far subcontractor flowdown requirements -...

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FAR Subcontractor Flowdown RequirementsNegotiation Strategies for Primes and Subs Involved in Government Contracts

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, APRIL 27, 2011

Today’s faculty features:

J. Catherine Kunz, Partner, Crowell & Moring, Washington, D.C.

Holly A. Roth, Partner, Manatt Phelps & Phillips, Washington, D.C.

Stephen B. Shapiro, Partner, Holland & Knight, Washington, D.C.

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Subcontractor Flowdown R i t i G tRequirements in Government Contracts

April 27, 2011

St h B Sh i E Holly Roth Esq J Catherine Kunz Esq

Stephen Shapiro Holly Roth J. Catherine Kunz

Stephen B. Shapiro, Esq.Holland & Knight LLP2099 Pennsylvania Avenue, N.W.Suite 100Washington, DC 20006

Phone: (202) 457-7032

Holly Roth, Esq.PartnerGovernment & Regulatory PolicyManatt Phelps & Phillips, LLP700 12th Street, N.W.Suite 1100Washington, DC 20005

J. Catherine Kunz, Esq. Crowell & Moring LP 1001 Pennsylvania Ave., N.W. Washington, DC 20004

Phone: (202) 624-2957 Fax: (202) 628-5116

5

Phone: (202) 457 7032Fax: (202) 955-5564New York: (212) [email protected]

g ,

Phone: (202) 585-6558Fax: (202) [email protected]

( )[email protected]

Government Subcontracts OverviewGovernment Subcontracts - Overview

Stephen B. ShapiroPartnerHolland & Knight LLPg2099 Pennsylvania Avenue, N.W.Suite 100Washington, DC 20006

Phone: (202) 457-7032Fax: (202) 955-5564New York: (212) 513 3451New York: (212) [email protected]

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Overview

I. What is a Flowdown Provision? II. Types of Subcontractsyp

– Considerations when deciding which type of contract to enter

III. The Christian Doctrine

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What is a Flowdown Provision?What is a Flowdown Provision?

Clauses from a Prime Contractor’s contract with the Government which are included in the subcontract. – Included either by reference or in-text

h d f Methods of incorporation: FAR 52.102 – Clauses requiring verbatim incorporation

Cl th t t b i t d i b t– Clauses that must be incorporated in substance– Clauses that are silent on incorporation

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Types of ContractsTypes of Contracts

Fixed Price Cost Reimbursement Cost-Plus-Fixed-Fee Time & Materialse & ate a s Commercial Item GSA Schedule GSA Schedule

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Fixed Price Contracts FAR 16 202Fixed Price Contracts – FAR 16.202

Contract provides a firm price for the goods or services to be delivered.

Price will not be adjusted except in the case of certain events anticipated by contract.– i.e. change in the scope of work to be performed

Typically used for tasks with a great deal of t t i t b ti i tcost certainty, because contingencies must

be included in bid.

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Fixed Price Contracts: Considerations

Considerations for the Prime Contractor: – Provides cost certainty – Helps limit risk– Allows for price competition

ll d f d f k– Requires a well-defined scope of work – Limits flexibility

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Fixed Price Contracts: Considerations

Considerations for the Subcontractor: – Requires accurate cost estimate– No profit ceiling; subcontractor keeps all profit

beyond the cost of performanceFewer administrative costs– Fewer administrative costs

– May not require disclosure of cost figures to the Prime or Government

– Subcontractor assumes all unexpected costs

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Cost Reimbursement Contracts –FAR 16.301

Subcontractor is reimbursed for all allowable costs, as defined by contract.

Includes a total cost estimate and ceiling figure.

