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FAR 15.408 Deviation - re: 52.215-12

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Section 811 of the 2018 NDAA  provides a class deviation for FAR 15.408 increasing the threshold to $2m as of 01 July.  This change increases the threshold for submitting certified cost or pricing data to $2m on the date of price agreement or award, whichever is later

Assuming a Prime is awarded prior to the effective date of 01 July, the Prime's contract is therefore subject to the prior threshold of $750k.

Question: If a subcontractor reaches price agreement or receives award post 01 July, should the subcontractor be subject to the prior or current threshold for the requirement to submit Certified cost or pricing data? Alternatively stated, is a subcontractor subject to the mandatory flowdowns, exactly as agreed to under the Prime contract (updating of named parties notwithstanding).

BC

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Beantown, look at 10 U.S.C. 2306a(a)(1)(C).  That might help.  The same language is in title 41 relating to civilian agencies.  Various agencies have issued class deviations to the FAR addressing this issue.  Check to see if the agency involved with the contract has issued a class deviation.

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With respect to requirements between prime contractor and subcontractor, some prime contractors wait for FAR changes to occur (or Agency Class Deviation requirements that are incorporated into its prime contract). To the extent they do that, my view is that it puts the prime contractor at risk of being accused it does not comply with "the law." I have heard it said that Contracting Officers are not authorized to apply procurement "laws" that are waiting for  incorporation as FAR requirements. 

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The DoD and other Class Deviations implemented the threshold change in advance of formal rule-making. The Class Deviations expressly provide that prime contracts awarded before the effective date of the threshold change may be modified to comply with the higher threshold, with no consideration required. The prime simply has to request it. If you are awarding a subK between July 1 and the date on which your contract is modified to comply with the higher threshold, you may want to stick with the lower threshold. Or you could get a letter from the Prime contract CO giving you permission to use the new threshold while the mod is being processed....

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Beantown, you stated that the 2018 NDAA "provides a class deviation." I see you are new. Class Deviations are creatures of Agencies, like DOD. I did not see any language in section 811 that states it is a "class deviation."  Also, as expected, the DOD Class Deviation language about thresholds for the prime and subcontract is consistent with the language in 10 U.S.C. 2306a regarding prime and subcontract thresholds before and on or after June 30, 2018 and prime contractor requests to modify the threshold.

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