions for the particular circumstances of their actions, and that they may do so without a deviation or rulemaking process when those terms and conditions are not inconsistent with the FAR. The notion that EVERY term and condition drafted by a contracting officer to meet the particular circumstances of his or her instant acquisition must be subject to the deviation and/or rulemaking process is absurd -- were that true, the entire acquisition process would grind to a halt as every specification, every SOW, and every other contract attachment would have go through the deviation or rulemaking process.

Thanks to all the replies on the sexual Harrassment issue. I think we can close that discussion now.

As of the discussion of the clauses that spun off of it. Sounds like the real issue is at what point does some guidance to the contractor become a "clause/provision" and require a FAR deviation to use it. Our section H usually has added travel restrictions, how to get badges, industrial secuity information, removal of contract employees for violating rules, Added guidance on requirement to use SPOT in certtain countries, Other information about hazardous conditions in certain countries, requirement for needing Medivac coverage, etc. We have never thought of any of this as being a true clause although everyone calls every paragraph a "clause" unofficially.

...I believe contracting officers can (and when appropriate, must) write homemade terms and conditions for the particular circumstances of their actions, and that they may do so without a deviation or rulemaking process when those terms and conditions are not inconsistent with the FAR. The notion that EVERY term and condition drafted by a contracting officer to meet the particular circumstances of his or her instant acquisition must be subject to the deviation and/or rulemaking process is absurd -- were that true, the entire acquisition process would grind to a halt as every specification, every SOW, and every other contract attachment would have go through the deviation or rulemaking process.

ji, I agree with you in principle. In the instant case, I think we are dealing with a situation that doesnt seem to be covered by the FAR system. So, many people might rely upon the Guiding principle at FAR 1.102-4 ( e ):

(e) The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.

However, paragraph ( a ) is often overlooked in this process:

(a) Government members of the Team must be empowered to make acquisition decisions within their areas of responsibility, including selection, negotiation, and administration of contracts consistent with the Guiding Principles_**. In particular, the contracting officer must have the authority to the maximum extent practicable and consistent with law, to determine the application of rules, regulations, and policies, on a specific contract.**_

When the specific requirement, procedure or practice isn't addressed by the FAR, the team must first determine what rules, limitations, policies and general business practices might apply before simply adding the practice, requirement or procedure. Here, there have been several considerations mentioned. For Instance: What is the applicability of Title VII to certain sized firms? Can a KO simply extend the requirements to all firms? What is the practicality of and whose responsibility it is to train contractor employees? Is it necessary to train employees? Is it necessary to require employee training? What should be taught in such training? If the situation is such that it creates a hostile work environment, can the government simply extend standards of acceptable behavior to firms and their employees because both the employer and government might be held liable for it? If so, does the contract already allow that without adding additional requirements? Etc, etc.

Finally, I never did understand from the information here, what is the actual root basis of the upper level managements' concern, only that they expressed a directed solution.

Sorry Boof. You posted while I was drafting mine.

Boof proposed contract specific requirement (call it what you want clause, blurb, etc.) to which Boof’s agency wanted to add to contracts of the agency. (Ref. Post #1)

Don then made the case, quoting 41 USC 1707 that Boof would not have the authority to write the clause without going through rule making authority. (Ref. Post #7) The post by Don also referenced FAR 1.301(.

The thread then concentrated on the FAR and how one might interpret it with regard to what a clause is yet there was no further discussion of the U.S.C. that was held up to require Boof to go through the rulemaking process.

Looking to the 41 USC 1707 and the whole of the FAR especially that noted by Joel (FAR 1.102-4) why Boof would have to go through the rule making as 1707 is specific that Boof’s need would have to be “a procurement policy, regulation, procedure, or form (including an amendment or modification thereto)” ….”if it has a significant cost or administrative impact on contractors or offerors.”

I am left with the question…..

Is the need suggested by Boof considered to be a "procedure" that has “significant cost or administrative impact” or in other words what is the standard that Boof’s need must meet with regard to cost or administrative impact to cause Boof to follow 41 USC 1707?

Without this question answered I do not see how it could be concluded that Boof would have to go through the rule making process.

I wish Don could be honest and honorable here.

