This occurred twice in FAC 2001-02, in "Item IV - JWOD Subcontract Preferences" and "Item V - Discussion Requirements."

FAC 2001-02 amends 44.202-2(a) and 15.306(d)(1) by replacing "shall" with "must," but FAR 2.101 already defines "must" as "(see 'shall')" (and defines "shall" as "the imperative").

Not to pick lint but I am academically curious....

What's up with "shall" vs "must" ???

By Dave Barnett on Wednesday, December 19, 2001 - 01:14 pm:

I agree and I'm curious too, what are the legal/contractual ramifications of "must" vs "shall"?

By Vern Edwards on Wednesday, December 19, 2001 - 01:24 pm:

There are no legal/contractual ramifications. The switch from shall to must is just part of the attempt to rewrite the FAR in plain language. The contracting officer shall and The contracting officer must mean the same thing.

By Anonymous on Wednesday, December 19, 2001 - 01:42 pm:

I like "gotta" better than must or shall.

By Mike Wolff on Thursday, December 20, 2001 - 08:42 am:

The following quote is from the FAR Drafting Guide:

"Shall/must/ should/will/may.

(a) Use the terms "shall" and "must" to indicate an obligation to act. In the FAR "shall" and "must"
have the same meaning. "Must" is the preferred term to use in FAR text other than provisions and
clauses.

(b) Use the term "should" to indicate an expected course of action or policy to be followed unless
inappropriate for a particular circumstance.

(c) Use "will" to indicate an anticipated future action or result.

(d) Use "may" to indicate a discretionary action.

Mike

By Philip on Thursday, December 20, 2001 - 11:26 am:

Mike et al.
Be aware though that industry (apart from contracting with the government), that is "in purely commercial contracts" looks at shall, will and may differently. Per "Blacks Law Dictionary:"

Shall - generally means mandatory or imperative.

Will - An auxiliary verb commonly having the mandatory sense of "Shall" or "Must." It is a word of certainty.

May - is a word of speculation and uncertainty, and will not be used in court as a word of command unless there is something in context or subject matter to indicate that it was used in such sense.

Regards Philip

By Herb Bartlett on Wednesday, January 09, 2002 - 06:05 am:

The following industry comment was received from several DoD contractors regarding the use of "Shall" and "Will" in a specification:

Comment: Propose using the word "shall" throughout the text where the word "will" is used.

Rationale: In accordance with the International Council on Systems Engineering "INCOSE" Systems Engineering Handbook, Release 1.0, January 1998, Section 4.4.6 "Development of Spec Tree and Specifications," Page 4.4-23, the word "shall" should be used in identifying requirements. The use of the word "will" is used to convey an item of information, explicitly not to be interpreted as a requirement.

By joel hoffman on Wednesday, January 09, 2002 - 07:07 am:

For years, it was always stated in our specifications as "the Government will..."
and "the Contractor shall..." happy sails! joel

By Vern Edwards on Wednesday, January 09, 2002 - 05:59 pm:

Those with more than a passing interest in shall, may, must and will should take a look at A Dictionary of Modern Legal Usage, 2d ed., by Bryan A. Gardner (Oxford University Press, 1995). Mr. Gardner, who is the editor-in-chief of Black's Law Dictionary, discusses those terms under the heading Words of Authority, at page 939. He calls shall a "chameleon-hued word" and says, among other things:

"How can shall be so slippery, one may ask, when every lawyer knows that it denotes a mandatory action? Well, perhaps every lawyer has heard that it's mandatory, but very few consistently use it that way. And as a result, courts in virtually every English-speaking jurisdiction have held--by necessity--that shall means may in some contexts, and vice-versa."

He goes on to say: "The advantage of must over shall is that its meaning is fastened down more tightly in any given sentence."

Mr. Gardner's book is wonderful and well worth $25.00.

By Mike Wolff on Friday, January 11, 2002 - 08:46 am:

So, in drafting solicitations, would you recommend using "must" or "shall?" Currently we use "shall" but if "must" is better, it is an easy thing to change.

By Anonymous on Friday, January 11, 2002 - 12:47 pm:

Don't use it unless you really mean it.