Contract and Grant Manual

RISK MANAGEMENT

[Return to Manual Chapter Listing]


Table of Contents

21-100 INTRODUCTION

21-110 SCOPE

21-200 UNIVERSITY RISK MANAGEMENT POLICY

21-210 AUTHORITY AND RESPONSIBILITY

21-300 UNIVERSITY INSURANCE COVERAGE

21-310 PROPERTY SELF-INSURANCE PROGRAM (BUS-28)

21-311 Coverage A -- All Risk Property

21-312 Coverage B -- Buy-Down Deductible for Theft

21-313 Coverage C --Transit

21-320 VEHICLE PHYSICAL DAMAGE SELF-INSURANCE PROGRAM (BUS-69)

21-330 INSURANCE COVERAGE FOR PRIVATELY-OWNED AND RENTED VEHICLES

21-340 GENERAL AND AUTOMOBILE LIABILITY SELF-INSURANCE PROGRAM (BUS-75)

21-350 PROFESSIONAL MEDICAL AND HOSPITAL LIABILITY SELF-INSURANCE PROGRAM (BUS-9)

21-360 WORKERS' COMPENSATION SELF-INSURANCE PROGRAM (BUS-73)

21-400 UNIVERSITY REQUIREMENTS

21-410 STANDARD INSURANCE COVERAGE LANGUAGE

21-420 LIQUIDATED DAMAGES AND REPERFORMANCE EXPOSURES

21-430 INDEMNIFICATION AND THIRD PARTY LIABILITY

21-440 PARTIAL IMMUNITY FROM TORT LIABILITY

21-450 SPECIAL COVERAGES

21-460 INSURANCE REQUIREMENTS/CERTIFICATES OF INSURANCE (BUS-63)

21-470 GENERAL REVIEW OF AGREEMENTS

21-500 FEDERAL REQUIREMENTS

21-510 CONTRACT REQUIREMENTS

21-511 Tort Liability

21-512 Liability, Indemnification, and Liquidated Damages in Other FAR Clauses

21-520 FEDERAL GRANT AND OTHER AGREEMENT REQUIREMENTS

21-600 STATE REQUIREMENTS

21-610 STATE STANDARD AGREEMENT FORM 2

21-620 INSURANCE

21-999 RELATED UNIVERSITY REFERENCES

EXTERNAL REQUIREMENTS--FEDERAL

21-F01 Federal Acquisition Regulation Subpart 28.3, Insurance, and NASA FAR Supplement Subpart 1828.3, Insurance

21-F02 Other FAR Clauses Related to Liability, Indemnification, and Liquidated Damages

21-F03 OMB Circular A-110, Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations -- Bonding and Insurance


21-100 INTRODUCTION

The University of California is exposed to various property and liability risks. To address the issues of the University's risk management, the Office of the President (OP) Office of Risk Management was established in the early 1960s under the Senior Vice President, Business and Finance. This office is responsible for providing uniform administration of the University's Risk Management Program, purchasing insurance, and managing the University's self-insurance programs.

21-110 SCOPE

This Chapter provides information about the University's Risk Management Program and policies as they apply primarily to campus contract and grant administration. The three major Department of Energy (DOE) Laboratories, the Lawrence Berkeley National Laboratory (LBNL), the Lawrence Livermore National Laboratory (LLNL), and the Los Alamos National Laboratory (LANL) have very limited participation in the University's Risk Management Program. LBNL and LLNL participate in the University's Workers' Compensation Self-Insurance Program described below in 21-360. LANL does not. All three DOE Laboratories have a crime bond arranged through the Office of Risk Management which covers losses due to employee dishonesty.

The Chapter describes specific Federal and State clauses which are found in award documents for sponsored projects and describes subrecipient flow-down requirements as well as insurance, bonding, and indemnification requirements for external recipients of University funding. Related information on purchasing is covered in Chapter 16. Medical claims of human subjects is covered in Chapter 18.

21-200 UNIVERSITY RISK MANAGEMENT POLICY

The University Risk Management Policy, approved by The Regents in January, 1970, outlines the responsibilities of the University for management of the various property and liability risks to which the University is exposed. The Policy provides that the University will:

The Policy sets forth the guidelines for what constitutes a "significant loss" and for purchasing insurance.

