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  • Question

    I do not believe 52.212-5 can be incorporated to solicitations and contracts by reference as it does not make any sense to do so, but some of my coworkers believe that we can per FAR Matrix on www.acquisitoin.gov. Can you clarify the situation for us please? Thank you.


    Answer

    1. The FAR references quoted below in pertinent part are applicable to this response.

    FAR 2.101 -- Definitions

    “Shall” means the imperative.

    “Should” means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance.

    FAR 12.301 -- Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items
    (b) Insert the following provisions in solicitations for the acquisition of commercial items, and clauses in solicitations and contracts for the acquisition of commercial items:
      (4) The clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items. This clause incorporates by reference only those clauses required to implement provisions of law or Executive orders applicable to the acquisition of commercial items. The contracting officer shall attach this clause to the solicitation and contract and, using the appropriate clause prescriptions, indicate which, if any, of the additional clauses cited in 52.212-5(b) or (c) are applicable to the specific acquisition.

    FAR 52.101 -- Using Part 52
    (e) Matrix.
    (2) For each provision or clause listed, the matrix provides information on --
      (i) Whether incorporation by reference is or is not authorized

    FAR 52.102 -- Incorporating provisions and clauses.
    (a) Provisions and clauses should be incorporated by reference to the maximum practical extent, rather than being incorporated in full text, even if they—
      (3) Require modification or the insertion by the Government of fill-in material (see 52.104);

    FAR 52.104 -- Procedures for modifying and completing provisions and clauses.
    (d) When completing blanks in provisions or clauses incorporated by reference, insert the fill-in information directly below the title of the provision or clause identifying to the lowest level necessary to clearly indicate the blanks being filled in.

    FAR 52.212-5 -- Contract Terms and Conditions Required to Implement Statutes or Executive Orders -- Commercial Items
    (b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the contracting officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:
      [Contracting Officer check as appropriate.]

    FAR 52.301 -- Solicitation provisions and contract clauses (Matrix)
    Key: IBR = Is Incorporation by Reference Authorized?

     Provision or Clause  Prescribed In   IBR 
     52.212-5 Contract Terms and Conditions Required To Implement Statutes  
     or Executive Orders— Commercial Items 
     12.301(b)(4)   Yes

    2. As indicated by the citations quoted above, this situation involves differing guidance contained in the FAR regarding whether clause FAR 52.212-5 is set forth in full text, or instead may be incorporated by reference, in solicitations and contracts for commercial items. On the one hand when read together, FAR 52.101(e)(2)(i), FAR 52.102(a)(3), and FAR 52.301 [IBR notation stating “Yes”] permit incorporating this clause by reference, provided that the procedure stated in FAR 52.104(d) is followed to clearly specify which of the clauses listed in FAR 52.212-5(b) are applicable to the solicitation and contract. On the other hand, FAR 12.301(b)(4) expressly states that clause FAR 52.212-5 shall be attached to the solicitation and contract (i.e., set forth in full text) wherein the Contracting Officer “checks as appropriate” those clauses in FAR 52.212-5(b) that apply to the specific commercial item acquisition. 
     
    3. Consequently, the Contracting Officer can certainly use either approach as described above in order to properly incorporate clause FAR 52.212-5 into solicitations and contracts for commercial items. However, as defined in FAR 2.101, the term “shall” used in FAR 12.301(b)(4) means the imperative (i.e., must be done), whereas the term “should” used in FAR 52.102(a)(3) means an expected course of action that is to be followed unless inappropriate for a particular circumstance. Therefore, it could be reasonably argued that inserting clause FAR 52.212-5 into the solicitation and contract in full text with the applicable FAR clauses checked in paragraph (b) would be the preferred approach that is more appropriate in this particular circumstance.



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