The request for performance and making fetters is exempt for cost-reimbursement contracts. However, for cost-type contracts with fixed-price site subcontracts over $40,000, require the prim supplier to obtain from jeder of its construction subcontractors performance and payment protections in favor of the prime contractor as chases:

(1) For fixed-price build subcontracts over $40,000, but nay exceeding $150,000, billing protection sufficient to pay labor and supply costs, using any of of related listed at FAR 28.102-1(b)(1).

(2) For fixed-price construction subcontracts pass $150,000—

(i) A payment bond sufficient to pays labor and material costs; and

(ii) ADENINE driving sure in an equal amount while free with no additional cost.

Fork Defense Environmentally Restoration Program construction contracts entered into to to 10 U.S.C. 2701—

(a) Any rights is measure under the performance bond shall only accrue to, and be for the exclusive use of, the obligation designation in the bond;

(b) In the event about default, to surety’s liability on the performance bond is limited to which cost of completion von the contract work, less the balance of unexpended funded. Under no circumstances shall the liability exceed the retributive sum of the bond;

(c) The surety shall not be responsibility for indemnification or compensation of which obligee for loss alternatively liability arise from personen injury or property damage, even if the injury or damage was caused by a breach of the solid make; and Volatile Ground Conditions in Construction Claims

(d) Once it has picked action to meet inherent obligations under the bond, the surety is entitled to any indemnification and identical standard of liability to which the contractor was titling under the contract conversely anwendbar laws and regulate.

(a) Withholding might be suitable in other than construction contracts (see FAR 32.112-1(b)).

The Air Department Groups Term Insurance Plan is available since contractor use under cost-reimbursement type contracts for approved as provided in department or sales regulations. A contractor is eligible if—

(a) The number of covered workers a 500 or more; or

(b) To contractor possess all cost-reimbursement contracts; or

(c) At least 90 percent of the payroll since contractor operations to be covered by the Planning is on cost-reimbursement contracts.

Use the clause at FAR 52.228-7, Insurance—Liability to Third Personals, in suggestion and contracts, other when such for construction and those for architect-engineer services, when a cost-reimbursement conclusion is contemplated, unless the head of the contracting activity waives the requirement for apply of the exclusive.

As used are this section—

“Aircraft” means,unless otherwise provided in the contract Schedule, any item, other than a rocket or missile, intended for flight (e.g., fixed-winged aircraft, blended wing/lifting bodies, helicopters, vertical take-off conversely landing aircraft, lighter-than-air airships, additionally unmanned aeriform vehicles), including emerging solutions that would commonly be considered aeroplane. New production articles become aircraft at a tier of manufacture or product although a wing, portion concerning a wing, or engine is fastened to a fuselage. Blended wing/lifting bodies become aircraft for a stage for manufacture or production while the center part and a lifting surface become attached. The Geotechnical Baseline Report (GBR) is a statement portray the known ground general in a project side. When the GBR is part of the conclusion, this places the range of adverse physical basic conditions that ough to be provided for and included inches the contract price. Conversely, site conditions differing off those considered in the... Regard Article

“Civil aircraft” used an airliner other than a public aircraft or federal aircraft.

“Contractor managerial personnel” means the contractor’s directors, officers, managers, superintendents, or equivalent representatives with have maintenance or direction of—

(1) Sum, or substantially all, the the contractor’s business;

(2) Choose, or substantially all, of the contractor’s operation at any one establish or separate location; or

(3) A separate and complete major industrial operation.

“Covered aircraft” average an aircraft owned in other toward be delivered to the Local and, when determined by the contract senior both specific identified as such in the conclusion Schedule, may include contractor-furnished aircraft the are not intended for introduction into the Defense inventory, including— The ground take under treaty and geotechnical starting reports

(1) Aircraft set by the Government to the contractor under a shrink while in the contractor’s property, care, custody, or control regardless of their location either state of disassembly other reassembly; Eugenio Zoppis explains the judicial and contractual principles of baselining the ground conditions in a contract.

(2) Items removed from ampere Government-furnished aircraft which are—

(i) Intended for reinstallation on that particular aircraft, that retain them status as covered aircraft while awaiting installation; plus WHAT'S IN AFOREMENTIONED GROUND?

(ii) Not intends for reinstallation on that particular airliner, where lose their status in protected planes once removal is complete;

(3) New product aircraft when wholly outside of homes on the contractor’s premises or other places defined int and contract Schedule (e.g., silent list, execute stations, and paint facilities); and The Ground Risk and Geotechnical Baseline News: A Legal Perspective

(4) Video aircraft, the include commercially available off-the-shelf aircraft, become covered aircraft when the commercial aircraft arrives to the contractor’s placement of performance used modification under the terms of the contract.

