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Consent for 2nd tier subs

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Our prime IDIQ contract has clause 52.244-2 including alt I, requiring consent for T&M subs exceeding simplied threshold. We (prime) do not have an approved puchasings system. The sub. we want to add at the task order level, will require consent.

The sub has an approved purchasing system, so will we have to obtain consent for the subcontractors 2nd tier sub at the same time?

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The government only reqires a notice of intent to subcontract and consent to subcontract in regard to first tier subcontracts. The prime can require first tier subcontractors to obtain prime consent before awarding second tier subcontracts. This prime consent is not necessarily tied to whether the first tier sub has an approved purchasing system.

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Hello Retreadfed, While researching this topic I stumbled across this article: https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=116493 which states that prior consent is required for 2nd tier subs per the definition of subcontracts within FAR Part 44: FAR Part 44 – Subcontracting Policies and Procedures

FAR 44.101 – Definitions

As used in this part—

“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.

“Subcontractor” means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime contractor or another subcontractor. 3. As set forth under FAR 44.101, the definition of “subcontract” also means any contract entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. The definition of “subcontractor” also means any firm that furnishes supplies or services to or for a prime contractor or another subcontractor. Taken together, we believe that these definitions would certainly include Tier II suppliers performing under a Government prime contract.

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That is one of the most poorly written and reasoned answers that can be found at AAP. As has been pointed out here several times before, you cannot necessarily rely on what is written there to be accurate. 52.244-2 clearly states that “Consent to subcontract” means the Contracting Officer’s written consent for the Contractor to enter into a particular subcontract." Contractor's do not enter into second tier subcontracts as a general rule. First tier subcontractors do that. Similarly, prime contractors do not select second tier subcontractors in the normal course of business. Again, this is the usual function of first tier subcontractors. Therefore, reference to 52.244-5 seems irrelevant.

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While not exactly on the point of consent, there is no privity of contract beween the Govt and the Prime's subs. I do have one additional thought concerning 2nd tier subs-should the 1st tier sub wish to issue a subcontract to a 2nd tier sub, and the value of the 1st tier's subcontract increases, then, depending on the value, consent may be required. But remember, the consent is only to increase the 1st Tier subs value, not to consent to a 2nd tier sub. I hope I have made myself clear here.

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No you have jnot made yourself clear. When you say value of the 1st tier sub increases, are you saying that the amount the prime will pay the 1st tier sub will increase? If that is the case, upon what provision in the Subcontracts clause do you base your assertion that a prime must obtain consent to subcontract in order to increase what it will pay a 1st tier sub?

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Depending on the increase as well as the provisions within the Prime Contract, notification or consent may be required. I work primarily on prime contracts, not subcontracts, and I have seen provisions with FAR 52.244-2 where the CO has noted that all subcontracts require consent. Many times too the CO would ask if the prime contract would need to be increased, so there are other factors that come into play here.

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DS, so you are not saying that 52.244-2 or 52.244-5 require government consent for a prime contractor to increase the value of a subcontract. Instead, you are saying that some contracting officers include home grown provisions requiring such consent.

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