52.245-9028 Allowable Losses for Meal, Ready-to-Eat (MRE) and Tray Pack Government-furnished Property (GFP).

As prescribed in 45.106(112) insert the following clause:

ALLOWABLE LOSSES FOR MEAL, READY-TO-EAT (MRE) AND TRAY PACK GOVERNMENT-FURNISHED PROPERTY (GFP)

(Jul 2008) - DLAD

(a)  All component items received will be palletized.

(b)  The Government will deliver the following components listed in paragraph (c) below. If by truck, delivery will be made F.O.B. From the Contractor's plant; if by rail, delivery will be made F.O.B. rail cars from the Contractor's plant.

(c)  The quantities of each component listed below are based on assembly of ________ cases and Contractors will be furnished proportionate quantities based upon their final award share. The following percentages represent the allowable loss due to assembly Contractor damage:

(d)  An amount of money not to exceed ___% of the total contract amount, or ________ whichever is smaller, will be withheld pending determination of the Contractor's liability for GFP.

(e)  The liability of the assembly Contractor for loss and damages to GFP (components) shall be calculated as follows:

(1)  A final physical inventory will be performed by the assembly Contractor and the results furnished the DCMA office within 14 days after completion of the contract with a copy to the principal contracting officer (PCO). Additionally, the Contractor shall prepare a final inventory reconciliation as described below and provide this report to the DCMA and the contracting officer within 30 days from contract completion. Failure to comply with these timely submissions will be deemed a breach of contract and may result in the Contractor being liable for the value of the GFM residuals determined not suitable for transfer due to such delay. Additionally, the Government shall not be liable for any resultant start-up delays due to lack of GFM. The Contractor will be required to store, prepare for shipment and handle all residual components for a period of ninety days after agreement to the final inventory has been reached between the Contractor and the Government. The date of agreement shall be the day the Government executes the contract modification concerning the inventory reconciliation. The final inventory will be performed on an item-by-item basis and at a minimum give the quantities, dates of pack and status for all components. The Contractor will provide any and all resources necessary for DCMD/AVI verification of the final inventory. The Contractor will be responsible to reimburse the Government for any and all losses to the components based on the following inventory reconciliation list. (Calculate the amount owed (TOTAL RESIDUAL below) by deducting items ii-v below from item i):

(i)  Quantity received per component

(ii) - Quantity consumed in completed casesTOTAL

(iii) - Quantity transferred out on DD 250's (or if transferred in)TOTAL

(iv) - Manufacturer damages, concealed damages*, and inspection damages**TOTAL

(v) - Actual assembler damage= TOTAL RESIDUAL

* Concealed damage is damage that cannot be determined by the government representative upon receipt inspection, is discovered subsequent to receiving inspection, and not identifiable as manufacturer or assembler incurred.

** Inspection incurred damage occurs when components are damaged in verification examination, submitted to a laboratory for destructive or special testing, or destroyed by the contractor in required contractor examination and testing.

The residual figure as calculated above will be compared to the physical inventory. If the actual physical inventory is less than the residual figure, the Contractor will be liable to the Government for the difference in the monetary value of that item. The dollar value will be calculated by multiplying the unit price or the weighted average price of the item by the number of components unaccounted for. Offsets may be made in the area of homogenous items, described in paragraph (g). Offsets for homogenous items will be made based on the values of the items, e.g., a calculated shortage of $2,000 for peanut butter may be offset by a calculated overage of $2,000 for cheese spread.

(2)  If the Contractor's assembler damage exceeds the allowable loss percentage, for an item as delineated in H-5C of the assembly solicitation, the Contractor will reimburse the Government. The Contractor's liability will be calculated by multiplying the Government's unit price of the component by the number of units in excess of the allowable cost. The monetary loss of any one component due to excessive damage cannot be reduced by the savings from another component. Therefore, if the total dollar value of the contract damages (computed as the sum of the total dollar value of the damages allowed for each individual GFM item) is less than the total dollar value of the damages allowed under the contract, but various individual component items were damaged over the allowable tolerances, the Contractor is still liable for the cost of these individual component damages. However, in the area of homogeneous items, as listed in paragraph (g), offsets may be taken. Offsets will be calculated on a value basis as described in paragraph (e). For example, if the actual losses for cheese spread have exceeded the allowable losses but the actual losses for peanut butter, a homogeneous item, are less than the allowable loss quantity, the dollar difference between the actual and allowable losses for peanut butter can be applied to the value of the excess losses of cheese spread to reduce the Contractor liability for the cheese spread. This procedure is allowed only for homogeneous items.

(3)  A ___% surcharge will be added to the total liability for loss and damages to account for administrative handling and transportation charges.