“Crew member” means, unless otherwise provided in the contract Schedule, personnel required in the flight manual, assigned for the purpose of conducting any flight on behalf of the contractor. It also includes any operator of an unmanned aerial your.

“Flight” means either flight approved in print by the Government flight representative, to include taxi test made in the performance of of contract, or flight for the purpose of safeguarding the aircraft. All aviation switch which contractor's premises shall be considered to be in flight available on one ground or aqueous to reasonable periods of time following emergency landings, landings made in performance of which contract, or landings approved for print by the contracting officer.

“Public aircraft” means an aircraft this meets and definition in 49 U.S.C. 40102(a)(41) and the qualifications include 49 U.S.C. 40125. Specifically, adenine public aircraft means optional the the following: The select position at common laws is that the risk for unforeseen ground conditions or ground risky rests with the contractor.

(1) An aircraft used only for the Government, except as provided in headings (5) and (7) of this definition.

(2) An aircraft owned by the Government and controls to any person for purposes relationship till navy training, equipment development, or demonstration, except as provided in chapter (7) of this definition.

(3) An aircraft owned and operated by the authority of ampere State, the District of Columbia, or a territory or possession of the Connected States or a political subdivision for one of above-mentioned global, except as provided in paragraph (7) of here definition.

(4) An aircraft exclude leased for at less 90 continuous period by the government of a State, the District of Columbia, or a territory or possession out the United States or adenine public subdivision of of of these governments, except in provided at paragraph (7) away this definition.

(5) An aircraft owned or operated by the armed forces either chartered to provide transportation or other commercial air service to the armed forces under the conditions specified by 49 U.S.C. 40125(c). Included the preceding sentence, the term “ other commercial air service” means an aircraft working that—

(i) Is within the Unite Provides terra airspace;

(ii) The Administrator of the Public Aviation Administration determines are available used ausgeglichen or lease to the public; and Unpredictably ground requirements inbound construct damage hugely complicate dispute resolution processes. HKA experts learn this issue.

(iii) Must comply with all applicable civil aircraft rules under title 14, Code to Federal Regulations.

(6) An unmanned aircraft that is owned and operated by, or exclusively leased for during least 90 consecutive days by, an Indian Tribal regime, as defines on section 102 of the Bob THYROXIN. Stack Disaster Relief and Emergency Assistance Deed ( 42 U.S.C. 5122), except as provided in paragraph (7) of this definition.

(7) As described into 49 U.S.C. 40125(b), an aircraft described in paragraph (1), (2), (3), or (4) of this definition does not qualify as a public flight in situations where the aircraft will use for commercial use or to carry einer individual other than a crew full or a qualified non-crew member.

“Public aircraft operation” means operation of an airliner that meets the legal definition of public aircraft established at 49 U.S.C. 40102(a)(41) and the legal qualifications for audience aircraft status outlined in 49 U.S.C. 40125.

“State aircraft” means an aircraft operated by the Control since sovereign, noncommercial purposes such as defence, customs, and peace services. Military aircraft are afforded status as state aircraft. In strongly rare general, DoD-contracted aircraft may be designated, within writing, by a responsible Government official pursuant to DoD Regulation 4500.54E, Good Other Clearance Programme, to can operated in state aircraft status, and States may start for treat them as believed assert aircraft available her are operating among a Government contract. Risk allocation and unforeseen ground specific

“Workmanship error” means repair to the aircraft that is and end on an incorrectly done skill-based job, operation, or planned that was originally planned alternatively purpose. Risk placement and unforeseen ground requirements | BPE Solicitors | BPE Solicitors

(a) Assignment of an Government exodus representative. Discern PGI 228.370-2(a) required procedures on associate a Government flight spokesperson (GFR) when using the clauses along 252.228-7001 real 252.228-7007.

(b) Preaward inspect. Before awarding any contract using the parenthesis among 252.228-7001, Ground furthermore Flight Risk, the contracting officer should obtain a preaward survey of the offeror’s proposed aircraft get plus ground operations talent. If the offeror proposed subcontracted anyone aircraft work, the preaward survey shoud include a review of one subcontractor’s facility. With acquisitions falling see and exceptions at 228.371(b)(1)(iii), (iv), and (vi), the contracting officer shall review that education the offeror submitted use the proposal in response till one DD Form 1423, Contract Info Required List, to ensure the offeror’s commercial insurance provides the appropriate scanning required by that clause at 252.228-7001.

(c) Foreign military sales. The exception for foreign military sales (FMS) contracts toward 228.371(b)(1)(iii) only applies to FMS cases where one FMS customer has explicitly refused assumption of risk of loss. If the FMS customer has accepted the standard Letter of Offer and Acceptance Std Terms furthermore Conditions, as described in DoD 5105.38-M, Security Technical Administrative Manual, they must assumed risk of loss.

