Nonstandard Clause Use and Approval

Jamaal – Did you see this thread, not exactly dead on to your question but does discuss use of non-standard clauses.

/threads/3236-sexual-and-other-harassment-provisions-or-clauses

See "Postscript II: Agency Policy Memos," by Donald E. Mansfield, in the February 2014 edition of The Nash & Cibinic Report. An excerpt:

Quote

Agency contracting activities and contracting offices routinely issue local acquisition regulations to implement and supplement the FAR and the agency's FAR supplement and to incorporate policies, procedures, contract clauses, solicitation provisions, and forms unique to the contracting activity or contracting office that govern the contracting process or control relationships with contractors and prospective contractors. Such regulations typically take the form of policy letters, clause books, procedures manuals, etc. and often contain much more than internal agency guidance of the type described at FAR 1.301(a)(2) (i.e., designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements). The issuance of these regulations is not, itself, a problem. The problem occurs when these local acquisition regulations meet the criteria for notice and public comment in the publication statute (i.e., when they have a significant effect beyond the internal operating procedures of the agency or have a significant cost or administrative impact on contractors or offerors) or the Paperwork Reduction Act (i.e., collecting information from 10 or more members of the public), but do not go through the required notice and public comment process. Ever.

PGI 201.301 and 304 applies to all DoD departments and agencies, so it wouldn't make sense for the policy to not apply to offices within those departments and agencies.  The process defined in the PGI also applies to clause and provisions that are not considered a significant revision as defined at FAR 1.501-1.  The PGI requires agencies to have control and compliance procedures in place for all clauses or provisions other than those prescribed by the FAR or DFARS.  It would appear to me that a local office developing its own clause or provision to use on a repetitive basis, without the department or agency exercising the control and compliance procedures required by the PGI, would not be compliant with the PGI.  It would seem to me the office would have to follow whatever control and compliance procedure the department or agency has established to ensure compliance with the PGI.

See 41 U.S.C. § 1302, "Contract clauses and certifications," paragraph (a), "Repetitive Nonstandard Contract Clauses Discouraged":

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(a)Repetitive Nonstandard Contract Clauses Discouraged.—The Council shall prescribe regulations to discourage the use of a nonstandard contract clause on a repetitive basis. The regulations shall include provisions that—

(1) clearly define what types of contract clauses are to be treated as nonstandard clauses; and

(2) require prior approval for the use of a nonstandard clause on a repetitive basis by an official at a level of responsibility above the contracting officer.

See also 41 U.S.C. § 1707, "Publication of proposed regulations," paragraph (a) "Covered Policies, Regulations, Procedures, and Forms":

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(a)Covered Policies, Regulations, Procedures, and Forms.—

(1)Required comment period.—Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it—(A)

relates to the expenditure of appropriated funds; and

(B)(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.

(2)Exception.—

A policy, regulation, procedure, or form may take effect earlier than 60 days after the publication date when there are compelling circumstances for the earlier effective date, but the effective date may not be less than 30 days after the publication date.

Those laws are implemented by FAR Subparts 1.1 through 1.5.

Jamaal,

DFARS 201.304(1) implements what is now 41 U.S.C. 1707 within DoD. In congressional testimony introducing the legislation, then located in Section 302 of H.R. 4209, the following exchange took place:

Quote

MR. COHEN. I would like to also clarify that section 302 would not only apply to proposed changes or additions to the Governmentwide Federal acquisition regulation, but also to agency supplements to the FAR as well as subagency supplements on down to the lowest level. In other words, for example, not only would proposed FAR regulations have to be published under section 302, but so would proposed DoD supplemental regulations to the FAR, Air Force supplemental regulations to the DoD supplement, and Air Force Logistics Command supplemental regulations to the Air Force supplements.

MR. WEICKER. That is also correct.

See p. 29976 of the attached.

19841004_CongRec_29976.pdf

Don Mansfield said:

See p. 29976 of the attached.

19841004_CongRec_29976.pdf

I get an error message from the Wifcon system when I try to open the attachment.  I think someone else had a similar problem with a different attachment recently.

"The page you are trying to access is not available for your account."

Error code: 2C171/1

Todd:

Standby. Don is in Kuwait, and may not get back to you until tomorrow.