(4)  In no event shall the Contractor be reimbursed if the value of actual physical inventory exceeds the value of calculated residual. Homogeneous items are defined as follows:

(f)  The Government reserves the right to substitute any of the above or alternate components, and the Contractor shall not be entitled to any additional compensation so long as the substituted items are of substantially the same size as the components for which they are substituted. The contracting officer shall be notified no less than ten (10) working days in advance of any component shortage. If the Contractor fails to provide this notice, and assembly is delayed, resulting assembly delay damages shall not be assessable against the Government. Wire notices of GFM components shortages will include the total receipt and on hand quantity for subject items.

(g)  GFP listed herein is scheduled for delivery to the assembler's plant in quantities as outlined below, however, not in any particular component order or any regular daily rate of delivery. Regardless of this schedule, deliveries of components will be accelerated to the extent necessary to ship minimum carload and/or truckload quantities.

Components required to support the quantity of the line items awarded will be delivered as shown above. However, the Government will not be liable for assembly delays caused by delinquent components if the components are delivered before the first day of the corresponding final assembly delivery period or if the components necessary to maintain assembly are delivered prior to an assembly shutdown caused by lack of components. The assembly Contractor shall immediately notify the contracting officer of the failure of any components to be delivered in accordance with the above schedule. The PCO may be contacted by telephone at area code (215)  737-____.

(h)  The component delivery schedule shown above may be adjusted at no additional cost to the Government. The Contractor warrants and agrees that he will be ready and able to receive and to store by time of award until assembly or disposition pursuant to this contract, and at no cost to the Government, 70% of the total quantity on a unit basis of all components to be delivered. (The 70% will be determined on a unit basis, e.g., cheese spread - 15,912,000 x 70% = 11,138,400 bags). This percentage does not apply to individual components but rather to the total of all components. Therefore, deliveries in excess of 70% of one component may be offset by deliveries of less than 70% of another component. (E.g., if 100% of one item, e.g., 15,912,000 bags of cheese spread are received, they may be offset by receipt of only 30% of another item, e.g., 5,853,600 pouches of peanut butter). The Contractor may be required to receive and store in excess of the quantity required herein in accordance with the changes clause of this contract. Assistance in determining required storage facilities is available by contacting DLA Troop Support ( formerly DSCP )-FTR at a/c (215)  737-____.

(i)  The Contractor will promptly unload all GFP delivered F.O.B. his plant, at his own expense, irrespective of the schedule provided herein for the delivery of the GFP. The Government will not be liable in any manner or form for any demurrage charge accruing as a result of the Contractor's failure or inability to unload cars promptly. It is the assembly Contractor's responsibility to have adequate warehousing and offloading capabilities for the quantities of components schedules below. Failure to have adequate offloading capabilities may result in Government storage of product, either at a Government or commercial facility, which will be charged to the assembly Contractor. Any and all changes resulting from the Contractor's failure to unload cars shall be the liability of the Contractor.

(j)  If required, the Contractor will, at no cost to the Government, continue to store, handle and prepare for shipment or dispose of residual GFP for a period of ninety calendar days beginning immediately after whichever of the following occurs later:

(1)  agreement to the final inventory has been reached between the Contractor and the Government

(2)  final shipment of assembled meals

Disposition will be in accordance with instructions from the contracting officer. In the event that Contractor storage exceeds this period, the Government will only be liable for those additional and direct costs incurred by the Contractor as a result of this extended storage. Preparation for shipment of GFM shall include adequate packing, unitization and blocking and bracing. Any damage to GFM during transportation as a result of inadequate preparation for shipment shall be the liability of the Contractor.

(k)  Payment hereunder will be based upon the number of completed boxes assembled and delivered. No compensation will be allowed for subassemblies which are not incorporated into completed boxes. All such subassemblies shall be and remain sole property of the Government and shall be accounted for as residual inventory. All Contractor-furnished material (CFM) will be inventoried at the completion of this contract following the procedures stipulated in this solicitation, and forwarded to the troop issue destination as directed by DLA Troop Support ( formerly DSCP )-FTR (See paragraph H-5(e)), unless the Contractor requests otherwise in writing. If a request is received from a Contractor for use of residual CFM under this contract for any subsequent contracts, or from any previous contracts for use in the assembly of this contract, a complete inventory of the item(s) involved, the applicable lot numbers and dates of processing shall be provided. DLA Troop Support ( formerly DSCP )-FTR shall forward direction regarding approval of the proposed transfer. If the transfer is approved, modification of the prime contract shall be effected in the following manner:

(1)  In regard to residual CFM to be considered for use under the current contract, the following shall apply:

(i)  For residual quantities up to and including the total quantity negotiated as a tolerance under the prior contract (computed by adding the quantity damaged plus residual material enough to reach the quantity tolerance), all residual material will be transferred at no cost. The current contract quantity requirement for the residual item(s) shall be reduced accordingly.