21-210 AUTHORITY AND RESPONSIBILITY

The University Risk Management Policy assigns the President authority and responsibility for:

The President has delegated this authority to the Senior Vice President, Business and Finance who has redelegated it to the Director of Risk Management.

21-300 UNIVERSITY INSURANCE COVERAGE

The University is largely self-insured with excess coverage provided through purchased insurance policies. Excess insurance above the self-insured retentions is purchased for general, automobile, and professional liability and property. Insurance is also purchased for marine, aviation, fine arts, boiler and machinery, and crime coverage.

Each Risk Management program is designed to address different University needs. It is important to review the Business and Finance Bulletin references cited below and determine with the Campus Risk Manager in advance the conditions for obtaining coverage in specific circumstances.

Policies, procedures, and coverage guidelines for each of the University's insurance programs are set forth in the following Business and Finance Bulletins (BUS) written by the Office of Risk Management:

The campus Risk Manager should be consulted when there are any questions about the coverage available or the need to purchase additional coverage above that provided by the University's Risk Management Program for a particular sponsored project. The cost of additional insurance "required or approved, and maintained, pursuant to the sponsored agreement" is an allowable direct charge. (Office of Management and Budget (OMB) Circular A-21, Cost Principles for Educational Institutions, Section J.21.a.)

21-310 PROPERTY SELF-INSURANCE PROGRAM REFERENCES, FUNDING, COVERAGE ALL-RISK PROPERTY, BUY-DOWN DEDUCTIBLE FOR THEFT

The University's property protection program covers all University-owned property. The University self-insures its buildings and contents against fire and extended perils, including forced entry theft with a self-insured retention of $5 million. The University purchases excess coverage above the $5 million self-insured retention. BUS-28 should be consulted for a current list of perils not covered. It is a policy of The Regents not to purchase earthquake or flood insurance. Therefore, such coverage is generally not purchased for a particular individual sponsored project. The campus Risk Manager must be consulted if a sponsor requires such coverage.

The three types of property coverage described in BUS-28 are summarized below.

21-311 Coverage A -- All Risk Property

This program covers direct loss or damage to property owned or not owned, but in the care, custody, and control of The Regents, regardless of the location or while in transit. Coverage is extended worldwide for all risks of direct physical loss or damage from external cause. There are ceilings, exclusions, and deductibles described in BUS-28 which limit the coverage, for example, for theft. Coverage is automatic, but foreign countries or sponsors may require the purchase of specific foreign insurance coverage. The availability of coverage for specific cases should be discussed with the campus Risk Manager.

21-312 Coverage B -- Buy-Down Deductible for Theft

This program provides an opportunity for departments to reduce or buy-down the deductible for theft under Coverage A described above in 21-311 by payment of a specified premium. The current University deductible is listed in BUS-28. Consult the campus Risk Manager for buy-down coverage.

21-313 Coverage C --Transit

This program covers goods in transit valued over $100,000 per shipment, household moves, and foreign shipments. Coverage under Coverage C is not automatic; it must be applied for in advance and approved by the campus Risk Manager.

21-320 AUTOMOBILE SELF-INSURANCE PROGRAM

The Vehicle Physical Damage Self-Insurance Program is primarily intended to cover vehicles owned or otherwise obtained by the University to meet institutional needs. This coverage is optional. To obtain coverage, a campus department must contact the campus Risk Manager.

21-330 INSURANCE COVERAGE FOR PRIVATELY-OWNED AND RENTED VEHICLES

Insurance coverage for privately-owned and rented vehicles is discussed in Business and Finance Bulletin G-28, Policy and Regulations Governing Travel.

The University establishes rental contracts with major automobile rental companies to meet employee needs for auto transportation when traveling on University business. These rental car contracts generally include collision damage coverage as part of the daily rental rate. These rental rates will be reimbursed by the University under University travel policy as set forth in G-28. They are chargeable to sponsored agreements where travel is incurred to benefit the agreement.

If an employee rents a vehicle outside of a University established umbrella rental contract which does not include the waiver of collision damage coverage or the employee uses his/her own private vehicle, the employee's private insurance coverage is primary. Further information on this subject is available in G-28. G-28 also provides the insurance coverage levels required of employees using their own automobiles for University business.

