As prescribed in 228.370(b), use the following clause:
GROUND AND FLIGHT RISK (JUN 2010)
(a) Definitions. As used in this clause-
(1) “Aircraft,” unless otherwise provided in the contract Schedule, means-
before or after Government acceptance), including complete aircraft and aircraft in the process of being manufactured, disassembled, or reassembled; provided that an engine,
portion of a wing or a wing is attached to a fuselage of the aircraft;
the Government to the Contractor under this contract, including all Government
property installed, in the process of installation, or temporarily removed; provided that
the aircraft and property are not covered by a separate bailment agreement;
(iii) Aircraft furnished by the Contractor under this contract (either before or after Government acceptance); or
(iv) Conventional winged aircraft, as well as helicopters, vertical take-off or landing aircraft, lighter-than-air airships, unmanned aerial vehicles, or other non-conventional aircraft specified in this contract.
(2) “Contractor’s managerial personnel” means the Contractor’s directors, officers, managers, superintendents, or equivalent representatives who have supervision or direction of-
(i) All, or substantially all, of the Contractor’s business;
(ii) All, or substantially all, of the Contractor’s operation at any one plant or separate location; or
(iii) A separate and complete major industrial operation.
(3) “Contractor's premises” means those premises, including subcontractors’ premises, designated in the Schedule or in writing by the Contracting Officer, and any
other place the aircraft is moved for safeguarding.
made in the performance of this contract, or for the purpose of safeguarding the aircraft, or previously approved in writing by the Contracting Officer.
in returning to a flight line on the Contractor's premises.
and is beached at a ramp on the Contractor's premises.
returned to the ground on the Contractor's premises and the rotors are disengaged.
.
disengagement from any launching platform or device on the Contractor's premises and continues until the aircraft has been engaged to any launching platform or device on
the Contractor's premises.
provided in the Schedule, the flight engineer, navigator, and bombardier-navigator when assigned to their respective crew positions for the purpose of conducting any flight
on behalf of the Contractor. It also includes any pilot or operator of an unmanned
aerial vehicle. If required, a defense systems operator may also be assigned as a flight
crew member.
premises or other places described in the Schedule as being “in the open.” Government furnished aircraft shall be considered to be located “in the open” at all times while in the Contractor's possession, care, custody, or control.
equipment, accessories, and power plants, while the aircraft is in the open or in motion. The term does not apply to aircraft on any production line or in flight.
(b) Combined regulation/instruction. The Contractor shall be bound by the operating procedures contained in the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations” (Air Force Instruction 10-220, Army Regulation 95-20, NAVAIR Instruction 3710.1 (Series), Coast Guard Instruction M13020.3, and Defense Contract Management Agency Instruction 8210.1) in effect on the date of contract award.
(c) Government as self-insurer. Subject to the conditions in paragraph (d) of this clause, the Government self-insures and assumes the risk of damage to, or loss or destruction of aircraft “in the open,” during “operation,” and in “flight,” except as may be specifically provided in the Schedule as an exception to this clause. The Contractor shall not be liable to the Government for such damage, loss, or destruction beyond the Contractor’s share of loss amount under the Government’s self-insurance.
(d) Conditions for Government’s self-insurance. The Government's
assumption of risk for aircraft in the open shall continue unless the Contracting Officer
finds that the Contractor has failed to comply with paragraph (b) of this clause, or that the aircraft is in the open under unreasonable conditions, and the Contractor fails to
take prompt corrective action.
unreasonable conditions, shall notify the Contractor in writing and shall require the
Contractor to make corrections within a reasonable time.
not unreasonable, an equitable adjustment shall be made in the contract price for any additional costs incurred in correcting the conditions.
equitable adjustment shall be considered a dispute under the Disputes clause of this contract.
