Consent to Subcontract

[Contractor500]

Hello,

I don't see a consent to subcontract clause in an IDIQ contract that we have. But, while in ecfr, I found the clause below.

Does this mean that even if this clause is not included in our contract, we still need to request consent to subcontract at any point during the contract? We don't have an approved purchasing system. It's an IDIQ with T&M and FFP Task Orders. Just want to confirm. Thank you. 

 

44.201-1 Consent requirements.

(a) If the contractor has an approved purchasing system, consent is required for subcontracts specifically identified by the contracting officer in the subcontracts clause of the contract. The contracting officer may require consent to subcontract if the contracting officer has determined that an individual consent action is required to protect the Government adequately because of the subcontract type, complexity, or value, or because the subcontract needs special surveillance. These can be subcontracts for critical systems, subsystems, components, or services. Subcontracts may be identified by subcontract number or by class of items (e.g., subcontracts for engines on a prime contract for airframes).

(b) If the contractor does not have an approved purchasing system, consent to subcontract is required for cost-reimbursement, time-and-materials, labor-hour, or letter contracts, and also for unpriced actions (including unpriced modifications and unpriced delivery orders) under fixed-price contracts that exceed the simplified acquisition threshold, for -

(1) Cost-reimbursement, time-and-materials, or labor-hour subcontracts; and

(2) Fixed-price subcontracts that exceed -

(i) For the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration, the greater of the simplified acquisition threshold or 5 percent of the total estimated cost of the contract; or

(ii) For civilian agencies other than the Coast Guard and the National Aeronautics and Space Administration, either the simplified acquisition threshold or 5 percent of the total estimated cost of the contract.

(c) Consent may be required for subcontracts under prime contracts for architect-engineer services.

(d) The contracting officer's written authorization for the contractor to purchase from Government sources (see part 51) constitutes consent.

[Vern Edwards]

Is the contract for a commercial product or service?

 

[Contractor500]

Hi Vern, 

It's not for commercial products or services, mostly engineering services and project management services to the Gov't.

Thank you
 

[Vern Edwards]

6 hours ago, Contractor500 said:

I don't see a consent to subcontract clause in an IDIQ contract that we have. But, while in ecfr, I found the clause below.

Does this mean that even if this clause is not included in our contract, we still need to request consent to subcontract at any point during the contract? We don't have an approved purchasing system. It's an IDIQ with T&M and FFP Task Orders. Just want to confirm.

@Contractor500Well, the contract clause that requires a contractor to obtain consent to subcontract in accordance with FAR 44.201-1 is FAR 52.244-2, Subcontracts. See FAR 44.204(a)(1). Another such clause, FAR 52.244-4, applies only to architect-engineer contracts.

If neither of those clauses is in the IDIQ contract, and if the IDIQ contract says nothing else about consent to subcontract under task orders, I think you're off the hook, and don't need consent.

BTW, FAR 44.201-1 is not a "clause." All clauses begin with the number 52.

[Retreadfed]

Contractor500, FAR 44.201-1 is not a contract clause.  The clause you need to be concerned with is FAR 52.244-2.  Note the prescription for use of that clause.  It may not be required for use in your contract.  In any event, note that consent to subcontract under FFP contracts is not required in all cases.  Only those cases where the amount of the subcontract will have an impact on what the government will pay under the contract.  An example would be a subcontract required by a change order to the contract where the cost of the subcontract is included in an REA resulting from the change order.

(It seems Vern and I were typing at the same time.)

[Contractor500]

Thank you both! I appreciate the insight and guidance. 

[Contractor500]

So, FAR clause 52.244-2 isn't included in the IDIQ. Do you both agree that we don't need consent since it's not in the contract even though it says the following in the FAR clause:

(c) If the Contractor does not have an approved purchasing system, consent to subcontract is required for any subcontract that -

(1) Is of the cost-reimbursement, time-and-materials, or labor-hour type; 

 

We don't have an approved purchasing system and the Task Orders are T&M and some are Fixed Price. I just want to make sure I'm interpreting it correctly. 