Jamaal,

Are you talking about clauses promulgated by an agency or a component of an agency?  Or are you talking about clauses crafted by individual contracting officers to fit particular acquisitions?

I'm particularly interested in how this would affect agencies outside DoD.

All:

Thanks for the info. It'll take a while to get through it, but meanwhile I want to clarify that I'm primarily interested in the rules placed on individual contracting officer's use of non-standard clauses.

ji20874:

Individual contracting officers who either -

1. use non-standard clauses to fit particular acquisitions (truly custom)

2. use non-standard clauses repetitively (generic use based on a set of recurring conditions - location, type of work, etc.)

An example of item 1 would be including an on/off-ramp clause is a major source selection.

An example of item 2 could be a clause detailing historical data on inclement weather that's used for evaluating unusually severe weather REAs.

Jamaal, your example item 2 may refer to a local clause that describes what is to be considered "normal weather" for a particular installation or site. I would not personally consider such special contract requirements to be "covered clauses", that require public notice and comment under the Statute

 These are commonly used by the Corps of Engineers to establish baselines at each site and installation to compare actual delays versus "normally expected" delays due to inclement weather. Actual lost time for work on the critical path that exceeds historically expected delays forms the basis for granting time extensions due to unusually severe weather under the Defaults Clause. Those are not generally "Requests for Equitable Adjustment" (REAs). These are -again generally speaking- time extensions for excusable, but non-compensable delays that exceed expected weather delays. 

The clauses merely clarify what is considered to be normal expected weather or delays due to inclement weather for an individual site. From my experience, they might or might not reflect accurate data but they are necessary to establish a baseline for comparison purposes.

 I'm guessing that I was the last person to update the 10 year average weather data for the military and civil works installations in my then USACE District for the US South East region (back in the mid 1990's).

Todd Davis said:

I get an error message from the Wifcon system when I try to open the attachment.  I think someone else had a similar problem with a different attachment recently.

"The page you are trying to access is not available for your account."

Error code: 2C171/1

Todd, I posted an excerpt of the Congressional Record of October 1, 1984. If you're interested in reading it, send me a message with your e-mail address and I will send it to you.

Don Mansfield said:

Todd, I posted an excerpt of the Congressional Record of October 1, 1984. If you're interested in reading it, send me a message with your e-mail address and I will send it to you.

Thanks for the offer Don.  I was able to find it on Westlaw after posting this message.  Learned something new today.  How to pull up Congressional records on Westlaw and other websites.

Jamaal Valentine said:

All:

Thanks for the info. It'll take a while to get through it, but meanwhile I want to clarify that I'm primarily interested in the rules placed on individual contracting officer's use of non-standard clauses.

This topic is more interesting than we're making it.

Start with this: What's a clause? See the definition of "contract clause" in FAR 2.101. Read it carefully. Based on that definition, is a statement of work a "clause"? Are "special contract requirements" inserted in UCF Section H "clauses"? See FAR 15.204-2(h). Why isn't Section H called special contract clauses? Is there a reason? (What were Section H and Section I called in 1983, before issuance of the FAR?) 

Then: What do "standard" and "nonstandard" mean? How many times does a clause have to be used before its use is "standard"? Is it standard if one contracting officer uses it twice? Ten times? If four contracting officers each use it once? 

Then, see FAR 1.401(a). Read it carefully. Does "inconsistent with" mean different from, conflicts with, or both? If my lawyer tells me that a text in my RFP Section H is inconsistent with FAR and thus a deviation, can I solve the problem by moving it to the SOW or some other attachment?

By the way, Black's Law Dictionary, 10th ed., defines clause as follows: "A distinct section or provision of a legal document or instrument."

I am having no problem downloading and seeing the Congressional Record page.  Is anyone having a problem?

I may be able to access it because I am the administrator.  There may be a hidden safety setting to prevent downloads by members.

I can't get it. I get a message that says I don't have access.

Anyway, what would I see of interest that Don didn't quote? Moreover, what members of Congress say in the Record is not binding on anyone. it may not even be what they actually said.

Bob, I am having the same experience as Todd.

Vern Edwards said:

Anyway, what would I see of interest that Don didn't quote?

Nothing. I quoted the relevant part.

Vern Edwards said:

This topic is more interesting than we're making it.

