As prescribed in 228.371 (b), use the following clause:
GROUND AND FLIGHT RISK (MAR 2023)
(a) Definitions. As used in this clause—
“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 or landing aircraft, lighter-than-air airships, and unmanned aerial vehicles), including emerging technologies that would commonly be considered aircraft. New production articles become aircraft at a stage of manufacture or production when a wing, portion of a wing, or engine is attached to a fuselage. Blended wing/lifting bodies become aircraft at a stage of manufacture or production when the center portion and a lifting surface become attached.
“Contractor’s managerial personnel” means the Contractor’s directors, officers, managers, superintendents, or equivalent representatives who have supervision or direction of—
(1) All, or substantially all, of the Contractor’s business;
(2) All, or substantially all, of the Contractor’s operation at any one plant or separate location; or
(3) A separate and complete major industrial operation.
“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.
“Covered aircraft” means an aircraft owned by or to be delivered to the Government and, when determined by the contracting officer and specifically identified as such in the contract Schedule, may include contractor-furnished aircraft that are not intended for induction into the DoD inventory, including—
(1) Aircraft furnished by the Government to the Contractor under this contract while in the Contractor’s possession, care, custody, or control regardless of their location or state of disassembly or reassembly;
(2) Items removed from a Government-furnished aircraft that are—
(i) Intended for reinstallation on that particular aircraft, which retain their status as covered aircraft while awaiting installation; and
(ii) Not intended for reinstallation on that particular aircraft, which lose their status as covered aircraft once removal is complete;
(3) New production aircraft when wholly outside of buildings on the Contractor’s premises or other places described in the Schedule (e.g., hush houses, run stations, and paint facilities); and
(4) Commercial aircraft, to include commercially available off-the-shelf aircraft, become covered aircraft when the commercial aircraft arrives at the Contractor’s place of performance for modification under the terms of the contract.
“Crewmember” means, unless otherwise provided in the 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 vehicle.
“Flight” means any flight approved in writing by the Government flight representative, to include taxi test made in the performance of this contract, or flight for the purpose of safeguarding the aircraft. 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 the contract, or landings approved in writing by the contracting officer.
“Workmanship error” means damage to the aircraft that is the result of an incorrectly performed skill-based task, operation, or action that was originally planned or intended.
(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 (Series)) in effect on the date of contract award. Compliance with the combined regulation/instruction is required from the time of contract award throughout the period of performance of the contract, regardless of the Government’s assumption of risk under the contract.
(c) Government as self-insurer. The Government self-insures and assumes the risk of damage to, or loss or destruction of, covered aircraft subject to the following conditions:
(1) The Contractor’s liability to the Government for damage, loss, or destruction of covered aircraft is limited to the Contractor’s share of loss as defined at paragraph (h) of this clause, except when one of the exclusions at paragraph (d) applies.
(2) The liability provisions of this clause take precedence over the liability provisions of Federal Acquisition Regulation (FAR) clause 52.245-1, Government Property, with respect to covered aircraft.
(3) The Contractor is not liable for loss, damage, or destruction of covered aircraft as the result of normal wear and tear, or intentional damage or destruction as required in the Schedule.
(4) Conditions for Government assumption of risk in flight are as follows:
(i) The Contractor’s crewmembers are approved in writing by the Government flight representative(GFR).
(ii) The flight is approved in writing by the GFR.
(d) Exclusions from the Government’s assumption of risk. The Government's assumption of risk under this clause shall not extend to damage, loss, or destruction of covered aircraft which—
(1) Is the result of willful misconduct or lack of good faith on the part of the Contractor’s managerial personnel, including the Contractor’s oversight of subcontractors;
(2) Is sustained during flight if either the flight or the crewmembers have not been approved in advance and writing by the GFR, 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, unless the transportation is limited to the vicinity of the Contractor’s premises, and incidental to work performed under the contract as described in the Schedule;
(4) Is covered by insurance;
(5) Occurs after the Contracting Officer has, in writing, revoked the Government’s assumption of risk in accordance with paragraph (e)(3) of this clause; or
(6) Is sustained due to workmanship errors.
(e) Revoking the Government’s assumption of risk .
(1) The Contracting Officer, when finding that the Contractor’s managerial personnel have failed to comply with paragraph (b) of this clause, will issue a preliminary notice of revocation requiring the Contractor to comply with contract requirements within a timeframe specified by the Contracting Officer. In determining exposure to unreasonable conditions, the Contracting Officer will consider factors including, but not limited to, the following: lack of adequate hangar fire suppression or firefighting vehicles, failure to provide adequate procedures to the GFR, or systemic failure to comply with approved procedures.
