52.219-16 Liquidated Damages—Subcontracting Plan.
Prescription and Applicability
FAR Prescription, 19.708(b)
(b)
(1) Insert the clause at 52.219-9, Small Business Subcontracting Plan, in solicitations and contracts that offer subcontracting possibilities, are expected to exceed $900,000 ($2 million for construction of any public facility), and are required to include the clause at 52.219-8, Utilization of Small Business Concerns, unless the acquisition is set aside or is to be accomplished under the 8(a) program. When-
(i) Contracting by sealed bidding rather than by negotiation, the contracting officer shall use the clause with its Alternate I;
(ii) Contracting by negotiation, and subcontracting plans are required with initial proposals as provided for in 19.705-2(d), the contracting officer shall use the clause with its Alternate II;
(iii) The contract action will not be reported in the Federal Procurement Data System pursuant to 4.606(c)(5), or (c)(6), the contracting officer shall use the clause with its Alternate III; or
(iv) Incorporating a subcontracting plan due to a modification as provided for in 19.702(a)(1)(iii), the contracting officer shall use the clause with its Alternate IV.
(2) Insert the clause at 52.219-16, Liquidated Damages-Subcontracting Plan, in all solicitations and contracts containing the clause at 52.219-9, Small Business Subcontracting Plan, or the clause with its Alternate I, II, III, or IV.
DFARS Supplementary Guidance, 219.708
(b)(1)(A) Use the basic, alternate I, or alternate II clause at 252.219-7003 , Small Business Subcontracting Plan (DoD Contracts), in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, that contain the clause at FAR 52.219-9, Small Business Subcontracting Plan.
(1) Use the basic clause at 252.219-7003, when using the basic, alternate I, or alternate II of FAR 52.219-9.
(2) Use the alternate I clause at 252.219-7003, when using Alternate III of FAR 52.219-9.
(3) Use the alternate II clause at 252.219-7003 when using the Demonstration Project described at 226.72. (B) In contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70 , including contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, use the clause at 252.219-7004 , Small Business Subcontracting Plan (Test Program), instead of the clauses at 252.219-7003 , Small Business Subcontracting Plan (DoD Contracts), FAR 52.219-9, Small Business Subcontracting Plan, and FAR 52.219-16, Liquidated Damages--Subcontracting Plan.
(2) In contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70, do not use the clause at FAR 52.219-16, Liquidated Damages-Subcontracting Plan. (c)(1) Do not use the clause at FAR 52.219-10, Incentive Subcontracting Program, in contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70.
Current Text
52.219-16 Liquidated Damages—Subcontracting Plan.
As prescribed in 19.708(b)(2), insert the following clause:
Liquidated Damages—Subcontracting Plan (SEP 2021)
(a) Failure to make a good faith effort to comply with the subcontracting plan, as used in this clause, means a willful or intentional failure to perform in accordance with the requirements of the subcontracting plan approved under the clause in this contract entitled "Small Business Subcontracting Plan," or willful or intentional action to frustrate the plan.
(b) Performance shall be measured by applying the percentage goals to the total actual subcontracting dollars or, if a commercial plan is involved, to the pro rata share of actual subcontracting dollars attributable to Government contracts covered by the commercial plan. If, at contract completion or, in the case of a commercial plan, at the close of the fiscal year for which the plan is applicable, the Contractor has failed to meet its subcontracting goals and the Contracting Officer decides in accordance with paragraph (c) of this clause that the Contractor failed to make a good faith effort to comply with its subcontracting plan (see 19.705-7), established in accordance with the clause in this contract entitled "Small Business Subcontracting Plan," the Contractor shall pay the Government liquidated damages in an amount stated. The amount of probable damages attributable to the Contractor's failure to comply shall be an amount equal to the actual dollar amount by which the Contractor failed to achieve each subcontract goal.
(c) Before the Contracting Officer makes a final decision that the Contractor has failed to make such good faith effort, the Contracting Officer shall give the Contractor written notice specifying the failure and permitting the Contractor to demonstrate what good faith efforts have been made and to discuss the matter. Failure to respond to the notice may be taken as an admission that no valid explanation exists. If, after consideration of all the pertinent data, the Contracting Officer finds that the Contractor failed to make a good faith effort to comply with the subcontracting plan, the Contracting Officer shall issue a final decision to that effect and require that the Contractor pay the Government liquidated damages as provided in paragraph (b) of this clause.
(d) With respect to commercial plans, the Contracting Officer who approved the plan will perform the functions of the Contracting Officer under this clause on behalf of all agencies with contracts covered by the commercial plan.
(e) The Contractor shall have the right of appeal, under the clause in this contract entitled Disputes, from any final decision of the Contracting Officer.
(f) Liquidated damages shall be in addition to any other remedies that the Government may have.
(End of clause)
[54 FR 30710, July 21, 1989, as amended at 60 FR 48267, Sept. 18, 1995; 63 FR 34068, June 22, 1998; 63 FR 70277, Dec. 18, 1998; 86 FR 44255, Aug. 11, 2021]
Suggested Questions
You can ask your AI assistant:
- Should I include this provision in my solicitation?
- Does this clause apply to commercial acquisitions?
- Does this clause apply to R&D contracts under Part 35?
- Which alternate should I use for a multiple-award contract?
- Are there any active Class Deviations that modify this clause?
- What changed in the most recent amendment?