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  • Question

    1. Should the contractor sign the contract delivery order and be held contractually responsible for GFP that is, for the most part, not in their possession? 2. If not, what reference do you recommend to provide the PCO? 3. If the USG maintains the records on the APSR, what document can they use to allow the contractor to take the property off the installation while on travel status? A hand receipt wouldn't be appropriate to issue property to an individual since we don't hold individuals liable for loss.


    Answer

    It is up to the contractor to decide whether to sign the contract delivery order or not. However, it is important to remember that FAR 52.245-1(d)(3)(i) gives the contracting officer the authority to add, remove, and substitute Government-furnished property. Once the action is complete, the contractor can request an equitable adjustment in writing under FAR 52.245-1(d)(3)(ii). Keep in mind that the Government must comply with the policy for providing Government property (FAR 45.102) and DFARS Procedures, Guidance, and Information (PGI) 245.103-70 when making a decision to furnish Government property.

    As you eluded to in the question background, the situation is also relative to the Government determining whether the laptops would be provided as Government property that is incidental to place of performance or GFP. The FAR Part 45 use of “Government property incidental to the place of performance” applies when:

    1. The contract requires contractor personnel to be located on a Government site or installation; and

    2.  The Government maintains accountability of the property when it is used within the Government site or installation.

    Since the laptops are being used within the Government site on a daily basis, one might think that they should be provided as Government property incidental to the place of performance. If the laptops were always used within the Government site this might be a viable option. If the contract requires the contractor to travel to other locations with the laptops, the Government will not have physical control of them. Technically speaking, if the laptops are removed from the Government installation for use in performance of the contract, they no longer meet the criteria of Government property that is incidental to the place of performance. Unlike desktop computers, laptops can be easily removed from any location outside of travel status (e.g., taken home) because of their portability. That increases the possibility for occurrences of loss of property. This may be why DoD Instruction 5000.64 considers desktop computers as administrative property, which typically is not provided as GFP. If an incident of loss occurs while the laptops are provided as incidental to the place of performance it would not be covered by the Government property clause of FAR 52.245-1 as GFP is.

    This brings us to your last question. “If the USG maintains the records on the APSR, what document can they use to allow the contractor to take the property off the installation while on travel status?” Presuming the condition is that the laptops have not been provided as GFP, hand receipts may actually be an option depending on regulations or policies that the owning DoD Component has in place or unless otherwise addressed in the contract. Seeking an answer from the accountable property officer is suggested since with regard to DoD Component regulations and polices since there is no DoD policy prohibiting contractor employees from being hand receipt holders. Just as you have pointed out, using hand receipts to provide Government property to contractor personnel impacts the Government’s risk of loss since they cannot be held financially liable in the same way that Government employees can. If the property is provided as GFP, no additional documentation is necessary because the Contractor has stewardship responsibility under FAR 52.245-1.

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