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Prime Contractor Sub Contracting Construction work


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Can a non construction prime contractor maintaining and operating a government communication site, sub contract construction work installing antenna towers under their current non Davis Bacon Contract. This was project was reviewed and approved by the CO to meet construction project rules and the Government Facility Office for drawings and approvals before and during the performance of the work. The Sub Contractor Plan, Davis Bacon rules and flow down rules were all addressed. A NEW CO for the prime is now stating it is not legal under FAR and will not have be allowed. (The total cost for the Sub work is 500K)

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Can a non construction prime contractor maintaining and operating a government communication site, sub contract construction work installing antenna towers under their current non Davis Bacon Contract. This was project was reviewed and approved by the CO to meet construction project rules and the Government Facility Office for drawings and approvals before and during the performance of the work. The Sub Contractor Plan, Davis Bacon rules and flow down rules were all addressed. A NEW CO for the prime is now stating it is not legal under FAR and will not have be allowed. (The total cost for the Sub work is 500K)

You didn't provide enough information to understand the basis of the question. How is it "not legal under the FAR", according to the Prime? Please elaborate. I can't answer such a general statement, except with another one.

Is she/he saying that construction work is outside the scope of the prime (service?) contract? It is legal to include construction work in a service contract as long as the contract scope includes the possibility of such work. Our organization has done so for years.

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...non Davis Bacon Contract...

...The Sub Contractor Plan, Davis Bacon rules and flow down rules were all addressed...

I don't understand this part. Well, I actually don't understand any of it, but I really don't understand the Davis Bacon issue as discribed above.

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OK, I'll try this again; Contracting is not my area so sorry if I was not clear on this question... I have 5 work areas, all are maintained and operated by a one Prime Contractor for equipment operation, maintenance and support. I have tasked the Prime Contractor to Sub Contract facilities repair work in the past in support of their operation. Some of this work involves construction work, not buildings but cement work, grading and erecting steel catwalks, platforms and towers at the work sites. The Prime Contractor worked all phases of the past task, requirements, bid reviews, and sub contract award, all under the guidelines and guidance of the Contracting Office and the assigned CO. They also reviewed the sub contractor plans, drawing and work with the Center Facilities Engineering Branch, Safety Office, everything worked out great, on time and within budget.

Now the problem; as stated by the new Contracting Office Manager for the Center, even though our Prime Contractors Company performs facility constriction work at other Gov. Installations and the other facilities have Davis Bacon written into the contract for that facility, the contract with our Center does not, so we cannot allow this type work here, even if sub contracted out by the Prime. I requested a Contract mod to include address construction and was told it?s not possible. The CO has informed me that any additional work, per his new Manger, will be through her Office. The Prime Contractor cannot write requirements, oversee any of the work at their site, may not address safety plans but, will still have a requirement to provide details of the required work to CO to insure they have the correct information to get the work sub contracted.

My question is, can a Government Contractor for operation and maintenance of a government site, Sub out light facility construction work within their work area, with the proper approval and oversight by the COTAR and CO. Are there limits on the dollar value and the type of work performed and what FAR process addresses this?

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Guest Vern Edwards
My question is, can a Government Contractor for operation and maintenance of a government site, Sub out light facility construction work within their work area, with the proper approval and oversight by the COTAR and CO. Are there limits on the dollar value and the type of work performed and what FAR process addresses this?

The prime contractor could do that work (i.e., hire someone to do it) if the work were covered by the prime contract or if the prime contract were modified to include it.

But based on what you have said, it sounds like design and construction work (including "light" construction work) is outside of the scope of the prime contract. See the definition of construction in FAR 2.101. That means that you cannot "task" the prime contractor to hire a subcontractor to do construction work, because in legal effect you would be tasking the prime contractor to do the work, which is not covered by the contract. Since construction is not part of the current prime contract, you cannot task the contractor in that way without complying with the Competition in Contracting Act, as implemented by FAR Part 6. You must also comply with the applicable portions of FAR Part 22, which covers several labor statutes, and Part 36, which covers construction work. You could modify the prime contract to include construction, but that would require a justification for other than full and open competition, i.e., a sole source justification.

In my opinion, what you have done in the past may have violated the Competition in Contracting Act, the Davis-Bacon Act, and other labor and procurement statutes. Your prime could be liable for a Davis-Bacon violation, even thought the Davis-Bacon clause was not in its contract, and that could be a very serious problem for your prime. It could result in debarment under certain circumstances and a heavy financial penalty.

Your last contracting officer did you and the prime contractor a disservice.

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My question is, can a Government Contractor for operation and maintenance of a government site, Sub out light facility construction work within their work area, with the proper approval and oversight by the COTAR and CO. Are there limits on the dollar value and the type of work performed and what FAR process addresses this?

I can't tell who this contracting officer you refer to works for - Is it the government? Is it the prime contractor?

At any rate, I agree with Vern, assuming that construction work is not contemplated by the contract language.

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I requested a Contract mod to include address construction and was told it?s not possible. The CO has informed me that any additional work, per his new Manger, will be through her Office.

Sounds like the CO believes the new work is out of Scope of the current contract.

Also what type of contract is it?

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Thanks for the help, this is a great site for questions in a extremely difficult and ever changing area with more pit falls then a PS3 Video War game designed to kill you in a hundred different way and in a micro second of play..

I assume this still applies even though the Prime did work Davis Bacon and other FAR requirements hand and hand with the CO for every project.

Thanks again..

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