Do you have any words of wisdom for me addressing this issue?
Let’s get out of the “old” FAR (pre-June 2007) and into modern text…
Open full Question Details
1st - If GFP is offered/provided it must be listed in the solicitation and the resulting contract (FAR 45.201(a)); if it’s “as-is” condition then see FAR 45.201(a)(5))
2nd – “Additional instructions” relative to the GFP should be addressed in the SOW/PWS and/or a special contract clause (FAR 45.201(d)) PCO additional instructions might look like this, thereby re-emphasizing the words in FAR 52.245-1(d)(2)(iii):
The Government bears no responsibility for repair or replacement of any lost Government property. If any or all of the Government property is lost or becomes no longer usable, the Contractor shall be responsible for replacement of the property at Contractor expense. The Contractor shall have title to all replacement property and shall continue to be responsible for contract performance.
3rd - Unless otherwise specified in the solicitation/contract the Government must provide GFP that is a), suitable for intended use AND b), delivered in a timely fashion (FAR 52.245-1(d)(2))
4th – Failing that, the Government is subject to a claim for equitable adjustment and/or replacement (FAR 52.245-1(d)(2)(i) and (ii))
5th – The Government may furnish property in an “as-is” condition (FAR 52.245-1(d)(2)(i) and (iii))
6th - Highly advisable that any “as-is” GFP constitute a separate listing as an attachment to the contract
As noted below.
· FAR 45.201(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.
· FAR 45.201(d) Any additional instructions to the contractor regarding property management, accountability, and use, not addressed in FAR clause 52.245-1, Government Property, should be specifically addressed in the statement of work on the contract providing property or in a special provision.
· FAR 52.245-1(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. The warranties of suitability of use and timely delivery of Government-furnished property do not apply to property acquired or fabricated by the Contractor as contractor-acquired property and subsequently transferred to another contract with this Contractor.
(2) The delivery and/or performance dates specified in this contract are based upon the expectation that the Government-furnished property will be suitable for contract performance and will be delivered to the Contractor by the dates stated in the contract.
(i) If the property is not delivered to the Contractor by the dates stated in the contract, the Contracting Officer shall, upon the Contractor's timely written request, consider an equitable adjustment to the contract.
(ii) In the event property is received by the Contractor, or for Government-furnished property after receipt and installation, in a condition not suitable for its intended use, the Contracting Officer shall, upon the Contractor's timely written request, advise the Contractor on a course of action to remedy the problem. Such action may include repairing, replacing, modifying, returning, or otherwise disposing of the property at the Government's expense. Upon completion of the required action(s), the Contracting Officer shall consider an equitable adjustment to the contract (see also paragraph (f)(1)(ii)(A) of this clause).
(iii) The Government may, at its option, furnish property in an “as-is” condition. The Contractor will be given the opportunity to inspect such property prior to the property being provided. In such cases, the Government makes no warranty with respect to the serviceability and/or suitability of the property for contract performance. Any repairs, replacement, and/or refurbishment shall be at the Contractor's expense.