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akramer84

Delivery of items under an undefinitized subcontract

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We are a first tier subcontractor under a prime contract with the Department of the Army. We are operating under an undefinitized subcontract. We are contracted to deliver 12 items over the course of the next 6 months. The prime contractor is also performing under an undefinitzed contract.

The situation is that the prime contractor wants us to deliver 2 of the 12 items before our contract is definitzed in order to meet their schedule under the prime contract. However, we do not want to deliver anything before our contract is definitized. Our prime contractor is telling us we "must deliver" regardless of the state of the contract and has asked us to provide them a FAR reference supporting our reluctance to deliver before our contract is definitized.

There are many different levels here, but my main question is what right does a prime contractor have to demand delivery of items prior to definitization of a contract?

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The answer you seek won't be in the FAR -- it will be in your subcontract -- does your subcontract require you to deliver before definitization? You have to be true to your subcontract; otherwise, you and your prime might end up in state court in a contract dispute where the FAR is irrelevant.

If you were a prime contractor, with a contract subject to the FAR, you might look at FAR 16.603-2( c ) where you see words suggesting that definitization should occur within 180 days or before completion of 40% of the work, whichever occurs first. Two units out of twelve is 17%.

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