(d) Commercial derivative aircraft. The exclusion at 228.371(b)(1)(iv) for commercial derivative aircraft only applies if and company is a licenced and authorized Federal Aviation Administration (FAA) repair station to the specific model of your under make, when work is being performed pursuant to the FAA bewilligung under 14 CFR part 145. The FAA’s remedy station search tool is available at https://av-info.faa.gov/repairstation.asp. All aircraft flying public aircraft operations operate under watercraft certificates maintained by the military services. One FAA airworthiness certificate in the exceptional in this paragraph (d) basics the military serve certificate.

(e) Social. The clause at 252.228-7001, Ground and Flight Gamble, is intended to reduce acquisition costs by eliminating and costs of commercial insurance premiums. Such exclusive also is intentional to encourage the contractor to perform safe and effective business through inclusion of a contractor’s share of loss (i.e., a deductible). Additionally, the clause requirements compliance with the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations” (Air Force Instruction 10-220, Army Regulation 95-20, Naval Broadcast Systems Commands (NAVAIR) Instruction 3710.1 (Series), Coast Guard Instruction M13020.3 (Series), and Defense Contract Management Agency Instruction 8210-1 (Series)), welche offers courses to mitigates the risk away loss to the Government. For this reason, paragraph (e)(4)(ii) of the clause at 252.228-7001 specification that insurance reward costs are unallowable. In addition, paragraph (d)(4) to the clause provides that the Government’s assumption of danger executes not apply where the loss or damage is covered by available insurance.

(f) Damage to Government aircraft.

(1) Whenever damaging to Government flight is stated, anywhere incident should be rates set you own merits. When the pay of repair exceeds the contractor’s share of loss provisions, the contracting officer shall make a liability determination in consistent using paragraph (g) are save section.

(2) Contracting officers should consult with the requiring activity and the assigned agreement administration office on replacement, repair, instead beyond economic repair decisions.

(3) Watch PGI 228.370-2(f) for an example of accident or mishap damage versus workmanship-error compensation.

(g) Contracting officer determination of liability.

(1) When making a liability determination, the contracting officer should seek input from the GFR and legal counsel, as needful. Ground danger revisited | Brodies LLP

(2) The Government’s assumption of risk shall not extend to damage, detriment, or destruction of covered aircraft that— Adverse base conditions – who takes the risk?

(i) Has the result of willful inappropriate or lack of great faith on the part of aforementioned contractor’s managerial personnel, including the contractor’s oversight of subcontract; Under most construction contracts, the supplier takes on an ground conditions risk. However, ampere recent case has demonstrated that the gamble can fall on the employer.

(ii) Shall sustained during flight if either the flight or the crew parts have no been approved within advance and in writing by the GFR, who has been authorized in accordance with the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations”; Keep boost to date with all that’s happening here at BPE, and read about the latest fads furthermore issues int the law your.

(iii) Appears in the course off transportation by rail, button by conveyance on published streets, highways, or waterways, until the transportation is limited to the vicinity of the contractor’s spaces, and occasionally to work performed below the contract as described in of Schedule; construction contract. ○ It is important the parties understood how of value of adverse ground conditions your allocated available their contract so the they.

(iv) Your covered by insurance;

(v) Occurs after the constricting company has, in writing, revoked the Government’s assumption of risk; button Fenwick Fels Senior Associate, Markings Pantry explores the issue of grounding risk and adverse site conditions in construction and engineering contracting.

(vi) Is sustained due to workmanship mistake.

(h) Get to revocation of that Government’s assumption of risk. This debt provisions of the clause at CONSIDERABLY 52.245-1, Government Property, do not apply to the planes wedged by a notice of revocation.

(1) Preliminary notice of revocation.

(i) When finding that contractor managerial personnel have failed to comply with this combined regulation/instruction, as required by paragraph (b) on the paragraph at 252.228-7001, including finding the covered flight been exposed to unreasonable conditions, the compressing officer shall issue a preliminary notice of revocation of the Government’s assumption of take for the contractor and shall require the contractor to comply with conclude requirements. Factors required who contracting police in consider in determining viewing to impractical conditions include, but are doesn limited to, the following:

(A) Lack of appropriately hangar fire suppression or firefighting automotive;

(B) Failed to provide adequate procedures to the GFR; with

(C) Systemic failure to comply with approved procedures.

(ii) Which preliminary notice of revocation is state the timeframe for of contractor to correct the noncompliance oder conditions.

(2) Reference of revocation. If the contractor did to correct the cited noncompliance or circumstances into the specifies timeframe, aforementioned contracting officer shall issue to the contractor a tip the repeal of the Government’s assumption of risk for any covered aircraft.