21-340 GENERAL LIABILITY, AUTOMOBILE LIABILITY AND EMPLOYMENT PRACTICES LIABILITY SELF-INSURANCE PROGRAM

The University's General and Automobile Liability Self-Insurance Program provides coverage up to $5 million per occurrence. The coverage applies to general, automobile, and personal injury liability and sudden and accidental release of toxics into the environment.

University employees, entities, and operations worldwide, excluding the Department of Energy (DOE) Laboratories are covered by this Program. The DOE Laboratories are self-insured under separate arrangements with DOE.

The automobile liability program covers University owned, leased, or rented automobiles. As stated above in 21-330, automobiles rented from rental car companies under contract with the University provide the primary liability coverage. For employees using a privately owned cars for University business, the driver's automobile insurance is the primary liability coverage.

21-350 PROFESSIONAL MEDICAL AND HOSPITAL LIABILITY SELF-INSURANCE PROGRAM (BUS-9)

The Professional Medical and Hospital Liability Self-Insurance Program provides coverage to the University's medical professionals (those licensed in the healing arts) and hospital staff for acts or omissions in the course and scope of employment at University-owned or affiliated medical facilities.

21-360 WORKERS' COMPENSATION SELF-INSURANCE PROGRAM (BUS-73)

This self-insured program allows the University to exert direct control over program costs through retention of premium, development of loss prevention and control programs, and claims management. Management of this Program, fiduciary activity, and provision of contracted claims administration are the responsibility of the OP Office of Risk Management. Local program activities and performance are the responsibility of campus, hospital, and Laboratory Workers' Compensation Managers. Workers' Compensation premium is included in the benefit rates direct charged to sponsored agreements.

For employees permanently residing and working out of state, special arrangements must be made for coverage. Arrangements for this coverage must be made through an employee's site Workers' Compensation Manager prior to a University employee commencing work out of state.

21-400 UNIVERSITY REQUIREMENTS

The University Risk Management Policy, the Standing Orders of The Regents, the Tort Claims Act, and the University's self-insurance programs are all factors which determine acceptable indemnification and insurance terms and conditions in sponsored agreements. Extramural awards may contain specific requirements for insurance coverage, indemnification, and/or liquidated damages, which could be potential sources of liability for the University. As described below, whenever standard language is not used in these areas, the appropriate campus office should be consulted.

21-410 STANDARD INSURANCE COVERAGE LANGUAGE

Current levels of self-insured retentions for the University's liability and property programs are provided in Business and Finance Bulletin BUS-63, Insurance Requirements/Certificates of Insurance. Examples of acceptable insurance language for contracts can be obtained from the campus Risk Management Office. Whenever standard insurance language is not provided in an agreement, it is recommended that the campus Risk Manager review the clause.

21-420 LIQUIDATED DAMAGES AND REPERFORMANCE EXPOSURES

Any clause for liquidated damages or reperformance is cause for concern and should be negotiated out of an agreement or referred to the Office of General Counsel for review.

The term "liquidated damages" refers to a sum stipulated and agreed upon by the contracting parties at the time the contract is made as being payable as compensation for loss suffered in the event of a breech. They are not damages necessarily based on an actual loss. Liquidated damages are often used in contract breeches for the late delivery of goods or late completion of construction projects. For examples of liquidated damages clauses in federal contracts, see 21-F02.

Reperformance exposure for the University arises when a contract requires that the contractor redo work which is unacceptable to the sponsor at the contractor's expense or charges the contractor for the additional costs of having the work done by a new contractor if the contract is terminated for unsatisfactory progress.

Both liquidated damages clauses and clauses which create reperformance exposures are inappropriate in an award to the University because research at the University is done on a "best efforts" basis. Specific results are not guaranteed. However, "best efforts" means a vigorous, high quality effort consistent with the University's normal standard of excellence and professionalism. (See Chapter 2-635, Research Based on Best Efforts.) In addition, the University receives no fee or profit on its research. Since payment is generally based on actual costs incurred to perform the research, there is no fund to pay for liquidated damages or reperformance exposure. Thus, such clauses create an unfunded liability for the University.

21-430 INDEMNIFICATION AND THIRD PARTY LIABILITY

Indemnification means that one party assumes financial responsibility in the event of a specified loss. An indemnification clause transfers the risk of damages or loss from one party to another. The language of an indemnification clause should only hold the University liable for the acts or omissions of its own employees, officers, or agents. Requiring the University to assume liability for other parties such as subcontractors and consultants that are not under the University's control is called "third party liability."

