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    My question stems from this last sentence in the answer above, They are only bound by the regulations through terms and conditions stated in the contract. Isn't the PWS a term or condition of the contract? Wouldn't a regulation that is cited in the PWS bind the contractor to performing those tasks the way the regulation states? If the PWS states that a contractor shall perform maintenance in accordance with AR 750-1 wouldn't this bind the contractor to performing all maintenance IAW with AR750-1?


    Answer

    This response is based on the information provided.  We suggest you discuss with your contracting and finance team, program manager and/or legal department as appropriate.

     

    It still matters what the contract says.  The clauses take precedence over the performance work statements (PWS).

     

    "FAR Clause 52.215-8

    Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

    (a) The Schedule (excluding the specifications).

    (b) Representations and other instructions.

    (c) Contract clauses.

    (d) Other documents, exhibits, and attachments.

    (e) The specifications."

     

    The contractor is bound to perform the tasks in the PWS and execute those tasks in accordance with AR 750-1.  The Army does not want other sections of the regulation, not applicable to the maintenance efforts of the contract, to be on contract.

     

    While and PWSs and regulations are not inherently conflicting, PWSs are geared to driving the contractor to determine the best way to achieve the desired outcome. Regulations are more directive in nature.  Nonetheless, even in performance based acquisition there are some things that for good reason need to be done a certain way. It is important that you identify what part of AR-750-1 applies to contractor work.  We looked at the Table of Contents and without examining the regulation in any detail, it appears that chapters 4, 5, 7, & 8 apply to maintenance.  Possibly some of the policy areas would apply.  The point is  by arguing the whole regulation is on contract then binds the Army contractually to every aspect of the regulation.  Not that it is likely to happen but we would not want to have deal with claims of the Army failing to meet the terms and conditions of the contract.  From Chapter 3, 3-2; we suspect the Army would not want to be put in a position of proving that "b(5) Corrective actions that are not authorized at field level by the MAC must be on a valid support maintenance request (DA Form 5990–E and DA Form 2407)." has been met, given that it is on contract.  On the other side of the coin, we could also be binding the contractor to perform in areas we do not intend it to because we have not specified what parts of the regulation are considered pertinent to the program/contract.

    When placing a regulation on contract, we need to know what in the regulation it is that we intend the winning offeror to meet/execute.  We should put no more than that on contract.  We want to avoid ambiguity while allowing the contractor freedom to

     

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