My company recently passed our first CPSR. However, during the audit, DCMA informed us that if our prime contract is issued under FAR Part 15, all required flowdown clauses are applicable to the procurement of commercial items under the contract, regardless of FAR 521.244-6 being included. This requirement has resulted in many difficulties with commercial vendors accepting all of the required government flow downs contained in our prime contracts. Their reluctance to accept these terms and conditions are causing major delays in receiving parts, thereby impacting critical program and project schedules. Our position as to why only FAR 52.244-6 needs to be flowed down in Commercial Item Procurements is defined below:
FAR 52.244-6(2) states “While not required, the Contractor may flow down to subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations”. The list that we have is not considered minimal.
FAR Part 44.402(b) states “The clause at 52.244-6, Subcontracts for Commercial Items, implements the policy in paragraph (a) of this section. Notwithstanding any other clause in the prime contract, only those clauses identified in the clause at 52.244-6 are required to be in subcontracts for commercial items or commercial components.”
FAR 44.402(c) states “Agencies may supplement the clause at 52.244-6 only as necessary to reflect agency unique statutes applicable to the acquisition of commercial items.” I personally have never seen this clause modified by an Agency. If it is a requirement to flow down all of the FAR Part 15 clauses in our prime contract, why does the government have clause 52.244-6? Additionally, this clause states “the contractor may flow down, it does not state we shall flow down a minimal number of additional clauses.
FAR 44.403 states “The contracting officer shall insert the clause at 52.244-6, Subcontracts for Commercial Items, in solicitations and contracts other than those for commercial items. This leads us to believe that the government’s intent is not for the prime contractors to flow down all the FAR Part 15 mandatory clauses in commercial subcontracts.
Our commercial vendors do not want to accept all the mandatory flow down clauses from our prime contract, as they are small and cannot afford legal counsel to review and negotiate them with us. In summary, the flow down of all of these clauses defeats the purpose of the Government purchasing commercial items.
Please advise if other professionals have encountered this situation, and what steps it took to resolve the matter. DCMA has not responded to our request for assistance and relief of this requirement.