(3) If the Contracting Officer finds that the Contractor failed to act promptly to correct the cited conditions or failed to correct the conditions within a reasonable time, the Contracting Officer may terminate the Government's assumption of risk for any aircraft in the open under the cited conditions. The termination will be effective at 12:01 a.m. on the fifteenth day following the day the written notice is received by the Contractor.
promptly to correct the cited conditions or that the time taken by the Contractor was not unreasonable, an equitable adjustment shall be made in the contract price for any additional costs incurred as a result of termination of the Government's assumption of risk.
equitable adjustment shall be considered a dispute under the Disputes clause of this contract.
(i) The Contractor shall thereafter assume the entire risk for damage, loss, or destruction of, the affected aircraft;
(ii) Any costs incurred by the Contractor (including the costs of the Contractor’s self-insurance, insurance premiums paid to insure the Contractor’s assumption of risk, deductibles associated with such purchased insurance, etc.) to mitigate its assumption of risk are unallowable costs; and
(iii) The liability provisions of the Government Property clause of this contract are not applicable to the affected aircraft.
(5) The Contractor shall promptly notify the Contracting Officer when unreasonable conditions have been corrected.
(i) If, upon receipt of the Contractor’s notice of the correction of the unreasonable conditions, the Government elects to again assume the risk of loss and
relieve the Contractor of its liability for damage, loss, or destruction of the aircraft, the Contracting Officer will notify the Contractor of the Contracting Officer’s decision to resume the Government’s risk of loss.. The Contractor shall be entitled to an equitable adjustment in the contract price for any insurance costs extending from the end of the third working day after the Government’s receipt of the Contractor notice of correction
until the Contractor is notified that the Government will resume the risk of loss.
equitable adjustment for insurance costs, if any, extending after the third working day after the Government’s receipt of the Contractor’s notice of correction.
relieve the Contractor of its obligation to comply with all other provisions of this clause, including the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations.”
(e) Exclusions from the Government’s assumption of risk. The Government's assumption of risk shall not extend to damage, loss, or destruction of aircraft which-
(1) Results from failure of the Contractor, due to willful misconduct or lack of good faith of any of the Contractor's managerial personnel, to maintain and administer a program for the protection and preservation of aircraft in the open and during
operation in accordance with sound industrial practice, including oversight of subcontractor’s program.
(2) Is sustained during flight if either the flight or the flight crew members have not been approved in advance of any flight writing by the Government Flight Representative, who has been authorized in accordance with the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations”;
(3) Occurs in the course of transportation by rail, or by conveyance on public streets, highways, or waterways, except for Government-furnished property;
(4) Is covered by insurance;
(5) Consists of wear and tear; deterioration (including rust and corrosion); freezing; or mechanical, structural, or electrical breakdown or failure, unless these are the result of other loss, damage or destruction covered by this clause. (This exclusion does not apply to Government-furnished property if damage consists of reasonable wear
and tear or deterioration, or results from inherent vice, e.g., a known condition or
design defect, in the property); or
(6) Is sustained while the aircraft is being worked on and is a direct result of the work unless such damage, loss, or destruction would be covered by insurance which would have been maintained by the Contractor, but for the Government's assumption of risk.
(f) Contractor’s share of loss and Contractor’s deductible under the
Government’s self-insurance.
(1) The Contractor assumes the risk of loss and shall be responsible for the Contractor’s share of loss under the Government’s self-insurance. That share is the lesser of-
(i) The first $100,000 of loss or damage to aircraft in the open, during operation, or in flight resulting from each separate event, except for reasonable wear and tear and to the extent the loss or damage is caused by negligence of Government personnel; or
(ii) Twenty percent of the price or estimated cost of this contract.
(2) If the Government elects to require that the aircraft be replaced or restored by the Contractor to its condition immediately prior to the damage, the equitable
adjustment in the price authorized by paragraph (j) of this clause shall not include the
dollar amount of the risk assumed by the Contractor.
Contractor agrees to credit the contract price or pay the Government, as directed by the Contracting Officer, the lesser of-
(4) For task order and delivery order contracts, the Contractor’s share of the loss shall be the lesser of $100,000 or twenty percent of the combined total price or total estimated cost of those orders issued to date to which the clause applies.
