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  1. This pretty much clears up the question for me. Thanks for the great discussion on this!
  2. Thanks Vern for this comment. In weighing the pros/cons of how to appropriately categorize "consultant" and whether it fall under "subcontractor", I think an argument could be made for consultants to be a subcontract but agree that the FAR doesn't specifically define or specify if this must be the case. In considering the type of work that my Agency (USAID) performs overseas, it often generally includes a heavy reliance on "consultants" who are hired by the prime contractor to then help perform the SOW in activities such as providing expert advice to a foreign government or organization, providing consultants to do the data collection or indicators of progress, etc. Since the mechanism used is often a CPFF completion-type, and a large portion of costs incurred in these contracts relate to labor costs for consultants plus travel, I believe it prudent to exercise a level of oversight, despite the administrative burden, in mandating approvals for the usage of the "consultants" but don't believe it necessary that all the flow-down clauses are necessary. Given the above considerations for the work and types of contracts, I think the best way forward is to leave the ambiguous "consultant" category undefined as a third category outside the employee or subcontractor categories and administer it with a special requirement in the contract for CO or COR advance written approval for each consultant mobilization with requirement of the contractor providing the objective of each consultant, period, and the total cost for review in the approval requests. Thanks!
  3. In this interpretation, if a consultant is hired to consult, wouldn't that still be classified as a subcontractor if they are not hired formally to be a member of the company on their payroll, regardless of the scope of the work of the consultant (whether an individual or a consultant firm)? Or is there a third classification for "Consultant" that exists somewhere between "Employee" and "Subcontractor" that separates it from applicability of FAR 44? Due to the above confusion, I lean toward the more strict definition of "“Subcontractor” means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime contractor or another subcontractor." which I can then use to classify any firms or individuals contracted to support the contract as a subcontractor if they don't fall into the "employee" category and thus applyFAR 44. In terms of argument, I would argue that there are just the two categories: "employee" or "subcontractor" in the FAR. The FAR 31.205-33 which deals with consultant cost allowability is to me only clarifying the instances where this particular type of subcontract may be considered allowable. So what I would like to do is clearly advise contractors whether "consultants" would be considered subcontractors or not, and therefore FAR 44 and certain consent requirements may apply. Right now, it's a bit vague for both myself and the contractors on applicability of FAR 44 for what contractors propose as "consultants".
  4. I'd like to know other's opinions on the application of FAR 44 for what contractors like to label as "consultants". My Agency has a number of CPFF completion type contracts providing services that can generally described as specialized technical advice or service-type work taking place overseas. The contractor's staffing to perform the work will generally include employees directly employed with the contractor (and they could be Americans, local nationals where the work is taking place, or third country nationals) but will also include individuals on short/long-term basis who cannot be directly considered employee of the organization but have "consultancy contracts" with our prime contractor to perform specific work. Some contractors have argued that short/long-term consultants retained by them do not fall under the definition of "subcontractor" and thus do not fall under consideration of the consent requirements of FAR 44. To me, consultants fall pretty clearly into the definition of subcontractor as laid out in the definition: "44.101 Definitions. Subcontract” means any contract as defined in Subpart 2.1 entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders. “Subcontractor” means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime contractor or another subcontractor." What are your interpretations of FAR 44 and subcontractor as it would apply to this case of the use of "consultants"?
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