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    The question and answer dated 08/30/2010 was provided in the scenario. The answer did not address the DoD deviation to 52.212-5 (Clause 52.212-5(Dev)) which is mandatory when using the PD2 procurement system when processing contracts. Please address the question: "Does the deviation clause, FAR 52.212-5 (Deviation), actually incorporate the clauses listed under (b)(1) or does (b)(1) only tell the prime that they must flow down the listed clauses if explicitly incorporated into the contract elsewhere (i.e. by reference or full text)?" Many Contracting Officers believe 52.212-5(Dev) clause only applies to subcontractors.


    Answer

    The language in the FAR pertaining to this Deviation can be challenging. However, the Deviation does not appear to actually incorporate the clauses listed under paragraph (b)(1), but only lists them to point out that those clauses must be flowed down to subcontractors. The overall purpose of the Deviation is to acknowledge the capability of the Standard Procurement System to relieve contracting officers of having to "check" the all of the boxes required by the standard clause. It dispenses with the long list of the clauses contained in the standard clause. However, the DPAP memorandum goes on to say that contracting officers must confirm that the clauses listed in the deviation are incorporated into solicitations and prime contracts, if applicable. See the memorandum at the link below; it should provide additional insight into this issue.

    http://www.acq.osd.mil/dpap/policy/policyvault/USA002337-09-DPAP.pdf
     

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