What is "incorporation by reference"?

November 9, 2007 10:59 AM

Signing a US contract with an "Incorporation by Reference" clause - please help me!

I am signing a contract as a subcontractor for a US Government funded project. One of the clauses of the contract says that

"all applicable terms of grant [number so and so] between [US Government agency] and [the parent organisation that I am a subcontractor for] are incorporated by reference into this Agreement and shall become a part hereof"

I wrote back saying that if this was the case, I couldn't sign in good faith without seeing the grant that was being incorporated.

The answer was that the organisation was not prepared to share this information, it wasn't standard procedure, and that this clause has to be in the contract.

Am I sniffing glue? I don't want to sign the contract as is without seeing something that is supposedly part of the contract. What if, just for a silly example, the grant that I am not privy to says I will give foot massages to all the US Embassy staff while I am here?

I am further fucked in that I am already here, on trust, because everything was last minute, and a significant portion of my work is already completed without a signed contract.

Please, please, I know you aren't my lawyer but I need some objective advice as to how I might theoretically proceed at this point. Thank you in advance.

posted by Meatbomb to law & government (7 comments total)

I would expect that you are not actually bound by terms that they will not disclose to you. If you hadn't asked then that would be your fault, but if they refused to show it to you then I think that's to your advantage.

I would further expect that you can adhere to the unseen terms by following the directions you are given.

(Disclaimer: I was a Theatre Arts major)
posted by winston at 11:18 AM on November 9, 2007

IAAL, IANYL, TINLA.

You will not be bound by terms that were not supplied to you, especially is you asked and were refused. Keep the refusal email.

However this is a legal distinction that requires a court to enforce ... if they say that you are bound are you going to go to court over it?

J
posted by jannw at 11:33 AM on November 9, 2007

You need a lawyer. One who does government contract work can answer your question very, very quickly. If you need to find one, send me a message.
posted by The World Famous at 11:33 AM on November 9, 2007

Yes, you need a lawyer. The email refusing to provide you a copy of the grant does not prove that you were never provided a copy after that date but before you signed. By signing the contract incorporating the grant, you are at best creating ambiguity as to whether you were later given a copy, and at worst waiving your right to see it.
posted by A Long and Troublesome Lameness at 12:17 PM on November 9, 2007

@jannw

the Feds don't play by normal people rules and can get away with almost anything, especially if it involves embassies and the all-encompassing legal concept of "national security" which involves everything from spy planes to paper towel deliveries.
posted by Mr_Crazyhorse at 12:35 PM on November 9, 2007

Look at it this way - if the grant required the parent organization to have particular requirements regarding subcontractors, presumably they've vetted you and ensured that you met those requirements.

So if they're going to continue to be all prissy about it, ask them to provide one of the following:
1) only the applicable terms that would be incorporated by reference (that way, they don't have to share the secret-y parts of the grant).
2) a summary of those terms, or at a bare minimum, a summary of your obligations under those terms.

That way, you can sign with at least a modicum of knowledge of what you're getting into.

In either event, you might want to ask them for language in the contract acknowledging that they had declined to provide the applicable terms to you, and representing that they had ensured that you had met the requirements of those terms to date, and that they will notify you in advance of any requirements that you need to know in order to provide your services in accordance with the applicable terms of the grant.

Depending on how saucy you feel, you could also try to get them to slip in something about how, should you violate any of the "applicable terms" for reasons beyond your control (such as not knowing the terms or not being informed, in advance, of such requirements), that they indemnify you from any liability stemming from the violation. And that the Embassy staff give you foot massages.

But if you're that concerned, the lawyer-up crowd is probably right. Who knows if that kind of provision would hold up.

You could also call the agency and see if they'll give you the terms. They may not give a damn.
posted by averyoldworld at 1:26 PM on November 9, 2007 [1 favorite]

Get a lawyers advice. If possible the lawyer should come from the institution that is subcontracting you as a worker.
posted by lalochezia at 1:46 PM on November 9, 2007