I was wondering you could expand upon the subject FAR clause. It states:
Any inconsistency in this solicitation or contract shall be resolved by
giving precedence in the following order:
a. The Schedule (excluding specifications)
b. Representations and other instructions
c. Contract clauses
d. Other documents, exhibits, and attachments
e. The specifications
I'm pretty sure the schedule means the contract itself, right? What I'm
hoping to understand further are the other types of contract documents and where they fall on this list. For instance, where does a SOW fit?
How about a MOA? Where are the TDP documents like engineering drawings? CDRLs that are more like instructions (Configuration Management Plans, IUID Marking Plans, Corrosion Control Plans, Functional and Physical Configuration Audit Plans, etc.)? Also, a definition of #2 on the list, a "representation," could be useful.
Any info you can provide would be much appreciated.
The answers below are provided in the order asked in the question:
1) The Schedule is defined in FAR part 15, which is the same part that prescribes the 52.215-8 clause. See Table 15-1 under 15.204-1. The actual contract document will consist of Parts I-III therein but not Part IV (Sections K-M). Part IV is retained in the contracting officer's file. Section K (Representations and Certifications) from Part IV are included in the contract by reference only (see FAR 4.1202(b)).
2) The SOW is part of Section C, Description/specifications/statement of work, which is fifth in the order of precedence. Part of the reasoning for it being fifth is that it can sometimes be subject to differing interpretations when compared to other parts of the contract.
3) Any Memorandum of Agreement (MOA) can be subject to interpretation as to where it fits among the five items of the order of precedence. The GAO or Board of Contract Appeals could have to rule on this if it becomes a point of contention between the contractor and the government. At least initially, it seems to fit best within "Other documents, exhibits, and attachments."
4) Engineering drawings can also be somewhat subject to interpretation. Some may seem them as inherent to the specifications, while others argue they fit squarely among "Other documents, exhibits, and attachments." If this was a construction contract, the clause at FAR 52.236-21 states: "Anything mentioned in the specifications and not shown on the drawings or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern." This demonstrates that the order of precedence determination is not always crystal clear.
5) Per DFARS 204.7101, "The DD Form 1423, Contract Data Requirements List, is always an exhibit..."
6) Representations are items that offerors submit in accordance with the clause at FAR 52.204-8. You can review the clause to get an idea of the types of items that are "representations."
All that said, the “order of precedence” can be open to interpretation and has potential legal ramifications in the case of disagreement between the contractor and the government...to include issues arising from quality assurance reviews. For this reason, you should consult with your activity’s legal counsel for a more authoritative opinion.