(2) Upon receipt of the preliminary notice of revocation, the Contractor shall promptly correct the noncompliance or cited conditions, regardless of whether there is agreement that the conditions are unreasonable.
(3) If the Contracting Officer finds that the Contractor failed to correct the cited noncompliance or conditions within the specified timeframe, the Contracting Officer will issue a notice of revocation of the Government’s assumption of risk for any covered aircraft.
(4) If the Contracting Officer issues a notice of revocation pursuant to the terms of this clause—
(i) The Contractor shall thereafter assume the entire risk for damage, loss, or destruction of the previously covered 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 risk are unallowable costs; and
(iii) The liability provisions of the clause at FAR 52.245-1, Government Property, are not applicable to the aircraft impacted by the notice of revocation.
(5) The Contractor shall promptly notify the Contracting Officer when the noncompliance or cited conditions have been corrected. Within 3 days of receipt of the Contractor’s notice of correction, the Contracting Officer will notify the Contractor whether the Government will resume risk of loss. The Contracting Officer will determine that the noncompliance or cited conditions have been corrected prior to resuming assumption of risk.
(6) The notice of revocation does not 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.”
(7) Any disputes regarding the Contracting Officer’s notice of revocation shall be subject to FAR clause 52.233-1, Disputes.
(f) 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 (including the Contractor’s share of loss) covering damage, loss, or destruction of covered aircraft when the risk has been assumed by the Government, even if the assumption may be terminated for covered aircraft.
(g) Procedures in the event of damage, loss, or destruction .
(1) In the event of damage, loss, or destruction of covered aircraft 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 (h)(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
(iv) The insurance, if any, covering the interest in commingled property.
(2) If a new production aircraft is damaged, lost, or destroyed before it has become a covered aircraft, the Government bears no responsibility for risk of loss.
(3) If a new production aircraft is damaged, lost, or destroyed after it has become a covered aircraft, the Contractor shall take action in accordance with the Contracting Officer’s written direction that the aircraft shall be—
(ii) Repaired to the condition immediately prior to the damage; or
(iii) Considered beyond economic repair. The Contracting Officer will decide whether further actions are required under the contract.
(4) If a covered aircraft that has been furnished by the Government to the Contractor is damaged, lost, or destroyed while covered, the Contractor shall take action in accordance with the Contracting Officer’s written direction that the aircraft shall be—
(ii) Considered beyond economic repair. The Contracting Officer will decide further actions required under the contract.
(5) The Contracting Officer will make an equitable adjustment for expenditures made in performing the obligations under this paragraph (g).
(h) Contractor’s share of loss.
(1) The Contractor’s share of loss or damage to covered aircraft, except for loss or damage caused by negligence of Government personnel, is the least of—
(ii) 20 percent of the price or estimated acquisition cost of affected aircraft; or
(iii) 20 percent of the price or estimated cost of the contract, task order, or delivery order.
(2) If the Government requires covered aircraft be replaced or repaired by the Contractor, any resulting equitable adjustment shall not include reimbursement of the Contractor’s share of loss.
(3) In the event the Government does not decide to replace or repair, the Contractor agrees to credit the contract price or pay the Government, as directed by the Contracting Officer, the least of—
(ii) 20 percent of the price or estimated acquisition cost of affected aircraft; or
(iii) 20 percent of the price or estimated cost of the contract, task order, or delivery order.
(4) 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.
(i) Reimbursement from a third party. In the event the Contractor is reimbursed or compensated by a third party for damage, loss, or destruction of covered 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.
(j) Liability to third parties. Unless the flight and crewmembers have been approved in writing by the GFR, the Contractor shall not be reimbursed for liability to third parties for loss or damage to property or for death or bodily injury caused by covered aircraft during flight, even if the Government has accepted such liability under any other provisions of the contract.
(k) Subcontracts. The Contractor shall incorporate the requirements of this clause, including this paragraph (k), in subcontracts to include subcontracts for commercial products and commercial services, except—
(1) The Contractor shall not include paragraph (f) of this clause in subcontracts for commercial products or commercial services; and
(2) The Contractor shall not incorporate the requirements of this clause in subcontracts with Federal Aviation Administration (FAA) part 145 repair stations performing work pursuant to their FAA license.