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    My question is does a KTR need to get authorization from both contracts COs for cross utilizationm or do they only need the owning contracts COs permission? The regulation under FAR 45.301(d) calls out "contacting officer(s)' which I take the plural for meaning that both contracts COs need to agree on the cross utilizayion. Am I correct?


    Answer

    What do their Property Management System procedures say on the subject?  Is it addressed at all?  If not, why not?
     
    In the absence of such documentation…
     
    Yes, the contractor needs to get the concurrence of BOTH the Special Tooling (ST) owning contracting officer AS WELL AS the USER contract, contracting officer.
     
    Here’s why…
     
    Since you don’t specify whether these are pre-award or post-award instances, let’s look at both situations:
     
    Ø  Pre-award, any contractor proposing to use Government property in its possession on another contracting effort (solicitation/proposal), must provide all of the information noted in FAR 45.201(c) for two main reasons:
    1.  First, to obtain the express advance written permission of the OWNING contract contracting officer that items of GP proposed for use on the solicited contract are validated available for use on the solicited contract effort should they receive the award
    2.  Second, to permit the soliciting contracting officer via the contractors GP solicitation input noted above, the ability to competitively “level the playing field” among all offerors
    Essentially this process safeguards each contracting officer’s interests relative to authorized use (owning CO) and limiting competitive advantage and or windfall profiting (soliciting CO).
     
    Ø  Post-award, any contractor requesting use of Government property (see FAR 52.245-9) in its possession on another Government contract must seek the approval of the owning contract contracting officer and provide notification to any benefiting contract Contracting officer for two main reasons:
    1.  Only the owning contract Contracting officer way authorize any additional use of that property for any purpose other than performance of the contract under which it was provided
    2.  Since a “windfall” profit may result from the post-award request and use of Government property on an existing firm-fixed price contract, any intended use of GP should be communicated to the Contracting Officer of the benefiting contract to preclude that
    Again, this process safeguards each Contracting Officer’s interests.
     
     
    Other considerations include:
    Ø  Threat of “loss” relative to the Government property
    Ø  Responsibility to repair, replace or overhaul the GP (especially Special Tooling)
    Ø  Withdrawn authorization or directed disposition by the owning contract Contracting officer
     
    What happens when production on other contracts is predicated upon both the availability and condition of the GP?  Contracting Officers who are unwitting beneficiaries of Government property use on their contract may be unpleasantly surprised when delivery on their contract is impacted by loss of that (those) item(s).  In addition, which contract pays for repair, overhaul and or replacement?  The owning Contracting Officer?
     
    Be reminded that the contractor is the “steward” of GP in their possession with stewardship “responsibilities,” not “ownership rights.”  Use of Government property without notification to the benefiting contracting officer (s) is not a good stewardship practice as it places such parties at financial and delivery schedule risk.  Additionally, such a poor stewardship practice could work to the unintended financial benefit of the steward to the detriment of the Government.  Therefore, a robust cross utilization procedure in the Contractors (steward) property management system is a must.
     
     
    References:
    Subpart 45.3 -- Authorizing the Use and Rental of Government Property

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