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(Revised December 15, 1998)

 



 252.228-7000 Reimbursement for War-Hazard Losses.
 252.228-7001 Ground and Flight Risk.
 252.228-7002 Aircraft Flight Risk.
 252.228-7003 Capture and Detention.
 252.228-7004 Bonds or Other Security.
 252.228-7005 Accident Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles.
 252.228-7006 Compliance with Spanish Laws and Insurance.


252.228-7000  Reimbursement for War-Hazard Losses.

As prescribed in 228.370(a), use the following clause:

 

REIMBURSEMENT FOR WAR-HAZARD LOSSES (DEC 1991)

 

      (a)  Costs for providing employee war-hazard benefits in accordance with paragraph (b) of the Workers' Compensation and War-Hazard Insurance clause of this contract are allowable if the Contractor—

 

              (1)  Submits proof of loss files to support payment or denial of each claim;

 

              (2)  Subject to Contracting Officer approval, makes lump sum final settlement of any open claims and obtains necessary release documents within one year of the expiration or termination of this contract, unless otherwise extended by the Contracting Officer; and

 

              (3)  Provides the Contracting Officer at the time of final settlement of this contract—

 

                    (i)  An investigation report and evaluation of any potential claim; and

 

                    (ii)  An estimate of the dollar amount involved should the potential claim mature.

 

      (b)  The cost of insurance for liabilities reimbursable under this clause is not allowable.

 

      (c)  The Contracting Officer may require the Contractor to assign to the Government all right, title, and interest to any refund, rebate, or recapture arising out of any claim settlements.

 

      (d)  The Contractor agrees to—

 

              (1)  Investigate and promptly notify the Contracting Officer in writing of any occurrence which may give rise to a claim or potential claim, including the estimated amount of the claim;

 

              (2)  Give the Contracting Officer immediate written notice of any suit or action filed which may result in a payment under this clause; and

 

              (3)  Provide assistance to the Government in connection with any third party suit or claim relating to this clause which the Government elects to prosecute or defend in its own behalf.

 

(End of clause)

 

252.228-7001  Ground and Flight Risk.

As prescribed in 228.370(b), use the following clause:

 

GROUND AND FLIGHT RISK (SEP 1996)

 

      (a)  Definitions.  As used in this clause—

 

              (1)  “Aircraft,” unless otherwise provided in the Schedule, means—

 

                    (i)  Aircraft to be delivered to the Government under this contract (either 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; and

 

                    (ii)  Aircraft, whether in a state of disassembly or reassembly, furnished by the Government to the Contractor under this contract, including all property installed, in the process of installation, or temporarily removed; provided that the aircraft and property are not covered by a separate bailment agreement.

 

              (2)  “Contractor's premises” means those premises designated in the Schedule or in writing by the Contracting Officer, and any other place the aircraft is moved for safeguarding.

 

              (3)  “Flight” means any flight demonstration, flight test, taxi test, or other flight made in the performance of this contract, or for the purpose of safeguarding the aircraft, or previously approved in writing by the Contracting Officer.

 

                    (i)  For land based aircraft, “flight” begins with the taxi roll from a flight line on the Contractor's premises and continues until the aircraft has completed the taxi roll in returning to a flight line on the Contractor's premises;

 

                    (ii)  For seaplanes, “flight” begins with the launching from a ramp on the Contractor's premises and continues until the aircraft has completed its landing run and is beached at a ramp on the Contractor's premises;

 

                    (iii)  For helicopters, “flight” begins upon engagement of the rotors for the purpose of take-off from the Contractor's premises and continues until the aircraft has returned to the ground on the Contractor's premises and the rotors are disengaged; and

 

                    (iv)  For vertical take-off aircraft, “flight” begins upon 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;

 

                    (v)  All aircraft off the Contractor's premises shall be considered to be in flight when on the ground or water for reasonable periods of time following emergency landings, landings made in performance of this contract, or landings approved in writing by the Contracting Officer.

