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Lukevan

Question regarding clauses listed twice in FAR 52.212-5

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In commercial prime contracts, paragraphs (b) and (c) of FAR 52.212-5 each have a series of clauses listed that will apply to the contract if checked by the Contracting Officer (KO).  Paragraph (e)(1) contains a list of clauses that must be flowed down to subcontractors regardless of any of the requirements listed in the paragraphs above.  On several occasions I’ve seen instances where the KO does not check off a clause in either paragraph (b) or (c) that is listed in e(1) and that seems like the clause should be in the prime contract. 

For example, I’ve seen service contracts where the KO checks off a number of clauses in (c) but does not check (c)(2) for the Service Contract Labor Standards clause.   Because it’s a service contract over $2,500 it appears the SCLS should apply, and as I read (e)(1), I should flow it down to a subcontractor, but the KO doesn’t appear to have included it in the prime contract by checking off (c)(2).

Another example is 52.203-13 Contractor Code of Business Ethics, which is in the check-off list of (b) but is also listed as a mandatory flow-down in (e)(1).  I’ve seen contracts in excess of $5.5M that appear to meet all requirements for the inclusion of 52.203-13, but the KO does not check this clause under (b)(2).  Paragraph (e)(1), however, makes it a required flow-down to subcontractors assuming the subcontract meets the prescriptive requirements (i.e., is over $5.5M, etc.).

In both my examples, if the KO didn’t check off those two clauses, they don’t appear to apply to the prime contract (without regard to the Christian Doctrine), but (e)(1) says I have to flow them down.  I’m trying to understand the logic behind paragraph (e)(1) in instances where the KO doesn’t put a check mark next to a clause in either paragraphs (b) or (c), but the clause is listed in (e)(1) and it appears the clause would apply to the prime contract and thus should be flowed down as appropriate?  It could be that the KO simply made a mistake in failing to check a clause that should apply to the prime contract (I’ve certainly seen RFPs/contracts where the clause is included full-text but none of the clauses in (b) or (c) are checked, but here they’ve gone through the process of checking a number of the (b) and (c) clauses but missed two that certainly seem applicable at the prime level).

So for those clauses listed in (e)(1), this methodology of requiring a check off above but mandating the clauses in (e)(1) be flowed down leaves a confusing situation if apparently applicable clauses aren’t checked.  For folks experienced at building commercial subcontracts, do you just flow down all the clauses in (e)(1) as applicable even if the KO didn’t check off one that seems like it should apply? Thank you for any insight you can offer.

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You're misinterpreting paragraph (e)(1)--

 

Quote

 

(e)

(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause-

 

 

That doesn't mean you are required to flow down everything in (e)(1) to a commercial subcontract. The purpose of the paragraph is to limit the flow down requirements of the applicable clauses in (a)-(d) to commercial subcontracts. So, for commercial subcontracts, you would only flow down a clause listed in (e)(1) if it were incorporated in (a)-(d).

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I thought the purporse

2 hours ago, Don Mansfield said:

You're misinterpreting paragraph (e)(1)--

 

 

That doesn't mean you are required to flow down everything in (e)(1) to a commercial subcontract. The purpose of the paragraph is to limit the flow down requirements of the applicable clauses in (a)-(d) to commercial subcontracts. So, for commercial subcontracts, you would only flow down a clause listed in (e)(1) if it were incorporated in (a)-(d).

I thought the purpose of (e)(1) was to redundantly identify those clauses in (a)-(d) that have mandatory flowdown provisions included therein. Sort of like a handy little short cut guide. To the extent this is true (I did some checking but not all) and the contracting officer errs in (e)(1) selection or omission, it provides an opportunity for confusion and missed or overstated requirements. To me, it would have been better not have (e)(1) and require that supplier management read/identify every prime contract clause in (a)-(d) that includes mandatory flowdown language and act accordingly. This is no different than what supplier management needs to do for all other clauses in a prime contract. As to what to do, I would flow all those identified in (a)-(d) with a mandatory flowdown and flow those identified in (e)(1) regardless of whether they "match." I would rely on (e)(2) for my rationale, request clarification from the customer and when changed in the contract, issue supporting changes to the subcontract.   