Start with this: What's a clause? See the definition of "contract clause" in FAR 2.101. Read it carefully. Based on that definition, is a statement of work a "clause"? Are "special contract requirements" inserted in UCF Section H "clauses"? See FAR 15.204-2(h). Why isn't Section H called special contract clauses? Is there a reason? (What were Section H and Section I called in 1983, before issuance of the FAR?) 

Then: What do "standard" and "nonstandard" mean? How many times does a clause have to be used before its use is "standard"? Is it standard if one contracting officer uses it twice? Ten times? If four contracting officers each use it once? 

Then, see FAR 1.401(a). Read it carefully. Does "inconsistent with" mean different from, conflicts with, or both? If my lawyer tells me that a text in my RFP Section H is inconsistent with FAR and thus a deviation, can I solve the problem by moving it to the SOW or some other attachment?

I think this is a gray area (popular term lately). I don't think the location of a contract term affects its status as a clause. There's nothing in the definition of "contract clause" to suggest that. As such, I don't think moving something from Section H to an attachment would make something that would otherwise be a deviation no longer be a deviation.

As far as standard and nonstandard, are you referring to how Jamaal is using the words or how Congress used it in 41 U.S.C. 1302? I think Jamaal was using it to mean clauses that are not in Title 48 of the CFR. As far as what "nonstandard" means in the statute, that's what the FAR Council was supposed to define, but didn't.

Jamaal,

Did this issue come up in an audit or something?

Don Mansfield said:

I don't think the location of a contract term affects its status as a clause. There's nothing in the definition of "contract clause" to suggest that. As such, I don't think moving something from Section H to an attachment would make something that would otherwise be a deviation no longer be a deviation.

As far as standard and nonstandard, are you referring to how Jamaal is using the words or how Congress used it in 41 U.S.C. 1302? I think Jamaal was using it to mean clauses that are not in Title 48 of the CFR. As far as what "nonstandard" means in the statute, that's what the FAR Council was supposed to define, but didn't.

So any discrete piece of text in a contract is a "contract clause" within the meaning of FAR? A statement of work is a "contract clause"?

My reference to standard and nonstandard was to Jamaal's usage. But my questions apply equally to the use of those words in the statute.

Vern Edwards said:

So any discrete piece of text in a contract is a "contract clause" within the meaning of FAR? A statement of work is a "contract clause"?

Potentially, yes. If that discrete piece of text is a term or condition that applies after contract award, then it would meet the definition of "contract clause".

Don:

So I can drop the "potentially" bit, since I said that the text is in a contract. In short, you say that all text in a contract is, or is part of, a contract clause, including the SOW or specification, a CDRL, etc. Right?

Vern

Don:

This comes up time to time in the office. As of late, the contract clearance approval authority is not clearing/approving any contracts that include non-standard clauses (not in Title 48 of the CFR).

Bob:

I've previously received the same access error others have mentioned.

Jamaal,

     But, I suppose, your contract clearance approval authority is approving terms and conditions that are not styled as clauses?  Such as all the terms and conditions inside your statements of work?  Are you allowed to have any homemade special contract requirements in your Section H?

Vern Edwards said:

Don:

So I can drop the "potentially" bit, since I said that the text is in a contract. In short, you say that all text in a contract is, or is part of, a contract clause, including the SOW or specification, a CDRL, etc. Right?

Vern

No, I don't say that. If "all the text in a contract, including the SOW or specification, CDRLs, etc." are terms or conditions that apply after contract award, then they would meet the definition of "contract clause".

Where is the term "clause" or "contract clause" being used in the FAR that would make the definition a problem?

ji20874:

If we hold firm to the definition of contract clause found at FAR 2.101 we know what a contract clause is, but we don't know what a contract clause is not. I think that is important.

For practical purposes, clearance authorities, in my experience, don't process nuance well. If it resembles what is instinctively believed is a clause or is placed anywhere in sections A thru M it will not be approved. On some occasions, it seems like a matter of form over substance in some cases. For example, if you use an attachment as a place for inserting non-standard clauses you could get approval.

Jamaal,

A text in Sec. H describing a mandatory material testing requirement and report format would likely be rejected, but the exact same text in an attachment would likely be approved?

I understand, and regret that reality.  Some people act on form rather than substance.  The review process will often screen out initiative, innovation, and common sense, while contributing little or nothing of value to help the Government achieve anything with the acquisition.

