Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Hi All,

A fellow CO came to me with an interesting situation. We have a contractor who is requesting a modification to the contract in order to fill one of the key personnel slots with an employee of one of their subcontractors. Is this allowable?

My initial thought is no, given that the Government would not be able to assert the right of refusal due to privity concerns. However, I have been unable to find a definitive prohibition in the FAR, our agency regs, or our agency policy. Thoughts?

Link to comment
Share on other sites

Hi All,

A fellow CO came to me with an interesting situation. We have a contractor who is requesting a modification to the contract in order to fill one of the key personnel slots with an employee of one of their subcontractors. Is this allowable?

My initial thought is no, given that the Government would not be able to assert the right of refusal due to privity concerns. However, I have been unable to find a definitive prohibition in the FAR, our agency regs, or our agency policy. Thoughts?

If your "Key Personnel" or subcontracting clauses do not prohibit use of subcontractor personnel, then it's OK.

Link to comment
Share on other sites

Hi All,

A fellow CO came to me with an interesting situation. We have a contractor who is requesting a modification to the contract in order to fill one of the key personnel slots with an employee of one of their subcontractors. Is this allowable?

My initial thought is no, given that the Government would not be able to assert the right of refusal due to privity concerns. However, I have been unable to find a definitive prohibition in the FAR, our agency regs, or our agency policy. Thoughts?

If this is a construction contract see clause 52.236-5 Material and Workmanship - in particular see paragraph ( c). The KO can require removal and replacement of an objectionable employee. Therefore, in addition to any other contract requirement (construction contract) I'd say that the KO can decide whether or not the person is acceptable for a key personnel assignment. If the person is a subcontractor, the contractor would have to show that the person has the authority under its subcontract to fulfill his/her responsibilities.

"52.236-5 Material and Workmanship (Apr 1984)

...( c) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable."

Link to comment
Share on other sites

If this is a construction contract see clause 52.236-5 Material and Workmanship - in particular see paragraph ( c). The KO can require removal and replacement of an objectionable employee. Therefore, in addition to any other contract requirement (construction contract) I'd say that the KO can decide whether or not the person is acceptable for a key personnel assignment. If the person is a subcontractor, the contractor would have to show that the person has the authority under its subcontract to fulfill his/her responsibilities.

"52.236-5 Material and Workmanship (Apr 1984)

...( c) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable."

Nope, not a construction contract, though I'm familiar with that clause. This one is just a simple service contract.

Link to comment
Share on other sites

Hi All,

A fellow CO came to me with an interesting situation. We have a contractor who is requesting a modification to the contract in order to fill one of the key personnel slots with an employee of one of their subcontractors. Is this allowable?

My initial thought is no, given that the Government would not be able to assert the right of refusal due to privity concerns. However, I have been unable to find a definitive prohibition in the FAR, our agency regs, or our agency policy. Thoughts?

Do you have the right to approve the subcontract? Why not ask the contractor to flow down the Government's right of refusal?

Link to comment
Share on other sites

I do not see an issue here in having a subcontractor fill a key person slot. As a contractor, I have proposed subcontractor personnel in key personnel slots and never had an issue. As to the issue of privity of contract, there is no issue. If the subcontractor's person is not working, the Government issues a letter to the Prime Contractor telling him a person working on the contract is unsatisfactory. It is then the responsibility of the Prime to replace the sub's person. No privity needed.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...