Are the items listed in the example (45.000(b)(5) restrictive? Can equipment, such as materiel handling, fork lifts, fuel trucks, etc. be provided to a contractor as incidental just because the work is performed on a military installtion and accountability is retained by the government. Doesn't the government have a requirement to maintain accountability of ALL equipment regardless of whether issued to a contractor or not?
I would argue that the FAR 45.000(b)(5) language is not restrictive as it cites the items as "examples". However, I would consider the definition of "incidental" which is "accompanying but not a major part of something" and then consider the FAR 45.101 definition of Equipment - a tangible item that is functionally complete for its intended purpose, durable, nonexpendable, and needed for the performance of a contract; and then determine whether they are inclusive or exclusive of each other. The material handling equipment, forklifts, and vehicles appear to meet the definition of equipment. Further, if the contractor is maintaining the equipment, that activity supports the principle that it is Government property and should be controlled via the FAR Government Property clause at 52.245-1.
Open full Question Details
The bottom line is that any and all property, whether categorized as GFP maintained and tracked by the contractor, or retained by the Government requires accountability. A transcript of a DOD webinar on Government property provides the following Q&A. While not identical to the situation described, the same principles apply.
Question: Is equipment provided to contractors for use on a project at military base considered
General Equipment (GE) or Government Furnished Equipment (GFE) ?
In answering this question, it is important to remember that in either case, it is Government Property and it must be accounted for. Oftentimes, the government makes equipment available for contractors to use such as office furniture and office equipment. This is equipment incidental to the contractor’s place of performance and is considered general equipment. Government furnished equipment or “GFE” consists of equipment in the possession of or acquired directly by the Government, and subsequently delivered to or otherwise made available to the contractor for use on a contract (i.e. contract performance). GFE, as part of GFP, should also be detailed in the contract so the contractor has documented authorization to use the property at their facility. As you can see, there is a subtle line in this case between contractor’s use of GE and GFE. The accountability requirements however are the same. There must be property records for the accountable property and these must be maintained in an APSR.
Bottom line, the answer is yes, the Government does have a requirement to maintain accountability of all equipment regardless of whether it is issued to a contractor or not. The primary difference is whether the Government maintains the inventory, such as for the computer, office equipment and phones; or whether we transfer that responsibility to the contractor under the terms and conditions of the contract. Also recommend that you raise the issue to your organization's policy department or office of council as it appears there is inconsistency across contracts that should be addressed.