Don Mansfield said:

Where is the term "clause" or "contract clause" being used in the FAR that would make the definition a problem?

What immediately comes to mind is FAR 52.202-1, Definitions (NOV 2013): "When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued.... ."

If "contract clause" includes statements of work, specifications, data item descriptions, etc., then the authors of those documents, COs, and offerors/contractors had better check word usage closely. And people who must interpret those documents four or five years after contract award had better have access to the edition of FAR in effect at the time the solicitation was issued, perhaps one to three years before contract award. There are about 240 +/- definitions in FAR 2.101.

Jamaal Valentine said:

ji20874:

If we hold firm to the definition of contract clause found at FAR 2.101 we know what a contract clause is, but we don't know what a contract clause is not. I think that is important.

Jamaal: If we know what it is, then everything that isn't that is not it. Right?

ji20874 said:

Some people act on form rather than substance.

Please explain. Are you saying that literal interpretation of a definition, rather than interpretation based on historical or commonplace usage, places form over substance?

Don Mansfield said:

No, I don't say that. If "all the text in a contract, including the SOW or specification, CDRLs, etc." are terms or conditions that apply after contract award, then they would meet the definition of "contract clause".

Where is the term "clause" or "contract clause" being used in the FAR that would make the definition a problem?

Perhaps the Order of Precedence clauses, FAR 52.214-29 and 52.215-8?

Navy_Contracting_4 said:

Perhaps the Order of Precedence clauses, FAR 52.214-29 and 52.215-8?

According to FAR 2.101(a)(1), the definitions in 2.101 apply to the entire regulation unless "The context in which the word or term is used clearly requires a different meaning". I think in the context of FAR subpart 14.2 and 15.2, which cover the UCF, "contract clauses" in both clauses refers to Part II of a contract in UCF. Note the other entries on the list that are other parts of the UCF.

It's amazing, when you think about it, how passive (or, if you want to be generous, cagey) the FAR councils have been in not clearing up inconsistencies in word usage in the FAR. All the more remarkable, because people who write and negotiate contracts in a litigious society like ours ought to be very sensitive about word usage.

Vern Edwards said:

Jamaal: If we know what it is, then everything that isn't that is not it. Right?

Yes, but only if your knowledge of the thing is complete. A partial definition may not work and could lead to a hasty generalization (association fallacy).

What I wanted to convey is, although a contract clause is "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 necessary that all things with those attributes are contract clauses.

A dog is an animal - all animals are dogs

Plus the definition doesn't say "any" or "all" terms and conditions...Just thinking it through, may or may not be the correct interpretation, but it keeps things lively.

A perfect example of taking a policy to the extreme is when everything in the contract is subject to being considered a "clause".  !  I know of organizations that don't use "local clauses" in the "Special Contract Requirements" for construction contracts on specific Military Installations because someone in Contracting told them that all such  "clauses" must be publicly announced for comment and "approved" by someone in Contracting. So they bury the requirements  in technical specs, statements of work, appendices, etc. in fact, I know of at least one Military Department (not mine) that does this for that reason.

It's all a bunch of crap.  If an Installation Commander needs to include standard requirements for all contracts that prescribe access to the Base, working hours, limitations on haul routes, dump or borrow pits, etc. or other necessary restrictions on that Installation, it's generally their prerogative as long as they aren't ridiculously wasteful. If they were, I challenged them and often was able to negotiate an alternative solution.

Jamaal:

FAR 2.101:

Quote

“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.

So you think "a term or condition used in contracts" should not be understood to mean "any" term or condition. Right? In the same way that "dog means a mammalian quadruped," also applies to tigers.

Works for me. I like it. So we know what general kind of thing a clause is, but not what specific kind. And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

Vern:

Vern Edwards said:

And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

I'm tempted to bring that up given the next opportunity and see how it goes...would be interesting to hear the impromptu responses!

For the discussion here, unfortunately, FAR 52.301 (Matrix) prescribes Section H as the UCF location for FAR clause 52.234-4, Earned Value Management System (MAY 2014). Oddly enough, it is the only FAR clause I found that belongs in Section H.

 What's the matter with you? Shut up about 52.234-4 and the matrix. It's obviously a typo. They typed H when they meant I. Just accept what I'm saying. Don't ask questions. Go away. Go to bed.

You just can't help some people.

