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Annual Representations and Certifications and same day of award certifications
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Title - Annual Representations and Certifications and same day of award certifications
Question -
1. Other than 52.209-5 Certification Regarding Responsibility Matters (current threshold $35K), if the subcontractor has provided Annual Representations and Certifications, which include all of these, do contractors have to obtain separate certifications at the specified dollar threshold for each purchase order/subcontract agreement they award the subcontractor during the year? Or will the Annual Rep and Cert be enough, again, exception "Debarment" which is a "same day of award" cert.?
2. Is it acceptable if a contractor's policy is to rely on the Federal Government's SAM system (which is public information) as their Annual Representation and Certification database and they ensure their subcontractors Reps and Certs are current when awarding subcontracts/POs?
3. What is DCMA's issue with contractors using SAM? Separate Annual Reps and Certs packages typically "mirror" the FAR requirements, which are SAM, for both Commercial and Non-Commercial Annual Representations and Certifications.
4. Bottom line, DCMA performing CPSR tend to have "hot buttons" and they vary form region to region or auditor to auditor. What are the rules on Reps and Certs. and what should prime contractors be obtaining from their subcontractors to ensure compliance?
Scenario -
Some DCMA auditors are telling contractors that utilizing SAM for annual reps and certs is not acceptable for prime contractors to utilize for their subcontractors. Also, they are stating that the following representations and certifications need to be performed EVERY TIME a subcontractor is awarded a purchase order or subcontract agreement at the specified dollar threshold: 1) 52.222-22 .Previous Contracts Compliance Reports (EEO); 2) 52.222-25 Affirmative Action Compliance; 3) 52.203-11/12 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions; 4) 52.204-10 Reporting Executive Compensation and First-Tier Subcontract Awards and 5) 52.209-5 Certification Regarding Responsibility Matters (debarment)
Posted - 8/25/2016 4:22:00 PM
Subject Area - Purchasing
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Question Title: Annual Representations and Certifications and same day of award certifications
Question:
1. Other than 52.209-5 Certification Regarding Responsibility Matters (current threshold $35K), if the subcontractor has provided Annual Representations and Certifications, which include all of these, do contractors have to obtain separate certifications at the specified dollar threshold for each purchase order/subcontract agreement they award the subcontractor during the year? Or will the Annual Rep and Cert be enough, again, exception "Debarment" which is a "same day of award" cert.?
2. Is it acceptable if a contractor's policy is to rely on the Federal Government's SAM system (which is public information) as their Annual Representation and Certification database and they ensure their subcontractors Reps and Certs are current when awarding subcontracts/POs?
3. What is DCMA's issue with contractors using SAM? Separate Annual Reps and Certs packages typically "mirror" the FAR requirements, which are SAM, for both Commercial and Non-Commercial Annual Representations and Certifications. 4. Bottom line, DCMA performing CPSR tend to have "hot buttons" and they vary from region to region or auditor to auditor. What are the rules on Reps and Certs and what should prime contractors be obtaining from their subcontractors to ensure compliance?
Question Background: Some DCMA auditors are telling contractors that utilizing SAM for annual reps and certs is not acceptable for prime contractors to utilize for their subcontractors. Also, they are stating that the following representations and certifications need to be performed EVERY TIME a subcontractor is awarded a purchase order or subcontract agreement at the specified dollar threshold: 1) 52.222-22 .Previous Contracts Compliance Reports (EEO); 2) 52.222-25 Affirmative Action Compliance; 3) 52.203-11/12 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions; 4) 52.204-10 Reporting Executive Compensation and First-Tier Subcontract Awards and 5) 52.209-5 Certification Regarding Responsibility Matters (debarment)
Answer:
This answer is in response to the data provided. As always, consider all details of your specific scenario wen reviewing FAR/DFARS or other stator/regulatory guidance/direction.
We cannot affect the methods of a given DCMA office or auditor in the conduct of its duties. We provide the following for consideration.
An important point to remember is that the Government does not have (in almost all cases) a contractual relationship with the subcontractor. A prime contractor is bound to meet the requirements of its contract which would include the flowdown of required clauses. There is no FAR/DFARS guidance on how that is to be accomplished.
FAR 4.1102 -- Policy.