Typically used for contracts where specifications are incomplete or the scope of th k t b il d fi dthe work cannot be easily defined. – i.e. Research & Development Contracts

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Cost Reimbursement Contracts: Considerations

Considerations for the Prime Contractor: – Provides flexibility and mitigates transaction costs in

contracts where frequent changes are anticipatedcontracts where frequent changes are anticipated – May be difficult to determine potential costs

– Subcontractor bears risk of exceeding the cost ceiling

Considerations for the Subcontractor: – Less risk in connection with cost overruns – Increased accounting requirementsIncreased accounting requirements

– Added compliance issues

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Cost-Plus-Fixed-Fee Contracts –FAR 16.306

A variant of a Cost Reimbursement Contract.

Contract provides for the payment of cost of performance, plus a pre-determined profit. – Profit will not be reduced even if the actual cost

of performance is less than anticipated

Often used for contracts where the level of Often used for contracts where the level of effort required is not yet known. – Contracts for research or preliminary exploration

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Contracts for research or preliminary exploration

Cost-Plus-Fixed-Fee Contracts: Considerations

Considerations for the Prime Contractor: – Fee certainty; will not swell with cost of performance – More efficiency incentive than cost reimbursement

contract, but still must supervise sub

Considerations for the Subcontractor: Considerations for the Subcontractor: – Typically low profit, but guaranteed; little risk of loss – High administrative costs– Heightened audit risk

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Time & Materials Contract – FAR 16.601

Labor paid at fixed hourly rates– Reflecting wages, overhead and administrative

costs, and sometimes profit

Materials reimbursed at actual cost. Typically used when anticipating the time or

extent of work required is difficult to quantifyquantify. – Allows work to begin immediately with

reassessment at a later point

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reassessment at a later point

Time & Materials Contract: Considerations

Considerations for the Prime Contractor: – Most of the performance risk is on the Prime– Must obligate Sub to extensive compliance requirements– Allows work of an uncertain duration or nature to begin

quickly

Considerations for the Subcontractor: – Prime contractor has most of the performance risk

G t d fit i l d d i t– Guaranteed profit included in rate – Potentially high administration costs

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Commercial Item Contract – FAR Part 12; FAR 44.400

A contract to purchase an item which is commonly used by non-governmental agencies. – “item” includes the installation, repair, and

support of a commercial itemsupport of a commercial item

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Commercial Item Contract: Considerations

Considerations for the Prime Contractor: – Fewer administrative costs– Requires more detailed consideration before including

non-required clauses

Considerations for the Subcontractor:Considerations for the Subcontractor: – Simplified acquisition process

Many flowdown provisions are dispensed with Sli fit i– Slim profit margin

– Other helpful procurement provisions removed i.e. the notice and cure period for a Termination for

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Default

GSA Schedule ContractGSA Schedule Contract

Typically, an un-funded long-term contract listing the price the Government will pay for

i i l i icertain commercial items or services.– An order does not occur until an agency signs it

Can be renewed up to 3 times for a 20-year Can be renewed up to 3 times, for a 20-year total.

Involves a long negotiation process. Once o a o g go a o p o Oapproved, a supplier is placed on a list from which an agency may choose to order items or

i

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services.

GSA Schedule Contract: Considerations

Considerations for the Prime Contractor: – Large contract and profit potential – Fewer transactional costs than several individual contracts

Considerations for the Subcontractor: Extensive application and negotiation process– Extensive application and negotiation process

– Uncertainty Will an agency order? How much will the agency order?

– Need to flow down pricing obligations

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The Christian DoctrineThe Christian Doctrine

A mandatory contract clause that expresses a significant tenant of public procurement policy is considered to be included in the contract by operation of law. G.L. Christian & Assoc v United States 312 F 2d 418 (Ct& Assoc. v. United States, 312 F.2d 418 (Ct. Cl. 1963).

Only clauses that are both mandatory and Only clauses that are both mandatory and speak to public procurement policy are covered by the doctrine.

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covered by the doctrine.

