FAR Class Deviation to Resolve Conflicting Contractor T’s & C’s

The General Services Administration is requesting feedback on a proposed class deviation to the Federal Acquisition Regulation and the General Services Acquisition Regulation to address common Commercial Supplier Agreement terms that are inconsistent with federal law.

CSAs are standard forms used by commercial items contractors. They are particularly common in information technology acquisitions and appear in forms such as license agreements and terms of service.

According to GSA, CSAs are inappropriate for government contracting. Jurisdiction or venue clauses requiring disputes to be resolved in a particular state or federal court, automatic renewal clauses, and clauses granting the contractor a unilateral right of termination are examples of incompatible clauses.

When these types of clauses appear in CSAs, the contractor and the government must undergo lengthy and costly contract term negotiations to avoid terms that conflict with or are incompatible with federal law.

GSA intends to issue a class deviation to clarify the order of precedence in the FAR 52.212-4 commercial item clause by explaining the terms of the commercial item clause control in the event of a conflict with a CSA.

The deviation will also implement standard terms and conditions to minimize the need for negotiating the terms of CSAs on an individual basis.

The new clause will make unenforceable any conflicting or inconsistent CSA terms that are addressed in the class deviation, so long as an express exception is not authorized elsewhere by federal statute.

GSA’s request for information (NOTICE–MVA–2015–01; Docket No. 2015– 0002) outlines 15 points of inconsistency with federal law that are addressed by the deviation. Comments on the deviation are due April 20, 2015.

About William Van Huis

Bill Van Huis is a Senior Writer/Analyst for Wolters Kluwer Law & Business who tracks and analyzes new regulations impacting federal government contracting. He also follows court decisions involving bid protests and contract disputes. You can find his work in WK publications like Government Contract Reports and the FAR and DFARS Matrix Tools. Bill is a Certified Professional Contracts Manager, and he has a law degree from Southern Illinois University, where he graduated summa cum laude. Prior to joining WK, Bill worked both inside and outside state and local government in the areas of procurement and municipal finance. Bill also worked as a staff attorney for the Illinois Supreme Court.
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