B-160317, FEB. 17, 1967

B-160317: Feb 17, 1967

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO YOUR PROPOSED ADDITION TO THE FEDERAL PROCUREMENT REGULATIONS (FPR) OF A NEW PART 1-13. SPECIFIES THAT A CONTRACTOR WILL NOT BE HELD RESPONSIBLE FOR LOSS OR DAMAGE TO GOVERNMENT PROPERTY CAUSED BY CERTAIN PERILS WHEN SUCH GOVERNMENT PROPERTY IS PROVIDED UNDER A PROCUREMENT CONTRAST FOR WHICH COST OR PRICING DATA ARE REQUIRED PRIOR TO CONTRACT AWARD. AGREES THAT HE WILL NOT HEREAFTER INCLUDE IN ANY COST OR PRICE TO THE GOVERNMENT. THE POLICY IS IMPLEMENTED IN THE CONTRACT CLAUSES SET FORTH IN SUBPART 1 13.7. THERE IS NO REQUIREMENT IN THE ASPR FOR ANY ADDITIONAL LANGUAGE IN THE CONTRACTOR'S CERTIFICATE OF CURRENT COST OR PRICING DATA. A CONTRACT PROVISION IS SUFFICIENT TO ACCOMPLISH THE PURPOSE INTENDED.

B-160317, FEB. 17, 1967

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR PROPOSED ADDITION TO THE FEDERAL PROCUREMENT REGULATIONS (FPR) OF A NEW PART 1-13, GOVERNMENT PROPERTY.

THE TEST OF THE NEW PART FOLLOWS CLOSELY SECTION 13 OF ASPR, INSOFAR AS THAT SECTION CAN BE APPLIED TO THE NON-MILITARY. HOWEVER, WE NOTE ONE SIGNIFICANT DEPARTURE. NEW PART 1-13, 102-1 (B), CONSISTENT WITH ASPR 13- 102.1 (II), SPECIFIES THAT A CONTRACTOR WILL NOT BE HELD RESPONSIBLE FOR LOSS OR DAMAGE TO GOVERNMENT PROPERTY CAUSED BY CERTAIN PERILS WHEN SUCH GOVERNMENT PROPERTY IS PROVIDED UNDER A PROCUREMENT CONTRAST FOR WHICH COST OR PRICING DATA ARE REQUIRED PRIOR TO CONTRACT AWARD. YOUR REGULATION FURTHER SPECIFIES THAT THE FOLLOWING LANGUAGE SHALL BE ADDED TO THE CERTIFICATE OF CURRENT COST OR PRICING DATA:

"THE CONTRACTOR FURTHER CERTIFIES THAT HE HAS NOT INCLUDED IN THE COST OR PRICE HEREUNDER, AND AGREES THAT HE WILL NOT HEREAFTER INCLUDE IN ANY COST OR PRICE TO THE GOVERNMENT, ANY CHARGE OR RESERVE FOR INSURANCE (INCLUDING ANY SELF-INSURANCE FUND OR RESERVE) COVERING THE RISK OF LOSS OR DESTRUCTION OF OR DAMAGE TO GOVERNMENT PROPERTY.' THE POLICY IS IMPLEMENTED IN THE CONTRACT CLAUSES SET FORTH IN SUBPART 1 13.7. THE COUNTERPART ASPR CONTRACT CLAUSES (ASPR 13-702 (B) AND 13 703) ALSO PROVIDE THAT THE CONTRACTOR SHALL NOT INCLUDE ANY CHARGE OR RESERVE FOR LOSS OR DAMAGE INSURANCE ON GOVERNMENT PROPERTY CAUSED BY ANY EXCEPTED PERIL, BUT THERE IS NO REQUIREMENT IN THE ASPR FOR ANY ADDITIONAL LANGUAGE IN THE CONTRACTOR'S CERTIFICATE OF CURRENT COST OR PRICING DATA.

WE PREFER THE ASPR APPROACH. A CONTRACT PROVISION IS SUFFICIENT TO ACCOMPLISH THE PURPOSE INTENDED. WE RECOMMEND AGAINST THE PROPOSED ADDED CERTIFICATION.

HOWEVER, IF THE LANGUAGE IS TO BE INCLUDED, WE THINK THE WORDS "BECAUSE OF ANY EXCEPTED PERIL" MUST BE ADDED AT THE END OF THE SENTENCE.