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We're running into a problem with a prime and I was interested in the views of the forum. 

The prime is demanding the debarment and lobbying certifications signed as of the date of a PO award, even if you submitted them with your proposal or quote. They cite 52.203-12(g) as their support: "The Contractor shall obtain a declaration, including the certification and disclosure in paragraphs (c) and (d) of the provision at 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions, from each person requesting or receiving a subcontract under this contract that exceeds the threshold specified in FAR 3.808 on the date of subcontract award." They say it means that the certification must be obtained on the date of award. We say that 'on the date of award' refers to when you look at the contract value.

In support of our view, all reps and certs are submitted with a proposal, and we can find no requirement that any be recertified on the date of award. After all, the purpose of reps and certs is to allow the buyer to determine whether a proposed seller is responsible. That decision has been made when the contract is awarded. Furthermore, the required cert in 52.203-12(g) is 50.203-11, is submitted with proposals, and so is the debarment cert.

So - are we missing anything and is there any requirement to sign and submit a debarment and lobbying certification on the date of a contract award?  

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6 hours ago, Fara Fasat said:

So - are we missing anything and is there any requirement to sign and submit a debarment and lobbying certification on the date of a contract award?  

I think your interpretation is almost certainly correct, but I'm curious: In seeking a certification from you, the prime is interpreting a clause in their own contract. Why are you arguing with them about their interpretation of their contract? Why not just sign the certification on the date they request, even if they have misinterpreted the clause?  What if they said, "We're going beyond what the clause requires of us, just for our won protection, just because that's the way we want it." Would you walk away from the subcontract?

And since the clause must be is flowed down to you, and you must get certifications from your own subs, why not interpret the clause as the prime requests? Why make an issue of it?

Does it really make a difference to you? If so, how?

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Yes it does. Our process requires that we enter their cert in DocuSign, route to the person with signature authority, get it signed, and return to the prime. It usually doesn't happen in one day, and it can't be backdated. Also the prime will not accept one signed and dated on any day before they issue the PO. 

They claim that the 'same-day certification' is required by their DCMA auditors. 

Their certification states "Seller certifies as of today, the date of award, the Seller, or its principals can, ______ certify –or‐ _____ not certify ...." (Italics mine)

They further have stated regarding a PO that "we are required to issue the PO on the same day that debarment and anti-lobbying are certified so since this form is dated 8/23, it is considered expired.

 

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41 minutes ago, Fara Fasat said:

Our process requires that we enter their cert in DocuSign, route to the person with signature authority, get it signed, and return to the prime. It usually doesn't happen in one day, and it can't be backdated. Also the prime will not accept one signed and dated on any day before they issue the PO. 

It appears that you do not have a deep-seated legal reason to object to what the prime wants and that it is your "process" that prevents you from meeting your prospective customer's requirement. Oh well, I guess your employer and the prime won't be doing business on this occasion.

But if what you are hoping for is someone at Wifcon to write something here that you can take to the prime and say, "See, someone from Wifcon.com says you're wrong," then hang around. Someone might step up, and the prime might change its mind.

Best to you. Signing off.
 

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No that wasn't what I was hoping for. The first 8 words of your first post were sufficient. The rest -- .

I should add that our order management people say that they can't do what the prime is asking, and I believe them. They came to me as the contracts person to ask whether the prime was correct and to make sure we weren't making a bad argument. I gave them my opinion. It makes a difference to me because they asked for my support on the regulatory question. They still have to figure out what to do, and they are exploring every possible workaround, but they can do it with confidence that they won't be embarrassed down the road. At some point they may have to balance the amount of business against the extra work, and make a business judgment whether it is worth any changes to our processes. 

Had the answer been otherwise, I would have told them the customer is right, our processes do not meet the requirement , and we need to fix them.

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18 hours ago, Fara Fasat said:

So - are we missing anything and is there any requirement to sign and submit a debarment and lobbying certification on the date of a contract award?  

The Sept 2021 CPSR Guidebook Job Aid section 5.7.4, entitled Review, does not indicate that FAR requires what the prime contractor is indicating. It does not call for a review of the specific date the declaration was obtained.

 

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5 hours ago, Fara Fasat said:

No that wasn't what I was hoping for. The first 8 words of your first post were sufficient. The rest -- .

So what were you hoping for?

It strikes me that your "order management people" are trying to tell the prime how to administer its contract with the government.

The prime has told your order management people what it wants and that it wants it because government people have said that's how it must be. The interpretation of the FAR seems wrong. But how are they going to change the prime's position? Through lessons in English syntactical analysis that they can pass on to the government people?

You have not mentioned any significant and insurmountable legal objections to doing what the prime wants. So it appears that the problem boils down to this: Your order management people have an administrative process that makes it hard for them to do what what the prime wants and they cannot fashion a work-around. What organization does that sound like?

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Your company can consider elevating the concern with prime contractor's upper management through your upper management. You should have impact facts such as how many subcontracts and their estimated dollar value are estimated to be affected and some quantification as to your company's cost of compliance with the prime contractor's request. Also, if your company is a small business, you may take this up with SBA and/or your federal legislators. If you do these things nicely, things could change. in my experience, prime contractor upper management does not like to receive inquiries from federal legislators or SBA concerning "beating up" a small business with requirements that are not clearly there and have adverse impact worth discussing.  

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@Fara Fasat

You probably know this, and perhaps you have explained it to your "order management people," but I thought I would pass it on:

In the sentence in 52.203-12(g)(1):

Quote

The Contractor shall obtain a declaration, including the certification and disclosure in paragraphs (c) and (d) of the provision at 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions, from each person requesting or receiving a subcontract under this contract that exceeds the threshold specified in FAR 3.808 on the date of subcontract award.

The bolded phrase reflects the fact that subcontracts will be awarded at various times during the life of the prime contract and that the dollar threshold in FAR 3.808 will periodically change in accordance with FAR 1.109. The intent of the phrase is to instruct primes to apply the dollar threshold in effect on the date of subcontract award, not the threshold in effect on the date of prime contract award, when determining whether to seek the "declaration" mentioned at the beginning of the sentence. See FAR 1.109(d). It is not intended to indicate the date on which the subcontractor must sign the declaration.

Finally, according to FAR 52.203-11(e), the declaration (certification) is a "prerequisite" to award, which means it must be signed and submitted before an award may be made. However, signing at the time of award should satisfy that requirement.

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I made that point (date of award refers to when to apply the dollar threshold) to the prime and also in my first post here. This is an administrative and process problem not a legal one, although getting a cert after the award decision has been made may technically violate the requirement to make a responsibility determination before award (especially debarment).

We will decide how to handle this, and it will be an informed decision. 

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