(a) Prospective contractors shall be registered in the SAM database prior to award of a contract or agreement, except for--
(3) Contracts awarded by—
(i) Deployed contracting officers in the course of military operations, including, but not limited to, contingency operations as defined in 10 U.S.C. 101(a)(13) or humanitarian or peacekeeping operations as defined in 10 U.S.C. 2302(8);
(ii) Contracting officers located outside the United States and its outlying areas, as defined in 2.101, for work to be performed in support of diplomatic or developmental operations, including those performed in support of foreign assistance programs overseas, in an area that has been designated by the Department of State as a danger pay post (see http://aoprals.state.gov/Web920/danger_pay_all.asp); or
(iii) Contracting officers in the conduct of emergency operations, such as responses to natural or environmental disasters or national or civil emergencies, e.g., Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121);
(b) If practical, the contracting officer shall modify the contract or agreement awarded under paragraph (a)(3) of this section to require SAM registration.
FAR 4.1103 -- Procedures.
(a) Unless the acquisition is exempt under 4.1102, the contracting officer--
(1) Shall verify that the prospective contractor is registered in the SAM database (see paragraph (b) of this section) before awarding a contract or agreement. Contracting officers are encouraged to check the SAM early in the acquisition process, after the competitive range has been established, and then communicate to the unregistered offerors that they must register;
(2) Should use the DUNS number or, if applicable, the DUNS+4 number, to verify registration—
(i) Via the Internet at https://www.acquisition.gov ;
(ii) As otherwise provided by agency procedures; and
(3) Need not verify registration before placing an order or call if the contract or agreement includes the provision at 52.204-7, or the clause at 52.212-4, or a similar agency clause, except when use of the Governmentwide commercial purchase card is contemplated as a method of payment. (See 32.1108(b)(2)).
The procedures are in place for the government to use SAM in capturing reps and certs of potential contractors. Any company in SAM is a potential contractor and the government would rely on this data (with some verification in certain instances). Logic holds that the system should therefore be adequate to meet those same requirements of prime to sub.
FAR subpart 4.12 – Representations and Certifications.
4.1200 – Scope.
This subpart prescribes policies and procedures for requiring submission and maintenance of representations and certifications via the System for Award Management (SAM) to –
(a) Eliminate the administrative burden for contractors of submitting the same information to various contracting offices;
(b) Establish a common source for this information to procurement offices across the Government;
(c) Incorporate by reference the contractor’s representations and certifications in the awarded contract.
The benefits identified in SCOPE are equally applicable with regard to the prime-sub environment.
FAR 4.1201 – Policy.
(a) Prospective contractors shall complete electronic annual representations and certifications at SAM accessed via https://www.acquisition.gov as a part of required registration (see FAR 4.1102).
(b) (1) Prospective contractors shall update the representations and certifications submitted to SAM as necessary, but at least annually, to ensure they are kept current, accurate, and complete. The representations and certifications are effective until one year from date of submission or update to SAM.
(c) Data in SAM is archived and is electronically retrievable. Therefore, when a prospective contractor has completed representations and certifications electronically via SAM, the contracting officer must reference the date of SAM verification in the contract file, or include a paper copy of the electronically-submitted representations and certifications in the file. Either of these actions satisfies contract file documentation requirements of 4.803(a)(11). However, if an offeror identifies changes to SAM data pursuant to the FAR provisions at 52.204-8(d) or 52.212-3(b), the contracting officer must include a copy of the changes in the contract file.
(d) The contracting officer shall incorporate the representations and certifications by reference in the contract (see 52.204-19, or for acquisition of commercial items see 52.212-4(v)).
The prime should (as should the government) confirm in some manner that the potential subcontractor SAM data is up-to-date.
With the exception of 52.204-10 Reporting Executive Compensation and First-Tier Subcontract Awards, all clauses/provisions listed in the Question Background are already captured.
FAR 4.1202 – Solicitation Provision and Contract Clause.
(a) Except for commercial item solicitations issued under FAR part 12, insert in solicitations the provision at 52.204-8, Annual Representations and Certifications. The contracting officer shall check the applicable provisions at 52.204-8(c)(2). When the provision at 52.204-7, System for Award Management, is included in the solicitation, do not include the following representations and certifications:
(1) 52.203-2, Certificate of Independent Price Determination.
(2) 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions.
(3) 52.204-3, Taxpayer Identification.
(4) 52.204-5, Women-Owned Business (Other Than Small Business).
(5) 52.204-17, Ownership or Control of Offeror
(6) 52.204-20, Predecessor of Offeror.
(7) 52.209-2, Prohibition on Contracting with Inverted Domestic Corporations--Representation.
(8) 52.209-5, Certification Regarding Responsibility Matters.
(9) 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law.
(10) 52.214-14, Place of Performance—Sealed Bidding.
(11) 52.215-6, Place of Performance.
(12) 52.219-1, Small Business Program Representations (Basic & Alternate I).
(13) 52.219-2, Equal Low Bids.
(14) 52.219-22, [Reserved.]
