A federal subcontractor may suffer delay, disruption, extra work, or other cost because of Government action even though the subcontractor has no direct contract with the agency. That privity gap is why pass-through or sponsored claims matter.
The important pre-award question is not simply whether pass-through claims exist. It is whether the subcontract gives the subcontractor a workable path to present a Government-related claim through the prime and defines what each party must do.
The prime is normally the party dealing with the Government
FAR 44.203 says a contracting officer should not refuse consent to a subcontract merely because it gives the subcontractor a right of indirect appeal when affected by a dispute between the Government and the prime. The FAR describes indirect appeal as assertion of the prime's appeal right or prosecution of an appeal by the prime on the subcontractor's behalf.
Federal Circuit decisions also describe pass-through claims as claims a prime brings against the Government for harm caused to a subcontractor where the legal requirements for that pass-through are met.
Official source: FAR 44.203 — Consent Limitations.
Terms worth negotiating before there is a claim
- Whether the prime must sponsor qualifying Government-caused claims or only may do so.
- Notice deadlines from subcontractor to prime so the prime can meet its own prime-contract deadlines.
- Who prepares the claim narrative, schedule analysis, and cost support.
- Who controls communications, certification, appeal, settlement, and counsel.
- How claim-preparation and legal costs are allocated.
- Whether the prime can settle the Government claim without the subcontractor's consent.
- What happens if the prime has its own related claim or a conflict with the subcontractor.
Prime-contract rules still matter
FAR 52.233-1 requires contractor claims to follow the Disputes process and includes certification requirements for claims above the applicable threshold. The subcontractor should therefore provide information early enough for the prime to satisfy the prime contract's procedural requirements.
A subcontract clause that waits until the prime receives money before the subcontractor can even submit its issue may create a practical problem if the underlying Government deadline expires first.
Official source: FAR 52.233-1 — Disputes.
Document the Government-caused event as it happens
Keep contemporaneous records showing direction, dates, affected work, labor and equipment impacts, schedule effects, mitigation, and communications with the prime. A pass-through mechanism is much less useful if the factual record is created months after the event.