 

              (4)  “Flight crew member” means the pilot, the co-pilot, and, unless otherwise 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.  If required, a defense systems operator may also be assigned as a flight crew member.

 

              (5)  “In the open” means located wholly outside of buildings on the Contractor's 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.

 

              (6)  “Operation” means operations and tests of the aircraft and its installed 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)  Except as may be specifically provided in the Schedule as an exception to this clause, the Government assumes the risk of damage to, or loss or destruction of aircraft “in the open,” during “operation,” and in “flight.”  The Contractor shall not be liable to the Government for such damage, loss, or destruction.

 

      (c)  The Government's assumption of risk for aircraft in the open shall continue unless the Contracting Officer finds that the aircraft is in the open under unreasonable conditions, and the Contractor fails to take prompt corrective action.

 

              (1)  The Contracting Officer, when finding aircraft in the open under unreasonable conditions, shall notify the Contractor in writing of the unreasonable conditions and require the Contractor to make corrections within a reasonable time.

 

              (2)  Upon receipt of the notice, the Contractor shall promptly correct the cited conditions, regardless of whether there is agreement that the conditions are unreasonable.  If the Contracting Officer later determines that the cited conditions were not unreasonable, an equitable adjustment shall be made in the contract price for any additional costs incurred in correcting the conditions.  Any dispute as to the unreasonableness of the conditions or the 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.  If the Contracting Officer later determines that the Contractor acted 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.  Any dispute as to the timeliness of the Contractor's action or the equitable adjustment shall be considered a dispute under the Disputes clause of this contract.

 

              (4)  If the Government terminates its assumption of risk, the risk of loss for Government-furnished property shall be determined in accordance with the Government Property clause of this contract.

 

              (5)  The Contractor shall promptly notify the Contracting Officer when unreasonable conditions have been corrected.  If the Government elects to again assume the risk of loss and relieve the Contractor of liabilities, the Contracting Officer will notify the Contractor.  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 Contractor notice of correction until the Contractor is notified that the Government will assume the risk of loss.  If the Government does not again assume the risk of loss and conditions have been corrected, the Contractor shall be entitled to an equitable adjustment for insurance costs, if any, extending after the third working day.

 

      (d)  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.  The term “Contractor's managerial personnel” means the Contractor's directors, officers, and any of the Contractor's managers, superintendents, or other equivalent representatives who supervise or direct all or substantially all of the Contractor's business; or all or substantially all of the Contractor's operations at any one plant or separate location at which this contract is performed; or a separate and complete major industrial operation in connection with the performance of this contract;

 

              (2)  Is sustained during flight if the flight crew members have not been approved in writing by the Government Flight Representative, who has been authorized in accordance with the combined regulation entitled “Contractor’s Flight and Ground Operations” (Air Force Regulation 55-22, Army Regulation 95-20, NAVAIR Instruction 3710.1C, and Defense Logistics Agency Manual 8210.1);

 

              (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 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.

 

      (e)  With the exception of damage, loss, or destruction in flight, the Contractor assumes the risk and shall be responsible for the first $25,000 of loss or damage to aircraft in the open or during operation 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.  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 (i) of this clause shall not include the dollar amount of the risk assumed by the Contractor.  In the event the Government does not elect repair or replacement, the Contractor agrees to credit the contract price or pay the Government $25,000 (or the amount of the loss, if less) as directed by the Contracting Officer.
      (f)  A subcontractor shall not be relieved from liability for damage, loss, or destruction of aircraft while in its possession or control, 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.  Where a subcontractor has not been relieved from liability, and damage, loss, or destruction occurs, the Contractor shall enforce liability against the subcontractor for the benefit of the Government.

 

      (g)  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, even if the assumption may be terminated for aircraft in the open.

 

      (h)  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, to put all aircraft in the best possible order and further, except in cases covered by paragraph (e) of this clause, the Contractor shall furnish to the Contracting Officer a statement of—

 

              (1)  The damaged, lost, or destroyed aircraft;

 

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

 

              (3)  All known interests in commingled property of which aircraft are a part; and

 

              (4)  The insurance, if any, covering the interest in commingled property.

