Jump to content
The Wifcon Forums and Blogs

Recommended Posts

23 minutes ago, general_correspondence said:

Can you have a government prime contractor subcontracting to a company under commercial terms and conditions, and the firm is modifying and integrating non commercial items?

commercial service T&C's non commercial items.?  Kosher?

I assume you believe that what the subcontractor is supplying (or will be supplying) is not a commercial item as that term is defined in FAR Part 2.  That said, can you provide more context please?  Is this a pricing issue or something else?  Are you DoD?

Share this post


Link to post
Share on other sites

General, what type of contract and what type of pricing is the prime contract?

Share this post


Link to post
Share on other sites

Are you negotiating with a firm to provide a commercial item or negotiating for a non-commercial item?

The prime contract is supposedly non-commercial.

I would think that a prime can negotiate for a commercial item subcontract under more restrictive or detailed terms, if you deem that necessary or advantageous to you and to the government.

EDIT: according to the title of the thread, this is for purchasing a non-commercial item (on a CPFF prime contract). I don’t see why you’d be allowed to use FAR commercial item terms and conditions for a non-commercial item purchase. 
 

Share this post


Link to post
Share on other sites
21 hours ago, general_correspondence said:

Can you have a government prime contractor subcontracting to a company under commercial terms and conditions, and the firm is modifying and integrating non commercial items?

commercial service T&C's non commercial items.?  Kosher?

The prime can award a subcontract using any type and terms it wishes to, so long as the prime's mandatory flow-down clauses are included in the subcontract.

Share this post


Link to post
Share on other sites

A prime contract for non-commercial items is required to include 52.244-6 Subcontracts for Commercial Items. The prime contractor shall include such clause in subcontracts for commercial items and shall to the maximum extent practicable, incorporate commercial items as components. Per this clause, prime contractors may include in such contracts a minimal number of additional clauses necessary to satisfy its [prime] contractual obligations. Also see DFARS 252.244-7000.  

Share this post


Link to post
Share on other sites

But if the subcontract is for a non-commercial item, the contractor cannot simply use commercial terms and conditions to avoid contract requirements for non-commercial items where there is a conflict between commercial and non-commercial item contract requirements.

The prime contract is a cost plus fixed fee, thus not a commercial item contract. The title of this thread is “Commercial terms for non commercial item.” Of course, the prime can purchase commercial items, too.

Edited by joel hoffman
Added/edited last paragrapgh

Share this post


Link to post
Share on other sites
On 12/10/2019 at 11:44 AM, general_correspondence said:

Can you have a government prime contractor subcontracting to a company under commercial terms and conditions, and the firm is modifying and integrating non commercial items?

commercial service T&C's non commercial items.?  Kosher?

Neil/Joel, I wonder if you are missing a nuance in the original post.

It doesn't say that the prime is buying commercial items. It says that the prime is buying goods and services using "commercial terms and conditions." I may be reading too much into that phrase, but to me it says that the prime has a standard set of Ts & Cs that it uses when acquiring goods and services that are not subcontracts (meaning not in direct performance of a prime contract SOW). This is very common in industry. The General is asking whether those standard Ts & Cs can be used when acquiring goods and services that are qualifying subcontracts (meaning that they are in direct performance of a prime contract SOW) when the prime contract is not for acquisition of commercial items.

If my interpretation is correct, then I believe my answer was also correct.

Share this post


Link to post
Share on other sites
On ‎12‎/‎11‎/‎2019 at 12:03 PM, here_2_help said:

The prime can award a subcontract using any type and terms it wishes to, so long as the prime's mandatory flow-down clauses are included in the subcontract.

I agree with H2H.  The FAR does not apply to prime contractors when they award subcontracts.  Instead, any limitations on subcontracting, including what terms can be included in subcontracts, must be stated in the prime contract.  Unless, there is something in the prime contract that tells the contractor that it cannot include certain clauses in subcontracts, generally, the prime contractor can do so if the sub will agree to them.  The exception to this would be if the contractor wishes to include a clause that would create an internal inconsistency between that clause and a mandatory flow down clause.

Share this post


Link to post
Share on other sites
3 hours ago, here_2_help said:

Neil/Joel, I wonder if you are missing a nuance in the original post.

It doesn't say that the prime is buying commercial items. It says that the prime is buying goods and services using "commercial terms and conditions." I may be reading too much into that phrase, but to me it says that the prime has a standard set of Ts & Cs that it uses when acquiring goods and services that are not subcontracts (meaning not in direct performance of a prime contract SOW). This is very common in industry. The General is asking whether those standard Ts & Cs can be used when acquiring goods and services that are qualifying subcontracts (meaning that they are in direct performance of a prime contract SOW) when the prime contract is not for acquisition of commercial items.

If my interpretation is correct, then I believe my answer was also correct.

H, I agree with you if that is what the General meant.

But the terms and conditions can’t negate any prime contract requirements that would apply to acquiring subcontracts for non-commercial items.

Note that the subcontract is for modifying and integrating non-commercial items, whatever that means. 

Share this post


Link to post
Share on other sites
On 12/10/2019 at 11:44 AM, general_correspondence said:

Can you have a government prime contractor subcontracting to a company under commercial terms and conditions, and the firm is modifying and integrating non commercial items?

commercial service T&C's non commercial items.?  Kosher?

Assuming the word "firm" means the prime contractor, my answer to this question is "yes." Assuming the word "firm" means the subcontractor, where the subcontractor is modifying and integrating non-commercial items and such work is not a commercial item or service, my answer is as follows: "Yes," the prime may subcontract with commercial item terms and conditions in accordance with FAR 52.244-6, but doing so would tend to miss prime contract terms that should be flowed for non-commercial items, Example, current cost or pricing data. This practice may be questioned as a breach of the prime contract terms and conditions.    

Share this post


Link to post
Share on other sites
On 12/13/2019 at 10:08 AM, Retreadfed said:

The FAR does not apply to prime contractors when they award subcontracts.  

Retreadfed, what's your source for the above statement.  As a prime contractor employee who works subcontracts--and the survivor of half-a-dozen CPSRs--I don't think I agree with your assertion, and I'm pretty sure DCMA and DCAA wouldn't either. Certainly FAR 44 doesn't support it.  I am sure you made an overly broad statement in your attempt to make a point, but I would hate for someone to be misled.  

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


×
×
  • Create New...