That's not true. You made no such qualification in your post #46 when you wrote...

After I provided a counterexample that proved your assertion incorrect in post #48, you then began to qualify your past statements in post #53:...

No, Don. Go all the way back to my comment no. 23. I have been consistent from the beginning.

ji20874,

Here is your post #23:

Jacques,

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

If someone wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

You claim that from this post, the reader should know that your comments in this post, prior posts, and future posts are limited to individual contracting officer practice. This is true even if you fail to qualify your comments.

If that is what you wanted to communicate, then you have failed. From "The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts..." we're supposed to know that you are referring to individual contracting officer practice.

Further, your qualification of "individual contracting officer practice" when creating homemade clauses is unclear. What do you mean? Do you mean clauses created for an individual acquisition and not used on a repetitive basis? Clauses in your local clausebook? You say that the blurb above is used in your "agency's contracts". If such a blurb were to have a significant cost or administrative on contractors or offerors, then it would arguably be a deviation under FAR 1.401(f), even if the blurb were not inconsistent with the FAR.

Lastly, you write:

The notion that EVERY term and condition drafted by a contracting officer to meet the particular circumstances of his or her instant acquisition must be subject to the deviation and/or rulemaking process is absurd -- were that true, the entire acquisition process would grind to a halt as every specification, every SOW, and every other contract attachment would have go through the deviation or rulemaking process.

Do you realize that nobody has argued the contrary? You are resorting to the straw man fallacy.

I am left with the question…..

Is the need suggested by Boof considered to be a "procedure" that has “significant cost or administrative impact” or in other words what is the standard that Boof’s need must meet with regard to cost or administrative impact to cause Boof to follow 41 USC 1707?

Without this question answered I do not see how it could be concluded that Boof would have to go through the rule making process.

Carl,

I think that the insertion of a contract clause in agency solicitations and contracts is a procedure that would implement the agency's policy. As far as the particular procedure having a "significant cost or administrative impact" on contractors or offerors, I base my opinion on the types of rules that typically go through rulemaking. I have seen FAR/DFARS rules requiring a lot less of contractors and offerors go through the rulemaking process.

Don.

In my no. 23 that you quoted, you included my words "as a matter of contracting officer practice rather than agency head direction and regulation." And yet you are pretending like those words aren't there. But those words are there for anyone who has eyes to see.

So we are agreed, then? A term or condition drafted by the contracting officer and not inconsistent with the FAR can be used in a contract without a deviation and without the rulemaking process?

Don, you used the word, "rulemaking" in your Post #97. I thought the OFPPA, not the APA, applied to publication related to the FAR. See 5 USC 553(a)(2) (exempting matters relating to contracts from APA rulemaking requirements). Cf. Rand L. Allen & Christopher R. Yukins, Bid Protests and Contract Disputes Under the FAA's New Procurement System, 26 Pub. Cont. L.J. 135, 152 (Winter 1997). See also this thread on wifcon: /threads/5663-what-parts-of-the-far-apply-to-me

Thanks Don.....Guess I resign myself to the fact that just because agencies have gone through the process for a "lot less" does not mean it has to be so.

I didn't see anything in those requirements in ji's blurb which require going through the public rule making process. The government has the right to restrict access to its facilities and information systems based upon standards of conduct and information security. I am assuming that the government would make those standards available somehow for prospective bidders/proposers.

Don.

In my no. 23 that you quoted, you included my words "as a matter of contracting officer practice rather than agency head direction and regulation." And yet you are pretending like those words aren't there. But those words are there for anyone who has eyes to see.

Those words don't offer any clarification to your use of "individual contracting officer practice". Are you ever going to explain what you mean by that? Do you mean drafting clauses created for an individual acquisition and not used on a repetitive basis? Clauses in your local clausebook? Why don't you clarify what you mean? You wrote that the example blurb that you posted that it was used in your "agency's contracts". That suggests that you draft your own clauses and use them on a repetitive basis. Is that what you're talking about?

So we are agreed, then? A term or condition drafted by the contracting officer and not inconsistent with the FAR can be used in a contract without a deviation and without the rulemaking process?

No, I don't agree with that as a general proposition. You need to qualify that statement with how the clause is used.

