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Is a subcontracting plan still required for a large business if the contractor performs 100% of the work? Is a waiver required if not? I couldn't find the answer in the FAR 19.704. 

Thank you.  

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The contracting officer need not require a subcontracting plan unless subcontracting opportunities exist.  See FAR 19.705-2(b).

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As the GAO said in Columbia Research Corp., B-202762, 61 Comp. Gen. 194, 82-1 CPD ¶ 8:

Quote

This provision [Pub. L. 95-507, sec. 211] suggests that Congress intended to insure that small and small-disadvantaged businesses have a fair chance to compete for subcontracts when subcontracting opportunities would be made available by the prime contractor, not that firms have a right to subcontracts notwithstanding the prime contractor's intention not to subcontract.

That said, don't forget about the definition of "subcontract" appearing at FAR 19.701 or its definition at 13 CFR 125.3(a)(1).  Given how broad that definition is, if you get cost data that lists "materials," I would seriously consider asking for a subcontracting plan.

To avoid the type of silliness described in DoD IG Rpt DODIG-2018-086, include in the contract file the determination described at FAR 19.705-2(c).

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20 hours ago, creyes814 said:

Is a subcontracting plan still required for a large business if the contractor performs 100% of the work? Is a waiver required if not? I couldn't find the answer in the FAR 19.704. 

Thank you.  

Not clear if you are an inquiring contracting officer or prime contractor or subcontractor. I am not aware of a waiver process that is available for a prime contractor and not aware of an specific language in FAR 52.219-9 that excuses submittal if 52.219-9 is included in the government solicitation or contract. In the goals area, the prime could just indicate "not applicable" and explain why subcontracting is not contemplated, and indicate that the goal area will be revised in the event there is subcontracting.  The plan is subject to negotiation with the government. 

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1 hour ago, Neil Roberts said:

Not clear if you are an inquiring contracting officer or prime contractor or subcontractor. I am not aware of a waiver process that is available for a prime contractor and not aware of an specific language in FAR 52.219-9 that excuses submittal if 52.219-9 is included in the government solicitation or contract. In the goals area, the prime could just indicate "not applicable" and explain why subcontracting is not contemplated, and indicate that the goal area will be revised in the event there is subcontracting.  The plan is subject to negotiation with the government. 

FAR Subpart 19.7 does not include the word, "waive" or "waiver."  I assume @creyes814 was referring to the written determination referenced in FAR 19.705-2(c).  The prescription for the clause at FAR 52.219-9 appears at FAR 19.708(b)(1).  The clause is not prescribed if the contract does not "offer subcontracting possibilities."  This isn't a magical term of art.  If the prime won't be subcontracting out any of the work, the clause isn't prescribed.

FAR 19.708(b)(1)(iv) provides, "When...incorporating a subcontracting plan due to a modification as provided for in 19.702(a)(3), the contracting officer shall use the clause with its Alternate IV."  Maybe I'm reading too much into this, but this makes it sound like you wouldn't include the clause at 52.219-9 if, at the time you were making that decision, there was no requirement for a subcontracting plan.

While paragraph (c)(1) of the clause begins, "The Offeror, upon request by the Contracting Officer, shall submit and negotiate a subcontracting plan...," I still worry what including the clause would end up doing if the contractor had a commercial plan.  Wouldn't this risk folks interpreting the inclusion of the clause as amounting to a Government conclusion that the contract was a "covered contract" for the purposes of paragraph (g) of the clause?  Secondly, I don't know how the eSRS requirement at paragraph (l) of the clause would be handled.  Seems to me better to just not include the clause if there is no requirement for a subcontracting plan.

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My response above is from a prime contractor viewpoint. I thought the original post was more likely from a prime contractor. Could be wrong. I do not have anything to offer a contracting officer in this situation other than what I think the contracting officer should expect from a prime contractor when FAR 52.219-9 is included. I think it is most difficult for either the contracting officer or the prime contractor to determine with finality that there are no subcontracting possibilities at the early stages where there are no discussions or negotiations. Failure to submit a plan could make the prime contractor non-responsive. So, to me it seems best practice to submit a plan with explanations rather than not submit one at all when FAR 52.219-9 is included as a requirement (unless the procurement is under the dollar threshold or clearly inapplicable, like to small business concerns).

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