Government Contract Clauses are like Warning Labels

June 16, 2016

A fact we all accept: federal contracts have a LOT of clauses. Get this – they have so many that the clauses get their own section in most contracts (Section I, if you’re curious). Many of the clauses are ‘standard’ ones that appear in many contracts. However, there are many that are specific to the type of solicitation (ex: small business set aside); others are tied to the anticipated contract value (ex: over the Simplified Acquisition Threshold); and still others are tied to contract type (ex: FFP vs. CPFF).

Many clauses are a result of a real or perceived problem. They are effectively the shadow of the past playing out in current contracts. They are like warning labels that tell us not to do things we know we’re not supposed to do. Because at some point someone did, these labels make sure we know not to do things like drink bleach.

While the cynic sees this list of clauses as one more thing to complain about, I see them as a great source for insights, and yet another puzzle to solve (see my post about how much I love solving puzzles). By reading the clauses you can figure out why they are there. Contracting officers, business developers, proposal writers, and contract administrators can all glean lessons on how to write, compete (or compete for) and execute contracts. These clauses are chockablock with nuggets about what went well, or not so well, in the past.

Here’s one small example from my previous life as a contracting officer at Special Operations Command. The Special Operations FAR Supplement (SOFARS) requires that CO’s use clause 5652.209-9002 “Use of Contractor Support/Advisory Personnel for Review of Proposals” in RFPs when they anticipate using contractors to evaluate proposals. Since it’s a clause, it’s in ‘legalese’. You can find the full version by Googling 5652.209-9002, but for brevity’s sake, I’ll paraphrase:

Head’s up. We occasionally use contractors to evaluate proposals. They make recommendations to Government decision makers. Fret not. They comply with Procurement Integrity laws and have signed NDAs. We do our best to safeguard your propriety data and avoid conflicts of interest. If you are not ok with this, please don’t bid…and please don’t protest about this later.

Does this clause tell you anything about SOCOM? How about the fact that SOCOM contracts out a lot of services (including source selection support). If you already knew that, cool. But that’s not the point. The point is that there are many more nuggets like this in other clauses – especially the agency specific ones.

Hmm…this sounds like a great topic for a Skyway Connection Community webinar. I’ll add it to our list. If you’re a member and you want us to move this topic up the priority list, send me an email at kevin@skywayacquisition.com and let me know.

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