|Revision Date||December 15, 2014|
DFPS may allow a party contracting with DFPS (primary contractor) to use subcontracts to provide a part or all of the services procured by the Department under a prime contract. No subcontract will relieve contractor of responsibility for ensuring the requested services are provided.
If a subcontract is used to deliver any or all of the work required under a contract, the following conditions apply:
- Contractors must identify the proposed subcontractors to DFPS in a manner agreeable to the DFPS Contract Division involved.
- Subcontracting will be solely at contractor’s expense.
- DFPS retains the right to check subcontractor’s background and approve or reject the use of submitted subcontractors.
- Contractor will be the primary contractor for DFPS and contractor will determine a designated point of contact for all DFPS inquiries.
- Contractor must include a term in all proposed subcontracts that incorporates the prime contract by reference and binds subcontractor to all the requirements, terms, and conditions of the contract related to the service being provided by the subcontractor, as well as explicitly hold that the contract controls in the event of any conflict with subcontract.
- Use of any subcontractor is conditioned upon the extent that any subcontract does not conflict with any requirements of the contract between DFPS and contractor.
Authority, responsibility, and accountability
A subcontract is a written contract that assigns some of the obligations of a prime contract to another party. Subcontracts are between a primary contractor and the individual or entity assuming some of the obligations of the primary contractor.
Subcontracts represent a separate contractual instrument in which DFPS has no direct legal relationship with subcontractors, sometimes referred to as no "privity of contract" (defined as that relationship which exists between two contracting parties). The primary contractor is selected for its technical and management abilities, including the right to manage the contract and subcontractors used in the performance of the contract.
DFPS contract staff are invested in subcontractor performance and rely on the primary contractor for planning, awarding, administering, and monitoring subcontracts.
DFPS contract staff review and assess the primary contractor's performance with maintaining and following its subcontracting policies and processes to meet all the terms and conditions identified in the contract. The review and assessment methods must be documented and maintained as evidence of a division’s due diligence in the management of services under a prime contract.
All service related subcontractors must meet the same contractual requirements as the primary contractor, and use of a subcontractor does not allow for a waiver or a means around any contractual requirements. Regardless of the existence of a subcontract, the primary contractor remains fully responsible for compliance with and full performance of all its duties and obligations under the original contract with DFPS. All activities associated with subcontracts must go through the primary contractor.
A subcontracting review should focus on a primary contractor's ability to ensure a subcontractor meets required minimum qualifications to perform and meet the standards fixed by the prime contract and its attached plans of operation. DFPS retains the right to refuse or allow subcontracting by primary contractors.