Under Regents' Standing Order

, an agreement which requires the University to assume third party liability must be approved by The Regents. Standing Order 100.4, which describes the duties of the President, states that "agreements by which the University assumes liability for conduct of persons other than University officers, agents, employees, students, invitees, and guests..." require a resolution of The Regents to solicit, accept, or execute. This Standing Order applies to contracts, pledges, gifts, grants, and "other documents necessary in the exercise of the President's duties..." (Regents' Standing Order 100.4(dd)(9).) Proposals and awards which assume third party liability must be submitted to The Regents for approval. (See 21-610; also Chapter 10-210 on Regents' Items.)

Language which improperly attempts to require the University to assume third party liability may be found in various clauses, in addition to the indemnification clause, such as those covering insurance, Workers' Compensation, leasing, and equipment. Any clause which discusses liability should be reviewed for this issue.

The language in an indemnification clause must limit the University's liability to acts over which it has control and to the extent that it has control, i.e., its own employees, officers, or agents. The payment of attorneys' fees should also be limited. Sample standard indemnification clauses can be obtained from the campus Risk Manager. For exceptions to indemnification language, consult with the appropriate campus office in accordance with campus procedures.

21-440 PARTIAL IMMUNITY FROM TORT LIABILITY

Tort liability refers to a civil or private wrong based on a legally enforceable obligation. Failure to meet the legal requirement of using a degree of care of an ordinary and prudent person can result in liability for damages. Under the California Tort Claims Act, the University is partially immune from tort liability. Division 3.6 of the California Government Code sets forth the conditions under which a public entity such as the University is liable for actions and when it is exempt. For example, it is immune to claims for punitive damages (Code Section 818). However, a public entity may not be immune from liability when it has a statutory duty to protect against certain kinds of risk and fails to discharge that duty with reasonable diligence (Code Section 815.6).

21-450 SPECIAL COVERAGES

As noted above in 21-300, University Insurance Coverage, Contract and Grant Officers must consult with campus Risk Management if an agreement requires special coverage such as fine arts, marine, flood, earthquake, or coverages in excess of self-insured retentions. The cost for coverage above the University's Risk Management Program is an allowable charge if it meets the criteria set forth in OMB Circular A-21, J.21.a. as stated in 21-300.

21-460 INSURANCE REQUIREMENTS/CERTIFICATES OF INSURANCE(BUS-63)

A certificate of insurance is an indicator of adequate insurance coverage in force to protect the interests of the University and other parties when necessary. Business and Finance Bulletin BUS-63, Insurance Requirements/Certificates of Insurance, describes the requirements and procedures for providing certificates to an external sponsor. Requests for issuance of a certificate of insurance from the University are submitted to the campus Risk Manager.

BUS-63 also sets forth the insurance requirements for sub-agreements including indemnification and obtaining certificates from a subcontractor, subrecipient, or consultant. Insurance limits can be raised or lowered depending on the risk involved in the agreement. Consult with the campus Risk Manager when necessary.

21-470 GENERAL REVIEW OF AGREEMENTS

Risk Management recommends that sponsored agreements, whether they are for funds into the University or for subawards from the University to another entity, be reviewed in accordance with the following checklist:

  • 1. Read the entire award document to identify all language about indemnification. It is not unusual for references to indemnification issues to be located in several places. (For an example, see 21-500 below on federal clauses.)

  • 2. Does the other party have adequate liability coverage for the type of activity covered under the contract? Business and Finance Bulletin BUS-63, Insurance Requirements/Certificates of Insurance, provides guidance on minimum liability requirements or consult with the campus Risk Management Office.

  • 3. Are the limits required of the University reasonable and appropriate for the type of activity covered by the award (e.g., are they too high)?

  • 4. Does the award need to be modified to show that the University is self-insured? For example, if it just requires an "insurance policy", add "or a program of self-insurance."

  • 5. Does the award limit the University's liability to the negligent acts or omission of University officers, agents, employees, students, invitees, and guests as stipulated in The Regents Bylaws and Standing Orders or does it extend Regents' liability to third parties? (See 21-430, Indemnification and Third Party Liability, above.)