(15) 52.222-18, Certification Regarding Knowledge of Child Labor for Listed End Products.
(16) 52.222-22, Previous Contracts and Compliance Reports.
(17) 52.222-25, Affirmative Action Compliance.
(18) 52.222-38, Compliance with Veterans’ Employment Reporting Requirements.
(19) 52.222-48, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment Certification.
(20) 52.222-52, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services—Certification.
(21) 52.223-1, Biobased Product Certification.
(22) 52.223-4, Recovered Material Certification.
(23) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-Designated Items (Alternate I only).
(24) 52.225-2, Buy American.
(25) 52.225-4, Buy American—Free Trade Agreements—Israeli Trade Act Certificate (Basic, Alternates I, II, and III).
(26) 52.225-6, Trade agreements Certificate.
(27) 52.225-20, Prohibition on Conducting Restricted Business Operations in Sudan—Certification.
(28) 52.225-25, Prohibition on Contracting with Entities Engaging in Certain Activities or Transactions Relating to Iran—Representation and Certifications.
(29) 52.226-2, Historically Black College or University and Minority Institution Representation.
(30) 52.227-6, Royalty Information (Basic & Alternate I).
(31) 52.227-15, Representation of Limited Rights Data and Restricted Computer Software.
(b) The contracting officer shall insert the clause at 52.204-19, Incorporation by Reference of Representations and Certifications, in solicitations and contracts.
DFARS has little to add to the question. But it specifically addresses Exclusions as a consideration, but is silent on other reps and certs.
DFARS 44.202-2 -- Considerations.
(a) The contracting officer responsible for consent must, at a minimum, review the request and supporting data and consider the following:
(13) Is the proposed subcontractor in the System for Award Management Exclusions (see Subpart 9.4)?
DAFARS goes on to point to the responsibility of the contracting officer to confirm a contractor's SAM record is active. That should be the standard we would expect of the prime.
SUBPART 204.11—SYSTEM FOR AWARD MANAGEMENT (Revised December 30, 2015)
204.1103 Procedures.
See PGI 204.1103 for helpful information on navigation and data entry in the System for Award Management (SAM) database.
(1) On contract award documents, use the contractor’s legal or “doing business as” name and physical address information as recorded in the SAM database at the time of award.
(2) When making a determination to exercise an option, or at any other time before issuing a modification other than a unilateral modification making an administrative change, ensure that—
(i) The contractor’s record is active in the SAM database; and...
(4) See PGI 204.1103 for additional requirements relating to use of information in the SAM database.
DFARS 204.1105 Solicitation provision and contract clauses.
When using the provision at FAR 52.204-7, System for Award Management, use the provision with 252.204-7004, Alternate A, System for Award Management.
SUBPART 204.12—ANNUAL REPRESENTATIONS AND CERTIFICATIONS (Revised January 29, 2015)
204.1202 Solicitation provision.
(1) When using the provision at FAR 52.204-8, Annual Representations and Certifications; use the provision with 252.204-7007, Alternate A, Annual Representations and Certifications; and
(2) When the provision at FAR 52.204-7, System for Award Management, is included in the solicitation, do not include separately in the solicitation the following provisions, which are included in DFARS 252.204-7007:
(i) 252.209-7002, Disclosure of Ownership or Control by a Foreign Government.
(ii) 252.209-7003, Reserve Officer Training Corps and Military Recruiting on Campus—Representation.
(iii) 252.216-7008, Economic Price Adjustment–Wage Rates or Material Prices Controlled by a Foreign Government—Representation.
(iv) 252.222-7007, Representation Regarding Combating Trafficking in Persons.
(v) 252.225-7000, Buy American—Balance of Payments Program Certificate.
(vi) 252.225-7020, Trade Agreements Certificate.
(vii) 252.225-7031, Secondary Arab Boycott of Israel.
(viii) 252.225-7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate.
(ix) 252.225-7042, Authorization to Perform.
(x) 252.225-7049, Prohibition on Acquisition of Commercial Satellite Services from Certain Foreign Entities—Representations.
(xi) 252.225-7050, Disclosure of Ownership or Control by the Government of a Country that is a State Sponsor of Terrorism.
(xii) 252.229-7012, Tax Exemptions (Italy)—Representation.
(xiii) 252.229-7013, Tax Exemptions (Spain)—Representation.
(xiv) 252.247-7022, Representation of Extent of Transportation by Sea.
We can find no directive language or even guidance that suggests a prime using SAM as the government uses it for the same purpose the government uses it is inappropriate or insufficient. For DCMA to require more than is required of the government, justification for the need of additional data should be provided.
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