The Christian Doctrine: Examples of Mandatory Provisions for PrimeMandatory Provisions for Prime Contractors

Termination for Convenience – FAR 52.249(1)-(7)

Termination for Default – FAR 49.401 The Changes Clause – FAR 52.243(4) The Payment Clause – FAR 52.232(1)-(7) The Buy-American Act – FAR 52.225(1)-(4) y ( ) ( ) Equal Opportunity and Affirmative Action

Clauses

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Examples of Non-Mandatory p yProvisions for Prime Contractors

Clauses often required by contract but not mandatory: – The Government Property Clause – FAR 52.245– Fast Payment Procedure – FAR 14.301

P Af A d FAR 52 233 3– Protest After Award – FAR 52.233-3 – Excusable Delay – FAR 52.249-14

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The Christian Doctrine and Subcontracts: Considerations

Don’t assume that a mandatory provision will flowdown automatically. – The Christian Doctrine does not apply to subcontractsThe Christian Doctrine does not apply to subcontracts– Exceptions for social policy:

Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity for Construction- FAR 52.222-23 p y pp y

Affirmative Action Compliance Requirements for Construction- FAR 52.222-27

Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans- FAR 52.222-35

Affirmative Action for Workers With Disabilities- FAR 52.249-36

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“Mandatory vs Discretionary”“Mandatory vs. Discretionary”

Holly RothPartnerGovernment & Regulatory Policyg y yManatt Phelps & Phillips, LLP700 12th Street, N.W.Suite 1100Washington, D.C. 20005Phone: (202) 585-6558Fax: (202) 637-1528( )[email protected]

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“Flowdown” Clauses“Flowdown” Clauses

Clauses prescribed by the government that a Prime Contractor incorporates into subcontracts.– Subcontract clauses "flow down" responsibilities

of the prime contractor to the subcontractorof the prime contractor to the subcontractor.– Subcontract clauses frequently triggered by

subcontract dollar value threshold.– Some, but not all, nonmadatory flowdown

clauses are negotiable.

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Mandatory Flowdown ClausesMandatory Flowdown Clauses

Prime contract clauses that specifically require the inclusion of all or substantially all of their text in all subcontracts entered into in support of the prime contract.

“Th C t t h ll i l d th b t f– “The Contractor shall include the substance of this clause ... in allsubcontracts with subcontractors... ”

– Mandatory flowdown clauses are not negotiable.

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Mandatory Flowdowns Imposed by y p yExecutive Order

All subcontracts– E.O. 11246, Equal Opportunity (MAR 2007)

(52 222 26)(52.222-26). Imposed by Executive Order

– Applies to “subcontracts” even when omitted from subcontract terms and conditionssubcontract terms and conditions.

Initial trigger threshold $10,000. Department of Labor audits compliance

All l l i b All large scale construction subcontracts– E.O. 13502, Project Labor Agreement (MAY

2010) (52.222-34).

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2010) (52.222 34).

Mandatory Flowdowns Imposed by Statute (Commercial Items) ThresholdStatute (Commercial Items) – Threshold Mandatory Flowdown Requirement.

Commercial Items (FAR 2.201) – in general– Any item, other than real property, that is of a type

customarily used by the general public or by non-customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and—(i) Has been sold leased or licensed to the general public;– (i) Has been sold, leased, or licensed to the general public; or

– (ii) Has been offered for sale, lease, or license to the general publicgeneral public.

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Mandatory Flowdowns Imposed by y p yStatute (Commercial Items)

FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Commercial Items (APR 2011)Orders—Commercial Items (APR 2011)– (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 innot required to flow down any FAR clause, other than those in paragraphs (e) (1) of this paragraph in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause—

– (e) (2) While not required, the contractor May include in its subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations

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FAR 52.244-6, Subcontracts for Commercial Items (DEC 2010)

– Clause used in prime contracts for other than “commercial items ”items.

– Requires contractors and subcontractors to incorporate, and require subcontractors at all tiers to incorporate, commercial items or nondevelopmental items ascommercial items or nondevelopmental items as components of items to be supplied under this contract.