  • 6. If the award requires assumption of liability for property damage, is it covered by the University's property insurance programs? If not, consult with the campus Risk Manager.

    21-500 FEDERAL REQUIREMENTS

    Federal requirements for bonding and insurance for contracts, grants, and cooperative agreements are set forth in Federal Acquisition Regulation (FAR) Part 28 and agency supplements and in the Office of Management and Budget (OMB) Circular No. A-110, Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations, Subpart C. The FAR also contains indemnification clauses. These requirements are described in more detail in the "External Requirements -- Federal" section in the back of this chapter.

    21-510 CONTRACT REQUIREMENTS

    FAR Part 28 describes the federal contract bond and insurance requirements. Subpart 28.3 - Insurance sets forth the general insurance requirements for all government contractors including University research contracts. The National Aeronautics and Space Administration (NASA) has additional insurance requirements in its FAR Supplement Subpart 1828.3, Insurance.

    FAR clauses in Part 52.228 related to risk management issues are inserted in the University's federal research and development contracts to cover federal liability and indemnification. The NASA FAR Supplement clauses at 1852.228 apply only to specific NASA contracts, which include space station, space shuttle, or expendable launch vehicle activities. These FAR requirements are described in 21-F01 in the back of this chapter.

    21-511 Tort Liability

    The FAR clauses on immunity from tort liability and liability to third persons applicable to the University are 52.228-6 and 52.228-7, Alternate I. (See External Requirements--Federal 21-F01.) The University is partially immune from tort liability to third persons under the Tort Claims Act as explained above in 21-440.

    21-512 Liability, Indemnification, and Liquidated Damages in Other FAR Clauses

    Other FAR clauses in University research and development contracts address liability and indemnification for patent infringement, defective cost or pricing data, and inspection of research and development and liquidated damages. These clauses described in 21-F02 protect the federal government against loss or damages caused by contractor or subcontractor practices in these areas.

    21-520 FEDERAL GRANT AND OTHER AGREEMENT REQUIREMENTS

    The Federal bonding and insurance requirements for grants and other agreements are in the Office of Management and Budget Circular No. A-110, Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations, _.21(c)-(e) and _.31. The requirements in these sections are described in 21-F03.

    21-600 STATE REQUIREMENTS

    21-610 STATE STANDARD AGREEMENT FORM 2

    When a State agency uses a Standard Agreement (Standard Form 2) with the University, the back of the Standard Agreement face page has the following indemnification language pre-printed on it:

    The Contractor agrees to indemnify, defend and save harmless the State, its officers, agents, and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, materialmen, laborers and any other person, firm or corporation furnishing or supplying work, services, materials or supplies in connection with the performance of this contract, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by the Contractor in the performance of this contract.

    As explained above in 21-420, without obtaining approval of The Regents, Standing Order 100.4 allows the University to assume liability only for its own "officers, agents, employees, students, invitees, and guests..." Since every State Standard Agreement Form 2 contains this clause requiring its contractors to assume liability for third parties, that is, those other than their own employees, officers, etc., each State Standard Agreement would require Regental approval under The Regents' Standing Orders. (See 21-240.) The Regents, therefore, authorized the President to execute all State Standard Agreements with this General Condition at their February 14, 1975 meeting. The authority to accept these Agreements has been redelegated to Chancellors and Laboratory Directors in their Delegation of Authority for Contract and Grant Administration. (See Chapter 13-710 and 13-930.)

    The University and the State Department of General Services have also agreed to the use of an indemnity/hold harmless clause which provides mutual indemnification between the two parties in lieu of the above cited clause. This clause may be used in State Standard Agreements, Form 2, in place of the preprinted clause on the back of the form with the following exceptions determined by the State Department of General Services:

  • The clause cannot be used in agreements which are funded by pass-through or subvention funds; and

  • When the University bids on a contract, competing with private, for-profit corporations.

    There should be no indemnification language when the State agency uses an interagency agreement (Standard Form 13).

    21-620 INSURANCE

    The State Department of General Services and the OP Office of Risk Management have agreed that contracts and agreements between The Regents and the State do not require evidence of insurance.

    21-999 RELATED UNIVERSITY REFERENCES

  • University Risk Management Policy, January 1970.

