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Defense Procurement and Acquisition Policy (DPAP) Presented by: Intermediate Government Furnished Property for Contracting Professionals 1 7 JAN 2016 Carol Vigna, OSD AT&L DPAP [email protected] David Guinasso, supporting OSD AT&L DPAP [email protected] www.dodprocurementtoolbox.com

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Page 1: Intermediate Government Furnished Property for Contracting ... › cms › sites › ... · Important Things to Remember Title is not changed by incorporation of Government property

Defense Procurement and Acquisition Policy (DPAP)

Presented by:

Intermediate Government Furnished

Property for Contracting

Professionals

17 JAN 2016

Carol Vigna, OSD AT&L DPAP

[email protected]

David Guinasso, supporting OSD AT&L DPAP

[email protected]

www.dodprocurementtoolbox.com

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Topics

The areas covered in this training are

recurring areas of concern for audit,

accountability and ensuring that contracts

protect the governments assets and

public’s interests.

-Contractor Acquired Property

-Bailment

-Exchange or Sale

-Performance Based Logistics

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Definitions

Government Furnished Property (GFP) – is defined as property in

the possession of or acquired by the Government and subsequently

furnished to the Contractor for performance of a contract.

It includes items like spares and property furnished for repair,

maintenance, overhaul, or modification. It can be items taken or

requisitioned from Government inventory or purchased by the

Government specifically to be provided on a contract.

GFP also includes contractor-acquired property if the contractor-

acquired property is a deliverable under a cost contract that has been

accepted by the Government for continued use under that contract or

a future contract.

Contractor Acquired Property (CAP) - is property purchased or

fabricated by a contractor for use on a contract to which the

Government has title.

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Not considered GFP

Government property that is incidental to the place of performance, when the contract requires contractor personnel to be located on a Government site or installation, and when the property used by the contractor within the location remains accountable to the Government.

Located on a Government site or installation

Used within the location

Remains accountable to the Government

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Contractor Acquired Property

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Cost Contract Title Provision in GP Clause

Title under Cost-Reimbursement or Time-and-Material Contracts or Cost-

Reimbursable contract line items under Fixed-Price contracts.

(i) Title to all property purchased by the Contractor for which the

Contractor is entitled to be reimbursed as a direct item of cost under

this contract shall pass to and vest in the Government upon the

vendor's delivery of such property.

(ii) Title to all other property, the cost of which is reimbursable to the

Contractor, shall pass to and vest in the Government upon—

(A) Issuance of the property for use in contract performance;

(B) Commencement of processing of the property for use in

contract performance; or

(C) Reimbursement of the cost of the property by the

Government, whichever occurs first.

FAR 52.245-1 Government Property

52.245-1 Must be in all Cost Reimbursable and T&M contracts

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An Illustration

DeliverableCAP

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Important Things to Remember

Title is not changed by incorporation of Government

property into property owned by the contractor.

Title to cost reimbursable line items on Fixed Price

contracts is the same as title under a cost contract.

CAP can not be used on a different contract unless it

is:» Delivered and accepted and provided as GFP

» Repurchased or credited by the contractor*

*Subject to the requirements of the Materials Management and Accounting

System (MMAS)

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What Happens to CAP

May be consumed in production of the deliverable

May be delivered

May be credited to the contract and charged to a different contract

if needed on the succeeding contract

» (Reasonable, Allocable, and Allowable test)

May be repurchased by the contractor

- At full cost; or,

- Returned to suppliers less reasonable restock costs

If not consumed, repurchased or delivered, must be reported to the

Government for plant clearance whenever no longer required for

performance

» Either during or at the completion of the contract

May be provided to succeeding contracts as GFP after inspection

and acceptance and delivery

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How CAP is Delivered

PGI 245.402-71 Delivery of contractor-acquired property.

» (1)(i) When delivery of contractor-acquired property is required, the

contracting officer shall direct that the delivery be accomplished by

contract line item, except as described in paragraph (1)(ii) of this

section.

