Finding Class Deviations

DAU should have a single, searchable, PDF of all class deviations. Look under tools on their site.

Here's what Don may have been referring to: https://www.dau.edu/tools/t/DoD-Class-Deviations-Integrated-pdf-file-JST

It took a bit of searching but I found it at https://www.dau.edu/tools/t/DoD-Class-Deviations-Integrated-pdf-file-JST

However it's just a pdf of the class deviation page I noted above, plus all the deviations. Sure you can search for a deviation for a clause using the same clause number, but how would you find new clauses, like a -7098 or a -7099 clause, if you don't already know the clause number?

Maybe I'm expecting too much. I'd like to see a full DFARS with the deviations in place along with the other clauses.

Fara Fasat said:

Maybe I'm expecting too much. I'd like to see a full DFARS with the deviations in place along with the other clauses.

The now defunct FARSite used to have the deviations embedded in the FAR and DFARS. I don't know of a place you can see that now.

The DAU matrix at least clues you in to the fact that there's a deviation to a given FAR/DFARS clause.

Fara Fasat said:

Maybe I'm expecting too much. I'd like to see a full DFARS with the deviations in place along with the other clauses.

Up until a few years ago, Hill Air Force Base maintained a search engine called FARsite. It included a display of class deviations (red font) integrated into the relevant DFARS clause(s). FARsite went away in favor of Acquisition.gov. FARsite was not considered official for DFARS, but it was most helpful.

Fara Fasat said:

Maybe I'm expecting too much.

Bingo.

What do I win? 😏

While some of the deviant clauses are relatively harmless, some have a big substantive impact. Take the SBIR clause for example, 252.227-7018. Under the standard clause, the SBIR data rights period is 5 years. Under the class deviation clause, the period is 20 years. Quite a difference!

Teach yourself to do research. Soon enough you'll be adept at finding what you want to know.

I don't find https://www.acq.osd.mil/dpap/dars/class_deviations.html to be at all user unfriendly. I'm old, and if I can find what I want there, anybody can.

I'm adept now, thank you. As for that site, do you know what turns up if you search for 252.227? Nothing. SBIR? Nothing. A search for "data" finally turns up 4 hits. Finding such substantive changes shouldn't depend on thinking of the right keyword, AND, having that keyword show up in the title. And what do you suggest we search for to find unknown additional clauses?

If you didn't already know about the SBIR class deviation, what would tip you off to look for one? Or are you suggesting that we should search for deviations to all clauses before including them in a contract? And again, what about the additional clauses? How would you know to add those unless there was a consolidated list somewhere? Even if you downloaded the full pdf that Don suggested, what search terms would you suggest we use to find just the additional clauses, not the ones that replace an existing clause? It's over 400 pages long.

But you're right, I'm expecting too much to think that the DoD online DFARS should have the correct clauses. If farsite could do it, so could acquisition.gov. How about just something in bold in front of the clause that says "See Class Deviation 20XX-Oxxxx." That shouldn't be hard.

What is it you are trying to do, exactly? Do you want a list of every clause to which a DOD class deviation applies? What is your quest? Be specific.

Fara Fasat said:

Even if you downloaded the full pdf that Don suggested, what search terms would you suggest we use to find just the additional clauses, not the ones that replace an existing clause? It's over 400 pages long.

Search for "-79". The subsection number of clauses that exist only in a deviation will start with 79. Usually, for multiple clauses that apply to a single part, the subsection numbering starts with "-7999" and goes down.

Fara Fasat said:

If you didn't already know about the SBIR class deviation, what would tip you off to look for one? Or are you suggesting that we should search for deviations to all clauses before including them in a contract? And again, what about the additional clauses? How would you know to add those unless there was a consolidated list somewhere? Even if you downloaded the full pdf that Don suggested, what search terms would you suggest we use to find just the additional clauses, not the ones that replace an existing clause? It's over 400 pages long.

Try this. Go to the DOD class deviations page. There are 49 active class deviations (if I counted correctly). Look at the ones with attachments. They are the ones that affect or create contract clauses. There are 28 of them. Some of them affect or create more than one clause.

Vern Edwards said:

What is it you are trying to do, exactly?

I was asking if something existed, like the version the Farsite had, where the deviations were integrated into the DFARS. It seems to me that's the most user-friendly solution. If there is no such thing any more, I could do what you and Don are saying. And so could thousands of other 1102s, contract managers, etc, at a tremendous waste and duplication of effort. 

