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Question which may have been answered here but I can not find, so grateful for any redirection.   When creating or reporting on small business utilization under FAR 52.219-9 individual plan for each contract, what is considered a subcontract?

The definition in FAR 52.219-9 states that Subcontract means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor calling for supplies or services required for performance of the contract or subcontract.    

FAR 44 defines  Subcontract means any contract as defined in  subpart  2.1 entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders.

Does this mean that only subcontracts (as defined in FAR 44) are counted towards the SB goals or "any agreements", including auxiliary services and goods procured by the Prime which are not specifically required in the performance of the scope (e.g. purchase of supplies, use of travel agents for airline tickets, hotels, legal services to help interpret labor law in a specific jurisdiction where the contract is performed etc)? 

FAR 52.19-9 allows inclusion of portions of subcontracts allocated to indirect pools which contribute to performance to be counted, so presumably this means that such "subcontracts" are not the same as FAR 44 subcontracts requiring consent, flow downs etc.

Anyone has any thoughts on this?  

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1 hour ago, Vern Edwards said:

The definition of subcontract in FAR Part 44 does not apply to FAR Part 19 or to any provision or clause prescribed in FAR Part 19.

See FAR 2.101(a) and (b).

Thanks, Vern.  So since the two definitions are similar but different, would you say that contracts to "furnish supplies or services for performance of the prime contract" and "agreements calling for supplies or services required for performance of the prime contract" mean different things?  One is carrying out part of the scope and the other means anything purchased to carry out scope?  I am not an expert in nuances of this and I am having a disagreement on interpretation of what could be counted towards small business participation. 

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On 9/21/2022 at 1:54 PM, Tzarina of Compliance said:

So since the two definitions are similar but different, would you say that contracts to "furnish supplies or services for performance of the prime contract" and "agreements calling for supplies or services required for performance of the prime contract" mean different things?  One is carrying out part of the scope and the other means anything purchased to carry out scope?

FAR 52.219-9 defines subcontract as follows:

Quote

Subcontract means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor or subcontractor calling for supplies or services required for performance of the contract or subcontract.

FAR 44.101 defines subcontract as follows:

Quote

Subcontract means any contract as defined in subpart  2.1 entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders.

The key question is whether the parties who must interpret those sentences interpret them to mean the same thing or different things, and I don't know the answer to that question.

The most obvious difference is between "agreement" and "contract." Every contract is an agreement, but not every agreement is a contract. Agreement is arguably more inclusive.

I don't think there is a meaningful difference between "calling for supplies or services required for performance of the contract or subcontract" and "to furnish supplies or services for performance of a prime contract or a subcontract."

But I can't say how the clauses are interpreted by interested parties.

Edited by Vern Edwards
To insert "not" before "every agreement" in the sentence beginning "The most obvious..."
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52 minutes ago, Vern Edwards said:

FAR 52.219-9 defines subcontract as follows:

FAR 44.101 defines subcontract as follows:

The key question is whether the parties who must interpret those sentences interpret them to mean the same thing or different things, and I don't know the answer to that question.

The most obvious difference is between "agreement" and "contract." Every contract is an agreement, but every agreement is a contract. Agreement is arguably more inclusive.

I don't think there is a meaningful difference between "calling for supplies or services required for performance of the contract or subcontract" and "to furnish supplies or services for performance of a prime contract or a subcontract."

But I can't say how the clauses are interpreted by interested parties.

Thank you!  

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