1. How does one add "found on installation" property to a CLS contract?
2. After reading all the background info above, can we pick up the property on our contract? I know we would have to prepare a Mod to existing contract and add the GFP to the current GFP listing we have in place.
3. What documentation would be required? Is it just a case of preparing the Mod and adding the GFP to listing?
4. Is the decision to ask for equitable adjustment (or not) solely on the part of the current contracting officer? Is there any documentation required for the contract file? What, if any, factors influence that decision making process?
5. Is/are there any references or guidelines on this sort of action?
Yes, the property found on the installation can be provided as Government-furnished property (GFP) as long as the criteria identified in the policy for providing Government property found in FAR 45.102 is met. As you are aware, the contract would have to be modified to add the GFP. DFARS Procedures, Guidance, and Information (PGI) 245.103-70 describes how the requirements of FAR 45.102 are to be addressed and documented in the contract file. Presuming, the GFP is listed in accordance with DFARS PGI 245.103-72, the GFP attachment would need to be updated.
There is a statement that needs to be addressed. You wrote “We have spoken to the contractor currently providing CLS, and they agree that IF the property is serviceable and can be utilized they will be amenable to adding it to GFP listing.” Furnishing Government property is not the contractor’s decision. The decision to provide GFP is made by the Government, i.e. the contracting officer. The contracting officer executes the decision via the contract. FAR 52.245-1(d)(3)(i)(A) states “The Contracting Officer may by written notice, at any time—Increase or decrease the amount of Government-furnished property under this contract…” With regard to the serviceability of the property, when Government property is provided as GFP there are two warranties; 1) suitability of use and 2) timely delivery (reference the Government Property clause, FAR 52.245-1(d)(1)).
The contracting officer does not request an equitable adjustment. It is the contractor who initiates the request for an equitable adjustment upon completion of the contracting officer, by written notice, increasing, decreasing, substituting, or withdrawing the use of GFP. The contracting officer shall consider an equitable adjustment to the contract. (Reference FAR 45.FAR 52.245-1(d)(3))
Also of importance is paragraph (i) of the Government Property clause.
(i) Equitable adjustment. Equitable adjustments under this clause shall be made in accordance with the procedures of the Changes clause. However, the Government shall not be liable for breach of contract for the following:
(1) Any delay in delivery of Government-furnished property.
(2) Delivery of Government-furnished property in a condition not suitable for its intended use.
(3) An increase, decrease, or substitution of Government-furnished property.
(4) Failure to repair or replace Government property for which the Government is responsible. Standard Form 1428.
As you can see the contractor has to comply with the Changes clause in the contract when requesting an equitable adjustment.
FAR 43.204 addresses the administrative responsibilities of the contracting officer applicable to change orders and equitable adjustments. You may find https://acc.dau.mil/cprg Contract Pricing References, Volume 4, Chapter 6 Pricing Equitable Adjustments and Settlements helpful for factors that influence the decision making process for equitable adjustment as well as references and guidelines.
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