52.209-6 Protecting the Government's Interest When Subcontracting With Contractors Debarred, Suspended, Proposed for Debarment, or Voluntarily Excluded
Source: FAR 52.209-6 on acquisition.gov
Contractors must not subcontract above the threshold with debarred or suspended parties unless justified and approved, and must flow down these requirements to applicable subcontractors.
Overview
FAR 52.209-6 requires contractors to avoid subcontracting with parties that are debarred, suspended, proposed for debarment, or voluntarily excluded from federal contracts, except under specific circumstances. The clause applies to subcontracts exceeding the threshold in FAR 9.405-2(b), except for those involving commercially available off-the-shelf (COTS) items. Its purpose is to protect the Government’s interests by ensuring that federal funds are not directed to entities that have been excluded from government contracting due to serious issues such as fraud or poor performance.
Key Rules
- Prohibition on Certain Subcontracts
- Contractors must not enter into subcontracts above the specified threshold with debarred, suspended, or excluded parties unless there is a compelling reason.
- Disclosure Requirement
- Prospective subcontractors (other than COTS providers) must disclose their exclusion status in writing before award.
- Notification to Contracting Officer
- If a contractor intends to subcontract with an excluded party, they must notify the Contracting Officer in writing, providing justification and risk mitigation steps.
- Flowdown Requirement
- The clause must be included in all applicable subcontracts above the threshold, except for COTS items.
Responsibilities
- Contracting Officers: Review and approve any proposed subcontracts with excluded parties and ensure compliance.
- Contractors: Screen subcontractors, obtain written disclosures, notify the Contracting Officer if using an excluded party, and flow down the clause as required.
- Agencies: Oversee contractor compliance and maintain exclusion lists in SAM.
Practical Implications
- This clause ensures that government funds are not spent on entities barred from federal work, reducing risk and promoting integrity. Contractors must have robust due diligence and documentation processes to avoid noncompliance, which can lead to contract termination or further exclusion.
As prescribed in 9.409 , insert the following clause:
Protecting the Government's Interest When Subcontracting With Contractors Debarred, Suspended, Proposed for Debarment, or Voluntarily Excluded (Jan 2025)
(a) Definition.
Commercially available off-the-shelf (COTS) item, as used in this clause—
(1) Means any item of supply (including construction material) that is–
(i) A commercial product (as defined in paragraph (1) of the definition of “commercial product” in Federal Acquisition Regulation (FAR)2.101);
(ii) Sold in substantial quantities in the commercial marketplace; and
(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title46-section40102(4)&num=0&edition=prelim" target="_blank">46 U.S.C. 40102(4), such as agricultural products and petroleum products.
(b) The Government suspends or debars Contractors to protect the Government’s interests. Other than a subcontract for a commercially available off-the-shelf item, the Contractor shall not enter into any subcontract, in excess of the threshold specified in FAR 9.405-2(b) on the date of subcontract award, with a Contractor that is debarred, suspended, or proposed for debarment by any executive agency unless there is a compelling reason to do so.
(c) The Contractor shall require each proposed subcontractor whose subcontract will exceed the threshold specified in FAR 9.405-2(b) on the date of subcontract award, other than a subcontractor providing a commercially available off-the-shelf item, to disclose to the Contractor, in writing, whether as of the time of award of the subcontract, the subcontractor, or its principals, is or is not debarred, suspended, proposed for debarment, or voluntarily excluded, by the Federal Government.
(d) A corporate officer or a designee of the Contractor shall notify the Contracting Officer, in writing, before entering into a subcontract with a party (other than a subcontractor providing a commercially available off-the-shelf item) that is debarred, suspended, proposed for debarment, or voluntarily excluded (see FAR 9.404 for information on the System for Award Management (SAM) Exclusions). The notice must include the following:
(1) The name of the subcontractor.
(2) The Contractor’s knowledge of the reasons for the subcontractor being listed with an exclusion in SAM.
(3) The compelling reason(s) for doing business with the subcontractor notwithstanding its being listed with an exclusion in SAM.
(4) The systems and procedures the Contractor has established to ensure that it is fully protecting the Government's interests when dealing with such subcontractor in view of the specific basis for the party’s debarment, suspension, proposed debarment, or voluntary exclusion.
(e) Subcontracts. Unless this is a contract for the acquisition of commercial products or commercial services, the Contractor shall include the requirements of this clause, including this paragraph (e) (appropriately modified for the identification of the parties), in each subcontract that—
(1) Exceeds the threshold specified in FAR 9.405-2(b) on the date of subcontract award; and
(2) Is not a subcontract for commercially available off-the-shelf items.
(End of clause)