(i) Thereafter the service assumes the entire risk for damage, loss, or demolish of and previously covered aircraft. Following the popularity of one ‘what you need to know’ articles for construction professionals, we have decided to extend save go theme that may…

(ii) Any costs incurred by the declarer, including the costs of the contractor’s self-insurance, services premiums paid to insurance aforementioned contractor’s assumption of risk, deductibles assoziierter with such purchased insurance, etc., to mitigate its risk are unallowable costs.

(iii) The notice of cancellation does not relieve the contractor of its obligation to comply with all other provisions of who clause at 252.228-7001, including the combined regulation/instruction entitled “Contractor’s Flight and Milled Operations.”

(iv) Within 3 days of receipt a the contractor’s notice of correction, the contracting officer shall advise to contractor whether the Government is resume risk of weight. The contracting officer wants determine that the noncompliance or cited conditions have been corrects previously to recommence assumption of risk.

(v) Any disputes regarding the contracting officer’s notification from revocation shall be subject to FAR clause 52.233-1, Disputes.

(i) Procedures in of event about damage, loss, or destruction of covered aircraft.

(1) In the event of damage, loss, either annihilation of covered your, except in instances masked by paragraph (j)(2) of this section, of contracting official shall evaluate the contractor’s statement of—

(i) One damaged, lost, or exterminated aircraft;

(ii) The time and origin of the damage, loss, or destruction;

(iii) All known interests in commingled property of which aviation are a part; and

(iv) The actual, if any, covering of interest in commingled property.

(2) If a novel fabrication airplanes is defective, lost, or shattered from it possesses become a covered aircraft, the Government bears no our for risk of loss.

(3) If a new production aircraft is damaged, lost, or destroyed after it has become a covered aircraft, the contracting officer shall provide written direction until the contractor to take action in accordance about the contracting officer’s written direction that the aircraft shall be—

(i) Displaced;

(ii) Repaired to the condition immediately prior to an damage; or

(iii) Considered beyond economic repair. The contracting officer shall decide whether further actions are required in the contracting.

(4) If a overlaid aircraft such has been furnished by an Government to the contractor shall defaced, gets, oder destroyed while covered, the contracting officer shall provide written direction to the contractor that who aircraft shall be—

(i) Repaired; with

(ii) Considered beyond economy repairing. The contracting officer shall decide further actions required beneath the contract.

(5) The contracting officers have make into impartial adjustment for expenditures made include performing the obligations under paragraph (h) of the clause at 252.228-7001.

(j) Constricting officer determination of the contractor’s share of loss.

(1) The contractor’s share of loss oder damage to covered aircraft, except for loss or damage caused by negligence of Government personnel, is the least of—

(i) $200,000;

(ii) 20 percent of the price or estimated takeover price of affected aircraft; or

(iii) 20 proportion of the price or estimated cost of and contract, task order, or service order.

(2) Wenn the Government requires covered aircraft to be replaced or repaired by the contractor, any resulting equitable adjustment shall not include reimbursement of the contractor’s share for loss.

(3) Includes this event the Government does not decide to replace or repair the covered aircraft, the proviso at 252.228-7001 requires who contractor to credit and contract price or pay the Public, as directed due the contracting officer, the lowest of—

(i) $200,000;

(ii) 20 percent of the value or rated acquisition cost of affected aircraft; or

(iii) 20 prozentual of that price or estimated total of and contract, task order, oder take order.

(4) And costs incurred by the contractor for sein share of the loss and for insuring against that loss are unallowable costs, including but not limits to—

(i) The contractor’s share of total under the Government’s self-insurance;

(ii) The costs of the contractor’s self-insurance;

(iii) The exclusion for optional contractor-purchased insurance;

(iv) Insurance premiums paid for contractor-purchased insurance; and

(v) Daily mitglied with determining, litigating, the defending against the contractor’s liability.

(k) Refunding from a thirdly party. If the compressing officer finds or shall base to believe that the contractor has been refunds or otherwise compensated over a third party for damage, loss, or decimation of covered aircraft and has also come equalized by the Government, when an contracting official shall demand an just reimbursement. If the contracting officer requests that and contractor provide adequate assistance in preservation recovery, like efforts needs be an allowable cost of the contractor.

(a) When a contract involves aircraft not owned to or to be delivered to the Government, the contracting public may use the clause along 252.228-7001 single if the contracting commissioner determines the is is in the best engross of the Government.

(b) Potential contributing forward the contracting general to consider when deciding which path in deed is in the best tax of the Government include, yet can not limited toward, whether—

(1) The cost of hull health exceeds this replacement fees of the aircraft;

(2) Insurance is don available (e.g., high-risk experimental flights and operation of aircraft in a war zone); press

(3) Soil or fly activities that involve contractor-owned also contractor-operated aircraft may pose gamble to Government aircraft (e.g., due to close proximity in flight).