  • University of California Risk Management and Safety Desk Reference

  • Standing Order of The Regents 100.4(dd)(9)

    Business and Finance Bulletins

  • BUS-1 Fine Arts Insurance Program

  • BUS-9 Professional Medical and Hospital Liability Self-Insurance Program

  • BUS-28 Property Self-Insurance Program References, Funding, Coverage All-Risk Property, Buy-Down Deductible for Theft

  • BUS-39 Loss of or Damage to Property of Individuals

  • BUS-63 Insurance Requirements/Certificates of Insurance

  • BUS-69 Automobile Self-Insurance Program

  • BUS-73 Workers' Compensation Self-Insurance Program

  • BUS-74 Business Travel Accident Insurance

  • BUS-75 General Liability, Automobile Liability and Employment Practices Liability Self-Insurance Program

  • G-28 Policy and Regulations Governing Travel

    EXTERNAL REQUIREMENTS--FEDERAL

    21-F01 Federal Acquisition Regulation Subpart 28.3, Insurance; NASA FAR Supplement Subpart 1828.3, Insurance

    PURPOSE

    These subparts prescribe the Federal contract requirements for insurance and liability.

    APPLICABILITY

    While the FAR subparts apply to all Federal contractors and subcontractors, specific requirements may apply only to certain types of contractors and subcontractors as explained below. The NASA FAR Supplement Subpart applies only to NASA certain contracts, generally to those including space shuttle, space station, or expendable launch vehicle activities.

    SUMMARY OF PROVISIONS

    FAR Subpart 28.3, Insurance, sets forth the types of insurance Federal contractors and subcontractors are required to carry in accordance with the kind of Federal contracts they are receiving and the work to be performed. Subpart 28.311 instructs the Federal contracting officer to insert in cost-reimbursement contracts the clauses at 52.228-6 and 52.228-7 on liability insurance, described below.

    The NASA FAR Supplement Subpart 1828.3, Insurance, provides for additional liability requirements for NASA contractors which may be inserted into contracts with the clauses at 1852.228 described below.

    IMPLEMENTING REGULATIONS

    The clause at 52.228-6, Insurance--Immunity From Tort Liability, is inserted when the contractor is partially or totally immune from tort liability to third persons. As the University is partially immune from tort liability, the clause is used. The clause at 52.228-7, Insurance--Liability to Third Persons, sets forth all the types of insurance the contractor must maintain and the extent of Government liability. In addition, it provides two alternates for the contractor to indicate whether it is partially or totally immune from tort liability. Alternate I should be selected for University contracts as the University is partially immune from tort liability.

    The NASA FAR Supplement (NFS) clause at 1852.228-72, Cross-Waiver of Liability for Space Shuttle Services, is inserted in contracts over $100,000 which involve space transportation systems operations including payload activity and ground support. It requires that the parties working on a shuttle launch project agree not to sue each other for damages to their property or employees while working on the project.

    Additional NFS clauses at 1852.228-76, Cross-Waiver of Liability for Space Station Activities, and 1852.228-78, Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV) Launches, provide the same requirements as 1852.228-72 for the additional named activities.

    PRIMARY UNIVERSITY RESPONSIBILITY

    Office of Risk Management

    UNIVERSITY IMPLEMENTATION

    University Risk Management Program


    EXTERNAL REQUIREMENTS--FEDERAL

    21-F02 Other FAR Clauses Related to Liability, Indemnification, and Liquidated Damages

    PURPOSE

    The FAR provides clauses addressing the liability of the contractor and subcontractor in other areas where liability is an issue. These include defective cost or pricing data, copyrights and patents, inspection of research and development, and subcontracting plans. The clauses protect the Government against loss or damages caused by the contractor or subcontractor practices in these areas.

    APPLICABILITY

    All Federal contractors and subcontractors in accordance with the type of contract, work to be performed, i.e., research, service, construction, etc., and type of contractor.

    SUMMARY OF PROVISIONS

    FAR 15.804-8 instructs the Government contracting officer to insert the contract clauses at 52.215-22, 52.215-23, 52.215-24, and 52.215-25 in contracts which require cost or pricing data. These clauses protect the Government from liability for defective cost or pricing data.

    FAR 19.708(b)(2) requires contracting officers to insert the clause at 52.219-16, Liquidated Damages-- Subcontracting Plan, in all solicitations and contracts containing the clause at 52.219-9, Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan.

