On a large program you manage subcontractors as well as your own staff. Two questions come first: when must the contracting officer consent before you subcontract, and which clauses must you pass down?
Consent to subcontract
Consent to subcontract means the contracting officer's written consent for the contractor to enter into a particular subcontract 1. Under the Subcontracts clause, if the contractor does not have an approved purchasing system, consent is required for any subcontract that 2 is of the cost-reimbursement, time-and-materials, or labor-hour type 3. When the clause is in a fixed-price contract, consent is required only on unpriced contract actions, such as unpriced modifications or unpriced delivery orders 4.
Consent does not move risk. Unless the consent or approval specifically provides otherwise, neither consent to a subcontract nor approval of your purchasing system constitutes a determination 5 to relieve the contractor of any responsibility for performing the contract 6.
Which clauses flow down
Under the commercial clause at 52.212-5, the contractor is not required to flow down any FAR clause, other than those listed in its paragraph (e)(1), in a subcontract for commercial products or commercial services 7. Where the prime contract is not for commercial products or services, the contracting officer inserts 52.244-6 8, which tells the contractor to insert a listed set of clauses in subcontracts for commercial products or commercial services 9.
You may add more, sparingly: the contractor may flow down a minimal number of additional clauses necessary to satisfy its contractual obligations 10. And 52.244-6 carries itself down: the contractor shall include the terms of the clause, including its paragraph (d), in subcontracts awarded under the contract 11.
Defense contracts can go further. Where DFARS 252.244-7000 applies, the contractor shall not include the terms of any FAR or DFARS clause in subcontracts for commercial products or commercial services at any tier unless an exception in that clause applies 12.
Worked example. Contractor R is prime on a non-commercial services contract and buys commercial cloud hosting from Vendor S. Its contracts manager starts from the list in 52.244-6, marks which listed clauses apply to this subcontract, adds two clauses the prime contract's security terms need, and writes one line on why each is there.
Who you subcontract with, and what you hear from them
Check every subcontractor before you sign. For excluded contractors, agencies shall not solicit offers from, award contracts to, or consent to subcontracts with these contractors 13.
In Bids2Bank you can record a partner on a bid as a subcontractor 14; the vendor check looks it up in SAM.gov exclusions and cites FAR 9.405 15, and the final approval is refused while a partner is excluded 16.
Tell the contracting officer early when a subcontract dispute is heading for court. The Subcontracts clause requires immediate written notice of any action or suit filed, and prompt notice of any claim made against the contractor by any subcontractor or vendor that, in the contractor's opinion, may result in litigation related to the contract 17.
Add and check partners on a bid →
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