 

Except in cases covered by paragraph (e) of this clause, the Contracting Officer will make an equitable adjustment in the contract price for expenditures made by the Contractor in performing the obligations under this paragraph.

 

      (i)  If prior to delivery and acceptance by the Government, aircraft is damaged, lost, or destroyed and the Government assumed the risk, the Government shall either—

 

              (1)  Require that the aircraft be replaced or restored by the Contractor to the 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

 

              (2)  Terminate this contract with respect to the aircraft, in which event 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—

 

                    (i)  It would have cost the Contractor to complete the aircraft (or any work to be performed on the aircraft) together with anticipated profit on uncompleted work; and

 

                    (ii)  Would be the value of the damaged aircraft or any salvage retained by the Contractor.

 

The Contracting Officer shall prescribe the manner of disposition of the 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.

 

      (j)  In the event the Contractor is reimbursed or compensated by a third person 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 of subrogation) in obtaining recovery.

 

      (k)  The Contractor agrees to be bound by the operating procedures contained in the combined regulation entitled “Contractor’s Flight and Ground Operations” in effect on the date of contract award.

 

(End of clause)

 

252.228-7002  Aircraft Flight Risk.

As prescribed in 228.370(c), use the following clause:

 

AIRCRAFT FLIGHT RISK (SEP 1996)

 

      (a)  Definitions.  As used in this clause—

 

              (1)  “Aircraft,” unless otherwise provided in the Schedule, means—

 

                    (i)  Aircraft furnished by the Contractor under this contract (either before or after Government acceptance); or

 

                    (ii)  Aircraft furnished by the Government to the Contractor, including all Government property placed on, installed or attached to the aircraft; provided that the aircraft and property are not covered by a separate bailment agreement.

 

              (2)  “Flight” means any flight demonstration, flight test, taxi test, or other flight made in the performance of this contract, or for the purpose of safeguarding the aircraft, or previously approved in writing by the Contracting Officer.

 

                    (i)  For land-based aircraft, “flight” begins with the taxi roll from a flight line and continues until the aircraft has completed the taxi roll to a flight line.

 

                    (ii)  For seaplanes, “flight” begins with the launching from a ramp and continues until the aircraft has completed its landing run and is beached at a ramp.

 

                    (iii)  For helicopters, “flight” begins upon engagement of the rotors for the purpose of take-off and continues until the aircraft has returned to the ground and rotors are disengaged.

 

                    (iv)  For vertical take-off aircraft, “flight” begins upon disengagement from any launching platform or device and continues until the aircraft has been reengaged to any launching platform or device.

 

              (3)  “Flight crew members” means the pilot, co-pilot, and unless otherwise provided in the Schedule, the flight engineer, navigator, bombadier-navigator, and defense systems operator as required, when assigned to their respective crew positions to conduct any flight on behalf of the Contractor.

 

      (b)  This clause takes precedence over any other provision of this contract (particularly paragraph (g) of the Government Property (Cost-Reimbursement, Time-and-Materials, or Labor-Hour Contracts) clause and paragraph (c) of the Insurance—Liability to Third Persons clause).

 

      (c)  Unless the flight crew members previously have been approved in writing by the Government Flight Representative, who has been authorized in accordance with the combined regulation entitled “Contractor’s Flight and Ground Operations” (Air Force Regulation 55-22, Army Regulation 95-20, NAVAIR Instruction 3710.1C, and Defense Logistics Agency Manual 8210.1), the Contractor shall not be—

 

              (1)  Relieved of liability for damage, loss, or destruction of aircraft sustained during flight; or

 

              (2)  Reimbursed for liabilities to third persons for loss or damage to property or for death or bodily injury caused by aircraft during flight.

