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  • Question

    Where in the FAR does it say exactly that GFP has to be in the contract? I can't seem to find it.


    Answer

    The short answer first.  Recommend you reference FAR Part 45.201(a) that compels the contracting officer to “insert a listing of the Government property to be offered in all solicitations where Government-furnished property is anticipated.”  The Government Property FAR clause at 52.245-1(d)(1) (this clause is required per FAR 45.107, in ALL cost-type contracts and fixed-price contracts when the Government will provide Government property) stipulates that “the Government shall deliver to the Contractor the Government-furnished property described in this contract.”
     
    Now a little longer answer…
     
    All agencies of the Federal government must achieve a “clean audit opinion” under the Chief Financial Officer Act of 1990 relative to accountability of its assets.  A significant issue relative to achieving a clean audit opinion in many Government agencies is the lack of accountability of Government assets (property) placed in the hands of contractors. 
     
    Clearly, the owner of such property (in your case CDC/HHS) needs traceability (therefore accountability) of such property when placed with a contractor who becomes the “steward” of that property.  This accountability as well as the stewardship responsibilities are conveyed via the contract by listing all provided GFP and including the Government Property FAR clause at 52.245-1 in the contract as required by FAR 45.107
     
    This clause conveys many important requirements and stipulations to the steward of the Government property (the contractor) like:
    ·  The appropriate risk of loss provision
    ·  A requirement to maintain a property management system that includes 15 process/outcomes including accountability of all Government property
    ·  A warranty as to suitability for use and timely delivery of the GFP
    ·  The manner of disposal of excess contractor inventory, among other things
     
    A word of caution – worrying about Government property accountability, contract writing to include a property listing and the right clause isn’t the main, only, or first problem.  It really goes back to the requiring activity doing adequate acquisition planning relative to Government property required under FAR 7.1 and HHSAR 307.1 and submittal of a complete, accurate, detailed and justified purchase request relative to Government property.
     
    Acquisition planning is required for all acquisitions as noted below in the references.  One of those elements is that the purchase request must convey only Government property that can be justified given the policy exception requirements under FAR 45.102(a) – (d).  Note that each one must be addressed.  Contracting officers are required to document this “clear demonstration” of needed Government property since the acquisition policy of the Government is that “Contractors are ordinarily required to furnish all property necessary to perform Government contracts.”
     
    Once the compelling need to place Government property is justified and/or a cost-type contract is selected as the appropriate contract type, the contracting officer will draft a solicitation which includes both the listing of proposed GFP and the relevant Government property related clauses noted at FAR 45.107.
     
    Once the contract is signed the contractor becomes steward of all Government property placed into their possession under the contract or acquired under the contract.  Accountability is paramount throughout the life of the contract and is maintained by adding/deleting Government property to the contract since it serves as the contractual accountability tool between the owner (CDC/HHS) and the property steward (the contractor).  At the end of the contract all Government property is either declared excess and appropriately dispositioned, transferred via contract mod to another contract or as otherwise directed by the contracting officer via modification to the contract.  At the completion of the contract, Government property should be a zero balance or the contract cannot be legitimately closed.
     
    Below, I’ve included many references that convey the sense of responsibility and accountability for Government property throughout much of the contracting process.  A thorough reading of both FAR Part 45 and the Government Property clauses at 52.245-1 and 52.245-9 will more fully reveal a fuller extent of all parties responsibilities relative to contract Government property. 
     
    Hope this helps!
     
     
    References:
    ·  FAR 7.1 speaks to Acquisition Plans
    Ø  FAR 7.102 – Policy states the following:
    (a)  Agencies shall perform acquisition planning and conduct market research (see Part 10) for all acquisitions in order to promote and provide for –
    Ø  FAR 7.105Contents of Written Acquisition plans states the following
    (b) Plan of action--
    (15) Government-furnished property. Indicate any Government property to be furnished to contractors, and discuss any associated considerations, such as its availability or the schedule for its acquisition (see 45.102).
    Ø  HHSAR 307.105 Contents of written acquisition plans states the following:
    FAR 7.105 specifies the content requirements of a written AP. Subpart 307.71 incorporates and supplements those requirements.
    Ø  Subpart 307.71--Acquisition Plan  contains the following guidance:
    307.7100 Scope of subpart.
    FAR 7.102 requires acquisition planning for all acquisitions. This subpart establishes: (a) when a written AP is required; (b) its contents and format; and (c) the need for review of the AP to certify that it is accurate, complete, and in the proper format. This subpart also establishes the documentation requirements for those acquisitions not requiring an AP.
    307.7101 Policy.
    (a) An AP is required for all acquisitions, to be placed by an HHS contracting office, expected to exceed $500,000 (inclusive of options) with the following exceptions:  (See exceptions)
    ·  FAR -- Part 45 Government Property
    Ø  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.
     
