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elgueromeromero

52.244-6 not included in non-commercial subcontract

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Background

We were issued a subcontract from a 1st-tier federal subcontractor to perform construction work. FAR 52-244-6 was not included in our subcontract. Now, we're about to issue a commercial subcontract and we're wondering if we should include the flowdowns listed in 52-244-6 that should have been in our subcontract. There are other clauses listed in our subcontract, but in light of FAR 44.402(b), I think that only the clauses listed in 52-244-6 need to be flowed down to any subcontract for commercial items/services.

Question

Should we flow down the clauses in 52-244-6 in our commercial subcontract even though that clause isn't in our subcontract, or do we need to go back to the company that issued the subcontract to us and ask that they modify it to add FAR 52-244-6? Or are we not obligated to flow down any FAR clauses?

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It sounds like you have a subcontract with a company that has a prime contract with a federal agency. Your subcontract is between your company and the other company. Your company does not have privity of contract (a contractual relationship) with the federal agency. 

You are not obligated to flow down any FAR clauses unless your subcontract says that you are obligated to flow down any FAR clauses.

What you do as a matter of supply chain risk or "keeping your prime contractor happy" (like correcting its mistakes and omissions) is another story.

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1 hour ago, PepeTheFrog said:

It sounds like you have a subcontract with a company that has a prime contract with a federal agency. Your subcontract is between your company and the other company. Your company does not have privity of contract (a contractual relationship) with the federal agency. 

You are not obligated to flow down any FAR clauses unless your subcontract says that you are obligated to flow down any FAR clauses.

What you do as a matter of supply chain risk or "keeping your prime contractor happy" (like correcting its mistakes and omissions) is another story.

Correct, we have a subcontract with a company who holds the prime federal contract. There are a number of clauses listed under the "flowdown" section of our subcontract with the prime, but this section states that they are to be flowed down "to the extent applicable". 

So because we don't have privity of contract with the federal agency, and because the prime didn't include 52.244-6 in our subcontract, we should ignore FAR 44.402(b) and basically go through all of our clauses and flow down all that include a  "shall include in all subcontracts" prescription (as applicable)? 

So we'll end up including clauses that wouldn't normally be flowed down to a commercial item subcontract, such as 52.225-13 Restrictions on Certain Foreign Purchases, for one example.

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12 minutes ago, elgueromeromero said:

we should ignore FAR 44.402(b)

The FAR is applicable to federal employees conducting acquisition. The FAR is only relevant to federal contractors as far as a FAR clause or section of the FAR is included or incorporated into the contract. 

15 minutes ago, elgueromeromero said:

go through all of our clauses and flow down all that include a  "shall include in all subcontracts" prescription (as applicable)

If your (sub)contract states that you are supposed to flow down a clause in your subcontracts, then that is what your (sub)contract requires. 

Your questions are more about the risk for your company and the risk for the prime contractor. You are focusing on compliance with the FAR, but the FAR does not apply to your company.

It sounds like (a) the government failed to include appropriate clauses in the prime contractor, (b) the prime contractor failed to include appropriate flowdown clauses in your subcontract, or (c) some combination of (b) or (c). These are problems for the government and the prime contractor. 

The government can't really do anything to you. The government doesn't have a contract with you.

The prime contractor might try to make its problems your problems. 

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5 minutes ago, PepeTheFrog said:

The FAR is applicable to federal employees conducting acquisition. The FAR is only relevant to federal contractors as far as a FAR clause or section of the FAR is included or incorporated into the contract. 

Yes, I understand this. I was thinking more in terms of what should have been included in our subcontract when I cited this.

 

7 minutes ago, PepeTheFrog said:

If your (sub)contract states that you are supposed to flow down a clause in your subcontracts, then that is what your (sub)contract requires.

Our subcontract includes a laundry list of FAR clauses and says to flowdown "to the extent applicable". We'd like to avoid scaring off a small company providing a commercial item with a bunch of unnecessary FAR clauses. If our subcontract gives us the discretion to flow down clauses "to the extent applicable" , couldn't we justify that the only "applicable" clauses in our subcontract that should be flowed down to our subs are those that are included in 52.244-6, since those clauses are the only clauses that are really applicable to a subcontract for a commercial item?

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Or you could ask your prime to modify your subcontract to include 52.244-6, using the rationale that it would increase competition.

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I would flow 52.244-6 plus with respect to the contract between your company and your customer  (a) all mandatory flowdown clauses included in such contract [including the laundry list, with the words "to the extent applicable" unless you are willing to take the risk, upon review of them, that they are not applicable] (b) all clauses included in such contract that should be flowed to satisfy your company's contractual obligation to its customer. See 52.244-6 (c)(2).

Edited by Neil Roberts
provide answer to specific question, correct bad cite

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