Sign In
  • Question

    How is this tactically handled/administered? It seems e-Tools will not accept the SPA delegation request being administered by the GPA for Contractor B to the GPA for Contractor C for the sub-tier subcontracts since Contractor A is prime.


    Answer

    It appears that e-Tools is not equipped to handle the support property administration delegation as described in this Ask-A-Professor Question.  However, support property administration may be delegated as long as it is done in accordance with the legal limitations of the contract.  There may be further restrictions regarding the handling of these matters (statutory, regulatory, organization policy, etc.) that must be considered.  Before answering this question it would have been extremely helpful to read all the appropriate documents (contracts, modifications, delegations, etc.) that have a direct bearing on it.  Any good lawyer would insist upon reviewing all relevant information before rendering a decision.  The response provided below is based upon the limited amount of information provided.
     
    In order to understand the concept of a support property administration delegation it is important to be familiar with the term “privity of contract.”  It refers to the exclusive legal arrangement that exists between the parties in a contract (see definition below).  Privity of contract exists between the Government and the Prime Contractor or between a Prime Contractor and their Subcontractor.  However, for that same contract, privity does not exist between the Government and the subcontractor.
     
    This is an important concept because it shows the legal limits that are imposed upon the parties under a contract.  Contracts can be enforced by the courts (as long as they are legal).  For example, the Government has the right to audit the prime contractor’s property management system via the Government Property Clause at FAR 52.245-1 but they normally do not have the right to audit a subcontractor’s property management system.  In this scenario, the Government does not have privity of contract with the subcontractor.  The Government relies upon the prime contractor to manage the Government property at their subcontractor locations in accordance with contract requirements.
     
    The Government Property Administrator (GPA) who is responsible for auditing the prime contractor’s (A) property management system may delegate all or part of those responsibilities to the Government Property Administrator who is responsible for contractor B.  The delegation must have all the information necessary to enable the Government Property Administrator to do exactly what the prime GPA wants him/her to do.  However, the GPA responsible for the prime contractor (A) cannot delegate to the subcontractor (C) because the Government has no privity with them.  Since contractor B has privity with contractor C the Government must get concurrence from contractor B prior to doing any work related to the contract in question.
     
     
     Privity of contract is defined in Black's Law Dictionary as follows:
     
    The term "privity" means mutual or successive relationship to the same rights of property. The executor is in privity with the testator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor. Union Nat. Bank v. International Bank, 123 111. 510, 14 N. E. S59; Hunt v. Haven, 52 N. H. 109; Mygatt v. Coe, 124 N. Y. 212, 26 N. E. 011, 11 L. It. A. 646; Strayer v. Johnson, 110 Pa. 21, 1 Atl. 222; Litchfield v. Crane, 123 U. S. 549, 8 Sup. Ct. 210, 31 L. Ed. 199. Privity of contract is that connection or relationship which exists between two or more contracting parties. It is essential to the maintenance of an action on any contract that there should subsist a privity between the plaintiff and defendant in respect of the matter sued on. Brown. Privity of estate is that which exists between lessor and lessee, tenant for life and remainder-man or reversioner, etc., and their respective assignees, and between joint tenants and coparceners. Privity of estate is required for a release by enlargement Sweet. Privity of blood exists between an heir and his ancestor, (privity in blood inheritable,) and between coparceners. This privity was formerly of Importance in the law of descent cast Co. Litt 271a, 242a; 2 Inst 516; 8 Coke, 426.

    Open full Question Details