I am not averse to research, but this is not something that should require everyone to do his or her own research. These are clauses - they belong in the DFARS. In fact those 'official' versions, by using the clauses that have been replaced by a deviation, are not correct, are they? After all, the prescriptions for the deviations say they shall be used.

Fara Fasat said:

I was asking if something existed, like the version the Farsite had, where the deviations were integrated into the DFARS. It seems to me that's the most user-friendly solution. If there is no such thing any more, I could do what you and Don are saying. And so could thousands of other 1102s, contract managers, etc, at a tremendous waste and duplication of effort. 

I am not averse to research, but this is not something that should require everyone to do his or her own research. These are clauses - they belong in the DFARS. In fact those 'official' versions, by using the clauses that have been replaced by a deviation, are not correct, are they? After all, the prescriptions for the deviations say they shall be used.

I feel your pain. This was one of the the reasons I created the DAU Provision and Clause Matrix. I spoke to the folks at Wolters Kluwer about incorporating something in their FAR Matrix Tool that would note the existence of class deviations for a clause or provision. They seemed interested in adding that feature, but I don't know if they ever did.

@Fara FasatWell, you're right that it should be the way that you describe, but it's not.

@Fara Fasat  Always intrigued so I did a little surfing.   Does this site help?    May not be what you are exactly looking for but wondered if it helps.

https://www.dau.edu/tools/t/FAR,-DFARS,-VAAR,-DEAR-Provision-and-Clause-Matrix

Looks helpful. I checked it against FAR 52.219-14, Limitations on Subcontracting (SEP 2021), and it includes the DOD class deviation. But it does not include the CAAC class deviation. The two deviations are the same in text, but not in paragraph structure.

C Culham: Yes. I mentioned it way back in the first post:

"The only thing I've found that comes close is the DAU clause matrix, but it's not official, and it can be cumbersome to use because you have to download a spreadsheet and then open and search each time you want to verify a clause."

It's still not the same as having DoD and GSA post an accurate DFARS online. What they post now is not.

Fara Fasat said:

It's still not the same as having DoD and GSA post an accurate DFARS online. What they post now is not.

The DFARS, Chapter 2 of Title 48 of the CFR, is accurate. The DPC policy memoranda have no effect on the CFR.

True, but my issue is not whether DoD has posted an accurate copy of the CFR. It's whether DoD has posted an accurate version for their practitioners to use. They have not.

Fara Fasat said:

True, but my issue is not whether DoD has posted an accurate copy of the CFR. It's whether DoD has posted an accurate version for their practitioners to use. They have not.

Then DoD shouldn't be surprised when their contracting officers aren't compliant with their class deviations.

Don Mansfield said:

True, but my issue is not whether DoD has posted an accurate copy of the CFR. It's whether DoD has posted an accurate version for their practitioners to use. They have not.

That is not true.

They have posted it. You just don't like what you have to do to access it.

Vern Edwards said:

You just don't like what you have to do to find where they posted it.

Does anybody like it?

Don Mansfield said:

Does anybody like it?

Nobody has to like it. How much of acquisition regulation does anyone like? But you have to deal with the world as it is until you change it. Knowing how to navigate the sea of regulation is what separates the pros for the amateurs.

Fara Fasat has done a lot of complaining in this thread. I complain a lot, too. We all complain about something or other. But I wonder what he has done to try to change things or make professional life easier.

Vern Edwards said:

how to navigate the sea of regulation is what separates the pros for the amateurs.

Fara Fasat has done a lot of complaining in this thread. I complain a lot, too. We all complain about something or other. But I wonder what he has done to try to change things or make professional life easier.

I complain a lot too. 

I can run circles around my boss and my bosses boss regarding regulations, but they (bosses) are very good at implementing approaches relating to the frame work of the FAR, which i am not. 

Doesn't change start at the top? Perhaps Fara Fast isn't at the top?

Vern - wonder no more. For the record I have contributed. I just don't need to enumerate what or how here. My statements on this forum aren't any more or less valid based on my professional contributions.

Dsmith - I was in the 101st too, although longer ago than I care to admit. And since I'm not in the government, there's not much I can do about change.

By the way, I could put together a DoD-accurate version of the DFARS, with the currently-applicable clauses and their prescriptions in the right places. For a price.