Thank you

[JRT132]

Yes, I think that is what the group is saying. If the clause isn't there, no need to request consent, but I will let others confirm their position. One clarification on (c)(1): If the clause was included in your task order, its the subcontract type that drives consent.

[Vern Edwards]

31 minutes ago, Contractor500 said:

Do you both agree that we don't need consent

@Contractor500Your contractual obligations are specified in your government contract. If the clause requiring government consent to subcontract is not in your government contract, then you don't need government consent to subcontract.

I think I can speak for myself and for Retreadfed in this matter.

 

[Contractor500]

Thank you Vern! And thank you JRT132 for the clarification as well. I think I read c(1) too quickly. 

[Retreadfed]

47 minutes ago, Vern Edwards said:

I think I can speak for myself and for Retreadfed in this matter.

Yes.  However, someone is liable to bring up the Christian Doctrine.  Note that FAR 52.244-2 is not mandatory in all contracts, particularly FFP contracts.  For use in FFP contracts some conditions need to be met that require judgement and discretion on the part of the contracting officer.  Because of this, it is questionable whether the Christian Doctrine applies if the clause is not included in a contract.  But that is a different issue from whether consent is required if the clause is not specifically incorporated in your contract.

[Contractor500]

Retreadfed,

Thank you for this great information. Good to know 

[Vern Edwards]

You've done it now, Retread.

[Contractor500]

Could this mean that FAR 52.244-2 not being in our contract be argued by the CO at a later time if considered mandatory by the CO and therefore fall under the Christian doctrine and the clause would apply to our contract after all? As a result, possibly run into issues with compliance because we never requested consent to subcontract for our subs?

I found information that states “The Christian doctrine provides that a mandatory statute or regulation that expresses a significant or deeply ingrained strand of public procurement policy shall be read into a federal contract by operation of law, even if the clause is not in the contract.” Is there a chance that consent to subcontract could fall under this standard?

I found that courts and boards have held the following clauses as meeting the Christian doctrine standard: 

Disputes, Termination, Changes, Payment, Equal opportunity and clauses implementing provisions of the Buy America Act, Truth in Negotiations Act (TINA), Miller Act, and Davis -Bacon Act. But, there isn’t a defined list of clauses covered by the Christian Doctrine. 

 

[Contractor500]

But, you still feel that consent to subcontract is not something we would have to worry about as far as non-compliance as long as FAR 52.244-2 is not in our contract?

[joel hoffman]

15 minutes ago, Contractor500 said:

But, you still feel that consent to subcontract is not something we would have to worry about as far as non-compliance as long as FAR 52.244-2 is not in our contract?

Yes. It’s not a mandatory clause per statute or regulation. You can trust Vern’s opinion here.

 

[Retreadfed]

29 minutes ago, Contractor500 said:

But, you still feel that consent to subcontract is not something we would have to worry about as far as non-compliance as long as FAR 52.244-2 is not in our contract?

I do.

[Vern Edwards]

48 minutes ago, Contractor500 said:

But, you still feel that consent to subcontract is not something we would have to worry about as far as non-compliance as long as FAR 52.244-2 is not in our contract?

@Contractor500Question: Do you plan to get the clue any time soon?

[REA'n Maker]

On 3/23/2023 at 4:03 PM, Vern Edwards said:

You've done it now, Retread.

My policy is that if there is any doubt, Christian likely doesn't apply.  One thing I do know is that its application is very narrow.

 

On 3/22/2023 at 2:34 PM, Contractor500 said:

mostly engineering services and project management services to the Gov't.

As previously stated, FAR 52.244-4 may apply to Architect-Engineer services contracts.  If your award cover sheet is an SF252, you need to look for that clause as well.

[Contractor500]

Thanks REA'n Maker

 

[Contractor500]

I have run into a situation where FAR 52.244-2 is included in a new award. We do not have an approved purchasing system. But, the DD254 that we were issued on this new award already lists the subcontractors. Are we still required to provide formal paperwork to the CO requesting consent for these subs along with supporting documentation? It seems like they are already approved if we have the DD254 with the subcontractors already listed. Just want to double check. Thank you.