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    To whom it may concern: I am a Quality Assurance Specialist with the Army Contracting Command at Ft Polk La. I just finished my internship last August and I have a question concerning a contractors responsibility when it comes to their subs not getting the required supplies they may or may not need to be able to perform the requirements of the contract. Where is it written theta they are not responsible for a Sub not getting the supplies to the Prime. I was told in a meeting last week with a KO in there with the prime contractor and the prime stated he is not responsible for their sub not getting them the supplies they need to perform the requirements on this contract. I was always taught that it is the Primes responsibility for all sub contractors when it comes to Performance and supplies. Can you help me out on this issue? Sincerely Billy D Wilkerson Quality Assurance Specialist ACC-MICC 6661 Warrior Trail Bldg 350 Ft Polk La 71459 Office: 337-531-7788 Cell: 318-578-2195 billy.d.wilkerson.civ@mail.mil


    Answer

    There is a concept from common law called privity of contract that is relevant to your question.  “Privity of Contract:  The legal relationship and responsibilities between parties to the same contract.  The government has privity of contract with the prime contractor; the prime contractor has privity of contract with the first-tier subcontractor, but there generally is no privity of contracts between the government and subcontractors.”  The Government Contracts Reference Book, 3rd, ed., CCH, Nash, Schooner, O’Brien-DeBakey, and Edwards

    Much of this has to do with pursuing claims, but the relevance to your question is that because the government typically enjoys no privity of contract with any tier subcontractor, the prime contractor is responsible for the work of any and all subcontractors.


    Based upon your question, I’m assuming you are dealing with a fixed price supply contract.  If it is a commercial contract,
    FAR clause 52.212-4 Contract Terms and Conditions – Commercial Items requires at paragraph (a) Inspection and Acceptance “The Contractor shall only tender for acceptance those items that conform to the requirements of this contract.”

    If it is a non-commercial fixed price supply contract,
    FAR 52.246-2 Inspection of Supplies – Fixed Price, paragraph (b) applies:  “The Contractor shall provide and maintain an inspection system acceptable to the Government covering supplies under this contract and shall tender to the Government for acceptance only supplies that have been inspected in accordance with the inspection system and have been found by the Contractor to be in conformity with contract requirements.”

    Because of privity of contract and the requirement that the prime contractor present only conforming items for inspection; that prime contractor is completely responsible of contract compliance, regardless of who may have had a part in manufacturing those items.


    This is according to regulation.  The contract you are asking about may have some sort of special provisions/arrangements that are outside standard FAR language.  You are encouraged to communicate with the cognizant Contracting Officer about your concerns.



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