» (2) Each contract line item of contractor-acquired property shall

include the following information:

Contractor-Acquired Property Delivery Contract Line Item

*Contractor-acquired property items shall be marked as required by DFARS clause

252.245-7001.

CLIN

Item Description/

Nomenclature

Type

Designation NSN PIN Quantity

Unit of

Measure

Serial

Number

(UII)*

Original Unit

Acquisition Cost

Date Placed in

Service by the

Contractor

x x As required x x x x If known x x

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Delivery of CAP

Once Contract Line Items are created, CAP will

be delivered as any other deliverable line item,

using WAWF iRAPT in accordance with: » DFARS 252.232-7003 (b) Except as provided in paragraph (c) of this clause, the

Contractor shall submit payment requests and receiving reports using WAWF, in one of the

following electronic formats that WAWF accepts: Electronic Data Interchange, Secure File

Transfer Protocol, or World Wide Web input. Information regarding WAWF is available on the

Internet at https://wawf.eb.mil/.

» DFARS 252.246-7000 "(b) Contractor submission of the material inspection and

receiving information required by Appendix F of the Defense FAR Supplement by using the Wide

Area WorkFlow (WAWF) electronic form (see paragraph (b) of the clause at 252.232-

7003 <http://www.acq.osd.mil/dpap/dars/dfars/html/current/252232.htm> ) fulfills the requirement

for a material inspection and receiving report (DD Form 250).“

» DFARS Appendix F (b) The use of the DD Form 250 is on an exception basis (see

DFARS 232.7003 <http://www.acq.osd.mil/dpap/dars/dfars/html/current/232_70.htm> (a))

because use of the WAWF RR is now required by most DoD contracts

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Bailment

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Bailment

What is a “Bailment”? DFARS PGI 217_75 defines bailment as:

» “The process whereby a part is loaned to a recipient with the agreement that the part

will be returned at an appointed time. The government retains legal title to such

material even though the borrowing agency has possession during the stated period.”

» Items remain accountable to the DoD activity that loans them (Loaning Activity) and

will be recorded in accountable property system of record as required by DoDI 5000.64

When do you use it? Under PGI 217_75

» used to loan parts to a contractor that DoD believes qualified to become a “second

source” for items which are only available sole source (Spare Parts Breakout Program)

To provide military unique items for contractors to use in IR&D and B&P

Should Not be used to provide property for use in performing a contract» If there is a contract, the property should be provided as GFP

» Bailment agreements and loans are not governed by FAR Part 45 and associated DFARS

clauses

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Bailment Agreements

Loaning Activity must work with counsel to prepare a

bailment or loan agreement

Bailment/Loan agreement should: Specify the allowed use for the item (and disallow any other use)

Set the term of the loan (beginning and ending dates)

Specify transportation arrangements and costs

Reserve the right for the government to inspect the item at reasonable times

Require regular confirmation of the existence of the item (physical inventory)

Allow for government to require return of the property at any time, without

compensation to the contractor

Discuss responsibility for liability associated with the use or loss of the property

Require reporting of any loss of government property

Specify any export restrictions or intellectual property considerations

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Exchange or Sale

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Exchange or Sale

Exchange – most commonly

thought of as a “trade in”

Sell – disposal sales as part of the

federal disposal process- Plant Clearance under FAR and Federal

Management Regulations (FMR) 102-38

- FMR Disposal Process under FMR 102-38

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§ 503. Exchange or sale of similar items

(a) Authority of Executive Agencies. – In acquiring personal property, an executive agency may exchange or sell similar items and may apply the exchange allowance or proceeds of sale in whole or in part payment for the property acquired.

(b) APPLICABLE REGULATION AND LAW –

(1) REGULATIONS PRESCRIBED BY ADMINISTRATOR OF GENERAL SERVICES. – A transaction under subsection (a) must be carried out in accordance with regulations the Administrator of General Services prescribes, subject to regulations prescribed by the Administrator for Federal Procurement Policy under division B (except sections 1704 and 2303) of subtitle I of title 41.