– Requires contractor and subcontractors to incorporate this l bclause in subcontracts.

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C t t C d f B i Ethi d C d t (APR 2010) Contractor Code of Business Ethics and Conduct (APR 2010) (Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note)), (52.203-13).– Threshold: $5M and 120 days performance

Utilization of Small Business Concerns (JAN 2011) (15 U.S.C. 637(d)(2) and (3)).– 52.219-8 threshold: $650,000 for supplies or $1.5M for construction

of any public facility with further subcontracting possibilities.

Equal Opportunity for Special Disabled Veterans Veterans of the Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (SEP 2010)(38 U.S.C. 4212), (52.222-35).

Threshold: $100 000

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– Threshold: $100,000

– Compliance audited by DOL.

Mandatory Flowdowns Imposed by y p yStatute (Commercial Items), cont.

– Affirmative Action for Workers with Disabilities (OCT 2010) (29 U.S.C. 793), (52.222-36). Threshold: $15 000 Threshold: $15,000

– Service Contract Act of 1965 (NOV 2007 ) (41 U.S.C. 351, et seq.), (52.222-41).

– Combating Trafficking in Persons (FEB 2009) (22 U.S.C. 7104(g)) (52.222-50).

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– Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration or Repair of Certain EquipmentCalibration, or Repair of Certain Equipment—Requirements "(Nov 2007)" (41 U.S.C. 351, et seq.) (52.222-51).

– Exemption from Application of the Service Contract Act to Contracts for Certain Services—Requirements (FEB 2009) (41 U S C 351 etRequirements (FEB 2009) (41 U.S.C. 351, et seq.) (52.222-53).

– Employment Eligibility Verification (JAN 2009)

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(52.222-54). Not applicable to contracts for COTS items.


– Promoting Excess Food Donation to Nonprofit Organizations. (MAR 2009) (Pub L. 110-247). Flow down required in accordance withFlow down required in accordance with paragraph (e) of FAR clause 52.226-6. (52.226-6).

– Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) (46 U S C AppxCommercial Vessels (FEB 2006) (46 U.S.C. Appx 1241(b) and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of

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FAR clause 52.247-64. (52.247-64).

Mandatory Flowdowns y(Noncommercial Items) – Examples

– Anti-Kickback Procedures, The Anti-Kickback Act of 1986 (41 U.S.C. 51-58), (52.203-7) (OCT 2010)2010).

– Limitation on Payments to Influence CertainLimitation on Payments to Influence Certain Federal Transactions (52.203-12) (OCT 2010).

– Audit and Records— Negotiation, (10 U.S.C. 2313, 41 U.S.C. 254d, andOMB Circular No. A-133), 52.215-2 (OCT 2010).

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OMB Circular No. A 133), 52.215 2 (OCT 2010).

Mandatory Flowdowns: The American Recovery andAmerican Recovery and Reinvestment Act

Whistleblower Protections (Section 1553 of Pub. L. 111-5), (52.203-15) (JUN 2010).

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Non Mandatory Flowdown ClausesNon-Mandatory Flowdown Clauses

Prime contract clauses that should be flowed down in a subcontract to ensure that the subcontractor will provide adequate assistance or cooperation to enable the prime contractor to meet its contractualprime contractor to meet its contractual requirements with the government.

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Non-Mandatory Flowdown Clauses: yExamples

Acquisition of Supplies– The Buy American Act - Supplies (41 U.S.C. 10a

- 10d) (52.225-1) (FEB 2009).– Buy American Act—Free Trade Agreements—

Israeli Trade Act (JUN 2009) (52 225-3)Israeli Trade Act (JUN 2009) (52.225-3).– Trade Agreements (19 U.S.C. 2501, et seq.)

(52.225-5).– Restrictions on Certain Foreign Purchases

(52.225-13) (JUN 2008).

