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Our local Government Offices (DCMA and DCAA), with apparent support from the Regional Offices, are asserting categorically that Prime Contractors must follow Part 15 of the FAR ?selectively inserting ?Prime Contractor? for ?Contracting Officer?.

We have attempted to make the argument that absent statutory or contractual requirements that one cannot place the Government?s requirements onto a Prime Contractor. We have reference the FAR applicability provision in 1.104 and the associated definition of ?Acquisitions?. We have observed the inconsistency in their substitution of ?Prime Contractor? for ?Contracting Officer?. But to date we have not been successful.

Questions: Is there any Government policy guidance, decision law, or other references that directly on point address this issue?

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Our local Government Offices (DCMA and DCAA), with apparent support from the Regional Offices, are asserting categorically that Prime Contractors must follow Part 15 of the FAR ?selectively inserting ?Prime Contractor? for ?Contracting Officer?.

We have attempted to make the argument that absent statutory or contractual requirements that one cannot place the Government?s requirements onto a Prime Contractor. We have reference the FAR applicability provision in 1.104 and the associated definition of ?Acquisitions?. We have observed the inconsistency in their substitution of ?Prime Contractor? for ?Contracting Officer?. But to date we have not been successful.

Questions: Is there any Government policy guidance, decision law, or other references that directly on point address this issue?

Yes, and you've already found it--FAR 1.104. The FAR applies to acquisitions, which are defined at FAR 2.101 as follows:

?Acquisition? means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated...

A prime awarding a subcontract does not meet the definition of "acquisition" because, if for no other reason, it is not by the Federal Government. There are some rare cases where the FAR has been found to apply to the prime's award of subcontracts because the prime was essentially acting as the Government's purchasing agent. However, the assertion that the rules of the FAR necessarily apply to a prime's award of subcontracts is flat out wrong.

I wish I had better news for you, but it sounds like you're dealing with ignoramuses.

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Guest Vern Edwards
Yes, and you've already found it--FAR 1.104. The FAR applies to acquisitions, which are defined at FAR 2.101 as follows:

A prime awarding a subcontract does not meet the definition of "acquisition" because, if for no other reason, it is not by the Federal Government. There are some rare cases where the FAR has been found to apply to the prime's award of subcontracts because the prime was essentially acting as the Government's purchasing agent. However, the assertion that the rules of the FAR necessarily apply to a prime's award of subcontracts is flat out wrong.

I wish I had better news for you, but it sounds like you're dealing with ignoramuses.

garth:

I'd forget about the "acquisition" argument if I were you.

What section(s) of FAR Part 15 do they want you to comply with? If they want you to comply with the source selection rules in FAR 15.303, then they are out to lunch. But if your contract includes the clause at FAR 52.244-2 and all they want is for you to comply with the subcontract pricing rules in FAR 15.404-3, that's another matter entirely.

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Most of our primes to do contain 52.244-2 and 52.244-5.

They are saying we need to comply with Part 15.3 on Source Selections.

We have attempted to argue that in accordance with 244-5 our requirement is to compete to the maximum practical extent consistent with the objectives of the contract. And have pointed out that their own audit plan directs them to audit to that clause and not FAR Part 15; but we are making little headway.

I was just hoping there was some other reference I could point to.

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Guest Vern Edwards

There is a reference: Your contract. Ask them to show you where in your contract it says that you have to comply with FAR Subpart 15.3. Refuse to comply.

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Gatrth,

For the past twelve years I have worked for a prime contractor. We have a major subcontracting program. We award subcontracts of all types and dollar values. Our purchasing system is Government approved. We do not follow FAR 15-3, because our prime contracts do not require same. We do; however, have company acquisition procedures that follow generally the principles of FAR 15-3. They allow for prudent business judgment and are less strict than FAR 15-3. We have survived many CPSRs and audits. We have never been directed by a Government representative to follow FAR as you describe. Maybe your DCMA/DCAA people really want you to do something like we are doing. Do you have internal procedures that govern your source selection process?

Ed

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