(2) IN WRITING – A transaction under subsection (a) must be evidenced in writing.

(3) SECTION 6101(b) to (d) OF TITLE 41 – Section 6101(b) to (d) of title 41 applies to a sale of property under subsection (a), except that fixed price sales may be conducted in the same manner and subject to the same conditions as are applicable to the sale of property under section 545(d) of this title.

Exchange or Sale Legal Authority - 40 USC

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Personal Property [Exchange or

Sale]

FMR 102-36.40

“Personal property” means any property, except real property. For

purposes of this part, the term excludes records of the Federal

Government, and naval vessels of the following categories:

battleships, cruisers, aircraft carriers, destroyers, and submarines.

FAR 2.101

“Personal property” means property of any kind or interest in it

except real property, records of the Federal Government, and naval

vessels of the following categories:

(1) Battleships;

(2) Cruisers;

(3) Aircraft carriers;

(4) Destroyers; and

(5) Submarines.

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Similar Items [Exchange or Sale]

• Defined in FMR 102-39.20“Similar” means the acquired item(s) and replaced item(s):

(1) Are identical; or

(2) Fall within a single Federal Supply Classification (FSC) Group of property (includes any and all forms of property within a single FSC Group); or

(3) Are parts or containers for similar end items; or

(4) Are designed or constructed for the same purpose (includes any and all forms of property regardless of the FSC Group to which they are assigned).

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When You Can Do An Exchange

Replacement of property that is still

required, but is no longer functional due

to wear or obsolescence

May be accomplished as part of the

acquisition of new property

May be used to acquire property under a

service contract provided the property is

similar to that being exchanged or sold

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Prohibitions on Exchange or Sale

• Prohibited Federal Supply Groups• 10 – Weapons (DoD exception for all except FSC 1005 Guns)

• 11 – Nuclear ordnance

• 42 – Firefighting, rescue, and safety equipment

• 44 – Nuclear reactors (FSC Class 4470 only )

• 51 – Hand tools

• 54 – Prefabricated structure and scaffolding • FSC 5410 Prefabricated and Portable Buildings

• FSC 5411 Rigid Wall Structures

• FSC 5419 Collective Modular Support System only

• 68 – Chemicals and chemical products, except medicinal chemicals

• 84 – Clothing, individual equipment, and insignia

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More Prohibitions on Exchange

or Sale • Materials in the National Defense Stockpile

• NRC Controlled materials (except for §101-42.1102-4)

• Controlled substances (except for §101-42.1102-3)

• Scrap condition property except• Property that had utility when exchange/sale authority was

determined• Property that was determined in scrap condition due to

damage after exchange/sale determination• Scrap gold for fine gold

• Other agency excess, forfeited property or property not obtained from an acquisition, unless it has been in use for no less than 1 year since obtaining

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Still More Prohibitions on

Exchange or Sale

Dangerous property not rendered innocuous

Combat material without demil or other DoD authorization

Flight Safety Critical Aircraft Parts and Critical Safety Items

» Unless meeting the provisions of 102-33.370

For acquisition of unauthorized replacement property

Acquisition of replacement property that violates any

» Restriction on procurement of a commodity or commodities

» Replacement policy of standard prescribed by the President,

Congress or the Administrator of GSA

» Contractual Obligation

Vessels subject to 40USC548

Aircraft and aircraft parts, unless there is full compliance with all

exchange/sale provisions in Part 102-33 of the FMR

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Conducting an Exchange

Procurements may carry a line

item which identifies the value of

items to be traded in

In order to comply with 40 USC

and FMR annual reporting

requirements transactions must

be documented

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Aircraft Parts in Exchange or Sale

§102-33.115—Special requirements for acquiring military Flight Safety Critical Aircraft Parts (FSCAP)

When you acquire Flight Safety Critical Aircraft Parts (FSCAP), you must—

(a) Accept a FSCAP only when it is documented or traceable to its original equipment manufacturer (a FSCAP’s DOD FSCAP Criticality Code should be marked or tagged on the part or appear on its invoice/transfer document; see 102-33.375 for further explanation of the FSCAP Criticality Codes); and

(b) Not install undocumented, but traceable FSCAP until you have the parts inspected and recertified by the original equipment manufacturer or FAA-approved production approval holder (see 102-33.370 on FSCAP).