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No, that's not the purpose of (e)(1). For example, (b)(1) lists FAR 52.203-6, Alt. I. That clause has a flow down requirement. However, by operation of (e)(1), that clause would not be required to be flowed down to commercial subcontracts.

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Thanks for your reply Don.  I understand your point and I agree completely that (e)(1)'s closing sentence means you just have to flow down the clauses listed in (e)(1) if required by the specific clause (e.g., you don't flow down a clause in a $10K subcontract if the clause only applies to acquisitions above $150K).  I think your overall interpretation of (e)(1) makes sense and is logical ... e.g., if a clause is specifically included in (a) - (d), you only have to flow it down if its listed in (e)(1) and if it applies to your subcontractor.  Reading it that way makes it simple to apply -- but I can also read it as saying that that regardless of what's listed in (a) - (d), the only clauses you must flow down are the clause in (e)(1) that are applicable to the subcontractor.  I can read it this way because (e)(1) starts with "Notwithstanding the requirements" in (a) - (d).  I always read "notwithstanding" to mean "regardless of ..." or "ignoring the requirements in..."  

My concern is that it seems like KOs often neglect to check a clause in (b) or (c) such as the SCLS (52.222-41) that I think should apply.  I'm uncomfortable deciding not to flow it down if it's missing a check mark, because it seems like (e)(1) could be simply telling me to flow those down if I'm supposed to (I'm wondering if the FAR drafting committee didn't trust KO's to select the correct clauses and wanted to make sure the list in (e)(1) always got flowed down if they applied?).  If it were a non-commercial prime contract and 52.222-41 was not listed in the prime contract, I might be able to ignore it because the contract would not contain a clause like 52.212-5(e)(1) that appears to say "regardless of what we said above, you must flow down this list of clauses if applicable."   I'm probably over-analyzing this but I find myself with extra time on my hands lately ... :)

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On 3/27/2020 at 11:29 AM, Don Mansfield said:

You're misinterpreting paragraph (e)(1)--That doesn't mean you are required to flow down everything in (e)(1) to a commercial subcontract. The purpose of the paragraph is to limit the flow down requirements of the applicable clauses in (a)-(d) to commercial subcontracts. So, for commercial subcontracts, you would only flow down a clause listed in (e)(1) if it were incorporated in (a)-(d).

(e)(1) reads as follows: Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause-

I am not comfortable reading this to say... "flow down a clause listed in (e)(1) if it were incorporated in (a)-(d)" as suggested by @Don Mansfield. If that is what was meant, it should just have been written that way. "Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause.." instructs me to not flow any such clause with a flowdown and instructs me to flow each clause in (e)(1), "the extent of the flow down shall be as required by the clause."

Edited by Neil Roberts
fix last quote

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Agree with what you are saying, Lukevan.

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On 3/28/2020 at 10:28 AM, Lukevan said:

My concern is that it seems like KOs often neglect to check a clause in (b) or (c) such as the SCLS (52.222-41) that I think should apply.  I'm uncomfortable deciding not to flow it down if it's missing a check mark, because it seems like (e)(1) could be simply telling me to flow those down if I'm supposed to (I'm wondering if the FAR drafting committee didn't trust KO's to select the correct clauses and wanted to make sure the list in (e)(1) always got flowed down if they applied?).  If it were a non-commercial prime contract and 52.222-41 was not listed in the prime contract, I might be able to ignore it because the contract would not contain a clause like 52.212-5(e)(1) that appears to say "regardless of what we said above, you must flow down this list of clauses if applicable."   I'm probably over-analyzing this but I find myself with extra time on my hands lately ... :)

If the clause should have been incorporated in the prime contract, but wasn't, then it should be flowed down to commercial subcontracts if it's listed in (e)(1). You're smart not to rely on the contracting officer. However if a clause listed in (b) or (c) is not checked because it is inapplicable, then nothing requires you to flow down that clause.

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