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Prime gave Sub control over govt data, now sub won't give it back to govt

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I am posting this for a colleague. An agency has a K with a prime for IT services. The agency handed over e-data to the prime, the prime handed it to the sub to maintain this data. The prime and the sub are having a dispute, the prime refuses to pay the sub, and so the sub has stopped working. The agency, meanwhile, needs access to its data and needs IT services. The sub refuses to hand back the e-data to the agency. The agency and the sub lack privity of K, so the agency has no direct leverage against the sub - or does it? What are the agency's options here?

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If you treat the data (GFI) as Government Furnished Property, then FAR 52.245-1(g)(4) provides:

The Contractor shall ensure Government access to subcontractor premises, and all Government property located at subcontractor premises, for the purposes of reviewing, inspecting and evaluating the subcontractor's property management plan, systems, procedures, records, and supporting documentation that pertains to Government property.

While this isn't so much contractual leverage against the sub, it may have ensure proper accountability over the data.

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Never mind. Property is defined as tangible property. I assume this data was transmitted electronically, and we're not talking about CDs or some other tangible form of storage. If transmitted electronically, does the government or prime still have the "original"?

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Guest Vern Edwards

Under what terms did the government provide the "e-data" to the prime? In what form did it provide the e-data?

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I apologize, but I don't know the answers to your questions. This is not my assignment, it is a colleague's. In any case, I agree with Charles that the agency's only recourse is agains the prime, not the sub.

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I apologize, but I don't know the answers to your questions. This is not my assignment, it is a colleague's. In any case, I agree with Charles that the agency's only recourse is agains the prime, not the sub.

Don't be so hasty on that. If the data qualifies as "property" of the government and the sub is wrongfully witholding it from the rightful owner (government), the government may have an action against the sub to recover the property. I had this experience with a sub that had tangible government property in its possession, in this case property produced by the prime and provided to the sub for finishing, put a lien on it to ensure payment by the prime and refused to turn it over to the government. Our recourse was to have the Justice Department file an action in U.S. district court to recover the property, which it did and we did in short order. Check with your legal office to see if this is an option in your case.

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Just to clarify. I never said it was the only recourse. But, I would rather pursue an action with the Prime than contact DOJ. IMO attempting to work this issue out with the Prime may provide a quicker remedy than requesting support from DOJ. Retredfed your statement infers that you were able to obtain a quick resolution through DOJ. Is this correct? How quick was there response? And were any penalties or charges filed against the sub? Thanks.

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Just to clarify. I never said it was the only recourse. But, I would rather pursue an action with the Prime than contact DOJ. IMO attempting to work this issue out with the Prime may provide a quicker remedy than requesting support from DOJ. Retredfed your statement infers that you were able to obtain a quick resolution through DOJ. Is this correct? How quick was there response? And were any penalties or charges filed against the sub? Thanks.

My recollection is that the government was able to recover the property in a matter of weeks. This did not drag on forever once the subcontractor realized it was going to have to spend a lot of money resisting DoJ. No charges were filed against the sub and no penalites were assessed.

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My recollection is that the government was able to recover the property in a matter of weeks. This did not drag on forever once the subcontractor realized it was going to have to spend a lot of money resisting DoJ. No charges were filed against the sub and no penalites were assessed.

What division of DOJ helped you with this? And can you recall their legal theory of recovery of the property? Was it replevin? Conversion? A particular statute?

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Guest Vern Edwards

Why doesn't the CO just call the sub, explain what the government wants, and ask for the data?

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Why doesn't the CO just call the sub, explain what the government wants, and ask for the data?

The CO did try that, the sub is incorrigible, they want X amount of payment from the prime or from the agency, whichever, before they will release the data/allow access to the data.

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What division of DOJ helped you with this? And can you recall their legal theory of recovery of the property? Was it replevin? Conversion? A particular statute?

I don't recall if it was the Civil Division of DoJ or the local U.S. Attorney. The action was a replevin action.

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