Fara Fasat said:

By the way, I could put together a DoD-accurate version of the DFARS, with the currently-applicable clauses and their prescriptions in the right places. For a price.

No one would hire you to do that, because the DFARS is part of the Code of Federal Regulations. Its content is subject to the Federal Register notice and comment procedure imposed by statute. Deviations do not go through that process, so the content of DOD devisions are not part of DFARS and cannot be published in the DFARS. That's why they are published separately.

Don tried to explain that to you.

Don also said that "DoD shouldn't be surprised when their contracting officers aren't compliant with their class deviations."

It wouldn't be "the DFARS." It would be a version (and I have consistently said "version") with the correct clauses in it. Did you ever complain about the version that Farsite posted, because it wasn't the real "DFARS" and didn't go through notice and comment? If you don't like "version", what word would you use? I'll be glad to use it. It wouldn't be the real, CFR DFARS, and everyone here knows that, so I'll call it whatever you want. 

No matter what it's called, I bet there are many who would be glad to see it and use it. Oh, and the version of the NFS that NASA puts on its website includes references to its deviations, in red, at the beginning of the clauses for each subpart. In their list of deviations at https://www.hq.nasa.gov/office/procurement/regs/pcd.pdf, they include a link to this version and even call it the official NFS. Apparently NASA thinks it is useful to post their NFS with deviations. https://www.hq.nasa.gov/office/procurement/regs/NFS.pdf

Vern Edwards said:

Deviations do not go through that process, so the content of DOD devisions are not part of DFARS and cannot be published in the DFARS. That's why they are published separately.

Is acquisition.gov the home of the official DFARS? That site was last updated on 2/09/2022; whereas,  Title 48 at eCFR.gov was last amended 3/02/2022. If acquisition.gov is an unofficial DFARS, what would prevent them from adding the class deviations?

Jamaal Valentine said:

Is acquisition.gov the home of the official DFARS? That site was last updated on 2/09/2022; whereas,  Title 48 at eCFR.gov was last amended 3/02/2022. If acquisition.gov is an unofficial DFARS, what would prevent them from adding the class deviations?

@Jamaal ValentineFrom the ecfr website, https://www.ecfr.gov/reader-aids/using-ecfr/getting-started

Quote

The eCFR is not an official legal edition of the CFR.

Note the phrase "legal edition," which refers to the currently and legally effective text of the moment. Legal edition and official edition are not the same thing.

An "official" version of the CFR is simply one that is published by an office with the authority to do so. There is more than one official version of the CFR. What the legal version is at any particular moment must be determined through legal research. Acquisition.gov declares itself to be an "official" website, so a FAR or agency supplement text at acquisition.gov is "official", but it may not be the legally effective version.

By definition, the text in a FAR class deviation is different from the currently legally effective text of the FAR (or DFARS). That's why it's called a deviation. FAR permits deviations. Deviations do not change the currently legally effective text. The text of a clause deviation must not be presented as a "version" of the CFR text, even though it may be applied in practice. FAR 1.404, Class deviations, says: "When an agency knows that it will require a class deviation on a permanent basis, it should propose a FAR revision, if appropriate."

There has been some dispute about the legality of class deviations that have not undergone the publication and comment rule in 41 USC 1707, but its current status is muddled. See Tesoro Hawaii Corp. v. U.S., 405 F.3d 1339 (CAFC, 2005). See also "Agency Policy Memos: The Statutory Publication and Public Comment Rules Apply," The Nash & Cibinic Report (February 2011); "Postscript: Agency Policy Memos," The Nash & Cibinic Report (November 2013); and "Postscript II: Agency Policy Memos," The Nash & Cibinic Report (February 2014).

I don't doubt that DOD class deviation could be presented at acquisition.gov, but for I don't think they should be presented as "a version of the DFARS" for the reasons I set out above. DFARS deviations are not part of the DFARS, they are deviations from the DFARS.

There is no question that Fara Fasat is right to say that something could be done to make it easier to determine the existence of class deviations applicable to FAR contract clauses. But once that has been said there is no point in going on about it. The FAR councils make policy, but have never seemed to care about facilitating day-to-day legal research. A competent person can find the class deviations in short order. It's a pain, but laws and regulations are generally a pain. Those who think the DAR Council should do something to make life easier should write to the DAR Council.

