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  • Question

    Does an ACO have the authority to issue blanket authorization of GFP, so long as it is on a rent-free, non interference basis? Also, is there anything in the FAR that allows the contract administration office to reject certain delegations? Thank you.


    Answer

    The Government’s policy for authorizing the use and rental of Government property can be found at Federal Acquisition Regulation (FAR) 45.3FAR 45.301 - Use and Rental identifies the circumstances under which the contracting officer may authorize rent-free use of Government property and when rental charges or other consideration shall be applied.  A close examination of FAR 45.301 will reveal that rent-free use versus rental charges is dependent upon the kind of contractor organization (e.g., non-profit), the type of work being performed (e.g., research and development), and the type of contract (i.e., cost reimbursable or fixed price). 
    FAR 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.
    (b) Rental charges, to the extent authorized do not apply to Government property that is left in place or installed on contractor-owned property for mobilization or future Government production purposes; however, rental charges shall apply to that portion of property or its capacity used for nongovernment commercial purposes or otherwise authorized for use.
    (c) The contracting officer cognizant of the Government property may authorize the rent-free use of property in the possession of nonprofit organizations when used for research, development, or educational work and—
    (1) The use of the property is in the national interest;
    (2) The property will not be used for the direct benefit of a profit-making organization; and
    (3) The Government receives some direct benefit, such as rights to use the results of the work without charge, from its use.
    (d) In exchange for consideration as determined by the cognizant contracting officer(s), the contractor may use Government property under fixed-price contracts other than the contract to which it is accountable. When, after contract award, a contractor requests the use of Government property, the contracting officer shall obtain a fair rental or other adequate consideration if use is authorized.
    (e) The cognizant contracting officer(s) may authorize the use of Government property on a rent-free basis on a cost type Government contract other than the contract to which it is accountable.
    (f) In exchange for consideration as determined by the cognizant contracting officer, the contractor may use Government property for commercial use. Prior approval of the Head of the Contracting Activity is required where non-Government use is expected to exceed 25 percent of the total use of Government and commercial work performed.
    Notice that authorized use is associated with a contract; not locations, programs, etc.  If use is being authorized for multiple contracts, each contract must be identified.  Also reference FAR 52.245-9Use and Charges paragraphs (b) and (c).
    (b) Use of Government property. The Contractor may use the Government property without charge in the performance of—
    (1) Contracts with the Government that specifically authorize such use without charge;
    (2) Subcontracts of any tier under Government prime contracts if the Contracting Officer having cognizance of the prime contract—
    (i) Approves a subcontract specifically authorizing such use; or
    (ii) Otherwise authorizes such use in writing; and
    (3) Other work, if the Contracting Officer specifically authorizes in writing use without charge for such work.
    (c) Rental. If granted written permission by the Contracting Officer, or if it is specifically provided for in the Schedule, the Contractor may use the Government property (except material) for a rental fee for work other than that provided in paragraph (b) of this clause. Authorizing such use of the Government property does not waive any rights of the Government to terminate the Contractor’s right to use the Government property. The rental fee shall be determined in accordance with the following paragraphs.

    With regard to rejecting delegations, FAR 42.202 -- Assignment of Contract Administration (g) Refusing delegation of contract administration states “An agency may decline a request for contract administration services on a case-by-case basis if resources of the agency are inadequate to accomplish the tasks. Declinations shall be in writing.”  Since you are a DCMA contract administrator I will refer you DCMA Instruction 402 – Workload Acceptance, which provides DCMA’s policy for making workload acceptance determinations and its associated policy resource page.  I also suggest that you communicate with the DCMA Property Group or the property administrator assigned to that contractor if you have not done so already.

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