Jump to content
The Wifcon Forums and Blogs
cm2008

FAR provisions to be included in Subcontracts

Recommended Posts

It is my understanding that FAR provisions specified in the RFP which contain mandatory flowdown provisions must be included in any subcontracts we enter into as Prime. However, I have been told that there are additional “required” FAR provisions that must be included in the subcontract even if there is no flowdown provision or if nothing is specified in the RFP concerning applicability to the subcontract. I don’t read the FAR that way: I think that if there is no required flowdown in a particular FAR clause, then inclusion of the FAR provision in the subcontract would be at our discretion (as suggested in the ABA’s Guide to Service Subcontracts Terms and Conditions, 2008). Is my reading of the FAR correct or am I missing something? Thank you in advance for any assistance/advice.

Share this post


Link to post
Share on other sites

First, let's clarify terminology. In federal contracting, there is a difference between provisions and clauses. Provisions are part of a solicitation, and may expire with it. In commercial contracting, these would fall under the category of "information for bidders" or "instructions to bidders." Clauses are part of an RFP that always survives to become part of the contract. Provisions and clauses often are one number apart when dealing with the same subject matter, e.g. FAR 52.215-22 is a provision that would be implemented by 52.215-23.

On flowdowns, if the text of the clause itself states that it must be included in certain subcontracts, there is no doubt that it is a required flowdown clause.

If, however, the clause places duties, obligations, or risks on the prime that are not covered by a requirement in the clause itself to include the clause in subcontracts, it becomes a matter of company policy and business judgment whether to include the clause in a subcontract.

You will not find help in the FAR that tells a prime how to craft its subcontract language to provide the least risk to the prime. Subcontracts are subject to state law rather than federal contract law (unless a savvy prime uses a clause that specifically states the subcontract is also subject to federal contract law), so companies must develop a set of clauses on their own.

Those clauses would include mandatory flowdowns and may also include other FAR clauses whose text does not specifically require flowdown, in addition to the company's clauses grounded in the UCC and state law, perhaps from the cited ABA guide, or from AIA for construction, although many subs doing federal work would expect and be familiar with FAR clauses.

If a prime has a cost reimbursement type construction management contract that has a services type set of clauses including Changes among others, and the prime issues fixed-price subcontracts for construction, what clauses would you want in the subcontract? You don't want the cost type Changes clause from the prime; you want the fixed-price construction version. You probably also want the full set of 52.236-xx fixed-price construction set of clauses in your toolbox, good tools, and your client probably expects to see them.

Others in this forum may have other thoughts, but this is my $0.02 worth based on many years of experience in prime and subcontract management.

Share this post


Link to post
Share on other sites
Guest Vern Edwards

I have been told that there are additional “required” FAR provisions that must be included in the subcontract even if there is no flowdown provision or if nothing is specified in the RFP concerning applicability to the subcontract.

There are clauses in prime contracts which must, of necessity, be included in subcontracts in order for the prime to fulfill its obligations to the government. For instance, noncommercial prime contracts include a changes clause that permits the contracting officer to unilaterally change the work. If a CO changes work in the prime contract that is being done by a subcontractor, but the prime has not included a changes clause in the subcontract, then the prime cannot order the subcontractor to comply with the government's change. This could become a problem. Thus, the prime should flow the changes clause down to the sub, even though the changes clauses themselves do not require that they be flowed down. Such clauses are "required" in this sense.

Share this post


Link to post
Share on other sites

I agree with the above comments. A great example of the clause itself dictating the flow down, look at FAR 52.212-5(e). This clause points to other mandatory clauses for flow down and also adds in paragaph (e)(2): "While not required, the contractor may include in its subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations."

Share this post


Link to post
Share on other sites

Another question on FAR Clauses to be included in subcontracts...

If a clause is required to be flowed down due to text in the clause or if a clause must be included in a subcontract in order for a prime to fulfill its obligations to the Government, does the clause have to keep the same date as the clause in the prime contract, or can an updated FAR Clause be used if there is a newer version?

Does anyone have something I can point to in order to prove the answer to this question?

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×
×
  • Create New...