Is there a release of liability or indemnification clause in the FAR or elsewhere I can add to the FMS Case support agreement releasing the FSR from liability or indemnifying them from liability or claim for damages or injury to any person or property arising out of the property or services provided?
The question background indicates that a CLIN modificiation will be made to existing DoD contractual vehicle(s) in order to provide Field Service Rep (FSR) services to FMS customer nations pursuant to existing FMS Letters of Offer and Acceptance (LOAs).
We recommend Questioner review of the existing FMS LOAs with the FMS customer nations who will be provided these FSR services to see if they contain the following 'standard' LOA "Indemnification and Assument of Risk" provision:
3.2. Subject to express, special contractual warranties obtained for the Purchaser, the Purchaser agrees to relieve the contractors and subcontractors of the USG from liability for, and will assume the risk of, loss or damage to:
3.2.1. The Purchaser's property (including items procured pursuant to this LOA, before or after passage of title to Purchaser), and
3.2.2. Property of DoD furnished to suppliers to implement this LOA, to the same extent that the USG would assume for its property if it were procuring for itself the items being procured.
We also recommend that the Questioner review the specific FMS LOAs in consultation with the Contracting Officer responsible for the FSR CLIN modification to determine whether (and how) the following DFARS provision should be implemented in the CLIN mod(s) to the existing contract(s)
225.7305 Limitation of liability.
Advise the contractor when the foreign [FMS} customer [nation(s)] will assume the risk for loss or damage under the appropriate limitation of liability clause(s) (see FAR Subpart 46.8). Consider the costs of necessary insurance, if any, obtained by the contractor to cover the risk ofloss or damage in establishing the FMS contract price..
Typically the acquisition organization responsible for the FSR contracting effort would consult with the FMS LOA Implementing Agency responsible for the pertinent FMS LOAs to learn more about the existing LOAs' provisions in the liability area. In this situation, U.S. Army Security Assistance Command should have a written record of any communications with the FMS customer nation(s) regarding how contractual liability matters have been addressed either in the existing FMS LOAs or through follow-up LOA correspondence with the FMS customer nation(s) after LOA signature.
