Z-Mil

Agree as that was what Vern taught me as well. There is no definition for 'contractor' in 2.101 nor in 52.230.

Thank you here_2_help, so the term 'contractor' and subcontractor' as used in this provision have no tie to terms as defined in FAR 44.101?

Thoughts on whether the reporting requirements under 52.230-6 apply to 2nd tier subcontractors? The opening statement appears to limit the application of the clause to the contractor: For the purpose of administering the Cost Accounting Standards (CAS) requirements under this contract, the Contractor shall take the steps outlined in paragraphs (b) through (i) and (k) through (n) of this clause: Additionally, the DAU Clause and Provision Martix does not show that this is a flowable clause. DCMA is stating that "all subs need to include the substance of the clause in their lower tier subcontracts even though it is not a flowable clause". Would love to hear your thoughts on this position.

13 CFR 125.3 is not in my contract, 52.219-9 is.

Correct. NAICS and Size Standard is clearly required in the subcontract issued per FAR 52.219-9 (e)(7), but I'm being told the lashing will continue as we are not assigning the NAICS and SS to each solicitation (ref. 13 CFR 125.3 (c)(1)(v).

Yes, both NAICS and Size Stardard associated with the selected NAICS are listed on the subcontract.

Correct

I have a question related to the contractors responsibilities to include a NAICS in the SubK Solicitation as defined in 13 CFR 125.3, but not defined in FAR 52.219-9(e)(7). In a recent DCMA SBSP Review the analyst is finding a discrepancy as the NAICS is not being included at time of solicitation per 13 CFR 125.3 requirements. I've stated 13 CGR 125.3 is not in my contract, but 52.219-9 is and therefore I operate to the clause in my contract. The requirement in 52.219-9(e)(7) states that the NAICS and Size Standard needs to be in the Subcontract issued that best describes the principle purpose of the subcontract. I've done a search of the FAR and DFAR for 13 CFR 125-3 and do not see it referenced anywhere. Do you know how and if the contractor is obligated to follow 13 CFR 125.3 requirements for a DoD Prime or lower tier Subcontract? DCMA is stating "FAR 52.219-9(e)(7) states what the requirement is and Title 13 CFR 125.3 provides the vehicles for compliance to the requirement at FAR 52.219-9(e)(7)," but of course the provision is not linked to the CFR. Would love to hear how others have dealt with this.

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT. They also appear to want to have it flowed on all "subcontracts" in excess of MPT (presumably including those for 'products'), but this conflicts with FAQ #13 provided by the Smarter Safer Federal Workforce Task Force. (d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the micro-purchase threshold, as defined in Federal Acquisition Regulation 2.101, performed in whole or in part within the United States or its outlying areas. NOTE: "and are for services, including construction" is not included in their paragraph (d).

Thank you for the responses. In addition to the above I will reference the definition of UCA from 10 USC § 2326 (j)(1). (emphasis added) (j) Definitions.—In this section: (1) The term "undefinitized contractual action" means a new procurement action entered into by the head of an agency for which the contractual terms, specifications, or price are not agreed upon before performance is begun under the action. Such term does not include contractual actions with respect to the following: (A) Purchases in an amount not in excess of the amount of the simplified acquisition threshold. (B) Special access programs. (C) Congressionally mandated long-lead procurement contracts.

Reviewing 10 USC § 2326, I further do not see any application to the subcontractor. Should I be looking somewhere else?

The restrictions within FAR 16.603-2(c)(3) ; definitization within 180 day or before completion of 40% of the work to be preformed [the lesser of] do not appear to flow to the contractors subcontracts, but rather appear to be restrictions in place for the Government KO. However, note there is a reference within FAR 16.101(a) that states "a wide selection of contract types is available to the Government and the contractor..." (only referencing this as this is where the auditor is pointing to). Under a FFP definitized prime contract (or really under any type of prime), shouldn't it be the contractors procedures that determine the guidelines for how they utilize UCA's not the restrictions in FAR 16.603-2(c)(3)?

So when would a contractor or contracting officer be able to recognize the increased micro-purchase and simplified acquisition thresholds? Does one have to await an update to the FAR which would not occur until October? I'm aware that the DoD issues a class deviation (2017-O0006) increasing the MPT for their procurements to $5k ($10k for basic research and STRL).

Thank you Neil. It is what I thought. It's not that the OEM rejected the flowdown, but rather that we were unable to confirm that they have a system in place. We are going the extra step, having subcontractors that provide us with an EEE parts or assemblies with a certification that they have a compliant QMS that covers the requirements of DFAR 2352.246-7007. The OEM's initial response to us was no they do not.

Yes. A prime is subcontracting with the OEM (compliant with 7008(b)(1)(i) and the OEM states they do not comply with 7007. 7008 states in (b)(3)(ii) the contractor shall notify the KO in writing, but that only applies to subcontractors other than the OEM. Therefore ther is no notification requirement if it is the OEM that fails to comply with the requirement of 7007. Is this correct?

252.246-7008, Sources of Electronic Parts (b)(3)(i) directs the contractor to (b)(3)(ii) if the contractor obtains an electronic part from (2) a subcontractor (other than the original manufacturer) that refuses to accept flowdown of this clause: What if it is the original manufacturer that is refusing the flowdown provisions of 252.246-7007? No action needed, and the contractor is able to procure the item from the Original Equipment Manufacturer (OEM). Kind of an odd scenario, but the provision seems overlook the OEM as an potential entry point for counterfeit parts. Love to hear your thoughts.

Thanks Retreadfed! I was interpreting 13.201(d) to also exclude the contractors responsibility to flowdown subcontract provisions as well for their subcontracts that are below the MPT. This logic was predicated on the second sentence in the section which states; it takes precedence over any other FAR requirement to the contrary (which includes FAR part 52).

I was informed by the DMCA that the contractor is required to flow down 52.245-1 Goverment Property to all subcontractors (based off 52.245-1 (b)(3)). I attempted to argue that since the orders were below the MPT there should be no requirement to flowdown the provision (based on FAR 13.201 (d)) FAR 13.201 (d) Micro-purchases do not require provisions or clauses, except as provided at 13.202 and 32.1110. This paragraph takes precedence over any other FAR requirement to the contrary, but does not prohibit the use of any clause. However, I was unsuccessful in making my argument. I also see that other prime contractors also flow down 52.245-1 along with a host of other subcontract provisions in there general terms below the MPT. What is the logic requiring the inclusion of this provision specifically? The other argument I attempted to make was that the Government property received (for repair) had a unit cost well below the simplified acquisition threshold and therefore should be exempt from the provision based on FAR 45.107 (d) (d) Purchase orders for property repair need not include a Government property clause when the unit acquisition cost of Government property to be repaired does not exceed the simplified acquisition threshold, unless other Government property (not for repair) is provided. Note: No other property was provided. Please provide your thoughts on my reasoning.