    Ø  45.102 -- Policy.
    (a) Contractors are ordinarily required to furnish all property necessary to perform Government contracts.
    (b) Contracting officers shall provide property to contractors only when it is clearly demonstrated
    (1) To be in the Government’s best interest;
    (2) That the overall benefit to the acquisition significantly outweighs the increased cost of administration, including ultimate property disposal;
    (3) That providing the property does not substantially increase the Government’s assumption of risk; and
    (4) That Government requirements cannot otherwise be met.
    (c) The contractor’s inability or unwillingness to supply its own resources is not sufficient reason for the furnishing or acquisition of property.
     
     
    ·  45.106 -- Transferring Accountability.
    Government property shall be transferred from one contract to another only when firm requirements exist under the gaining contract (see 45.102). Such transfers shall be documented by modifications to both gaining and losing contracts. Once transferred, all property shall be considered Government furnished property to the gaining contract.
     
    ·  45.107 -- Contract Clauses.
    (a)
    (1) Except as provided in paragraph (d) of this section, the contracting officer shall insert the clause at 52.245-1, Government Property, in
    (i) All cost reimbursement and time-and-material type solicitation and contracts, and labor-hour solicitations when property is expected to be furnished for the labor-hour contracts.
    (ii) Fixed-price solicitations and contracts when the Government will provide Government property.
    (iii) Contracts or modifications awarded under FAR Part 12 procedures where Government property that exceeds the simplified acquisition threshold, as defined in FAR 2.101, is furnished or where the contractor is directed to acquire property for use under the contract that is titled in the Government.
     
    ·  Subpart 45.2 -- Solicitation and Evaluation Procedures
    Ø  45.201 -- Solicitation.
    (a) The contracting officer shall insert a listing of the Government property to be offered in all solicitations where Government-furnished property is anticipated (see 45.102). The listing shall include at a minimum
     
    (1) The name, part number and description, manufacturer, model number, and National Stock Number (if needed for additional item identification tracking and management, and disposition);
    (2) Quantity/unit of measure;
    (3) Unit acquisition cost;
    (4) Unique-item identifier or equivalent (if available and necessary for individual item tracking and management); and
    (5) A statement as to whether the property is to be furnished in an ‘‘as-is’’ condition and instructions for physical inspection.
     
    ·  Subpart 45.3 -- Authorizing the Use and Rental of Government Property
    Ø  45.301 -- Use and Rental.
    This subpart prescribes policies and procedures for contractor use and rental of Government property.
     
    (a) Government property shall normally be provided on a rent-free basis in performance of the contract under which it is accountable or otherwise authorized.
     
    ·  FAR clause 52.245-1
    Ø  (c)  Use of Government property.
    (1) The Contractor shall use Government property, either furnished or acquired under this contract, only for performing this contract, unless otherwise provided for in this contract or approved by the Contracting Officer.
     
    Ø  (d) Government-furnished property.
    (1)  The Government shall deliver to the Contractor the Government-furnished property described in this contract. The Government shall furnish related data and information needed for the intended use of the property.
     
    Ø  (f)(1)(iii) Records of Government property. The Contractor shall create and maintain records of all Government property accountable to the contract, including Government-furnished and Contractor-acquired property.
    (A) Property records shall enable a complete, current, auditable record of all transactions and shall, unless otherwise approved by the Property Administrator, contain the following:
    (1) The name, part number and description, National Stock Number (if needed for additional item identification tracking and/or disposition) and other data elements as necessary and required in accordance with the terms and conditions of the contract.
    (2) Quantity received (or fabricated), issued, and balance-on-hand.
    (3) Unit acquisition cost.
    (4) Unique-item identifier or equivalent (if available and necessary for individual item tracking).
    (5) Unit of measure.
    (6) Accountable contract number or equivalent code designation.
    (7) Location.
    (8) Disposition.
    (9) Posting reference and date of transaction.
    (10) Date placed in service (if required in accordance with the terms and conditions of the contract).

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