Don, you used the word, "rulemaking" in your Post #97. I thought the OFPPA, not the APA, applied to publication related to the FAR. See 5 USC 553(a)(2) (exempting matters relating to contracts from APA rulemaking requirements). Cf. Rand L. Allen & Christopher R. Yukins, Bid Protests and Contract Disputes Under the FAA's New Procurement System, 26 Pub. Cont. L.J. 135, 152 (Winter 1997). See also this thread on wifcon: /threads/5663-what-parts-of-the-far-apply-to-me

Correct. 41 U.S.C. 1707 requires notification and public comment of procurement rules, not APA. What's wrong with referring to the process of making procurement rules under 41 U.S.C. 1707 as "rulemaking"?

No worries. It seemed pretty clear, and now it is obvious, that you weren't using it as a term of art. You wouldn't be the first. FAR 1.102-2( b ) talks about "rules" being "promulgated." FAR 3.104-8 provides in part, "See 33.102(f) for special rules regarding bid protests." FAR Subpart 9.5 contains several references to "general rules." According to the FAR, IFBs contain "rules." FAR 14.202-5©(1)(iv). The list goes on and on.

I hope this discourse has been helpful to the original poster...

Thanks, Joel...

Don,

There are clauses that supplement the FAR, and there are clauses that don't supplement the FAR. The term and condition I'm describing is used as a matter of contracting officer practice, is not a clause, does not implement or supplement the FAR, and is not inconsistent with the FAR. Accordingly, the term and condition I'm describing is not covered by FAR Subpart 52.101( b )( 2 )( i ) and is not subject to the deviation process of FAR Subpart 1.4 or the agency rulemaking process of FAR Subpart 1.3. It may be used by a contracting officer in a contract attachment as a matter of contracting officer practice without any supporting agency regulations.

Let's use an example to show how absurb your approach here is. A statement of work (SOW) in an awarded contract might have a requirement (a term and condition) that the contractor submit a product submittal for Government approval before installation -- this is a simple and straightforward term and condition inside the SOW. That term and condition is drafted by the contracting officer and is similar (or identical) to text used in other similarly-situated contracts. You would insist that this term and condition in the SOW is a clause, and that it is subject to the deviation and rulemaking process -- along with every other term and condition in the SOW and any other contract attachments. Your approach would shut down the entire acquisition process of every FAR-covered agency. You would be wrong.

[Note: I use the word "rulemaking" in some of my posts for convenience -- but really, the FAR Subpart 1.3 process is not rulemaking -- if we're serious about definitions, using the term "rulemaking" to describe the OFPPA process is imprecise and might even be error -- see AMERICAN MOVING AND STORAGE ASSOC., INC., et al., v. UNITED STATES DEPARTMENT OF DEFENSE, United States District Court, District of Columbia, March 29, 2000, 91 F.Supp.2d 132 (2000).]

I'll bow out of this discussion now.

Here is ji20874’s original “blurb”:

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

Don’s initial reaction was that in order to use such a “clause” the CO would have to comply with the publication statute.

The requirement to publish in the Federal Register does not turn on whether a text is a clause or whether it deviates from FAR. 41 USC 1707 requires publication of a "policy, regulation, procedure, or form" only if it:

(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

(ii) has a significant cost or administrative impact on contractors or offerors.

Whether or not the blurb is a clause, I do not see how it would cause a significant effect, a significant cost, or a significant administrative impact. Therefore, I do not think it's use would require its publication.

Don, do you agree?

Don,

There are clauses that supplement the FAR, and there are clauses that don't supplement the FAR. The term and condition I'm describing is used as a matter of contracting officer practice, is not a clause, does not implement or supplement the FAR, and is not inconsistent with the FAR. Accordingly, the term and condition I'm describing is not covered by FAR Subpart 52.101( b )( 2 )( i ) and is not subject to the deviation process of FAR Subpart 1.4 or the agency rulemaking process of FAR Subpart 1.3. It may be used by a contracting officer in a contract attachment as a matter of contracting officer practice without any supporting agency regulations.

What you don't seem to be getting is that it doesn't matter what you call it. You think that calling something a blurb instead of a clause gets you around FAR subpart 1.3 and 1.4. Now you think that saying your homegrown term or condition does not implement or supplement the FAR gets you something. It doesn't.

