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  • Question

    Does FAR 45.301(f) provide authority to temporarily divert vehicle platforms to a contractor's commercial usage (such as for display at a trade show or exhibition), independently of the leasing requirements of AR 700-131 and 10 U.S.C. 2667? Stated differently, can a contracting officer who has cognizance of government property grant authority via a modification to the property's accountable contract to a contractor to use the property for its own commercial purpose, without executing a lease pursuant to AR 700-131?


    Answer

    Before I answer the question we, the government, need to consider a couple of things.

    1.  Is this in the best interest of the government?
    2.  What consideration are we receiving?
    3.  Is the government willing to risk/assume the loss of goverment property due to loss, theft, etc...

    FAR 45.104 -- Responsibility and Liability for Government Property.

    (a) Generally, contractors are not held liable for loss of Government property under the following types of contracts:
      (1) Cost-reimbursement contracts.
      (2) Time-and-material contracts.
      (3) Labor-hour contracts.
      (4) Fixed-price contracts awarded on the basis of submission of certified cost or pricing data.
    (b) The contracting officer may revoke the Government’s assumption of risk when the property administrator determines that the contractor’s property management practices are noncompliant with contract requirements.
    (c) A prime contractor that provides Government property to a subcontractor shall not be relieved of any responsibility to the Government that the prime contractor may have under the terms of the prime contract.
    (d) With respect to loss of Government property, the contracting officer, in consultation with the property administrator, shall determine—
      (1) The extent, if any, of contractor liability based upon the amount of damages corresponding to the associated property loss; and
      (2) The appropriate form and method of Government recovery (may include repair, replacement, or other restitution).
    (e) Any monies received as financial restitution shall be credited to the Treasury of the United States as miscellaneous receipts, unless otherwise authorized by statute (31 U.S.C. 3302(b)).

    DFARS 245.104 Responsibility and liability for Government property.
    In addition to the contract types listed at FAR 45.104, contractors are not held liable for loss of Government property under negotiated fixed-price contracts awarded on a basis other than submission of certified cost or pricing data.

    To answer the question from the "stated differently" point.
    Yes, you can execute a modification to allow the contractor to use GFP, if it is in the best interest of the goverment.

    I would also run the idea through your agency and your attorney before executing a modification to "divert" anything to a contractor for any commercial usage.



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