Appendix A - Liability and Claims.pdf

DRAFT

Contractor Liability and Claims

A.1 Scope of Contractor Liability.

A.1.1. The contractor shall provide a claims process that will enable the customer to use the Military Claims Office (MCO) to file a claim if warranted. The claims management methodology shall be such that the customer may directly settle a claim with the contractor. The contractor shall be liable for all loss and/or damage up to Full Replacement Value (FRV) for all HHG/UB shipments in custody until the transfer to a contractor or customer as defined in the USTRANSCOM (USTC) Claims and Liability Business Rules. This liability remains in place regardless of whether the contractor provides storage services or transports the shipment. For the contractor to claim any exemptions, contractor must prove it was free from negligence. The contractor accepts full responsibility for performance of its employees, subcontractors, and agents. In the event of any damage to public or private property from acts or omissions of persons performing under this contract, the contractor shall immediately repair and/or correct damages at contractor’s expense.

A.1.2. The Contractor shall not be liable for shortages in the case of an unbroken and unopened HHG/UB container, nor for latent and concealed damage. Inspection and inventory of containers will be restricted to an examination of the exterior of containers. Inventory will include a listing of containers received, with appropriated notations as to the exterior of each container. The omission of notations opposite items on the inventory shall indicate “good condition.”

Containers will not be opened and repacked unless received in bad condition. Containers with major exterior damage will be reported in writing to the Contracting Officer Representative (COR), copy to the Contracting Officer and will be opened and repacked only upon request of the COR.

A.1.3. The contractor shall maintain Warehousemen’s Liability Insurance in accordance with (IAW) USTC Claims and Liability Business Rules. The contractor shall provide proof of Warehousemen’s Legal Liability Insurance coverage with valuation equating to/no less than the net weight of stored shipments for each warehouse location, to the COR. The contractor shall provide a Certificate of Insurance (COI) to the COR within 30 days of an update or renewal.

A.1.4. The contractor shall release HHG/UB items in the same condition as tendered by the freight TSP.

A.1.4.1. If HHG/UB have been damaged by water and/or mold, the contractor shall take all actions necessary to effect remediation, in accordance with USTRANSCOM Claims and Liability Business Rules. The contractor shall submit a remediation plan to the COR, not later than 7 days after initial discovery. The plan shall include an initial assessment of loss and damage, the steps to be taken for remediation, along with a timeline for remediation completion. The contractor shall submit weekly status reports detaining the determination of loss and damage, remediation efforts and percent of affected lots completed, by name and Service, to the COR.

A.1.4.2. The contractor shall notify the COR within 1 GBD of discovery of in stolen, lost, or damaged HHG/UB, to include damage resulting from fire (including water damage incident to a fire), flood, earthquake, tornado, hurricane, or any other similar type of occurrence, while in the care, custody or possession of the contractor.

A.1.4.3. The contractor shall take immediate action to protect the property from further loss and/or damage.

A.1.4.4. The contractor shall submit a full written incident report detailing the particular facts of the event within 5 GBDs of discovery to the COR.

A.1.4.5. The contractor shall submit a list of affected storage lots, by name and branch of Service, to the COR.

A.1.6. The contractor agrees to hold the government harmless of litigation from third parties.

A.1.7. The contractor may not unilaterally take any action to restrict service using any forms, waivers, notices, conditions, display signs, tags, stickers, or similar documents or devices in its dealings with customers. The contractor shall not introduce any forms, waivers etc. that attempt to limit the contractor’s liability for loss, damage, or otherwise attempt to change any terms of the contract.

A.2. Claims.

A.2.1. Claims Settlement. The contractor shall settle (by final negotiated payment to the customer or MCO 95% of all claims per quarter (including claims filed by the MCO) within 90 days from the date the claim was filed. The customer retains the right to file subsequent claims for additional loss and/or damage to the HHG/US discovered after settlement or if the settlement is later determined to be insufficient to cover actual repair costs. In the event agreement cannot be reached, the contractor shall instruct the customer to follow the MCO process. The contractor shall furnish legible copies of any exception sheets as requested.

A.2.2. Inconvenience Claims. The contractor shall reaffirm it is his responsibility to release shipment out of storage on the agreed upon date. When unable to meet these requirements, contractor must provide the customer inconvenience claims guidance prior to the missed agreed upon release date.

A.2.2.1. The contractor agrees to acknowledge an inconvenience claim filed by a customer within five (5) Government Business Days (GBDs) from the date of receipt.

A.2.2.2. Reimbursement.

A.2.2.2.1. The contractor agrees to reimburse the customer within 30 days from receipt for reasonable out-of-pocket expenses that result from my failure to release on the agreed date as stated on the service order or correction notice thereof. The amount applicable for meals and incidental expenses (excluding lodging) is found using the government per diem rate at (https://www.defensetravel.dod.mil/site/perdiemCalc.cfm).

