I agree with Bob and Lee's point completely. In fact, this is just one peril in the what I have heard called the "white out" approach to subcontracting, which describes the swapping of "Government" for "Prime", etc. These dangers are most prevalent in procurement contracting, vs. assistance. Simply put, the best purchasing systems and subcontracts do not do it. Some of the clauses in a prime procurement contract to an educational simply do not apply to many other types of organizations, while others do, etc. Also, there is the issue of some prime clauses being triggered or included due to the total dollar value of the Prime award, and would not apply to subs working on contracts for less than that amount, (e.g., $100K and $500K are big "kick in" thresholds where more clauses get added) Third, there is the question of contract type. The prime may be a cost-type contract, which, by design, is set up to share more of the risk between the two parties (Prime and Government), whereas, depending on what is being procurred, the subcontract may be a cost plus fixed fee, or even a Fixed price contract, which would necessitate virtually an entirely new boilerplate approach. That's it today. After all, it's Friday!! Todd ONR CHICAGO 312 886-5423, ext. 237 xxxxxx@onr.navy.mil -----Original Message----- From: Lee Wood [mailto:xxxxxx@LELAND.STANFORD.EDU] Sent: Friday, June 09, 2000 11:45 AM To: xxxxxx@HRINET.ORG Subject: Subrecipient Clauses - Watch Out For Government-Furnished Equipment! At 6/8/00, Nancy Stewart wrote: Hi Leah, I didn't see your original post and think Steve's idea is a good one. I recently was in the same situation and tried for language quite similar to his. The company however wanted something "more specific." After speaking with contract officer at NIH (this was a prime NIH contract) and several other RA's I came up with the following: The SUBCONTRACTOR certifies that it shall comply with FAR 31 Contract Cost Principles and Procedures, Subpart 2: Contracts with Commercial Organizations with modifications as follows: the term "Contract" shall mean "Subcontract"; "Contractor" shall mean "Subcontractor"; "Authorized Contracting Officer" shall mean "UNIVERSITY's Contracting Officer"; "U.S. Government" shall mean "UNIVERSITY" except that the terms "Authorized Contracting Officer" and "U.S. Government" shall retain their meaning relative to audits of costs, negotiation of overhead rates, and inspections. I'm far from an expert on these matters, but at the SRA Western Section meeting last month, Bob Silverman of ONR Seattle, presented a concurrent session on "Management of University Subcontractor Property". He specifically discussed using the "name swap" (my term) language that Nancy suggested above in the context of government-furnished equipment provided to subcontractors to Government prime contracts. This may be an infrequent occurrence, but we'd all be well to watch out for it. The problem is that if we tell our subcontractors to change "Government" to "<your university>" and "Contractor" to "<subcontracting organization>", etc., we may put ourselves in a potential bind when it comes to FAR 52.245-5: Government Property (Cost-Reimbursement, Time-and-Material, or Labor-Hour Contracts), paragraph (g) says: (g) Limited risk of loss. (1) The Contractor shall not be liable for loss or destruction of, or damage to, the Government property provided under this contract or for expenses incidental to such loss, destruction, or damage, except as provided in subparagraphs (2) and (3) below. <stuff deleted> (4) If the Contractor transfers Government property to the possession and control of a subcontractor, the transfer shall not affect the liability of the Contractor for loss or destruction of, or damage to, the property as set forth above... Bob Silverman's interpretation is that such "name swap" language would leave our institutions liable for loss or damage to government-furnished equipment which we have provided to our subcontractor(s).Any other interpretations? Lee **************************************************************** Lee Wood (Mr.) Associate Director of Sponsored Research for the School of Engineering and Independent Labs, Centers and Institutes Office of Sponsored Research Stanford University 651 Serra Street, Room 110 Stanford, CA 94305-6215 Mail Code: 6215 Phone: (650)723-5681 Fax: (650)725-4598 Email: xxxxxx@stanford.edu **************************************************************** ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ====================================================================== ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ======================================================================
