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  • Question

    Can contractor owned hardware or software be installed/connected to GFE? And where are the rules for this written down at?


    Answer

    Ø  IF, this is truly a piece of Government-furnished property – equipment classification, both terms  defined at FAR 45.101 and as follows:

    “Government-furnished property”
    means property in the possession of, or directly acquired by, the Government and subsequently furnished to the contractor for performance of a contract. Government-furnished property includes, but is not limited to, spares and property furnished for repair, maintenance, overhaul, or modification. Government-furnished property also includes contractor-acquired property if the contractor-acquired property is a deliverable under a cost contract when accepted by the Government for continued use under the contract.


    “Equipment”
    means a tangible item that is functionally complete for its intended purpose, durable, nonexpendable, and needed for the performance of a contract. Equipment is not intended for sale, and does not ordinarily lose its identity or become a component part of another article when put into use. Equipment does not include material, real property, special test equipment or special tooling.


    Ø  And IF, this piece of GFP-equipment is provided under the contract as a line item of property for which the contractor has
    FAR 52.245-1(b)(2) stewardship responsibility;
     
    Ø  THEN, the contractor MAY REQUEST, of the Contracting Officer under FAR clause 52.245-1(c)(2), their agreement to WAIVE the PROHIBITION to any such modification of this item.
     

    Contracting Officer approval is not a foregone conclusion since there is a GFP warranty provision relative to suitability for use (see FAR 52.245-1(d)) which could affect suitability and therefore Government liability.  Note that title to the item of GFP–equipment remains unaffected by any approved enhancement (FAR 52.245-1(e)(1)). 

     
    BUT WAIT A MINUTE…
     
    You’ve not provided me sufficient detail about the CONTRACT to conclude that this computer is indeed a piece of contract Government property!  For instance:
    Ø  Does the contract have a Government property clause in it?
    Ø  What clause is it:
    o  52.245-1?
    o  52.245-1, Alt I?
    o  52.245-1, Alt II?
    o  52.245-2?
    Ø  Is this item of GFP-Equipment listed on the contract and under the stewardship of the contractor?
    Ø  What is being delivered under the contract?
    o  A supply item?
    o  A service performed?
    Ø  Where is the place of performance?
    o  At a contractor facility?
    o  On a Government installation/site/facility?
    Ø  And if the place of performance is on a Government installation/site/facility, is this item provided “incidental to the place of performance” and therefore not considered contract GFP-equipment  (see FAR 45.000(b) and below)? To wit – the item is NOT listed on the contract, is NOT subject to FAR Part 45 and Government Property clause, remains under the control of a Government Accountable Property Officer (APO) and therefore the Contracting Officer is NOT the decision authority concerning the contractor suggested equipment enhancements.
     
    45.000 -- Scope of part.
    (a) This part prescribes policies and procedures for providing Government property to contractors, contractors’ management and use of Government property; and reporting, redistributing, and disposing of contractor inventory.
    (b) It does not apply to—
    (5) Government property that is incidental to the place of performance, when the contract requires contractor personnel to be located on a Government site or installation, and when the property used by the contractor within the location remains accountable to the Government. Items considered to be incidental to the place of performance include, for example, office space, desks, chairs, telephones, computers, and fax machines.
     
    ONE LAST THOUGHT…
     
    Ø  IF THIS IS GFP-equipment
     
    Ø  THEN, should it have been “provided” under the contract in the first place?
     
    FAR Part 45.101 defines the word “provide” as follows:
     
    “Provide” means to furnish, as in Government-furnished property, or to acquire, as in contractor-acquired property.
     
    The FAR 45.102(a) policy statement should lead one to strongly question why a computer was “provided” (as GFP or as contractor-acquired property) under this contract in the first place.  Certainly the rather stringent justification required of the Contracting Officer by FAR 45.102(b) and as detailed in DFARS PGI 245.103-70 Furnishing Government property to contractors, would likely have precluded it (and possibly this situation).

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