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AmericanJan

M&O Prime Contract Mandatory Flowdowns vs NASA SEWP and GSA terms

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For any M&O contractors, how do you typically handle mandatory flowdowns from your prime contract when you leverage (use) SEWP, GSA, ICTP, etc. agreements? Do you add them to the agreement or not? 

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Could you please elaborate on what "leverage" means?

If you have mandatory flowdowns from the prime, they are what they say they are. They must be included in any subcontract terms that are applicable to a procurement under the M&O contract. From the breach of contract risk standpoint, you should ensure that the subcontract includes clear language that in the event of any conflict or inconsistency between the mandatory flowdowns and any other terms and conditions in the subcontract, that the mandatory flowdowns shall be given precedent. As a practical matter, I found this not feasible to accomplish with GSA standard terms of the offered deal, for example. As a consequence, I found myself advising that the deal is unacceptable from a risk standpoint unless the program and contract manager sign off on the terms of the subcontract due to breach of contract risk. Alternatively, you may be able to get the M&O contracting officer to issue a waiver for mandatory term flowdowns if you can convince that this deal is so great that it is worthwhile to do so. Not seeing that as very hopeful. You should also be aware that terms such as GSA terms sometimes conflict with the terms of the M&O contract (not just the mandatory flowdowns), and that conflict should be negotiated out of the deal.

Bottom line, in my experience, don't bother to "leverage," if I understand what you mean by that, because it is exceedingly difficult if not impossible and not worth the risk or potential savings, if there is any. On the other hand, I have observed that many companies just throw the mandatory terms into the contract without thinking about any of the above, never knew enough to think about the above, and no harm ever came to the deal, the companies or their career.     

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By “leveraging”, I was just meaning using SEWP terms or terms associated with GSA terms without negotiating or adding terms. We are authorized and encouraged  to use SEWP, GSA, ICTP, etc. agreements and I was wondering if everyone else flows down their mandatory terms or use the agreements as-is. 

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I don't believe you are going to find many M&O contractors in this forum and I don't know what other M&O contractors do. My experience was with a large prime contractor that had many prime contracts and a few M&O contracts for running nuclear facilities, where as you can imagine, risk avoidance is a focus.

Edited by Neil Roberts
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