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  • Question

    Is it assumed the FAR Clauses listed in the solicitation, are automatically a part of the formalized contract awarded?


    Answer

    The short answer is that a contractor is only responsible to comply with the terms of the contract.  Provisions are terms that are present during the solicitation phase – they do not “roll over” into the contract.
    The terms of the contract are principally reflected in the applicable clauses.  Contract clauses are deliberately included (or not) during the awarding of the contract by the contracting officer (see generally FAR 52.101).  These form the contract that the parties agree to uphold.  Thus, if terms are not included in the contract, then the parties are not bound to adhere to them.
    Judicial exceptions have been created through the Christian doctrine (1963).  Then the Supreme Court stated that a mandatory contract clause that expressed a significant or deeply ingrained strand of public procurement policy was considered to be included in a contract by operation of law.  The two clauses you referenced appear to fall short of that standard and adding them via a bilateral modification was appropriate.
    As further support for adding the clauses via modification, according to FAR 52.301, Solicitation Provisions and Contract Clauses (Matrix), neither clause is mandatory.  In fact, each clause is “required when applicable” -- the contracting officer determines whether the preconditions are present to trigger applicability.  If applicable, the inclusion of the clauses into the contract should follow.

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