52.102 Incorporating provisions and clauses
Source: FAR 52.102 on acquisition.gov
Incorporate provisions and clauses by reference whenever practical, ensuring electronic access and proper notification to offerors, to streamline contract documentation and maintain compliance.
Overview
FAR 52.102 provides detailed guidance on how contracting officers should incorporate provisions and clauses into solicitations and contracts. The regulation emphasizes incorporating by reference whenever practical, rather than including the full text, to streamline documentation and reduce redundancy. It outlines specific scenarios where incorporation by reference is appropriate, including when alternates, fill-ins, or offeror completion are required. The section also addresses electronic accessibility, agency-specific provisions, and the use of group listings. It mandates full-text inclusion only when electronic access is unavailable or when required by regulation. Additionally, it prohibits incorporation by reference through certain alteration provisions or clauses.
Key Rules
- Incorporation by Reference Preferred
- Provisions and clauses should be incorporated by reference whenever possible, even if they require alternates, fill-ins, or offeror completion.
- Electronic Accessibility
- Provisions and clauses accessible electronically may be incorporated by reference, except those in 52.107; full text must be provided upon request.
- Agency and Non-Reference Clauses
- Agency-approved or non-reference-authorized clauses need not be in full text if a statement identifies required completions and provides electronic access.
- Group Listings
- Agencies may use group listings for categories of contracts, provided these are available electronically.
- Full Text Requirement
- If a provision or clause is not electronically available, it must be included in full text.
- Prohibited Incorporation Methods
- Provisions or clauses cannot be incorporated by reference via 52.252-3 or 52.252-4.
Responsibilities
- Contracting Officers: Must determine the appropriate method of incorporation, ensure electronic access, provide full text upon request, and comply with notification and listing requirements.
- Contractors: Must review referenced provisions and clauses, complete required sections, and access full texts as needed.
- Agencies: May develop group listings and must ensure electronic availability where applicable.
Practical Implications
- This section streamlines contract documentation and reduces administrative burden by promoting incorporation by reference. Contractors must be diligent in reviewing referenced clauses, as they are legally binding even if not included in full text. Failure to access or complete required provisions can lead to compliance issues or proposal rejection.
(a) Provisions and clauses should be incorporated by reference to the maximum practical extent, rather than being incorporated in full text, even if they-
(1) Are used with one or more alternates or on an optional basis;
(2) Are prescribed on a "substantially as follows" or "substantially the same as" basis, provided they are used verbatim;
(3) Require modification or the insertion by the Government of fill-in material (see 52.104); or
(4) Require completion by the offeror or prospective contractor. This instruction also applies to provisions completed as annual representations and certifications.
(b) Except for provisions and clauses prescribed in 52.107, any provision or clause that can be accessed electronically by the offeror or prospective contractor may be incorporated by reference in solicitations and/or contracts. However, the contracting officer, upon request, shall provide the full text of any provision or clause incorporated by reference.
(c) Agency approved provisions and clauses prescribed in agency acquisition regulations, and FAR provisions and clauses not authorized to be incorporated by reference as shown in the matrix at https://www.acquisition.gov/smart-matrix" target="_blank">https://www.acquisition.gov/smart-matrix, need not be incorporated in full text, provided the contracting officer includes in the solicitation and contract a statement that—
(1) Identifies all provisions and clauses that require completion by the offeror or prospective contractor;
(2) Specifies that the provisions and clauses must be completed by the offeror or prospective contractor and must be submitted with the quotation or offer; and
(3) Identifies to the offeror or prospective contractor at least one electronic address where the full text may be accessed.
(d) An agency may develop a group listing of provisions and clauses that apply to a specific category of contracts. An agency group listing may be incorporated by reference in solicitations and/or contracts in lieu of citing the provisions and clauses individually, provided the group listing is made available electronically to offerors and prospective contractors.
(e) A provision or clause that is not available electronically to offerors and prospective contractors shall be incorporated in solicitations and/or contracts in full text if it is-
(1) A FAR provision or clause that otherwise is not authorized to be incorporated by reference (see http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3" target="_blank">sub part 52.3); or
(2) A provision or clause prescribed for use in an agency acquisition regulation.
(f) Provisions or clauses may not be incorporated by reference by being listed in the-
(1) Provision at 52.252-3, Alterations in Solicitations; or
(2) Clause at 52.252-4, Alterations in Contract.