Hey there, prime contractors! Are you still flowing down the majority of clauses to your subs with the expectation of them being “self-deleting”? If you are performing under Defense contracts, you may be doing something wrong, just by doing what has commonly been considered “the norm” for years.
Defense contracts are subject to the Defense Federal Acquisition Regulation Supplemental (DFARS) and in November 2023, a change was finalized that restricted clause flow-downs from prime contractors to subcontractors providing commercial products and services under Defense contracts.
What this means for you is before finalizing any subcontracts, make sure you’ve made a determination of commercial vs. non-commercial for what the subcontractor is providing. Remember, even if a prime contract is non-commercial, subcontracts supporting that contract can still be considered commercial. For safe measure, and good record keeping, take the time to make that determination of commerciality in writing.
If the subcontract is commercial, ensure you have also confirmed that you are only flowing down the clauses that are authorized to be flowed down under the clause DFARS 252.244-7000, Subcontracts for Commercial Products and Commercial Services. As of the date this is being written (January 2026), this clause authorizes the incorporation of DFARS clauses that include a subcontract prescription (check the end of the clause text), and Federal Acquisition Regulation (FAR) clauses that are listed in the following locations:
- FAR 12.301(d);
- FAR 52.212-5(e)(1); and
- FAR 52.244-6(c)(1)
In addition to these lists, a clause must also be included in your prime contract for it to be included in a supporting subcontract, so you must check four locations total for the FAR: the three above, and your prime contract; and whichever DFARS clauses are included in your prime contract.
Why does this matter? Failure to appropriately flow down a clause to your subs can be considered non-compliance with that clause as there is typically a paragraph or sentence within the text of the clause that prescribes subcontractor flow downs. You don’t want to be non-compliant with a clause, do you? I believe in you! But if you need help with this process, Skyway’s here.
