Government Contracts – What Are They ?

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The Federal Acquisition Regulation (“FAR”) is located in Title 48 of the Code of Federal Regulations. It is made of 37 Chapters (Chapter 1, several 2,000+ pages, that applies to all bureaus, then different agency supplements in addition to the Cost Accounting Standards). In all, the FAR is thousands of webpages. Are all the important pieces of the FAR integrated in your government agency? The easy answer is “NO,” but a little background.

Cl. Sept. 27, 2017), considered a similar dilemma. The question Fogg was if federal statutes (namely, an Agriculture Conservation Program at the Farm Bill, title 16 of the U.S. Code) was included within their arrangement with the Department of Agriculture for this particular program, and if the authorities had violated that term from law. The Court held there was no particular term in their contract which gave rise to Fogg’s claim of violation, and ruled from Fogg. The Court further clarified that it’s “reluctant to find that statutory or regulatory provisions are incorporated into a contract with the government unless the contract explicitly provides for their incorporation,” mentioning St. Christopher Assocs., LP v. United States, 511 F. 3d 1376, 1384 (Fed. Cir. 2008), further mentioning Smithson v. United States, 847 F. 2d 791, 794 (Fed. Cir. 1988). Both of both Federal Circuit cases make it very clear wholesale incorporation of regulations to a contract could enable a contracting party to select among many regulations regarding a specific cause of action, instead of the particular requirements in the actual arrangement.

So what’s the FAR, and if can it be (or a part of it) integrated into a government contract. FAR 1.101 states that

The Federal Acquisition Regulations program is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies. The Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), that is the principal document, and agency acquisition regulations that implement or supplement the FAR.

FAR 2.101 also claims that “Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for using the Federal Government through purchase or lease, if the services or supplies are already in existence or must be created, developed, demonstrated and assessed.

You may hunt high and low in the FAR, however you’ll see nothing which says that the FAR is integrated into government contracts as a whole. Watch Edwards & Nash, “The FAR: Does It Have Contractual Force and Effect?” The Court instances (and this Edwards and Nash essay) make it very clear that in order to get a particular FAR sentence or department to be contained in your contract, then the contract needs to explicitly so say or be incorporated by reference.

There are particular exemptions which incorporate a FAR segment by reference. By Way of Example, the clause on “Allowable Cost and Payment” countries:

The Government will make payments to the Contractor… in amounts determined to be allowable… in compliance with the Federal Acquisition Regulation (FAR) subpart 31.2 in effect on the date of the contract and the conditions of the contract.

This trigger has explicitly integrated FAR subpart 31.2 to the contract, as well as the particular contract provisions written into the contract.

The end result is straightforward: a builder (and also the Government’s) responsibilities have to be put forth in the contract, either by explicit language or incorporation by reference (like in FAR 52.216-7 preceding). Nothing at the FAR magically “appears in” or is “included” in your contract since it’s in the FAR or the U.S. Code. If the Government would like to integrate part of the FAR to a contract, the Contracting Officer knows (or should know) just the way to perform it.

The only possible exception is that the “Christian Doctrine”. Underneath the Christian Doctrine, a contract is going to be read to incorporate a necessary clause though it isn’t physically incorporated in the record. Cl. In the landmark Christian case, which dealt with the termination for convenience clause, the court concluded the purpose and effects of the clause to be a “deeply ingrained strand of public liability policy” and a “major authorities principle,” thus requiring incorporation into a contract although it was omitted in the text. Id. at 426. On the other hand, the Christian Doctrine is limited to these kinds of clauses-not the numerous run of the mill authorities contracts exemptions that are at FAR Part 52 and therefore are not compulsory clauses, profoundly ingrained strands of public liability policy or significant government rules. Indeed, the boards and courts haven’t identified all of the FAR clauses that could be integrated into a contract from the Christian Doctrine. We do understand, however, the termination for convenience clause is among these, and there’s a few other people which were considered on a case by case basis for inclusion from the Christian Doctrine.