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Non-Mandatory Flowdown Clauses: yExamples

Acquisition of Commercial items– FAR 52.212-2, Contract Terms and Conditions –

Commercial Items (JUN 2010) Acquisition of Commercial Services (T&M or Labor

Hour)– FAR 52.212-2, Contract Terms and Conditions –

Commercial Items (ALT I) (OCT 2008)Commercial Items (ALT I) (OCT 2008) Audits of subcontractor records permitted. Inspection and acceptance at subcontractor site required.

Termination Clauses for Other Than Commercial Termination Clauses for Other Than Commercial Items– 52.249-8, 9 and 10, Termination for Default– 52.249-1 through 6, Termination for Convenience

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g ,

Offeror Representations and pCertifications

– Submitted online (www.orca.bpn.gov) and with proposal submission as required by prime contractorcontractor.

– Requires disclosure of information during the solicitation phase that the government will use p gto determine the fitness and integrity of a potential contractor.Failure to accurately and completely answer any– Failure to accurately and completely answer any representation and certification could have unforeseen and potentially negative

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consequences.

Offeror Representations and Certifications CommercialItems – 52.212-3 (APR 2011) (sample clauses)

– General. The offeror represents that either—– (A) It [ ] is, [ ] is not certified by the Small Business

Administration as a small disadvantaged business concernAdministration as a small disadvantaged business concern and identified, on the date of this representation, as a certified small disadvantaged business concern in the database maintained by the Small Business Administration (PRO-Net), and that no material change in disadvantaged ownership and control has occurred since its certification, and, where the concern is owned by one or more

d d l l d d d h h findividuals claiming disadvantaged status, the net worth of each individual upon whom the certification is based does not exceed $750,000 after taking into account the applicable exclusions set forth at 13 CFR 124 104(c)(2); or

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applicable exclusions set forth at 13 CFR 124.104(c)(2); or

Offeror Representations and Certifications CommercialCertifications CommercialItems – 52.212-3 (sample clauses)

– (B) It [ ] has, [ ] has not submitted a completed application to the Small Business Administration or a Private Certifier to be certified as a smallor a Private Certifier to be certified as a small disadvantaged business concern in accordance with 13 CFR 124, Subpart B, and a decision on that application is pending, and that no material change in disadvantaged ownership and control has occurred since its application was submitted.pp

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– (f) Buy American Act Certificate. (Applies only if the clause at Federal Acquisition Regulation (FAR) 52 225 1 Buy American Act Supplies is(FAR) 52.225-1, Buy American Act—Supplies, is included in this solicitation.)

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– (1) The offeror certifies that each end product, except those listed in paragraph (f)(2) of this provision, is a domestic end product and that for other than COTS items, the offeror has

id d t f k i i t h b i dconsidered components of unknown origin to have been mined, produced, or manufactured outside the United States. The offeror shall list as foreign end products those end products manufactured in the United States that do not qualify as q ydomestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (2) of the definition of "domestic end product." The terms "commercially available off the shelf (COTS) item " "component "commercially available off-the-shelf (COTS) item, component, "domestic end product," "end product," "foreign end product," and "United States" are defined in the clause of this solicitation entitled "Buy American Act—Supplies."

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– (h) Certification Regarding Responsibility Matters (Executive Order 12689). (Applies only if the contract value is expected to exceed thecontract value is expected to exceed the simplified acquisition threshold.) The offeror certifies, to the best of its knowledge and belief, that the offeror and/or any of its principals—

– (1) [ ] Are, [ ] are not presently debarred, suspended proposed for debarment or declaredsuspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;

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– (2) [ ] Have, [ ] have not, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: Commission of fraud j g gor a criminal offense in connection with obtaining, attempting to obtain, or performing a Federal, state or local government contract or subcontract; violation of

d l l hFederal or state antitrust statutes relating to the submission of offers; or Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records making false statements tax evasion violatingrecords, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property;

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– (3) [ ] Are, [ ] are not presently indicted for, or otherwise criminally or civilly charged by a Government entity with commission of any ofGovernment entity with, commission of any of these offenses enumerated in paragraph (h) (2) of this clause;

– (4) [ ] Have, [ ] have not, within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount thatdelinquent Federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied.