First, let me be clear that I'm responding to these assertions--

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

As far as the specific blurb you posted, my only comment is that it meets the definition of contract clause at FAR 2.101.

As far as "homemade contract clauses" that are not inconsistent with the FAR not being a deviation, your assertion is wrong as a general proposition. As I explained in prior posts, a deviation need not be inconsistent with the FAR to be a deviation. FAR 1.401(f) defines one category of "deviation" as:

The issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations in accordance with 1.301(a).

So, let's say that you include "homemade contract clauses" that are not inconsistent with the FAR in your agency's contracts and these terms and conditions have (1) a significant effect beyond the internal operating procedures of the agency or (2) have a significant cost or administrative impact on contractors or offerors. See FAR 1.301 and 41 U.S.C. 1707. Further, you use these homemade contract clauses on a repetitive basis. Guess what? That could be a deviation pursuant to FAR 1.401(f), even though your homemade contract clauses were not inconsistent with the FAR. (It seems like this is the third time I've explained this). As such, your first assertion is wrong.

As to your second assertion, you suggest that including something as a contract attachment instead of a contract clause relieves you of the requirements of FAR subpart 1.3 regarding notification and public comment. As Vern has pointed out in post #106, the requirement for publication does not turn on whether a text is a clause or whether it deviates from FAR. As such, your second assertion is also wrong.

Let's use an example to show how absurb your approach here is. A statement of work (SOW) in an awarded contract might have a requirement (a term and condition) that the contractor submit a product submittal for Government approval before installation -- this is a simple and straightforward term and condition inside the SOW. That term and condition is drafted by the contracting officer and is similar (or identical) to text used in other similarly-situated contracts. You would insist that this term and condition in the SOW is a clause, and that it is subject to the deviation and rulemaking process -- along with every other term and condition in the SOW and any other contract attachments. Your approach would shut down the entire acquisition process of every FAR-covered agency. You would be wrong.

Note that I have proven wrong two assertions that you have made. I actually went back and showed the exact words that you wrote. You did not do the same because you cannot. You continually argue against an argument that I did not make. This is what is called the straw man fallacy. I called you out on it in my last post, and here you are resorting to it again. Ironically, you called me out on not being "honest and honorable".

Irony of ironies, I looked in your agency supplement to see what your agency's policy was regarding clause control (If I remember correctly, you work for DHS). Here's what HSAR 3001.304( a ):

The HSAR is under the direct oversight and control of the Department of Homeland Security, Office of the Chief Procurement Officer (OCPO), which is responsible for evaluation, review, and issuance of all Department-wide acquisition regulations and guidance. Each HCA may supplement the HSAR with Component guidance. Supplementation should be kept to a minimum. Components proposing to issue regulatory supplements or use solicitation or contract clauses on a repetitive basis must obtain legal review by the Component’s legal counsel and forward supplements to the CPO for concurrence prior to publication in the Federal Register.

From what you've written, it doesn't seem that you are in compliance with your agency's policy.

Here is ji20874’s original “blurb”:

Don’s initial reaction was that in order to use such a “clause” the CO would have to comply with the publication statute.

The requirement to publish in the Federal Register does not turn on whether a text is a clause or whether it deviates from FAR. 41 USC 1707 requires publication of a "policy, regulation, procedure, or form" only if it:

Whether or not the blurb is a clause, I do not see how it would cause a significant effect, a significant cost, or a significant administrative impact. Therefore, I do not think it's use would require its publication.

Don, do you agree?

Vern,

I do think that what ji20874 posted was a clause pursuant to FAR 2.101, but I never said that it met the standards for publication. I took issue with ji20874's apparent assertion that because his blurb was not a clause he did not have to comply with FAR subpart 1.3. This is what he wrote:

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

I asked him to explain what he meant and he never did.

As far as whether ji20874's blurb meets the standard for publication, I'm not sure. The blurb seems like an attempt to include the same right in a service contract that the Government has in a construction contract pursuant to FAR 52.236-5( c ). It doesn't seem like a big deal, but I'm sometimes surprised by what contractors and offerors consider a big deal. As such, I don't completely trust my judgment.