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I'm up very late, but I have a question. Is it possible to remove subcontracting requirements from the solicitation, if the requirement is for overseas work? As I'm aware, FAR Part 19 is not mandatory and doesn't need to be included. I work overseas and I'm the CO on this contract. I was told that I can not do so, but I wanted to see if there was a GAO case or something on this topic. The contract is for commercial services by the way. 

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19.000 Scope of part.

(a) This part implements the acquisition-related sections of the Small Business Act ( 15 U.S.C. 631, et seq.), applicable sections of the Armed Services Procurement Act ( 10 U.S.C. 3063–3064 and 3203), 41 U.S.C. 3104, and Executive Order 12138, May 18, 1979. It covers—

(1) The determination that a concern is eligible for participation in the programs identified in this part;

(2) The respective roles of executive agencies and the Small Business Administration (SBA) in implementing the programs;

(3) Setting acquisitions aside, in total or in part, for exclusive competitive participation by small business, 8(a) participants, HUBZone small business concerns, service-disabled veteran-owned small business (SDVOSB) concerns eligible under the SDVOSB Program, and economically disadvantaged women-owned small business (EDWOSB) concerns and women-owned small business (WOSB) concerns eligible under the WOSB Program;

(4) The certificate of competency program;

(5) The subcontracting assistance program;

(6) The "8(a)" business development program (hereafter referred to as 8(a) program), under which agencies contract with the SBA for goods or services to be furnished under a subcontract by a small disadvantaged business concern;

(7) The use of a price evaluation preference for HUBZone small business concerns;

(8) The use of veteran-owned small business concerns;

(9) Sole source awards to HUBZone small business concerns, service-disabled veteran-owned small business concerns, and EDWOSB concerns and WOSB concerns eligible under the WOSB Program; and

(10) The use of reserves.

(b) 

(1) Unless otherwise specified in this part (see Subpart 19.6 - Certificates of Competency and Determinations of Responsibility and Subpart 19.7 - The Small Business Subcontracting Program)—

(i)Contracting officers shall apply this part in the United States and its outlying areas; and

(ii)Contracting officers may apply this part outside the United States and its outlying areas.

(2)Offerors that participate in any procurement under this part are required to meet the definition of “small business concern” at 2.101 and the definition of “concern” at 19.001.

As the CO, you would seem to have discretion.

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19.708 Contract clauses.

(a) Insert the clause at  52.219-8, Utilization of Small Business Concerns, in solicitations and contracts when the contract amount is expected to exceed the simplified acquisition threshold unless-

(1) A personal services contract is contemplated (see  37.104); or

(2) The contract, together with all of its subcontracts, will be performed entirely outside of the United States and its outlying areas.

(b)  (1) Insert the clause at  52.219-9, Small Business Subcontracting Plan, in solicitations and contracts that offer subcontracting possibilities, are expected to exceed $750,000 ($1.5 million for construction of any public facility), and are required to include the clause at  52.219-8, Utilization of Small Business Concerns…

WHAT subcontracting requirements are you referring to?

Edited by joel hoffman
Highlighted for emphasis and added the conditional AND when 52.219-8 is REQUIRED to be included.
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18 hours ago, Minnen said:

I was told that I can not do so…

Did the “teller” tell you why you cannot “remove subcontracting requirements”, with citations?

Is the work going to be performed entirely outside the United States, including all subcontracts?

I am assuming that the contract will be awarded by you, overseas , outside the US.

I assume you are referring to issuing an amendment to remove 52.219-8 and -9…

Edited by joel hoffman
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19 hours ago, Minnen said:

As I'm aware, FAR Part 19 is not mandatory and doesn't need to be included.

Another reference I hope you stumbled on in FAR part 19 is FAR 19.702 with regard to subcontracting and subcontracting plans.

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Thanks for the information @here_2_help @C Culham @joel hoffman. Yes, it will be entirely awarded outside the US. Those clauses, as mentioned in your statement @joel hoffman, if it's included within the solicitation, will be removed. I was just curious as to why we weren't allowed to remove subcontracting as a whole, when FAR Part 19 is not mandatory overseas, regardless of the contract amount. 

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Thanks @Retreadfed for the information. You're basically saying that it's the CO's decision to mark those clauses regarding small business and subcontracting and if I don't then it's needed? I would assume this does not apply to domestic, as FAR 19 would apply. Thanks 

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Minnan, I’m still curious on what basis you were told that you couldn’t amend the solicitation to remove those clauses and provisions. Can you reveal that? If not, ok. 

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16 hours ago, Minnen said:

You're basically saying that it's the CO's decision to mark those clauses regarding small business and subcontracting and if I don't then it's needed? I would assume this does not apply to domestic, as FAR 19 would apply. Thanks 

I'm not sure what you are trying to say here, but I do not think 52.212-5(b) gives contracting officers unfettered discretion as to which of the clauses listed there are to be included in contracts/solicitations.  I have not checked each of the clauses, but each of the ones I sampled require the clauses to be incorporated when certain conditions are met.  If the conditions for incorporation of a clause are met, it is my opinion that the contracting officer must incorporate that clause.  Thus, if a clause is not required to be included in a contract to be performed entirely outside the U.S. it should not be checked for application to such contract.  Further, there may be further conditions on incorporation of a clause such as dollar value or type of contract.  Those other conditions should be considered in determining whether to incorporate one of the listed clauses in a contract.

