News in Government Subcontracting – and Old Lessons Revisited Linda Shapiro

What is a Subcontract?  The meaning and legal effect of the term can vary depending on how it is used and defined. ⁻Federal Acquisition Regulation “Subcontract” defined at FAR , , , , , , “Subcontractor” defined at FAR , , , ,

What is a Subcontract? ⁻Federal Assistance Awards Key distinctions between “subcontracts” and “subawards” Terms may vary depending on the source  Office of Management and Budget  Granting agency regulations 3

Statutes and Regulations  Some of these more directly affect subcontracting ⁻Section 1334, Small Business Jobs and Credit Act of 2010 ⁻FAR , Reporting Executive Compensation and First-Tier Subcontract Awards ⁻FAR , Contractor Policy to Ban Text Messaging While Driving 4

Recent Cases – Old Lessons Revisited  Subcontractor’s failure to perform does not excuse the Prime from default termination of firm-fixed price contract. ⁻New Era Contract Sales, Inc., ASBCA No , 2011 WL (April 4, 2011)  Subcontractor’s fraud does not excuse Prime’s obligation to pay. -Tamimi Global Co. Ltd v. Kellogg Brown & Root LLC, No. H (S.D. Tex 2011)  Understand what is in the flowdown clauses. -Shaw Environmental, Inc. v. Teledyne Brown Eng’g, Inc., No. CV-09-S NE (N.D. Ala 2010)  Everyone stands to lose for not knowing or playing by the rules. -Morris-Griffin Corp v. C&L Services Corp., 731 F.Supp 2 nd 488 (E.D. Va. 2010) 5