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DoS Prime Award for non-commercial services

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We were awarded a prime contract from DoS for non-commercial services

52.215-10, and 52.215-12 are not in the prime contract however 52.215-13 is.

our subcontracts issued under the prime are arguable commercial services (ie.. airport screening technician labor, food services, etc..)

In our consent packages to subcontract, we are justifying that due to 52.215-10, and 52.215-12 were not in the Prime, certified cost and pricing data was not obtained.

is this justification adequate, or do we need to go a different route, ie. assert these are commercial services, and therefore CC&PD not obtained?

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I don't think your justification is adequate.

If the clause at FAR 52.215-13 is in your contract, then you have to get certified cost or pricing data from a subcontractor in connection with a modification of your contract for which (1) a price adjustment to your contract will exceed the dollar threshold in FAR 15.403-4 and (2) your company has to provide certified cost or pricing data to the government.

In such a case, you must get certified cost or pricing data from a sub when: (1) you award or modify the subcontract because of the modification of your contract, and (2) the subcontract award or modification will itself exceed the $700,000 threshold, and (3) none of the exceptions in FAR 15.403-1 apply to the subcontract award or mod.

If you are awarding or modifying a subcontract, but not because of a modification of your contract, then you need not obtain certified cost or pricing data from the sub. Why not? Because FAR 52.215-13 does not require you to do so in such cases.

So if the only subcontract awards that you have made have not been due to a modification of your contract, then the explanation for not obtaining certified cost or pricing data from the sub is that 52.215-13 does not require you to do so.

On the other hand, if (1) your contract has been modified, and (2) you have to submit certified cost or pricing data to the government in connection with that mod, and (3) you awarded or modified a subcontract due to the modification of your contract, then you have to show that 52.215-13 does not require that you get certified cost or pricing data from the subcontractor.

Thus, in order to justify not getting certified cost or pricing data from the sub you would have to show that: (a) the mod to your contract did not exceed $700,000, or ( b ) the subcontract award or modification will not exceed $700,000, or ( c ) one of the exceptions in FAR 15.403-1 (e.g., commercial item) applies either to the modification of your contract or to the award or modification of the subcontract.

I hope that's clear. I have tried to explain as simply as possible, but it is still pretty complicated. Write back if you still have any questions.

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Vern

Thank you.

I will need to get with our Contract Dept. to see if we have had MOD's to our prime and if any exceeded 700,000.

But according to your last paragraph, it would not matter if we received a MOD or not - I believe I have a commercial item (service) exemption awarding the subcontract. Do you think I can go the commercial item (service) route, and if so, does the determination of commercial item need to come from Sub, or can I make the assertion for the file?

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But according to your last paragraph, it would not matter if we received a MOD or not

I must not have explained clearly. It does matter whether you have had a mod or not. If you have not had a mod, then pursuant to FAR 52.215-13 there is no requirement to get certified cost or pricing data from a sub.

If you have had a mod of your contract that requires you to provide certified cost or pricing data to the government, and if you think that you don't have to get certified cost or pricing data from a sub because the sub is providing a commercial item, then you should get the facts from the sub and then write a determination that the sub's item is a commercial item. Ultimately, it's up to the CO to decide whether or not to accept your determination.

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