Sign In
  • Question

    It has always been my understanding that attachments can go in the solicitation but do not become part of the contract. I'm trying to locate this verbiage in the FAR, DFAR, PGI, etc and currently cannot locate it.


    Answer

    Despite your memory, there is no known rule on whether what one attaches to a solicitation becomes a part of the contract, irrespective of whether one calls it an attachment, exhibit, or something else.  Whatever is incorporated into the contract by reference becomes a part of the contract.  Often, you can tell what is incorporated by its listing in the table of contents if your contract has one.  If it is listed as an attachment, exhibit, or such, then you can presume it is incorporated unless you find some express indication that the parties did not intend that.  (For example, you might include an attachment to the solicitation as an example or courtesy copy on how to present the proposal that will have no part in the contract to be awarded.) 
     
    Contracting Officers should be careful to include as attachments incorporated into the contract anything that they expect the contractor to be held to.  For example, if you are ordering clothing for a store, the mix of sizes might be so extensive as to be an attachment: that would need to be incorporated to hold the contractor to that particular mix of sizes and should be referenced elsewhere in the contract.  There should not be contract attachments etc. that appear as standalone documents without being expressly referenced anywhere in the contract, whether by title or attachment number.  Express reference is preferable to reference by implication.  Drawings and blueprints and any other document should have a reference in the Statement of Work or in a clear, unambiguous line item.  Some contracts go further to state the order of precedence of interpreting the contract should there be a conflict between an elaborate attachment and the contract itself.  See FAR clause 52.215-8 for the UCF order of precedence: the clause is prescribed in FAR 15.209(h). 
     
    Be sure that in your contract writing systems, you are filing your attachments under “contract documents” and not under “supporting documents”.  If they are incorporated, they are “contract documents”.  Moreover, you should always be transmitting your “contract documents” as a package: Do not transmit only the signed pages of the award or just the SF form to the contractor.  A contract’s delivery is a legally significant point in time when obligations arise (come into existence) and obligations start (commence the clock for their execution).  There should be no question as to when and how the document was transmitted and whether it was complete with all its parts and pieces when transmitted.  Failing to transmit attachments with the contract is sloppy and can have legal consequences.
       
    The legal rule of construction is that contracts are interpreted as to their whole rather than to an isolated part.  If none of the contract record gives you indication of the answers to the above, I would not automatically presume that the attachments are not part of the contract, especially if you find obligations of the parties or technical direction in attachments which the parties relied upon in executing their duties or bargained for in negotiating the award.  If all items in the order of precedence do not clarify your/their obligations, then you are dealing with a question of contract interpretation, parole evidence, and ambiguity for your legal counsel.
     

    Open full Question Details