(ii)  For residual quantities over the quantity negotiated as a tolerance under a prior contract (see paragraph (k) above), the quantity of residual material up to that tolerance quantity negotiated (computed by the quantity tolerance) shall be transferred in accordance with paragraph (k)(1)(i) above. Any quantity over and above the tolerance negotiated may be offered to the Government. If the request is accepted, the Contractor shall be reimbursed for that product at the unit price negotiated under the prior contract. The current contract quantity requirement for that item shall be reduced accordingly.

(iii)  For purposes of executing the above transfer, the Contractor shall promptly forward closing inventories of all products at the completion of all the applicable contracts. This ending inventory shall be verified by the DCMA property administrator or an authorized representative. All GFM and CFM, if when combined with the damaged CFM totals the negotiated damages quantity in the contract, shall be immediately retained for use on the following contract at no cost to the Government. Any remaining CFM may be transferred in accordance with paragraph (ii) above. All final transactions shall be accomplished by formal modifications.

(2)  In regard to residual Contractor-furnished material under this contract to be considered for use under a subsequent contract, if applicable, the provision of paragraph (k)(1) above shall govern except reference to "prior contract(s)" shall be deleted and substituted with "the current contract" and reference to "the current contract" shall be deleted and substituted with "future contract".

(l)  The Government reserves the right to increase or decrease the quantities of Government-furnished components specified herein but not by an amount to exceed 5% for any specific item. Notwithstanding the fact that supplies have been accepted at F.O.B. origin, blocks 21b and 22 of the DD 250 will be signed by the cognizant Government inspector and Contractor quality assurance representative respectively for evidence of receipt of shipment for count, identity and condition of supplies received. The fully executed copies of the DD 250 must be immediately mailed to the attention of _____________.

(m)  The Contractor shall not incorporate any defective components into the assembled meals. For defective GFM components, the Contractor shall, at its own expense, set aside, store and handle such defective components in accordance with (i) and (j) above, provided that, in the event that the quantity of such defective components exceeds 5% of the total quantity of that component furnished, an equitable adjustment shall be made in the contract price to compensate the Contractor for its cost of storing and handling that quantity of defective components which is in excess of 5% of the total quantity of that component furnished and the contract shall be modified in writing accordingly. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "disputes". However, nothing in this clause shall excuse the Contractor from proceeding with contract performance. In addition, the cost data detailing Contractor costs, if any, for storage and handling of the quantity of defective components in excess of 5% of the total quantity of that component furnished must be submitted within 10 days of completion of the screening operation. Failure to submit this cost data within 10 days of completion of this operation shall constitute the Contractor's agreeing that this screening operation was performed at no cost to the Government. In the event that the Contractor discovers excessive defects for any GFM component, the Army Veterinary Inspector (AVI) should be notified immediately, so that they can perform a warranty inspection if such is determined applicable.

(n)  It is the responsibility of the Contractor to promptly inspect all GFM arriving at this plant for count, condition and identity and to promptly annotate bills of lading and material inspection and receiving reports (DD Form 250) furnished by the component Contractor as to any shortage or damage, after notice to and verification by the Army Veterinary Inspector (AVI) (see (e)(2) for procedure requirements). The final responsibility for signing the material inspection and receiving reports, resulting in acceptance of the product, rests with the Government inspector even though this acceptance may be based on the Contractor's inspection results. The Contractor must distribute fully executed DD forms 250 within seven calendar days from receipt of shipment with receipt clarified to mean date of delivery and not inspection or acceptance. Distribution is as follows: 1 copy to DLA Troop Support ( formerly DSCP ), ATTN: ____________, 700 Robbins Avenue, Philadelphia, PA 19111-5092 and 1 copy to the payment office indicated on the DD Form 250 accompanying the component shipments. The payment office copies shall be forwarded via express mail or overnight delivery; Contractors shall group DD Forms 250 by payment office for daily expediting. Failure to comply may result in any lost payment discounts to the Government being assessed against assembly in addition to liability for all resultant costs associated with insufficient GFM. Manufacturer/transportation damages not annotated at time of receipt inspection in accordance with (e)(2) will be considered assembler damage, unless promptly made available for verification by the AVI and the AVI manufacturer/ transportation damages shall be annotated at time of receipt inspection only, unless concealed damages can be ascertained by the AVI. An email shall be forwarded to: __________ by every Friday which includes all GFM receipted for during that week. The following information should be contained in the weekly email:

(1)  Item

(2)  Quantity

(3)  Date arrived

(4)  Shipment number

(5)  Contract number

(6)  Status, i.e., accepted/rejected/pending AVI inspection

(7)  If rejected, (or rejected by assembler) reason for rejection

To conserve space, the Contractor should indicate data by letter for example:

(1)  Cheese

(2)  122,222

(3)  12-22-87

(4)  CHE0022

(5)  87-C-Z022

(6)  Accepted

(End of Clause)