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Required clauses not included in contract


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Our commercial FFP contract for Facilities Maintenance contains references in the SOW that address the governments requirements for handling GFM,GFP and GFE. These references tell the contractor what the governments expectations are during performance of the contract, for such things as "Conducting audits of GFM,GFP and GFE, Reporting requirements, Responsibilities for repair and or replacement ect...

I just assumed contract administration responsibility for this contract that is in the 5th year of a 60 month contract.

I was reviewing a question the COR had regarding conducting an inventory of GFM and found that the contract did not contain any Government Furnished Property clauses as required by FAR part 45 - Government Property.

It is my opinion that without these required clauses the governments rights are not protected nor are those of the contractor. I do not believe the plain language of the SOW that expresses how the governments expects the contractor to perform the different requirements related to GFM, GFP and GFE has the same force and effect as a contractually required FAR clause.

We could of course attempt to bi-laterally add the appropriate clauses but would probably be inviting a equitable adjustment and a probable cost increase.

My question is:

Can the government enforce the provisions of the applicable FAR Part 45 - Government Property clauses if they are not contained within the contract?

I am preparing to send a request for legal review but wanted to test the waters here first.

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It is my opinion that without these required clauses the governments rights are not protected nor are those of the contractor. I do not believe the plain language of the SOW that expresses how the governments expects the contractor to perform the different requirements related to GFM, GFP and GFE has the same force and effect as a contractually required FAR clause.

Why do you think that? Why would a contract requirement have less effect because it was located in a different place in the contract?

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Don, the SOW that contains the references to the Government Property is only telling the contractor what the government is expecting them to do. It does not express the what if's, such as what if the contractor failed to conduct a required audit or failed to replace GFM with a like material.

In a situation like that I would of course require the contractor to re-perform but what if he didn't. It is then I would go to the appropriate FAR clauses to enforce the contract but if the clause is not in the contract then what?

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Wouldn't FAR 52.212-4(a) do the trick?

Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights --

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

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