Its mid-day in Japan, but hey - Doctor's orders, off to bed!

Vern,

You're pushing your line of reasoning to the extreme with the effect of making a disingenuous argument.

Don maintains a clause is a clause no matter its location in the document.  Your counter is that he's asserting all text in the contract is a clause.

But your suggestion that sent us down this rabbit hole was to put the text that would otherwise be considered a clause somewhere else in the document.  You suggested moving a clause so it wouldn't be considered a clause.  Don stated it would still be a clause, regardless of relocation.

You aren't with JED are you?

Joel:

Not yet unless you know something I don't.

illzoni said:

Vern,

You're pushing your line of reasoning to the extreme with the effect of making a disingenuous argument.

Don maintains a clause is a clause no matter its location in the document.  Your counter is that he's asserting all text in the contract is a clause.

But your suggestion that sent us down this rabbit hole was to put the text that would otherwise be considered a clause somewhere else in the document.  You suggested moving a clause so it wouldn't be considered a clause.  Don stated it would still be a clause, regardless of relocation.

Illzoni:

Who cares what Don maintains? I was proceeding on the basis of Jamaal's analysis of the definition of contract clause, not Don's. Jamaal proposed an alternative analysis, and I like it.

In any case, I like pushing disingenuous arguments in order to get a rise out of folks and to prompt debate. I'm enjoying it now for the rise I've apparently gotten out of you. Why can't I try out different arguments? Why can't I have fun?

If it weren't for this kind of thing, this forum would be brain dead. All we'd be doing is answering endlessly repeated questions about things like options in FSS task orders.

Vern Edwards said:

Jamaal:

FAR 2.101:

So you think "a term or condition used in contracts" should not be understood to mean "any" term or condition. Right? In the same way that "dog means a mammalian quadruped," also applies to tigers.

Works for me. I like it. So we know what general kind of thing a clause is, but not what specific kind. And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

I might buy too.

First, let me ask a question, is it too much to ask for a solid FAR definition of "Definition"? What could that be? I suppose it could not be self-referential, so that would rule out the language at FAR 2.101 (a). I think it might be new ground and might not solve much, but without it there might be a danger that we know less than we think we do. 

More about the point I may buy. To the strawman (no one I know) who might think to declare all existing definitions somehow characteristically "definitive"...I would ask, "In what ways? or how so?"  For example, I think of the FAR definition of "contract clause" is something less than "definitive" in at least one meaningful way. It does qualify as a "descriptive" definition, but is different from a "prescriptive" definition. this difference is, on account of, as Vern points out, the use of the indefinite article "a" appearing in the midst of the definition "a  term or condition used in contracts".  

A prescriptive definition dictates "the" meaning of a word or term as contrasted with a descriptive definition which would give "a" meaning of a word or term. In short a descriptive definition fits only if it describes what we are trying to find.

Consider that the FAR usually uses a prescriptive format for definitions. The FAR definitions at 2.101,and elsewhere in the FAR are presented in language that gives us to know what a word or term does mean without equivocation, unless caveats (1) or (2), below, apply (emphasis added_)_ : 

"FAR 2.101 Definitions (a) A word or term, defined in this section, has the same meaning throughout this regulation (48 CFR Chapter 1), unless-

(1) The context in which the word or term is used clearly requires a different meaning or

(2) Another FAR part, subpart, or section provides a different definition for the particular part or portion of the part."

We don't first turn to the dictionary, but let's mention it at last. In contrast to the prescriptive definitions I find in the FAR, the Oxford online dictionary is content with what I call descriptive definitions...(determined in this instance by looking up  the definition of "definition" in the Oxford online dictionary): " A" statement of the exact meaning of a word, especially in a dictionary..." (emphasis added). After consulting Oxford, in many instances we are left to choose among statements to arrive at "the exact meaning of a word". The Oxford  dictionary aspires to multiple statements  of the exact meaning of the word or term and leads parties only so far (admittedly it is often far enough) in the search for the definitive. Thus informed, general use of an Oxford dictionary enables us to reliably learn what a word MAY mean, depending, of course, upon a variety of factors that we must then assess in any particular instance. 

