44.201-1 Consent requirements
Source: FAR 44.201-1 on acquisition.gov
Contractors must obtain Government consent for certain subcontracts based on their purchasing system status, contract type, and specific thresholds or risks identified by the contracting officer.
Overview
FAR 44.201-1 outlines when contractors must obtain the Government’s consent before awarding subcontracts. The requirements differ based on whether the contractor has an approved purchasing system and the type, value, and complexity of the subcontract. The regulation aims to ensure that the Government maintains oversight and risk management over significant or sensitive subcontracting actions.
Key Rules
- Approved Purchasing System
- Contractors with an approved purchasing system only need consent for subcontracts specifically identified by the contracting officer, typically due to risk, complexity, or criticality.
- No Approved Purchasing System
- Contractors without an approved purchasing system must obtain consent for certain subcontracts under cost-reimbursement, time-and-materials, labor-hour, or letter contracts, and for unpriced actions under fixed-price contracts exceeding the simplified acquisition threshold.
- Thresholds for Fixed-Price Subcontracts
- For DOD, Coast Guard, and NASA: Consent is required for fixed-price subcontracts exceeding the greater of the simplified acquisition threshold or 5% of the contract’s total estimated cost.
- For other civilian agencies: Consent is required for fixed-price subcontracts exceeding either the simplified acquisition threshold or 5% of the contract’s total estimated cost.
- Architect-Engineer Services
- Consent may be required for subcontracts under architect-engineer prime contracts.
- Purchases from Government Sources
- Written authorization from the contracting officer to purchase from Government sources is considered consent.
Responsibilities
- Contracting Officers: Identify subcontracts requiring consent, provide written authorization, and ensure oversight.
- Contractors: Determine if consent is required, request consent as needed, and comply with contract clauses.
- Agencies: Monitor compliance and provide guidance on consent requirements.
Practical Implications
- Ensures Government oversight of high-risk or high-value subcontracts.
- Contractors must carefully review contract clauses and thresholds to avoid unauthorized subcontracting.
- Failure to obtain required consent can result in noncompliance and potential contract issues.
(a) If the contractor has an approved purchasing system, consent is required for subcontracts specifically identified by the contracting officer in the subcontracts clause of the contract. The contracting officer may require consent to subcontract if the contracting officer has determined that an individual consent action is required to protect the Government adequately because of the subcontract type, complexity, or value, or because the subcontract needs special surveillance. These can be subcontracts for critical systems, subsystems, components, or services. Subcontracts may be identified by subcontract number or by class of items (e.g., subcontracts for engines on a prime contract for air-frames).
(b) If the contractor does not have an approved purchasing system, consent to subcontract is required for cost-reimbursement, time-and-materials, labor-hour, or letter contracts, and also for unpriced actions (including unpriced modifications and unpriced delivery orders) under fixed-price contracts that exceed the simplified acquisition threshold, for-
(1) Cost-reimbursement, time-and-materials, or labor-hour subcontracts; and
(2) Fixed-price subcontracts that exceed-
(i) For the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration, the greater of the simplified acquisition threshold or 5 percent of the total estimated cost of the contract; or
(ii) For civilian agencies other than the Coast Guard and the National Aeronautics and Space Administration, either the simplified acquisition threshold or 5 percent of the total estimated cost of the contract.
(c) Consent may be required for subcontracts under prime contracts for architect-engineer services.
(d) The contracting officer’s written authorization for the contractor to purchase from Government sources (see part 51) constitutes consent.