44.202-2 Considerations
Source: FAR 44.202-2 on acquisition.gov
Contracting officers must rigorously evaluate subcontract consent requests to ensure compliance, competition, and alignment with government interests, especially in high-risk or non-competitive scenarios.
Overview
FAR 44.202-2 outlines the specific considerations contracting officers must evaluate when reviewing contractor requests for consent to subcontract. The regulation ensures that subcontracting decisions align with government interests, technical requirements, and regulatory compliance, particularly in areas such as competition, cost analysis, small business participation, and the use of government property. It also highlights scenarios requiring heightened scrutiny, such as non-competitive awards or when the prime contractor’s purchasing system is inadequate.
Key Rules
- Consistency with Make-or-Buy Program
- Subcontracting decisions must align with any approved make-or-buy program.
- Availability from Government Sources
- Contracting officers must check if required items are available from government sources before approving subcontracts.
- Technical Justification and Competition
- The selection of supplies/services must be technically justified, and adequate price competition must be obtained or justified if absent.
- Small Business and Nonprofit Agency Compliance
- Contractors must comply with small business subcontracting requirements and consider purchases from designated nonprofit agencies.
- Cost/Price Analysis and Subcontractor Responsibility
- Adequate cost or price analysis must be performed, and subcontractor responsibility must be established.
- Appropriate Subcontract Type and Use of Government Property
- The subcontract type must match the risk, and any use of government property must be properly considered.
- Excluded Parties Check
- Proposed subcontractors must not be listed as excluded in the System for Award Management (SAM).
- Special Attention Scenarios
- Extra scrutiny is required for non-competitive awards, inadequate purchasing systems, close affiliations, or cost-reimbursement/time-and-materials subcontracts.
Responsibilities
- Contracting Officers: Must thoroughly review subcontract consent requests against all listed considerations and apply heightened scrutiny in specified scenarios.
- Contractors: Must provide complete, justified, and compliant subcontract consent packages, including all required analyses and certifications.
- Agencies: Ensure oversight of subcontracting practices and compliance with federal regulations.
Practical Implications
- This section exists to protect government interests by ensuring subcontracting decisions are justified, competitive, and compliant with regulations.
- It impacts daily contracting by requiring detailed documentation and justification for subcontract consent.
- Common pitfalls include inadequate competition, insufficient cost analysis, or failure to check for excluded parties.
(a) The contracting officer responsible for consent must, at a minimum, review the request and supporting data and consider the following:
(1) Is the decision to subcontract consistent with the contractor’s approved make-or-buy program, if any (see 15.407-2)?
(2) Is the subcontract for special test equipment, equipment or real property that are available from Government sources?
(3) Is the selection of the particular supplies, equipment, or services technically justified?
(4) Has the contractor complied with the prime contract requirements regarding-
(i) Small business subcontracting, including, if applicable, its plan for subcontracting with small, veteran-owned, service-disabled veteran-owned, HUBZone, small disadvantaged and women-owned small business concerns (see part 19); and
(ii) Purchase from nonprofit agencies designated by the Committee for Purchase From People Who Are Blind or Severely Disabled http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section8504&num=0&edition=prelim" target="_blank">41 U.S.C.8504 (see part 8)?
(5) Was adequate price competition obtained or its absence properly justified?
(6) Did the contractor adequately assess and dispose of subcontractors’ alternate proposals, if offered?
(7) Does the contractor have a sound basis for selecting and determining the responsibility of the particular subcontractor?
(8) Has the contractor performed adequate cost or price analysis or price comparisons and obtained certified cost or pricing data and data other than certified cost or pricing data?
(9) Is the proposed subcontract type appropriate for the risks involved and consistent with current policy?
(10) Has adequate consideration been obtained for any proposed subcontract that will involve the use of Government-provided equipment and real property?
(11) Has the contractor adequately and reasonably translated prime contract technical requirements into subcontract requirements?
(12) Does the prime contractor comply with applicable cost accounting standards for awarding the subcontract?
(13) Is the proposed subcontractor listed as excluded in the System for Award Management (see subpart 9.4)?
(b) Particularly careful and thorough consideration under paragraph (a) of this section is necessary when-
(1) The prime contractor’s purchasing system or performance is inadequate;
(2) Close working relationships or ownership affiliations between the prime and subcontractor may preclude free competition or result in higher prices;
(3) Subcontracts are proposed for award on a non-competitive basis, at prices that appear unreasonable, or at prices higher than those offered to the Government in comparable circumstances; or
(4) Subcontracts are proposed on a cost-reimbursement, time-and-materials, or labor-hour basis.