Several years ago I wrote a micrograph on subcontracting under federal prime awards for NCURA. At the back of that document I address this subject and give examplees of clauses that fall into three categories of flow-down. I cannot post the listing to this listserv as NCURA owns the copyright, but I believe it is still in print through NCURA. Steve "Frye, Todd" wrote: > 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") > ====================================================================== -- Stephen Erickson, Director Office of Research Administration Boston College McGuinn Hall 600 Chestnut Hill, MA 02467 On-Campus Fax 2-0747 Fax to My Computer 413-895-8328 ====================================================================== 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") ======================================================================
