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Can a solicitation prohibit a prime from subcontracting the work?

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Can a solicitation prohibit a prime from subcontracting the work? Specific example: an agency needs to have a contractor "backup" government data on an IT services contract. In the solicitation, can the agency put language restricting the "backup" to the prime, meaning the prime contractor MUST do this themselves, and not utilize a subcontractor? The agency's concern: if a prime is allowed to make a subcontractor do the backup, if the prime and the sub get into a dispute, and then the sub refuses to give the backup data to the government agency, then the agency has no privity of contract with the sub. So the agency would have no contractual leverage to force the sub to cooperate.

A colleague of mine believes such a prohibition in the solicitation would be viewed as overly restrictive and cannot be done. I disagree. I believe the agency's concern is reasonable. The concerns are a reasonable basis for the restriction. Thoughts?

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Guest Vern Edwards

gov2310, I don't know about you. You really test self-restraint.

There is no express prohibition against prohibiting subcontracting. However, if I were going to do that I would document the file very throughly to explain and justify it. Such a restriction might be protested on grounds that it is unduly restrictive, in which case you would have to show why it is not. Whether or not it is unduly restrictive would depend to large extent on industry structure and practice.

You might be able to address your concerns with a carefully drafted mandatory flowdown clause giving the government third party rights against the sub and by requiring consent to any subcontract that would involve backup services.

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You can avoid the whole question by simply including a consent to subcontract requirement -- see FAR 44.201-1( a ). You can say that the Government's consent will be provided only if the concerns you raised are addressed.

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