@Vern Edwards

 Thank you. It’s early and I’ve already learned something new. I did not know about ‘legal’ editions.

I wonder what source of FAR is cited in cases. Looks like I have something fun to research while waiting for my car to get finished.

Jamaal Valentine said:

I wonder what source of FAR is cited in cases.

In a recent decision the CBCA cited FAR as "48 CFR ...." For example, from a very recent decision: "Appellant has requested dismissal of this appeal pursuant to Rule 12(b)(2) (48 CFR 6101.12(b)(2) (2020))." That date refers to the annual edition. That seems to be the preferred style. The version would depend on the date of the contract action.

The ASBCA might cite it as "FAR...." For example: "A claim is a 'written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain ... arising under or relating to the contract.' FAR 2.101." Again, the version would depend on the date of the contract action.

The COFC seems to cite it as "FAR...." For example: "FAR § 52.212-1(g), however, also allows the government to “waive informalities and minor irregularities in offers received.” Waiver under this regulation is discretionary." Date of the contract action.

The GAO seems to cite "48 CFR." For example, "The Federal Acquisition Regulations require that the government's notice of termination include the 'effective date of termination.' 48 C.F.R. § 49.102(a)(2)." Again, the version that would apply would depend on the date of the contract action.

Not  what Fara Fasat wishes for but it does seem somebody has done something for a cost and I wonder if for a price too.

https://classdeviations.com/

Good if you're looking for a searchable database of deviations; not so good if you'd like to see the clauses where they belong.

In my opinion, NASA got a good start by providing a link to the applicable deviations at the front of each subpart's clauses. Even better would be having the deviation clauses inserted where applicable. For a bonus, do something similar to the 'track changes' function in MS Word, like strike through the inapplicable clause and highlight the deviation clause. If the price is right ... 😉

Just curious - does the contract writing software that DoD uses automatically insert the deviation clause?

Fara Fasat said:

Good if you're looking for a searchable database of deviations; not so good if you'd like to see the clauses where they belong.

Fair but maybe they would consider an offer like this.....

On 3/4/2022 at 1:55 PM, Fara Fasat said:

By the way, I could put together a DoD-accurate version of the DFARS, with the currently-applicable clauses and their prescriptions in the right places. For a price.

Fara Fasat said:

Just curious - does the contract writing software that DoD uses automatically insert the deviation clause?

No. There are programmers contracted to insert the clauses in the contract writing software databases. They usually have a COR whom can navigate the Federal Register, the regulations, and the Class Deviations, in order to assign them their work. Maybe that's the kind of job you want to pursue? Try this one, which is open to veterans:

https://www.usajobs.gov/job/640252800

You'd have to have this experience (my emphasis in underline):

Quote

Specialized Experience: One year of specialized experience which includes: (1) Preparing and administering contracts; (2) Resolving contract performance problems by gathering facts, determining remedies, and initiate remedial actions in order to find and provide a solution; and (3) Providing oversight of the organization's business processes related to the contract writing system, paperless contract file, contractor invoicing and payments, and federal contract data reporting. This definition of specialized experience is typical of work performed at the next lower grade/level position in the federal service (DJ-03/GS-13).

I guarantee it's good work if you can get it - at least, until it gets automated someday. By then, however, you're already in with the U.S. Army Medical Research and Development Command (USAMRDC)! Read about them here: https://mrdc.amedd.army.mil/ and see this excerpt about their mission:

Quote

The United States Army Medical Research Acquisition Activity crafts contracts, grants, and cooperative agreements to support command's research staff, scientific effort, advance development support, medical products, logistics support, and supplies. This mission encompasses more than $1.5 billion and 38,000 transactions annually.

The command's Congressionally Directed Medical Research Program continues to provide hope for advancements in military medicine as well as in public health through their research programs that hope to find cures for breast cancer, prostate cancer, neurofibromatosis, and more.

I used to love job-hunting.  This just made my lunch hour 😃

Just to be clear, I'm not job hunting. My offer of a version with deviations was somewhat tongue-in-cheek. Still ... 🤷‍♂️

Well, if that ever changes, or if any other reader ever wants to know how to work the system, then note I just went to usajobs.gov, typed in keyword “writing system” using quotation marks, and clicked on the only high-paying job in the query results.  The lower grades’ JOAs just required you know a contract writing system, not oversee it.