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Putting Teeth In Small Business Subcontracting Plans

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7 minutes ago, Don Mansfield said:




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5 hours ago, Vern Edwards said:

It's all nonsense, written by people elected to Congress who have little but nonsense in their heads.

Its probably written by their staffers for the  people elected to Congress who have little but nonsense in their heads.

In my limited experience*, the staffers don't know much, if anything about the subjects, either. Industry trade groups might provide draft wording. At any rate, neither the staffers, members of Congress or the trade groups appear to understand all the impacts/ramifications of the proposed actions in relation to other processes.

(*I have participated in reviewing about a dozen legislative proposals for design-build, construction and A/E initiatives that are or were initiated by industry trade groups or industry coalitions.)


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Edited 29-30 July: 

Unfortunately, this policy is more like loose dentures than teeth.  

The USACE (US Army Corps of Engineers) uses a clause [1] in its design-build and some traditional style, sole source and competitively negotiated construction contracts to require KO approval for any substitutions of key subcontractors or personnel that were named in the contract proposal.

The contractor must explain why the substitution is necessary and must submit the same type of information for proposed substitutes as that which was evaluated during the contract formation.  The substitutes must be equally qualified as the original person or firm. The KO might require consideration for the substitution under certain circumstances, for example bid shopping. 

The intent of the clause is to discourage bid shopping of subs and bait and switch gold plating of proposed key personnel, while allowing for normal, legitimate turnover or non-availability. 

The qualifications of originally proposed personnel or subs are the basis for the minimum standards for substitution.

While primarily adopted for the benefit of the government, anti-bid shopping efforts also recognize potential benefits for those subcontracting firms who were involved and identified during the proposal process. 

Under another contract clause [2], the solicitation, including any amendments, and the accepted final proposal form the contract.  The order of precedence defines "Betterments" as "[a]ny portions of the accepted proposal, which both conform to and exceed the provisions of the solicitation".  Betterments become the new minimum contract requirement.  Thus,  any proposed substitution must meet the minimum contract requirements, including betterment’s included in the accepted proposal. 


From USACE Acquisition Instruction (UAI) Version 4 dated 25 JAN 2017:

[1]  UAI 5152.236-9001, Personnel, Subcontractors and Outside Associates or Consultants (MAY 2006) 
[2]  UAI 5152.236-9000, Design-Build Contract Order of Precedence  (AUG 1997) 

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As usual, @Don Mansfield and @Vern Edwards are spot-on.


Don't rely on the federal government to get primes to honor their promises, subcontracts, "assurances," or anything else which are made to subcontractors. There are some laws and regulations meant to help you, but don't rely on them. There's a privity of contract problem that the federal government has not and probably will not be able to solve.

The way to get primes to do what they said they would do is by...

...contracts, subcontracts, teaming arrangements, workshare agreements, etc.

Don't outsource your legal and contracting duties to Uncle Sam. He's got bad past performance and horrible references in those areas.

Don't be one of those subcontractors that gets screwed over. Pay for excellent legal and contractual representation. 

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good advice, Pepe. Don't rely on the FEDS.

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