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Flowdown Clause Obligations from the Prime gContractor’s Perspective

J. Catherine Kunz, Esq. Crowell & Moring LP 1001 Pennsylvania Ave., NW Washington, DC 20004

Phone: (202) 624-2957 Fax: (202) 628-5116 k @ [email protected]

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Analysis for Flowdown Clause yCompliance

Multi-step analysis– What is considered a subcontract?– Which clauses are required to be flowed down?– When must required clauses be flowed down?

h l l l d d h– Is the commercial item clause included in the prime contract, and does the subcontract involve the purchase of a commercial item?p

– Which clauses should a prime consider flowing down, in addition to mandatory clauses?

5252

What Qualifies as a Subcontract?What Qualifies as a Subcontract?

Necessary to the performance of one or more government contracts. E.g.,– specifically required by the prime contract– substantially or directly related to performance

of the prime contractof the prime contract– directly charged to the prime contract

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Typically not a government subcontract:– Purchases of goods and services necessary for

the management and administration of the company as a whole E.g., general usage supplies or services (paper, E.g., general usage supplies or services (paper,

computer toner, telephone service, etc.).

– Purchases of standard inventory items E t d d t d i ll f th E.g., standard parts used in many or all of the company’s products, for both government and commercial projects.

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Likely a government subcontract:– Purchases of goods and services substantially or

directly related to the performance of the government contract Products or services unique to the end product Products or services unique to the end product Products or services customized for inclusion in the

end product

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Which Clauses are Required to be qFlowed Down?

Is the clause required to be flowed down to subcontracts?

Generally, this is not a difficult determination

Requires substantive review of each clause incorporated into the prime contract

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Which Clauses are Required to be qFlowed Down?

Example: FAR 52.225-13 Restrictions on Certain Foreign

P hPurchases“. . . (c) The Contractor shall insert this clause,

including this paragraph (c), in all subcontracts.”including this paragraph (c), in all subcontracts.

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When must Required Clauses be qFlowed Down?

Not all clauses with flowdown language must be flowed down in every instanceTh f h l ill i di h h The text of the clause will indicate when the clause is required to be flowed down to a subcontractsubcontract

Sometimes the prime contractor’s best judgment will need to be applied – projected value of the subcontract – whether the subcontract will involve certain

activities

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activities


Example:

FAR 52.203-6 Restrictions on Subcontractor Sales to the Government“(c) The Contractor agrees to incorporate

the substance of this clause, including this paragraph (c), in all subcontracts under this contract which exceed the simplifiedcontract which exceed the simplified acquisition threshold [$100,000].”

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Example:

FAR 52.219-9 Small Business Subcontracting Plan“. . . the offeror will include [FAR 52.218 Utilization of Small Business Concerns] in all subcontracts that offer further subcontracting opportunities ”subcontracting opportunities . . . .

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Does the Subcontract Involve the Purchase of a Commercial Item?

Does the prime contract include a clause limiting the number of clauses to be flowed down to a subcontract for commercial items?

R i d fl d l f i l it– Required flowdown clauses for commercial item subcontracts are largely socio-economic clauses with which most companies already complyp y p y Minimizes the compliance burden placed on the

subcontractor

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Look for:– FAR 52.212-5 (“. . . The Contractor is not

required to flow down any FAR clause, other than those in paragraphs (e)(1) of this paragraph in a subcontract for commercialparagraph in a subcontract for commercial items.”)

– FAR 52.244-6 (“The Contractor shall insert the f ll i l i b t t f i lfollowing clauses in subcontracts for commercial items . . . .”)

