Search the forums and am unable to find what I am looking for regarding bailment agreements and government liability in the context of the FAR and CO authority.
Long story short, vendor is letting customer use some fancy gadgets to test in their system at no-cost. They just pay for return shipping (GPC purchase). However, vendor and customer want to enter into a bailment agreement to make it official. Part of the agreement is a "if you break it you buy it clause".
Question is, who has the authority to bind the government to pay for the gadgets if the worst case scenario happens? Who is the AF going to come looking for if the vendor files a claim or comes banging on doors?
The FAR/DFARS/AAFARS don't speak on these types of situations. At best, we made a case that this can be part of customer market research but contracting doesn't enter into this process until later.
Customer wants contracting to sign it thinking we have authority here even after explaining we don't (no appropriated funds to obligate). Legal does not recommend it. Our solution is to have the customer, or the customer's commander/program office head to sign it, accepting the risk. If that's the case, if it breaks, how do we process that claim?
My solution is the Federal Tort Claims process. Other solutions is a GPC purchase for a nominal fee (cost of shipping) with maybe a indemnity clause?
Time is of the essence (like it always is) so the route of doing an award for the cost of shipping with an option for the full price of the item might be off the table due to the time of drafting/approving a sole source J&A.
Ultimately, even if we got their commander or program office, or even the Wing/CC to sign it, how do we process that claim financially in that event? Can't just write a check can we?