Question
Since inventory of tools remains in the hangar on the installation, and tools are really only managed/counted/issued for use by the Contractor, but ultimately accountable to the Government, should the tools be 'provided' to the Contractor as GFP? Or are aircraft peculiar tooling considered incidental to the place of performance in this case?
Answer
It truly depends on what best works for you the owning agency; however, the best and most transparent way of managing the Government property, is by making the items accountable to the contract and having the contractor comply with all the requirements of the Government Property Clause 52.245-1. I am assuming the Government Property Clause 52.245-1, is in your contract since you have a CPFF contract and you have the GFR clause. The 52.245-1 clause requires the contractor to have responsibility for the assets “provided” to them from cradle to grave.
FAR 52.245-1(b)(2) The Contractor's responsibility extends from the initial acquisition and receipt of property, through stewardship, custody, and use until formally relieved of responsibility by authorized means, including delivery, consumption, expending, sale (as surplus property), or other disposition, or via a completed investigation, evaluation, and final determination for lost property. This requirement applies to all Government property under the Contractor's accountability, stewardship, possession or control, including its vendors or subcontractors (see paragraph (f)(1)(v) of this clause).
To clarify what is covered under this clause we need to visit the definition of the term “Provide” as used in this clause. It defines the term Provide, “to furnish, as in Government-furnished property, or to acquire, as in contractor-acquired property.” Meaning that the requirement includes any items the contractor acquires for performance of the contract.
If your contract has the Government property clause, the contractor is already responsible for all items accountable on the contract, unless there is specific language that directs otherwise. There is no regulatory language to prohibit making the tooling “incidental to place of performance”; however, prior to making this decision, it is important to review the description of “incidental to place of performance” in FAR 45, the guidance within DODI 5000.64, and then determine what benefit the Government is receiving by making aircraft tooling “incident to place of performance. FAR 45.000 (b) (5) describes property incidental to place of performance as: “ … Items considered to be incidental to the place of performance include, for example, office space, desks, chairs, telephones, computers, and fax machines.”
DoDI 5000.64 -- 4.4. PROPERTY FURNISHED TO OR IN THE POSSESSION OF A THIRD PARTY paragraph (c) “… the responsible APO must determine, in coordination with the contracting officer or legal counsel, if the property can be designated as “incidental to place of performance” as defined in Federal Acquisition Regulation (FAR) Part 45.000(b)(5). When administrative property can be so designated, a formal GFP record is not required. If the property does not meet “incidental to place of performance” criteria, the responsible APO must establish a formal GFP record.”
You mention that the Government responsible for final disposition of tools per contract PWS. You may want to revisit this requirement since the 52.245-1 clause paragraphs (j)&(k) requires the contractor to perform disposition of contract accountable property. If there is no special or critical reason why the Government is handling the disposition, then the Government may be losing money for services paid for and not rendered. PCOs and Book Officers should not feel that the Government cannot require all of the Government Property Clause requirements simply because performance is on a Government Installation. The Government currently has many O-level maintenance contracts being performed on base installations where the contractor is responsible for Government property from its initial acquisition to final disposition in accordance with FAR 52.245-1. It can be somewhat confusing who should be responsible for Government Property when work is performed on a Government installation but it really comes down to, what does the contract say? If you currently have the Government Property Clause, and the items are identified on the GFP attachment of the contract, then responsibility already resides with the contractor.
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