– or similar language

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or similar language


Definition of Commercial Item (FAR 2.101):(1) Any item that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes and has been sold, leased, or licensed or offered for sale, lease, or license to the general public.

(2) Any item evolved from (1) through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in time to satisfy the delivery requirements under a government solicitation.

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Definition of Commercial ItemDefinition of Commercial Item

Definition of Commercial Item, cont’d:(3) Any item meeting the criterion of (1) or (2) but for

difi ti f t t il il bl i thmodifications of a type customarily available in the commercial marketplace, or minor modifications of a type not customarily available in the commercial marketplace made to meet federal government requirements.meet federal government requirements.

(4) Any combination of items meeting the requirements of (1), (2), or (3) that are of a type customarily combined and sold in combination to the general public.

(5) A nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis to multiple state and local governments

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basis, to multiple state and local governments.

Definition of Commercial ItemDefinition of Commercial Item

Definition of Commercial Item, cont’d:(6) Installation maintenance repair training and other(6) Installation, maintenance, repair, training, and other services if such services are procured for support of an item referenced in (1) through (4) above and the source of such services provides similar services contemporaneously to the

l bli d t d diti i il t thgeneral public under terms and conditions similar to those offered to the federal government.(7) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based onsubstantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions.

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Clauses to Consider Flowing DownClauses to Consider Flowing Down

For the prime contractor’s protection, the following clauses can be flowed down– Termination for convenience clause

Will provide the prime the ability to terminate the subcontractor should the Government terminate the prime

– Changes clauseWill provide the prime the ability to make changes of the Will provide the prime the ability to make changes of the subcontractor’s requirements should the Government make changes to the prime’s requirements

– Definitions clause Will ensure a standard set of definitions is applicable

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Clauses to Consider Flowing DownClauses to Consider Flowing Down

For the prime contractor’s protection, the following clauses can be flowed down– Protest After Award clause

Will allow the prime to issue a stop work order to the subcontractor

– Disputes clause Will put the sub on notice of the disputes process,

including the requirement to submit a certification of aincluding the requirement to submit a certification of a claim

– Other clauses

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Specific to the nature of the prime contract

Implementing Flowdown p gObligations

Approaches to meet flowdown clause obligations

C aft a niq e doc ment that inco po ates the applicable– Craft a unique document that incorporates the applicable flowdown clauses for each subcontracting opportunity

– Attach an addendum with applicable flowdown clauses to a standard purchase order or commercial subcontract form

– For commercial item purchases, include a provision in standard purchase order or commercial subcontract form prequiring compliance with flowdown clauses when applicable

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Challenging Issues Regarding Flowdown g g g gClauses

Assertion from prime that clause is “self-deleting” Refusal from sub to accept required flowdown

l ( )clause(s) Incorporation of entire prime contract into

subcontractsubcontract Implementation of process by new government

contractors to identify which vendors qualify as b d fl d f lsubcontractors and ensure flowdown of clauses

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Subcontractor Flowdown Requirements in GovernmentRequirements in Government Contracts

St h B Sh i E Holly Roth Esq J Catherine Kunz Esq

Stephen Shapiro Holly Roth J. Catherine Kunz

Stephen B. Shapiro, Esq.Holland & Knight LLP2099 Pennsylvania Avenue, N.W.Suite 100Washington, DC 20006

Phone: (202) 457-7032

Holly Roth, Esq.PartnerGovernment & Regulatory PolicyManatt Phelps & Phillips, LLP700 12th Street, N.W.Suite 1100Washington, DC 20005

J. Catherine Kunz, Esq. Crowell & Moring LP 1001 Pennsylvania Ave., N.W. Washington, DC 20004

Phone: (202) 624-2957 Fax: (202) 628-5116

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Phone: (202) 457 7032Fax: (202) 955-5564New York: (212) [email protected]

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Phone: (202) 585-6558Fax: (202) [email protected]

( )[email protected]

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