FAR 37.113-2—Solicitation provision and contract clause.
Plain-English Summary
FAR 37.113-2 tells contracting officers which solicitation provision and contract clause to use when a procurement is subject to the FAR’s restriction on severance payments to foreign nationals. It covers two related topics: the mandatory use of provision 52.237-8, Restriction on Severance Payments to Foreign Nationals, in solicitations that meet the applicability criteria in 37.113-1(a) and are not excluded by 37.113-1(c); and the mandatory use of clause 52.237-9, Waiver of Limitation on Severance Payments to Foreign Nationals, when the head of an agency has granted a waiver under 37.113-1. In practice, this section is a prescription rule: it does not itself define the restriction, but tells the acquisition team exactly which FAR text to insert into the solicitation or contract depending on whether the restriction applies or has been waived. Its purpose is to ensure offerors are on notice of the severance-payment limitation and, where a waiver exists, to document the authorized exception in the contract. For contractors, this section matters because it affects proposal preparation, employment cost planning, and compliance with any severance-payment limits tied to foreign nationals.
Key Rules
Use the solicitation provision
Insert FAR 52.237-8, Restriction on Severance Payments to Foreign Nationals, in all solicitations that meet the applicability criteria in 37.113-1(a), unless the solicitation is excluded under 37.113-1(c). This is the required notice to offerors when the restriction applies.
Use the waiver clause when approved
If the head of an agency has granted a waiver under 37.113-1, use FAR 52.237-9, Waiver of Limitation on Severance Payments to Foreign Nationals. The waiver clause reflects that the normal limitation has been authorized to be waived for the covered acquisition.
Applicability depends on 37.113-1
This section does not stand alone; it depends on the underlying coverage rules in 37.113-1. Contracting personnel must first determine whether the procurement falls within the restriction and whether any exclusion applies before selecting the correct FAR text.
Prescription is mandatory
The language 'use' means the provision or clause is not optional when the stated conditions are met. Agencies should not substitute alternate language or omit the provision/clause when the FAR prescription applies.
Solicitation versus contract use
52.237-8 is the solicitation provision used to inform offerors before award, while 52.237-9 is the contract clause used when a waiver has been granted. The distinction matters because the solicitation stage and contract stage serve different legal and administrative purposes.
Responsibilities
Contracting Officer
Determine whether the acquisition meets the criteria in 37.113-1(a) and whether any exclusion in 37.113-1(c) applies; include FAR 52.237-8 in applicable solicitations; if a waiver has been granted by the head of the agency, include FAR 52.237-9 in the contract as prescribed.
Agency Head
When appropriate under 37.113-1, grant or deny a waiver of the limitation on severance payments to foreign nationals. The waiver decision controls whether the waiver clause is used.
Offerors/Contractors
Review the solicitation or contract for the applicable provision or clause; account for the restriction or waiver in pricing, staffing, and severance-payment practices; comply with any limitation or waiver terms that apply to the contract.
Acquisition/Legal Staff
Support the contracting officer by confirming applicability, exclusions, and waiver documentation; ensure the correct FAR provision or clause is inserted and that the file reflects the basis for the decision.
Practical Implications
Contracting officers must make the applicability call early, because the wrong provision or clause can create solicitation defects or contract administration problems.
Offerors should check whether severance costs for foreign nationals are restricted before building labor and separation costs into proposals.
A waiver does not eliminate the need for a clause; it changes which clause is used, so the contract file should clearly document the waiver basis.
A common pitfall is treating 37.113-2 as a standalone rule and forgetting to verify the underlying coverage and exclusion rules in 37.113-1.
Because the provision/clause choice affects notice and enforceability, agencies should use the exact FAR text rather than drafting custom language.
Official Regulatory Text
(a) Use the provision at 52.237-8 , Restriction on Severance Payments to Foreign Nationals, in all solicitations that meet the criteria in 37.113-1 (a), except for those excluded by 37.113-1 (c). (b) When the head of an agency has granted a waiver pursuant to 37.113-1 , use the clause at 52.237-9 , Waiver of Limitation on Severance Payments to Foreign Nationals.