A Brief Note on the Pay-If-Paid Clause: An Occasional Thorn to US Government Construction Subcontractors

Subcontractors bidding US government construction projects often find themselves subject to both mandatory and non-mandatory FAR clauses and provisions flowed-down from the prime contractor’s RFP, as well as the prime’s particular special terms and conditions – and conflicts often exist between the two.  Contract payment is one area where discrepancies abound between the FAR clauses and the prime’s own subcontract terms and conditions.  It cannot be stressed enough that, prior to bidding work, subcontractors must be able to recognize and understand the various payment provisions contained in subcontract RFPs.  Quite simply, for subcontractors, it’s all about the money and how fast they get it. Thus, the type of payment provision is extremely important to subcontractors.  To be sure, a subcontract RFP for a government construction … Continue reading

FAR 52.236-1, Performance of Work by the Contractor (A Hard Clause for OCONUS Construction Contractors)

The US government, and in particular the DoD, has spent, and will continue to spend, millions of dollars on OCONUS construction projects.  Contracts have been awarded for building complete compounds in Djibouti, Africa, troop barracks in Afghanistan, and runways in Qatar.  Unsurprisingly, there’s no shortage of bidders for these projects – with their millions of dollars in revenue.  Many large US government contractors, as well as foreign construction firms, have competed over and over again for these projects.  Inasmuch as all of these construction projects are FAR based, the RFPs are substantially similar, containing identical clauses and provisions, even though, of course, the SOWs differ.  One clause consistently included in all of the respective RFPs, and which causes a great deal of angst for many … Continue reading