DBA Insurance in Puerto Rico for Commercial Services?

[Katherine Merold]

In your experience, have you required DBA insurance of suppliers for commercial services such as an electrician hooking up a trailer or minor brush clearing?

For these types of services, we don't require service agreements/subcontracts, we issue Purchase Orders and consider them ODCs/COTS items.

[joel hoffman]

“Defense Base Act” .

https://www.dol.gov/agencies/owcp/dlhwc

[ji20874]

Katherine,

Have you read FAR 28.305 and 12.301(a)? I think these will answer your question.

[Katherine Merold]

Thank you all for the feedback. I've scoured many resources on this subject - Thank you for the references and additional info above.

All signs that I can find point to requiring these one-man companies to maintain a DBA policy which can be very costly to obtain and very cumbersome/confusing.

Has anyone had experience with requiring this of suppliers performing commercial services (this is not work on any military base) in Puerto Rico? 

 

Thanks so much!

[ji20874]

4 minutes ago, Katherine Merold said:

All signs that I can find point to requiring these one-man companies to maintain a DBA policy...

You might want to re-read the citations I shared.

[joel hoffman]

I don’t see any distinction for a contract for commercial services on a “public works” project outside the US in an US Territory,  as described in 42 USC 1651.

The definition of contractor also includes contracts with “individuals”.

If you are with a Federal Agency, do you have a legal office that can answer your questions? 

[C Culham]

On 12/13/2022 at 2:29 PM, Katherine Merold said:

In your experience

I have no experience.  I have followed your post here and on the NCMA website and it intrigued me to research further.   I appreciate your frustration in finding an explicit answer.     I hope this helps.

The prescription of the clause is for public works contracts (FAR 28.305) but does get confusing when you read the whole of what a public works contract is deemed to be.  So I played with the FAR Smart Matrix found here - https://www.acquisition.gov/far-smart-matrix   What it yielded was the following -

Fixed Price Service Contract - FAR 52.228-3 required.

Fixed Price Service Contract for a Commercial Item (remember services can be a commercial item) - FAR 52.228-3 not required

Fixed Price Construction Contract (remember per the FAR definition of service does not include construction) - 52.228-3 required

In reviewing various contracts in SAM.gov to be performed in Puerto Rico I found the above to be the norm.   Here are links to 3 examples - 

https://sam.gov/api/prod/opps/v3/opportunities/resources/files/b213fff4a06645d7af260aaf0acb5d0b/download?&status=archived&token

 https://sam.gov/api/prod/opps/v3/opportunities/resources/files/a19694db76534362b926f5955af6097a/download?&token=

 https://sam.gov/api/prod/opps/v3/opportunities/resources/files/b5b147c060594d2c9caf71eb869bd1c0/download?&token=

My conclusion - For a Federal prime contract that is for a non-commercial item (service, construction) the Act applies and  52.228-3 is in the contract.   If the prime is for a commercial item (service) the Act does not apply and 52.228-3 is not in the contract.   If a Federal prime contract includes the clause at 52.228-3 then per the clause  it is to be passed down to subcontractors when the Act applies to the subcontract being performed.   

In a simple view to your examples in your two posts if the work of the sub is an operation, preparatory or ancillary work connected to the prime contract that includes 52.228-3  then yes it should be passed down to the sub.   But, if you have some kind of a prime contract, where work is directly related to a specific public work and other times not then I believe you could decide per the clause whether the Act applies.

So does the Act apply, as you note, becomes the question?   In my further research I found where many contractors pass the clause down via a standard terms and conditions template and indicate in the template that even applies to purchase orders and where others have not. 

Even in consideration of the above and based on suggestions to contact legal counsel another option would be to contact USDOL - OWCD and see what they say as  it appears they administer and enforce the program.   I found this contact -

Antonio Rios
Director, Federal Employees, Longshore Harbor Workers Compensation
202-513-6860

Here  - https://www.dol.gov/agencies/owcp/dlhwc/lsdba