(5) The costs incurred by the Contractor for its share of the loss and for insuring against that loss are unallowable costs, including but not limited to-
(i) The Contractor’s share of loss under the Government’s self-insurance;
(ii) The costs of the Contractor’s self-insurance;
(iii) The deductible for any Contractor- purchased insurance;
(iv) Insurance premiums paid for Contractor- purchased insurance; and
(v) Costs associated with determining, litigating, and defending against the Contractor’s liability.
(g) Subcontractor possession or control. The Contractor shall not be relieved
from liability for damage, loss, or destruction of aircraft while such aircraft is in the possession or control of its subcontractors, except to the extent that the subcontract,
with the written approval of the Contracting Officer, provides for relief from each liability. In the absence of approval, the subcontract shall contain provisions requiring the return of aircraft in as good condition as when received, except for reasonable wear and tear or for the utilization of the property in accordance with the provisions of this contract.
(h) Contractor’s exclusion of insurance costs. The Contractor warrants that the contract price does not and will not include, except as may be authorized in this
clause, any charge or contingency reserve for insurance covering damage, loss, or destruction of aircraft while in the open, during operation, or in flight when the risk has
been assumed by the Government including the Contractor’s share of loss in this clause, even if the assumption may be terminated for aircraft in the open.
(i) Procedures in the event of loss. (1) In the event of damage, loss, or
destruction of aircraft in the open, during operation, or in flight, the Contractor shall
take all reasonable steps to protect the aircraft from further damage, to separate
damaged and undamaged aircraft and to put all aircraft in the best possible order.
Except in cases covered by paragraph (f)(2) of this clause, the Contractor shall furnish
to the Contracting Officer a statement of-
(i) The damaged, lost, or destroyed aircraft;
(ii) The time and origin of the damage, loss, or destruction;
(iii) All known interests in commingled property of which aircraft are a
part; and
made by the Contractor in performing the obligations under this paragraph.
Government, aircraft is damaged, lost, or destroyed and the Government assumed the risk, the Government shall either-
condition immediately prior to the damage, in which event the Contracting Officer will make an equitable adjustment in the contract price and the time for contract performance; or
the provisions in any other termination clause under this contract, in the event of termination, the Contractor shall be paid the contract price for the aircraft (or, if
applicable, any work to be performed on the aircraft) less any amount the Contracting Officer determines-
work to be performed on the aircraft) together with anticipated profit on uncompleted
work; and
by the Contractor.
damaged, lost, or destroyed aircraft, or any parts of the aircraft. If any additional costs of such disposition are incurred by the Contractor, a further equitable adjustment will be made in the amount due the Contractor. Failure of the parties to agree upon termination costs or an equitable adjustment with respect to any aircraft shall be considered a dispute under the Disputes clause.
reimbursed or compensated by a third party for damage, loss, or destruction of aircraft
and has also been compensated by the Government, the Contractor shall equitably reimburse the Government. The Contractor shall do nothing to prejudice the Government's right to recover against third parties for damage, loss, or destruction. Upon the request of the Contracting Officer or authorized representative, the Contractor shall at Government expense furnish to the Government all reasonable assistance and cooperation (including the prosecution of suit and the execution of
instruments of assignment or subrogation) in obtaining recovery.
(l) Government acceptance of liability. To the extent the Government has accepted such liability under other provisions of this contract, the Contractor shall not be reimbursed for liability to third persons for loss or damage to property or for death or bodily injury caused by aircraft during flight unless the flight crew members previously have been approved for this flight in writing by the Government Flight Representative, who has been authorized in accordance with the combined regulation entitled “Contractor’s Flight and Ground Operations”.
(m) Subcontracts. The Contractor shall incorporate the requirements of this clause, including this paragraph (m), in all subcontracts.
(End of clause)