Personally, after this little search for understanding, I find myself wanting  to test the prescriptive definitions I find, such as those in the FAR definitions I want to see if I encounter a certain symmetry...to see if they can be run backward and forward to the same effect (Using this test, I don't think that dogs get to figure out that they are mammals).  Whether the definitions pass or fail this test, I would likely learn something. Anyway, it also seems likely to make plain any underlying assumptions that I may not discover in any other way. Ferreting out assumptions is almost always worth something.

Maybe this test of definitions for symmetry can be compared to a property in math described as the Reflexive Property of Equality....I don't recall hearing this one in school.   This property, simple as it is, boils down to the strikingly plain example of a=a ...I'm not convinced i will learn much more by trying it, but Mark Ryan at Dummies. com wrote something that has really me thinking it over. He gives at a test from the formal logic of theorems and proofs (emphasis added): 

"Definition: A definition defines or explains what a term means. Here’s an example: “A midpoint divides a segment into two congruent parts.”

You can write all definitions in if-then form in either direction: “If a point is a midpoint of a segment, then it divides that segment into two congruent parts” or “If a point divides a segment into two congruent parts, then it’s the midpoint of that segment.”

I am going to apply two way "if-then" statements to test definitions...and see where that kind of thinking takes me...

Vern Edwards said:

Jamaal:

FAR 2.101:

So you think "a term or condition used in contracts" should not be understood to mean "any" term or condition. Right? In the same way that "dog means a mammalian quadruped," also applies to tigers.

Works for me. I like it. So we know what general kind of thing a clause is, but not what specific kind. And so Section H in the UCF contains texts FAR labels "special contract requirements" and Section I contains texts labeled "contract clauses" and never the twain shall meet. Problem solved. If it ain't in Section I it ain't a clause. There you go.

I think the way to read the definition is that "clause" is in the general category of terms and conditions. What distinguishes it from other things in the category is that it is (1) used in contracts or solicitations and contracts and (2) it applies after award or both before and after award.

For the sake of argument, let's assume that the definition of "contract clause" is broad enough to include parts of a contract that we don't typically think of as contract clauses. What's the absurd consequence? You brought up that definitions in part 2 would apply to the SOW, CDRLs, etc. Ok, but I don't think it's that absurd. It's strange that the definition is that broad, but unless it is being used somewhere in the FAR that would make application of the definition absurd or impractical, I don't see it as a problem.

Don, Who are you talking to? Me or Jamaal?

Don:

Quote

For the sake of argument, let's assume that the definition of "contract clause" is broad enough to include parts of a contract that we don't typically think of as contract clauses. What's the absurd consequence? You brought up that definitions in part 2 would apply to the SOW, CDRLs, etc. Ok, but I don't think it's that absurd. It's strange that the definition is that broad, but unless it is being used somewhere in the FAR that would make application of the definition absurd or impractical, I don't see it as a problem.

Don, I'm not going to debate that with you. I think it would be a significant practical problem, especially with respect to standardized documents like DIDs that are incorporated into contracts. Some of those documents were written many years ago with no thought of FAR definitions. We can't get COs to read FAR definitions. How are we going to get requirements folk to do it? If you want to disagree about it being a problem, then we'll disagree. The FAR is a mess. You know it as well as I. The only way it's not a problem is when everyone is ignorant or ignores what it seems to say.

Stumbled across a DPAP memo stating that if contract clauses are insufficient, include coverage as necessary, through revision of the performance work statement, statement of work, statement of objectives, or otherwise. 

DPAP was addressing DoD's use of non-DoD contracts and/or organizations and civilian agency use of DoD contracts.

See 'Clarification, Pages 3-4' here:  http://www.acq.osd.mil/dpap/policy/policyvault/2007-0203-DPAP.pdf

Jamaal Valentine said:

Stumbled across a DPAP memo stating that if contract clauses are insufficient, include coverage as necessary, through revision of the performance work statement, statement of work, statement of objectives, or otherwise. 

DPAP was addressing DoD's use of non-DoD contracts and/or organizations and civilian agency use of DoD contracts.

See 'Clarification, Pages 3-4' here:  DPAP Memo.

Try this link instead for the DPAP memorandum. The link above went to a log in page for DAU. 

http://www.acq.osd.mil/dpap/policy/policyvault/2007-0203-DPAP.pdf

note that the memo provides policy for issuing orders under another agency's existing contract that doesn't  include the necessary DoD contract requirements.

Jamaal:

Your link does not lead to a DPAP memo, but to a DAU student login webpage.