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PRIME RESPONSIBILITY FOR COTS PRODUCTS


lacylu

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This may be an obvious question, however, I must ask based on my experience today in a meeting.

So program review with the Prime contractor today revealed the government is responsible 100% for the replacement costs, engineering change proposals (ECPs) related to COTS products that did not work . My initial response was the Prime should accept some responsibility for the product not working from their supplier. The prime's response was that the supplier will not take back the COTS products. This Prime also submits numerous ECPs under CPFF type with no incentive to complete negotiations. I am pretty new to this contract and just trying to wrap my arms around these discussions. I just can't believe the Prime would have no responsibility in this replacement of the product that doesn't work. They claim its COTS and its nothing they can do. Please provide your thoughts .... seems simple but maybe I'm missing something

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Guest Vern Edwards

lacylu:

You have not provided enough information to enable anyone to provide you with intelligent thoughts. I suggest that you discuss your concerns with a contracts attorney.

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sorry, I haven't provided enough information. I am new to this contract and what I provided was provided in the meeting. This was my first meeting and to here the Prime state they were not responsible for COTS products from their supplier that didn't work was just a little surprising. Can you suggest information I can provide to you in order to get feedback.

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Guest Vern Edwards

Okay, so COTS items caused some problems. The first issue is who is responsible for the COTS items, the Government or the contractor. I'll ask some questions. First question:

Were the COTS items specified by the Government in the contract or did the contractor choose the items that it used?

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First , thank you for taking the time to provide me with the questions so you can attempt to assist.

the supplier of the COTS items is apart of an "approved supplier list" of which the Govt can choose. So I would say the answer to your question is a little bit of both. This contract is a major systems contract with a variety of contract types

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lacylu:

I don't think the question was about the supplier just yet. Focus on the COTS item the approved supplier provided.

The specific question asked is only to determine if the government or contractor specified the COTS item.

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Guest Vern Edwards

lacylu:

I think this is too complicated to try to work out and explain on a website, typing back and forth. It will take forever and be frustrating, at least to me. If this is more than a matter of mere personal curiosity, I urge you to talk to your contracts attorney. If you want to try to discuss it with others here, and others have the time to devote to you, then have at it.

But let me say that, as a general rule with exceptions, a prime is responsible for the work of its subs, unless an act or failure to act by the government caused the problem, whatever the problem is. You must identify the problem (you have to be much more specific than "COTS products that did not work") and then find its cause in order to assign liability to one party or the other. If you haven't had a course in government contract law or a lot of experience, then it's going to be very difficult if not impossible for you to know how to state the problem, what legal principles apply to the case, and what facts are pertinent.

Vern

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I agree with Vern. Your last post simply raised further questions. You said that there is an approved supplier list from which "the government" may choose? Who made this list? Why would the government choose the item? Etc., etc

At this point we don't even know what the actual problem is with the item - "doesn't work" can mean it is faulty or defective , works but isn't the correct solution for the requirement, etc. if ECPs are involved, it implies that the design or specs need to be modified. Then you say it is a systems contract, which could mean that the contractor is the developer of the design. Then you say that there are various contract types involved in the systems acquisition.

I think that dribbling out a little info at a time, especially on a specific contract here, is inadvisable. You need to study up on the fundamental responsibilities of the contractor under a cost type contract. And do read your contract carefully and speak to an attorney that knows something about cost plus fixed fee contracts.

Just saying...

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Guest Vern Edwards

Joel:

One of the reasons I decided to quit was the answer to the question I asked in Post #4. An acceptable answer would have been either (1) the Government specified or (2) the contractor chose. I decided not to continue when I saw the answer given in Post #5.

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Joel:

One of the reasons I decided to quit was the answer to the question I asked in Post #4. An acceptable answer would have been either (1) the Government specified or (2) the contractor chose. I decided not to continue when I saw the answer given in Post #5.

Vern, I agree.
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