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Urgent: Question on FAR 44.2 requirement in Solicitation


lnlhutz23

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Good morning all,

Was hoping you guys could help me with a question regarding a solicitation response. The instructions read in part that “Clearly identify all proposed subcontractors, teaming arrangements, or joint ventures in the response. Quoters shall fully comply with the consent to subcontract requirements of FAR Part 44.2. If quotes fail to comply with all requirements of FAR 44.2, the quote will be considered non-responsive…”

Typically I've seen this requirement after a prime contract award has been made, so not exactly sure how we show we have complied with all the requirements in the quote itself? Are we expected to provide documentation to support compliance with FAR 44.2 in our proposal response (e.g. description of services, type of subk, price of subk, etc...) or just a notification of subcontractors proposed and an affirmative statement that we will comply with all requirements of FAR 44.2?

Unfortunately the Q&A period has closed on this and the CO will not provide further guidance, so hoping the wisdom on this forum can help guide me on this. Thanks!

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Is there any other discussion of subcontracting in the solicitation that might cast some light? Anything suggesting the government contracting officer believes "individual consent is required to protect the Government" (to quote FAR 44.201-1(a))? Any local clauses? What is the contract type? Do you have an approved purchasing system? How did the Government fill in para (d) to FAR 52.244-2? How did the Government fill in para (j)?

If there is nothing special about the solicitation, and there would be circumstances where consent to subcontract would be required, then I would write my proposal with the considerations in FAR 44.202-2 in mind and try to answer as many of questions related to those considerations a contracting officer charged with consenting to the subcontract would want answered. I would also provide the information required by para (e)(1) of the clause based on the assumption that the PCO wants to be able to consent at the time of award, a la para (j) of FAR 52.244-2. For those subcontracts where consent is not required, I would include in my proposal an explanation as to why consent is not required (by reference to the clause).

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Does the solicitation include the clause at FAR 52.244-2?

To me, the way to ensure compliance with FAR Subpart 44.2 is to use the contract clause prescribed by FAR Subpart 44.2.

Maybe the clause is included, but the contracting officer wants pre-award affirmation in the proposal that the contractor will comply with the clause? If so, maybe in your quotation you could include words affirming your intent to comply with the contract clause at FAR 52.244-2, and providing the information sought by para. ( e ) of the clause in your proposalfor those proposed subcontracts for which consent will be required, instead of waiting and providing it after award.

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Thank you for the replies. Sorry should have included the following information:

  • T&M task order
  • We do not have an approved purchasing system.
  • 52.244-2 is included in the solicitation
  • No other mention of subcontracting elsewhere in the solication, other than the fact that you have to identify any subs being proposed.
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So, the Subcontracts clause at FAR 52.244-2 appears prescribed by FAR 44.204(a)(1)(iv). Given that you don't have an approved purchasing system, consent is required for any subcontract other than certain lower dollar fixed-priced subcontracts exempt under para ©(2). Again, to be safe, I would assume the contracting officer wants you to include in the proposal everything the contracting officer would need to (1) consent to those subcontracts prior to award and (2) show that consent by listing all the successful offeror's subcontracts in paragraph (j) of the clause at time of award.

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I'm not particularly surprised that on a competitively awarded T&M contract the Government wants to have some assurance prior to award that the contracting officer will be able to consent to use of the subcontractor(s) identified in an offeror's proposal, especially if that subcontractor will be furnishing any services that are not ancillary. Otherwise, in the absence of blended rates, I don't know how the Government would be able to properly calculate an evaluated price.

It seems to me that if the proposal includes subcontract labor, one way or another the subcontractor's rates would need to be considered in the evaluated price (if the solicitation is prepared IAW reg). See the provisions at 52.216-29 through -31, esp. paragraph © of 52.216-29. See also FAR 16.601(f)(1) ("If authorized by agency procedures, the contracting officer may amend the provision [at 52.216-29] to make mandatory one of the three approaches in paragraph © of the provision, and/or to require the identification of all subcontractors, divisions, subsidiaries, or affiliates included in a blended rate.") For instance, DoD's "agency procedures" call for including the provision at DFARS 252.216-7002 Alt A, which seems to require separate sets of rates for the prime and for "each subcontractor."

So, assume the solicitation doesn't call for blended rates, e.g., it is a solicitation issued by some DoD agency. Given that the GAO generally requires that the solicitation's approach to calculating evaluated price (and the actual evaluated price) reflect the Government's likely cost experience under the contract, and given that the proposed rates must, in one way or another include the subcontractor's rates if that subcontractor will be furnishing labor, in the normal course I would expect evaluated price to include subcontractor rates. If I've got that right (and I'm not ruling out the possibility that there may be some legitimate way to get around this), significant doubt as to whether the contracting officer will be able to consent to the subcontract would, in turn, create doubt as to whether the evaluated price actually reflects the Government's likely cost experience under the contract.

I may be all wet, though, as I haven't looked at any bid protest decisions specific to including subcontractor rates in coming to an evaluated price on T&M contracts. Maybe the GAO would say that consent to subcontracts is purely a matter of contract administration, and that even if the Government knew for a certainty during the source selection that the contracting officer would not be able to consent, the GAO wouldn't entertain the protest. Even if it isn't a protest issue, the contracting activity itself may believe resolving consent during source selection is a step toward having greater confidence in its evaluated price.

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Guest Vern Edwards

Good morning all,

Was hoping you guys could help me with a question regarding a solicitation response. The instructions read in part that “Clearly identify all proposed subcontractors, teaming arrangements, or joint ventures in the response. Quoters shall fully comply with the consent to subcontract requirements of FAR Part 44.2. If quotes fail to comply with all requirements of FAR 44.2, the quote will be considered non-responsive…”

Typically I've seen this requirement after a prime contract award has been made, so not exactly sure how we show we have complied with all the requirements in the quote itself? Are we expected to provide documentation to support compliance with FAR 44.2 in our proposal response (e.g. description of services, type of subk, price of subk, etc...) or just a notification of subcontractors proposed and an affirmative statement that we will comply with all requirements of FAR 44.2?

Unfortunately the Q&A period has closed on this and the CO will not provide further guidance, so hoping the wisdom on this forum can help guide me on this. Thanks!

The instruction you quoted does not tell you to show that you have complied with consent requirements. It says that you must comply with FAR Subpart 44.2 in the submittal of your quote. I read the instruction to mean that you must submit the information that the CO will need to grant or withhold consent. The quote you provided makes it clear that they want more than just advance notification. They want you to identify "all" proposed subcontracts and comply with FAR Subpart 44.2.

The instruction is somewhat unclear, because FAR Subpart 44.2 is not addressed to contractors and does not tell them what information to submit in order to get consent. Instead, FAR 44.202-2 tells COs what information to consider. You could convert those considerations into information submittal requirements for each proposed subcontract for which consent would be required pursuant to FAR 44.201-1 and submit that information with your quote.

Alternatively, if the request for quotations includes the clause FAR 52.244-2, Subcontracts (OCT 2010), which it should, then you might assume that the CO wants you to submit the information specified in paragraph (e)(1) for each proposed subcontract for which consent would be required pursuant to paragraph ( b ) or ( c ) of the clause.

Based on the quote you provided, the government may want that information for "all" prospective subcontracts, whether or not consent would be required for all. That might be the safest thing to assume.

A requirement for precontractual consent during the quotation/proposal process is unusual, but not unheard of.

I hope you still have enough time to get and provide the info. I hope the prospective revenue is worth the effort.

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