A.2.2.2.2. The contractor further agrees to reimburse the customer within 30 days from receipt for reasonable out-of-pocket expenses while awaiting delivery out of retrograde facility, if not completed on customer’s first requested date and scheduled delivery date is not within five (5) GBDs; (within ten (10) GBDs for shipments with a requested delivery date between June 15 through Aug 15).

A.2.2.2.2.1. The contractor shall compensate the customer for all days that result from his failure to release shipment(s) on or before the agreed upon release date as stated on the service order or correction notice thereof, when the customer is available for delivery. The payment will include the full meals and incidental expense rates for the affected location of the DoD customer only at 100%. The maximum amount due as part of an inconvenience claim payment without receipts is limited to seven (7) days.

A.2.2.2.3. Not Responsible for Inconvenience Claim If:

A.2.2.2.3.1. The contractor shall not liable for inconvenience claims if a delay was solely caused by:

A.2.2.2.3.2. Natural disasters; acts of the public enemy; acts of the Government; acts of the public authority; violent strikes; mob interference; or delays of shipments that were caused by the Government and my negligence did not contribute to the delay.

A.2.2.3. Missed RDD.

A.2.2.3.1. If contractor fails to release for delivery on date requested, which delays delivery on or before the RDD, charges will be computed starting on the first day after the RDD as specified on the BL/DD 1299 and will be payable through the date of actual delivery of the shipment.

A.2.2.3.2. Expenses.

A.2.2.3.2.1. Customers are required to document the claim fully with an itemized list of charges and accompanying receipts for charges incurred.

A.2.2.3.2.2. Reasonable out-of-pocket expenses are expenses incurred by a customer and their dependents because they are not able to use necessary items in their shipment to establish their household.

A.2.2.3.2.3. Expenses include, but are not limited to, lodging, meals, and laundry service, as well as furniture and/or appliance rental (to include rental of a television) and/or purchase of items such as towels, pots, pans, A.2.2.3.2.4. A request for reimbursement of alcoholic beverages is prohibited.

A.2.2.3.2.5. My maximum liability for lodging and meal expenses will not exceed the daily lodging and meal per diem rate, based on the number of dependents in the customer’s family (e.g., the customer and spouse would be expected to share one room in a hotel; additional dependents, depending on age and sex, may require additional rooms). Customers residing in lodging may also submit receipts for laundry services.

A.2.2.3.2.6. The contractor is not required to solely reimburse based on Per diem rates, and reimbursements are based on receipts. The contractor shall make customers aware that lodging and meals should be reasonable and usually will only be reimbursed for a short duration.

A.2.2.3.2.7. Out-of-pocket expenses that may be reimbursed when establishing a household (e.g. customer is staying in the residence) include, but are not limited to, laundry service, furniture and/or appliance rental (to include rental of a television) air mattresses, towels, linens, pillows, and necessary kitchen items; such as pots, pans, dishes, paper plates, plastic ware. Contractor is not required to reimburse meals or groceries.

A.2.2.3.2.8. If contractor purchases or reimburse tangible household items such as towels, pots, and pans, he may arrange to reclaim those items upon delivery of the customer’s shipment.

A.2.2.3.3. Disputed Claim.

A.2.2.3.3.1. In the event of a disputed claim, the COR will make every effort to resolve the dispute between the contractor and the customer. If the contractor disagrees with the COR’s resolution, the contractor may appeal the case to USTRANSCOM J9 within 10 calendar days of notification from the COR. Contractor shall agree and understand the decision of USTRANSCOM J9 is final and the claim must be settled within 10 days from the date of the final decision.

A.2.3. Hardship Claims.

A.2.3.1. In the event the contractor fails to perform IAW the agreed to schedule, the contractor shall reimburse the customer for any out of pocket expenses incurred which are determined unavoidable and unrecoverable under any other means by the COR. These amounts are in addition to an inconvenience claim.

A.2.4. Real Property Claims.

A.2.4.1. Contractor is responsible for damage caused by employee(s) to a customer’s home or residence. An example of damage might include scratched hardwood floors, dented walls, torn grass, etc.

A.2.5. Notice. Pursuant to the Contract Disputes Act (FAR 52.233-1), a claim by the Contractor shall be made in writing and submitted within six (6 years after accrual of the claim to the Contracting Officer for a written decision). A claim by the Government against the Contractor shall be made in writing and submitted to the Contractor within six (6) years from the discovery of the loss or damaged HHG/UB. However, the Government will take all reasonable steps to provide notice of loss as soon as it is discovered.