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Hello All:

I have an Contractor under an AE IDIQ that is asking if they could add two subcontractors to the list of agreed upon subs.  FAR 52.244-2 Subcontractors and Outside Associates and Consultants states that the Contractor shall obtain CO consent before making any substitution for the subcontractors, associates, or consultants that were agreed to during negotiations.  However, I feel this doesn't cover adding additional subs.  Can anyone point me in the direction of more information regarding this matter?  

Thanks!

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25 minutes ago, 1102tyro said:

I have an Contractor under an AE IDIQ that is asking if they could add two subcontractors to the list of agreed upon subs.  FAR 52.244-2 Subcontractors and Outside Associates and Consultants...

    I assume you means 52.244-4 and that 52.244-2 is not included in the contract? If so, I believe the clause language is clear enough that services are limited to the ones identified and agreed to during negotiations. However, if there is some rationale, you should at least have it presented and then decide what if anything you can or should do about it. For example, you might be able to negotiate a reduced price in exchange for adding the subcontractors.

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“Can anyone point me in the direction of more information regarding this matter?”

 “52.244-4   Subcontractors and outside associates and consultants (Architect-engineer services).
As prescribed in 44.204(b), insert the following clause:
Subcontractors and Outside Associates and Consultants (Architect-Engineer Services) (AUG 1998)
Any subcontractors and outside associates or consultants required by the Contractor in connection with the services covered by the contract will be limited to individuals or firms that were specifically identified and agreed to during negotiations. The Contractor shall obtain the Contracting Officer's written consent before making any substitution for these subcontractors, associates, or consultants.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 63 FR 34062, June 22, 1998”

Applicable questions to explore are:

Why is the A-E adding subs now ?

What work are they going to perform?

What are their qualifications (E.g., are they as qualified as those resources originally proposed during the A-E selection and price negotiations)?

Perhaps -  What is the difference in cost to the A-E for the proposed subs to perform the work vs who the A-E originally proposed to perform the work during selection and price negotiations?

If the A-E wants to add subs to do any of the type of work that the previously named subs would have been doing, that is, in effect, a substitution. Contractor shall obtain approval. I’d investigate why the substitution is necessary - If it is for cost savings, then I’d probably expect a credit or other consideration. I wouldn’t pay any more if it costs the contractor more.

If adding subs to do work not identified to be performed by the listed subs, was the work proposed to be done by the prime? Now it wants to sub it out to other firm or firms. As a minimum, it may be a contractor requested change, right? 

You could approve a change to the proposed and negotiated design approach but I wouldn’t pay a penny more.  And, if it cost the A-E less or would be performed by less qualified designers or design firms, l’d probably initially expect consideration or an equitable adjustment credit for the difference in cost plus fees.

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“Can anyone point me in the direction of more information regarding this matter? “

If this is simply a change to the base ID/IQ contract, not to a particular, negotiated task order, then I’d primarily focus upon the reasons for adding the new subs and evaluate their qualifications vs. those evaluated during the A-E qualifications based selection process. If the change/substitution could affect the A-E’s relative standing as the most highly qualified firm during the initial A-E selection process or a task order selection process, then you need to carefully consider whether or not to agree to it. Consider why you selected the A-E firm over others, if applicable. 

You didn’t elaborate but I did read that there had been negotiations. I initially assumed that it was associated with a specific task.

One reason for the contract clause is to deter bait and switch actions after qualifications based selections. Another reason is to deter prime price shopping after price negotiations.

There might or might not be any of that involved here...

EDIT -Add: Perhaps there is some specific work in a task order that involves elements of design that weren't specifically  addressed in the initial qualifications based ID/IQ selection scenario. Perhaps one of the initially proposed subs isn’t available for a task order...Perhaps...

However, the clause does has some teeth -  if you enforce it.

 

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