e) Any reduction in the technical insurance coverage maintained by the Contractor on the date of performance of this Contract will not increase the Government`s liability under this clause, unless the Agent consents thereto and the Contract price is adjusted equitably, if any, to reflect the Contractor`s consideration for the Government`s assumption of increased liability. To illustrate what can go wrong with the use of these clauses, let`s go back to the rest of the history of scaffolding, a real story, as it turns out. A December 2011 decision by the Colorado Court of Appeals shows the importance of knowing what`s in the fine print. [Thyussenkrupp Safway, Inc.c. Hyland Hills Parks and Recreation District, No. 10CA2349 (Colo. App. Head. 8, 2011)] (1) Excluded from the discharge required by this Agreement`s eligible costs clause; and (3) provide evidence or evidence of any claim, loss or damage covered by this clause in the manner and form required by the government; and misspelled, however, these provisions may have unintended consequences. However, for practical reasons, not all orders or contracts can or should be reviewed by a lawyer. One way to exercise adequate control is to establish clear rules for the approval of these clauses. (5) No liability is assumed under any contract or arrangement (with the exception of subcontracts referred to in paragraph (h) of this clause) unless the contract agent (or in contracts with the Department of the Navy, the Department) has expressly authorized the assumption of liability; and in Thyussenkrupp, a deputy general manager signed the seller`s contract form, which included a set-off provision. This term states: «[District] agrees to indemnify and hold SAFWAY harmless from and against all acts, claims, costs, damages, liabilities and expenses, including reasonable attorneys` fees.
which result in any way from [the performance of the contract]. SAFWAY sued the county for workers` compensation amounts paid to the injured employee, citing the clause. If the indemnification provision had not been included in the contract, the District could have objected to the contractor`s claims for contributions. 2 Examples: National Defense Contracts Act, 50 U.S.C. 1431, as implemented by Executive Order 10789 (which provides compensation under national defense treaties for exceptionally dangerous or nuclear risks); 10 U.S.C. § 2354 (which provides compensation for exceptionally dangerous defense research and development); Section 170 of the Atomic Energy Act, as amended by the Price-Anderson Act of 1957, 42 U.S.C. 2210 (d) (compensation for activities involving the risk of a significant nuclear incident); the Federal Aviation Act, as amended, 49 U.S.C. 1531 et seq. (which provides for compensation for risks when flight operations are necessary for the conduct of U.S. foreign policy); and the National Aeronautics and Space Act, as amended, 42 U.S.C. 2458b (which provides compensation for damages related to the launch, operation or recovery of spacecraft). (b) Under public law85-804 (50 U.S.C.
1431-1435) and Executive Order in Council 10789, as amended from time to time and without regard to any other provision of this Agreement, the Government shall, subject to the limitations contained in the other paragraphs of this clause, indemnify the Contractor against — (1) notify the Contract Agent without undue delay of any claim or action or loss of the Contractor or Subcontractors that can reasonably be expected to: they include compensation under this clause; 3 In 1982, the Comptroller General issued an opinion (B-201072, May 2, 1982; Reconsid. 62 Comp. Gen. 361 (1983)), in which he stated that in order to comply with the Federal Anti-Deficiency Act, 31 U.S.C. 1341, indemnification clauses in government contracts must stipulate that compensation is available only to the extent of the authorized funds available. However, this limitation has limited effect if Congress has established legal limits for compensation damages, as in the Price-Anderson Act, or if no cap is set, as in the National Defense Contracts Act. The Price-Anderson Act has not yet been re-approved at the time of this recommendation. 4. Expertise of the Contracting Office.
However, where an agency is considering granting a clearing clause but the contracting entity does not have sufficient technical expertise to assess the degree of risk, the extent of the risk or the availability of insurance, those matters should be referred to a body of the Agency with the necessary expertise to assist the contracting entity in such decisions. If the client as a whole does not have the necessary expertise to adequately assess these issues (e.B. where there are unusual or emerging technological risks), the Agency should seek the support and cooperation of other bodies. Organizations with relevant experience or expertise should work together to provide applicant organizations with staff whose experience in risk assessment may be useful. It may be appropriate to establish a small, highly qualified risk assessment office to provide or coordinate such assistance. 3. The need for additional information. Any organization that has disbursed money or received claims for payment under a contractual obligation to indemnify a contractor, or on whose behalf these amounts have been paid by the federal government, should report all such payments and claims annually to the Office of Federal Policy on Government Procurement (RRFO). The FOCP should periodically publish a report summarising the information received.
All such reports should be made available to the public, unless the publication of the information contained therein is prohibited by law. The FOCP should also receive a regularly updated list of all existing contracts with set-off clauses from each entity concerned. 2. Decision of the Agency on the granting of a compensation clause. Before deciding to grant a compensation clause to a contractor, an agency should identify the public benefits to be expected from such a subsidy and take into account: 4. The subcontract shall provide for the same rights and obligations between the contractor and the subcontractor, the same provisions for notification, provision of documents and others; since they exist between the government and the contractor under this clause. (1) to inform the contract agent without delay of any event, act or claim that could engage the liability of the Government under this clause; (f) The rights and obligations of the parties under this clause shall survive the termination, expiration or conclusion of this Agreement. The government will not make any payments under this clause unless the head of the agency determines that the amount is fair and reasonable. The government may pay the contractor or subcontractor, or pay the parties to whom the contractor or subcontractor may be held directly liable. After a lawsuit and an appeal, the district finally won.
The Court of Appeal did not consider the question of the implied authority of the Deputy Director – an obvious issue that was debated in the Trial Court – but rather considered the legal power to pay compensation. In Colorado, governments cannot create liabilities without funds to pay for them. The District argued that there were no amounts for workers` compensation costs. However, the Court of Appeal found that the law had the power under public construction laws to obtain compensation even without credit. The contractor had failed to comply with certain procedural provisions of that Act, and the court held that his claims against the district were time-barred […].