    FAR 27.203-2(a) and 27.203-4(a)(2) prescribe a clause which addresses liability for patent infringement be inserted in certain Federal contracts and subcontracts.

    FAR 45.106(f)(1) instructs the Government contracting officer to insert the clause at 52.245-05 which addresses the issue of liability for Government property.

    FAR 46.308 and 46.309 prescribe that the clauses at 52.246-8 or 52.246-9 respectively be inserted in cost-reimbursement contracts for research and development. 52.246-8 allows the Government to require the contractor to replace or correct work not meeting contract requirements.

    IMPLEMENTING REGULATIONS

    The clauses at 52.215-22, Price Reduction for Defective Cost or Pricing Data, 52.215-23, Price Reduction for Defective Cost or Pricing Data--Modifications, 52.215-24, Subcontractor Cost or Pricing Data, and 52.215-25, Subcontractor Cost or Pricing Data--Modifications are inserted in contracts when cost or pricing data is required. Under these clauses, the contractor or subcontractor is liable to repay the Government for excess charges due to defective cost or pricing data.

    52.219-16, Liquidated Damages--Subcontracting Plan, carries the risk of a penalty if a contractor willfully or intentionally fails to meet its subcontract plans goals. This clause is acceptable since the risk of any penalty is minimal and would have to be because of the University's intentional failure to act.

    52.227-3, Patent Indemnity, provides language on liability to the Government if the contractor infringes a U.S. patent during performance of the contract. This clause is generally only applicable to the purchase of commercial items. In research contracts, the Government normally grants permission to the contractor to use any U.S. patent in the performance of the contract (FAR clause 52.227-1, Authorization and Consent).

    52.245-05, Government Property (Cost-Reimbursement, Time-and-Material, or Labor-Hour Contracts), sets forth the contractor's liability for damage or loss of Government property.

    52.246-08, Inspection of Research and Development -- Cost-Reimbursement, is inserted in contracts in which the primary objective is a deliverable item. In this clause, the Government may require the contractor to redo unacceptable work and, if the contractor fails to do so, may charge the contractor for any increased costs. Thus, the clause creates an unfunded liability for the contractor. 52.246-09, Inspection of Research and Development (Short Form), should be used instead of 52.246-08 for research and development contracts with the University. If 52.246-08 is used, Alternate I for contracts on a no-fee basis should be substituted.

    PRIMARY UNIVERSITY RESPONSIBILITY

    The Principal Investigator's department is responsible for preparing the cost and pricing data. Campus Purchasing Office is responsible for managing any subcontracting plan that may be required under a federal contract. Principal Investigators should use their best efforts to insure that the results of work under a contract do not infringe any U.S. patent.

    The campus department is primarily responsible for safeguarding government property. Finally, the campus Contract and Grant Officer is responsible for assuring that the applicable inspection clause and alternate are used. The PI is responsible for completing the scope of work under the contract and performing to the "best efforts" standard.

    UNIVERSITY IMPLEMENTATION

    Contract and Grant Manual, Chapters 2, 15, 16, and 21.


    EXTERNAL REQUIREMENTS--FEDERAL

    21-F03 OMB Circular A-110, Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations -- Bonding and Insurance

    PURPOSE

    As this Circular sets forth the administrative requirements for Federal grants and other agreements, it contains the bonding and insurance requirements which apply to these types of awards to higher education institutions.

    APPLICABILITY

    This Circular applies to grants and other agreements from the Federal Government to higher education institutions, hospitals, and other non-profit organizations.

    SUMMARY OF PROVISIONS

    Subpart C - Post-Award Requirements, ___.21 Standards for financial management systems (c), (d), and (e) set forth the bonding requirements. These apply to recipients who borrow money and/or lack sufficient coverage to protect the Government's interest. These requirements do not apply to the University.

    Under Subpart C, Property Standards, _.31 Insurance Coverage, a recipient is required to maintain the same insurance coverage for real property and equipment acquired with Federal funds as is maintained for other property owned by the recipient.

    LEAD AGENCY

    Office of Management and Budget

    IMPLEMENTING REGULATIONS

    Individual agency guidelines

    PRIMARY UNIVERSITY RESPONSIBILITY

    Office of Risk Management

    UNIVERSITY IMPLEMENTATION

    University Risk Management Program