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How about the prescription for FAR clause 52.212-5 itself as found at FAR 12.301(b)(4).

 "The clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Products and Commercial Services. This clause incorporates by reference only those clauses required to implement provisions of law or Executive orders applicable to the acquisition of commercial products or commercial services. The contracting officer shall attach this clause to the solicitation and contract and, using the appropriate clause prescriptions, indicate which, if any, of the additional clauses cited in 52.212-5(b) or (c) are applicable to the specific acquisition. Some of the clauses require fill-in; the fill-in language should be inserted as directed by 52.104(d). When cost information is obtained pursuant to part  15 to establish the reasonableness of prices for commercial products or commercial services, the contracting officer shall insert the clauses prescribed for this purpose in an addendum to the solicitation and contract. This clause may not be tailored. ..."

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On 1/16/2025 at 7:18 AM, Minnen said:

Thanks for the information @here_2_help @C Culham @joel hoffman. Yes, it will be entirely awarded outside the US. Those clauses, as mentioned in your statement @joel hoffman, if it's included within the solicitation, will be removed. I was just curious as to why we weren't allowed to remove subcontracting as a whole, when FAR Part 19 is not mandatory overseas, regardless of the contract amount. 

Which other PART 19 clauses or provisions are you referring to? None of them apply to your situation do they?

Which, if any “subcontracting” clauses or provisions,  other than those under Part 19 are you referring to? Examples please? Thanks 

 

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@joel hoffman Thanks for the response, as well as all others. My response wasn't regarding any clause, but the fact that I could state in the solicitation that "subcontracting will not be accepted" and not have a protest, as long as all work will be conducted outside the US. That's all. I'm up late, but I wanted to respond to you. The removal of FAR 52.219-8 and 9 will be done, but the question was just the overall rule. I was wondering if there was a GAO case on this exact topic, but I couldn't find one. 

Is that not how you see it? Can subcontracting be removed from the solicitation as stated above? Thanks 

 

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@Minnen  you said “subcontracting will not be accepted.”  Do you really mean to not allow an offeror to subcontract or are you intending to just exclude requirements for subcontracting?

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My response wasn't regarding any clause, but the fact that I could state in the solicitation that "subcontracting will not be accepted" and not have a protest, as long as all work will be conducted outside the US. That's all. I'm up late, but I wanted to respond to you. The removal of FAR 52.219-8 and 9 will be done, but the question was just the overall rule.

 

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19 hours ago, Minnen said:

My response wasn't regarding any clause, but the fact that I could state in the solicitation that "subcontracting will not be accepted" and not have a protest, as long as all work will be conducted outside the US.

It is a complicated question that requires research regarding the specific procurement you have in mind but in a general view a "no subcontracting clause" could be included in a solicitation and strictly enforced for the resulting Federal contract.   Here is why I think so...

Do an internet search on "no subcontracting clause".   It is a practice used in the commercial market place so why not in the Federal sector for a commercial product or service?

For construction pursuant to FAR part 36 the performance of work by a prime can be stipulated. Reference FAR 36.501.

As already discussed in this thread there are lots of considerations to make to determine if the solicitation would be required to allow subcontracting by example FAR part 19.  In the end it would seem this from FAR subpart 1.102-5(e) applies -  

"The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound."

On 1/15/2025 at 9:50 AM, Minnen said:

I was told that I can not do so

Considering the above I think I would ask who told you that you "can not do so" to provide a reference as why you could not.

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Thanks for the below clarification, Minnen. I don’t think anyone here interpreted your initial or follow on posts as prohibiting subcontracting any of the work.

Upon this  clarification, I think you should say in your solicitation that subcontracting the [commercial services] is prohibited or something to that effect, not “removed”. What the heck does “subcontracting be removed from the solicitation” supposed to mean to most people?

23 hours ago, Minnen said:

@joel hoffman Thanks for the response, as well as all others. My response wasn't regarding any clause, but the fact that I could state in the solicitation that "subcontracting will not be accepted" and not have a protest, as long as all work will be conducted outside the US. That's all. I'm up late, but I wanted to respond to you. The removal of FAR 52.219-8 and 9 will be done, but the question was just the overall rule. I was wondering if there was a GAO case on this exact topic, but I couldn't find one. 

Is that not how you see it? Can subcontracting be removed from the solicitation as stated above? Thanks 

 

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As to whether or not there might be a protest, it may depend upon the nature and breadth of the services.  The government should also consider whether or not such a restriction would otherwise unreasonably restrict industry competition for the contract if only one or a few firms could fully self-perform the services.

in construction, it might be reasonable to require a prime to fully perform contracts which only involve a single specialty trade, for instance, provided that the size or complexity of the work can be performed by a single entity…and whether there are enough firms with that capability to provide adequate competition for the contract.

Perform market research…

If you do prohibit subcontracting,  be sure to fully coordinate the contract language to eliminate all references to “subcontractors” or “subcontracting”. 

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