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JAG51

Self Deleting Concept in a Subcontract - What Case?

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I'm looking for a/the case name or number that said words to the effect "as between a prime and subcontractor (in furtherance of a government contract) the concept of a clause self deleting did not apply as the contracting parties were private / commercial entities and the subcontract is a commercial contract subject to interpretation under state law concepts."

I recall reading in the forums about a year or so ago that there was a court case that indicated a subcontractor, a small business, agreed (unknowingly) to be bound by CAS provisions because the subcontractor accepted the CAS flowdowns in its subcontract with the prime. Subcontractor argued (unsuccessfully) that the CAS clause(s) were self deleting and also, even if the subcontractor agreed to comply with CAS, it was nonetheless exempt from CAS as it was a small business.

Does this case ring a bell?

I searched the forums but could not find the original posting. I'm interested if anyone recalls the actual case name or number or additional facts that may lead me to that case or any other case that propounds (either way) the concept of self deleting clause(s) in a subcontract (in furtherance of a government contract).

Any help would be appreciated. Thank you.

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The only thing I remember that may be related would be the promulgating comments of the FAR Council when FAR 30.6 and the CAS clauses were revised in 2005. I recall they opined that the CAS clauses were NOT self-deleting ... but I do not recall they said anything about prime/subK relationships.

Hope this helps.

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It would probably have been a State Court decision.

Did you try a Google Search under court decision self deleting flowdown subcontract clauses? Here is one hit that I skimmed: http://www.tfandw.com/CM/Articles/Articles7.asp

Another: http://www.duanemorris.com/articles/flow_down_clauses_incorporation_by_reference_construction_contracts_3711.html

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The CAS part was only to provide the refresher. Not really interested in CAS per se, but more so of the concept of self deletion in a prime / sub relationship in furtherance of a government contract.

I've searched the internet high and low using different search criteria and either I receive irrelevant hits or constantly bringing up prime contractors standard boilerplate language for its subcontracts, neither of which is helpful.

Yes, the case is a state court case and presume any other case on this point would also be a state court case.

I no longer have access to Lexis or West law, else I'd be looking there. Thought perhaps Wifcon would recall of hand. I'll keep searching and should I find it, I'll post it for the future. Thanks for the efforts.

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JAG51, why would a clause in a subcontract be self deleting? Do you think that a prime can only include a clause in a subcontract if the prime complies with the prescriptive language for use of that clause in the FAR? Taking your CAS example, are you thinking that a prime contractor cannot require a small business to comply with the CAS? What is the purpose of your question?

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