§102-33.120—Special requirements for acquiring life-limited parts

When you acquire new or used life-limited parts, you must—

(a) Identify and inspect the parts, ensuring that they have civil or military-certified documentation (i.e., complete life histories); and

(b) Mutilate and dispose of any expired life-limited parts (see 102-33.370 on handling life-limited parts).

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Exchange or Sale Summary

• Agencies are encouraged to utilize the proceeds from sale or trade-in of existing property when purchasing replacement property.

• Under contracts, even service contracts, property must be acquired.

• Property must be similar, but need not be equivalent in quantity, as long as the function remains the same, e.g. several small trucks could be sold or exchanged for one large truck that can haul the same or better volume

• Agencies must report exchange/sale transactions in list form to GSA annually

• List form implies that individual transactions are recorded AND reported

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Performance-Based

Logistics (PBL)

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PBL & CLS

The use of Performance Based

Logistics (PBL) and Contractor

Logistics Support (CLS) contracts is

increasing

Audits have uncovered reoccurring

issues relating to property

» Failure to identify or recognize GFP

» Acceptance and transfer of title

» Excess inventory

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Failure to Recognize GFP in PBL

Two areas have been repeatedly

identified as points of failure on

PBL contracts:

Initial lay in of long lead material

becomes GFP once accepted

Material requisitioned by the

contractor and paid for by the

Government is GFP.

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Acceptance and Transfer of Title

PGI 245.402-71(1)(ii) In some circumstances, such as contractor-performed

logistics support or performance-based logistics support contracts, contract

deliverables consist of non-hardware items, such as operational readiness rate

goals or mean-time-between failures of a system. In order to meet these

deliverables, contractors are required to provide certain property items to the

Government. In such cases, the contract does not include specific delivery line

items requiring formal delivery of the property. By extension, the Government will

not have title to the property at the time contractor provides the property. Rather, in

such cases, title to the property passes to the Government—upon Government

acceptance (as defined in FAR 46.101) of the items at the destination stated in the

contract. Contracting officers shall ensure that the contract—

(A) Clearly defines how and when acceptance will be performed; and

(B) Includes applicable requirements for quality assurance, part marking,

anti-counterfeiting, or other requirement for the delivery of the property.

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Excess Inventory

There have been multiple audit findings where

contractors were meeting performance goals by

maintaining inventory levels far in excess of

need.

This resulted in significant loss to the

Government through obsolescence or continually

buying un-needed inventory.

Accessing and monitoring demand and inventory

levels need to be part of PBL arrangements.

Regulatory coverage in process

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PBL: Other Items to Remember

Contractors cannot perform acceptance

Certificate of Conformance cannot be used

in lieu of acceptance

If it is GFP, it must be on a Government

property book

If it is delivered, it is not CAP

If transferred to another contract, it is not

CAP

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PBL Summary

There are many situations involving

contractors and property

All offer benefits to the Government,

but come with their own controls

Consider the benefits, know the

controls and think through the

implications when constructing

contracts

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For more information

http://www.acq.osd.mil/dpap/pdi/gfp/index.html www.dodprocurementtoolbox.com

GFP Policy Training, Procedures,

Tools

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Training Certificates

Please send your request to Niki Sollinger:

[email protected]

Please include the date of the webinar and if

you want to be on the GFP Training email

distribution list.

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Any Questions?

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