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Found 2 results

  1. Someone asked a similar a similar question a few years ago, and it got one somewhat cautious response. I'd like to ask it again more directly and see what anyone thinks. Over the years, I have seen numerous prime contractors' standard subcontract terms for commercial items, and many of them include 52.219-9, the requirement to have a small business subcontracting plan. I believe that a subcontracting plan is not required at all in subcontracts for commercial items. My opinion is based on the language in 52.219-9(j), which states: "Subcontracting plans are not required from subcontractors when the prime contract contains the clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items, or when the subcontractor provides a commercial item subject to the clause at 52.244-6, Subcontracts for Commercial Items, under a prime contract." Since all contracts should have one or the other of those clauses, a subcontractor providing a commercial item is not required to have a plan. Looking at it another way, the only subcontract required to have plan is under a non-commercial prime (which includes 52.244-6) and the subcontract is for non-commercial items. There are obviously a lot of people who think differently, because several large primes (who shall remain nameless) include 52.219-9 in their commercial item subcontract terms. Their reason is that FAR 19-704(a)(9) states that a subcontract plan shall include "... assurances that the offeror ... will require all subcontractors (except small business concerns) that receive subcontracts in excess of $750,000 ... to adopt a plan that complies with the requirements of the clause at 52.219-9, Small Business Subcontracting Plan." Also 52.219-9(d)(9), which states that an offeror's plan will include "Assurances that the Offeror ... will require all subcontractors (except small business concerns) that receive subcontracts in excess of the applicable threshold specified in FAR 19.702(a) on the date of subcontract award, with further subcontracting possibilities to adopt a subcontracting plan that complies with the requirements of this clause." Sure looks like conflicting instructions, but here are my thoughts: first, ignore the FAR text at 19-704. It doesn't go in a prime contract; only 52.219-9 does. Next, read 52.219-9(d)(9) and (j) together: (d)(9) says to require a plan of all subcontractors, but (j) narrows it by saying 'but not from subcontracts for commercial items.' So - is a subcontracting plan required from a commercial item subcontractor?
  2. We are issuing $5 million subcontract award for a project we're working on as the prime. We included 52.219-8 and 52.219-9 in the terms and conditions. The subcontractor took exception as the current effort is for NRE. I don't know if it really makes a difference at this point but thinking that they shouldn't take exception but provide a response that as this is an NRE effort the current goals are at zero. The next phase of the effort is an option for production which is why I feel we should leave the clauses. Any thoughts?
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