 

      (d)(1)  The loss, damage, or destruction of aircraft during flight in an amount exceeding $100,000 or 20 percent of the estimated cost of this contract, whichever is less, is subject to an equitable adjustment when the Contractor is not liable under—

 

                    (i)  The Government Property (Cost-Reimbursement, Time-and-Materials, or Labor-Hour Contracts) clause, and

 

                    (ii)  Paragraph (c) of this clause.

 

              (2)  The equitable adjustment under this contract for the resulting repair, restoration, or replacement of aircraft shall be made—

 

                    (i)  In the estimated cost, the delivery schedule, or both; and

 

                    (ii)  In the amount of any fee to be paid to the Contractor.

 

              (3)  In determining the amount of equitable adjustment in the fee, the Contracting Officer will consider any fault of the Contractor, its employees, or any subcontractor that materially contributed to the damage, loss, or destruction.

 

              (4)  Failure to agree on any adjustment shall be a dispute concerning a question of fact within the meaning of the Disputes clause of this contract.

 


      (e)  The Contractor agrees to be bound by the operating procedures contained in the combined regulation entitled “Contractor’s Flight and Ground Operations” in effect on the date of contract award.

 

(End of clause)

 

252.228-7003  Capture and Detention.

As prescribed in 228.370(d), use the following clause:

 

CAPTURE AND DETENTION (DEC 1991)

 

      (a)  As used in this clause—

 

              (1)  “Captured person” means any employee of the Contractor who is—

 

                    (i)  Assigned to duty outside the United States for the performance of this contract; and

 

                    (ii)  Found to be missing from his or her place of employment under circumstances that make it appear probable that the absence is due to the action of the force of any power not allied with the United States in a common military effort; or

 

                    (iii)  Known to have been taken prisoner, hostage, or otherwise detained by the force of such power, whether or not actually engaged in employment at the time of capture; provided, that at the time of capture or detention, the person was either—

 

                          (A)  Engaged in activity directly arising out of and in the course of employment under this contract; or

 

                          (B)  Captured in an area where required to be only in order to perform this contract.

 

              (2)  A “period of detention” begins with the day of capture and continues until the captured person is returned to the place of employment, the United States, or is able to be returned to the jurisdiction of the United States, or until the person's death is established or legally presumed to have occurred by evidence satisfactory to the Contracting Officer, whichever occurs first.

 

              (3)  “United States” comprises geographically the 50 states and the District of Columbia.

 

              (4)  “War Hazards Compensation Act” refers to the statute compiled in Chapter 12 of Title 42, U.S. Code (sections 1701-1717), as amended.

 

      (b)  If pursuant to an agreement entered into prior to capture, the Contractor is obligated to pay and has paid detention benefits to a captured person, or the person's dependents, the Government will reimburse the Contractor up to an amount equal to the lesser of—

 

              (1)  Total wage or salary being paid at the time of capture due from the Contractor to the captured person for the period of detention; or

 

              (2)  That amount which would have been payable if the detention had occurred under circumstances covered by the War Hazards Compensation Act.

 

      (c)  The period of detention shall not be considered as time spent in contract performance, and the Government shall not be obligated to make payment for that time except as provided in this clause.

 

      (d)  The obligation of the Government shall apply to the entire period of detention, except that it is subject to the availability of funds from which payment can be made.  The rights and obligations of the parties under this clause shall survive prior expiration, completion, or termination of this contract.

 

      (e)   The Contractor shall not be reimbursed under this clause for payments made if the employees were entitled to compensation for capture and detention under the War Hazards Compensation Act, as amended.

 

(End of clause)

 

252.228-7004  Bonds or Other Security.

As prescribed in 228.170, use the following provision:

 

BONDS OR OTHER SECURITY (DEC 1991)

 

      (a)  Offerors shall furnish a bid guarantee in the amount of $_________ with their bids.  The offeror receiving notice of award shall furnish—

 

              (1)  A performance bond in the penal amount of $_________; and

 

              (2)  Payment in full of any sum due the Government.

