How do you include the contractor's terms and conditions into a government contract?
Before deciding where to put accepted contractor terms and conditions (T&C) in the UCF, the contracting officer must first make sure conditions exist which allow the government to accept contractor proposals offering something other than what is published in the solicitation. Inclusion of contractor T&C into the uniform contract format (UCF) can be done in several ways. Most commands will have their own ideas of the best way to do it expressed in local policy. If they do, follow your local policy. Two suggestions for placement are:
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- Section J of the UCF as an attachment (FAR 15.204-4). Section J attachment may be an appropriate place to put them given the order of precedence presented in FAR clause 52.215-8 - Order of Precedence -- Uniform Contract Format. This clause places attachments just ahead of specifications, which are the least persuasive in a dispute.
- FAR 15.204-2(h), section H of the UCF, is another possibility but moves the contractor’s T&C up a little higher in the precedence list should there be a dispute.
As stated, before adding contractor T&C to the contract, the contacting officer must determine the inclusion of contractor T&C appropriate in the acquisition scenario. In order to be considered for inclusion, the provision at FAR 52.215-1 - Instructions to Offerors -- Competitive Acquisition, with Alternate II, is required in the solicitation. This provision enables the government to accept proposals that depart from requirements published in the solicitation as allowed at FAR 15.203(a)(2)(i). Careful attention must be applied to ensure the contemplated inclusion of contractor proposed T&C do not go so far as to change the government’s solicited requirement. If government requirements change, FAR 15.206 requires the contracting officer to issue an appropriate amendment to the solicitation.
Always consider competition requirements of FAR Part 6, and FAR Part 5 requirements to publicize contracting actions, whenever government requirements change substantially. A substantially changed requirement is, for competition and publication considerations, a new requirement. In harmony with FAR Parts 5 and 6, FAR 15.206(e) requires the following, “If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.”