 

      (b)  The Contractor shall furnish the performance bond to the Contracting Officer within _____ days after receipt of the notice of award.  The Contracting Officer will not issue the notice to proceed until receipt of an acceptable performance bond and payment of any sum due the Government.

 

      (c)  Bonds supported by sureties whose names appear on the list contained in Treasury Department Circular 570 are acceptable.  Performance bonds from individual sureties are acceptable if each person acting as a surety provides a SF 28, Affidavit of Individual Surety, and a pledge of assets acceptable to the Contracting Officer.

 

(End of provision)

 

252.228-7005  Accident Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles.

As prescribed in 228.370(e), use the following clause:

 

ACCIDENT REPORTING AND INVESTIGATION INVOLVING AIRCRAFT, MISSILES, AND SPACE LAUNCH VEHICLES (DEC 1991)

 

      (a)  The Contractor shall report promptly to the Administrative Contracting Officer all pertinent facts relating to each accident involving an aircraft, missile, or space launch vehicle being manufactured, modified, repaired, or overhauled in connection with this contract.

 

      (b)  If the Government conducts an investigation of the accident, the Contractor will cooperate and assist the Government's personnel until the investigation is complete.

 

      (c)  The Contractor will include a clause in subcontracts under this contract to require subcontractor cooperation and assistance in accident investigations.

 

(End of clause)

 

252.228-7006  Compliance with Spanish Laws and Insurance.

As prescribed at 228.370(f), use the following clause:

 

COMPLIANCE WITH SPANISH LAWS AND INSURANCE (DEC 1998)

 

      (a)  The requirements of this clause apply only if the Contractor is not a Spanish concern.

 

      (b)  The Contractor shall, without additional expense to the United States Government, comply with all applicable Spanish Government laws pertaining to sanitation, traffic, security, employment of labor, and all other laws relevant to the performance of this contract.  The Contractor shall hold the United States Government harmless and free from any liability resulting from the Contractor’s failure to comply with such laws.

 

      (c)  The Contractor shall, at its own expense, provide and maintain during the entire performance of this contract, all workmen’s compensation, employees’ liability, bodily injury insurance, and other required insurance adequate to cover the risk assumed by the Contractor.  The Contractor shall indemnify and hold harmless the United States Government from liability resulting from all claims for damages as a result of death or injury to personnel or damage to real or personal property related to the performance of this contract.

 

      (d)  The Contractor agrees to represent in writing to the Contracting Officer, prior to commencement of work and not later than 15 days after the date of the Notice to Proceed, that the Contractor has obtained the required types of insurance in the following minimum amounts.  The representation also shall state that the Contractor will promptly notify the Contracting Officer of any notice of cancellation of insurance or material change in insurance coverage that could affect the United States Government’s interests.

 

Type of Insurance

Coverage per Person

Coverage per Accident

Property Damage

Comprehensive General Liability

$300,000

$1,000,000

$100,000

 

      (e)  The Contractor shall provide the Contracting Officer with a similar representation for all subcontracts with non-Spanish concerns that will perform work in Spain under this contract.
      (f)  Insurance policies required herein shall be purchased from Spanish insurance companies or other insurance companies legally authorized to conduct business in Spain.  Such policies shall conform to Spanish laws and regulations and shall¾

 

              (1)  Contain provisions requiring submission to Spanish law and jurisdiction of any problem that may arise with regard to the interpretation or application of the clauses and conditions of the insurance policy;

 

              (2)  Contain a provision authorizing the insurance company, as subrogee of the insured entity, to assume and attend to directly, with respect to any person damaged, the legal consequences arising from the occurrence of such damages;

 

              (3)  Contain a provision worded as follows:  “The insurance company waives any right of subrogation against the United States of America that may arise by reason of any payment under this policy.”;

 

              (4)  Not contain any deductible amount or similar limitation; and

 

              (5)  Not contain any provisions requiring submission to any type of arbitration.

 

(End of clause)

 

 

 


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