[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1996 Edition]
[From the U.S. Government Publishing Office]
48
Federal Acquisition Regulations System
[[Page i]]
CHAPTER 2 (Parts 252 to 299)
Revised as of October 1, 1996
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF OCTOBER 1, 1996
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1996
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. V
Title 48:
Chapter 2--Department of Defense.......................... 3
Finding Aids:
Table of CFR Titles and Chapters.......................... 291
Alphabetical List of Agencies Appearing in the CFR........ 307
List of CFR Sections Affected............................. 317
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in this volume use title, part
and section number. Thus, 48 CFR 252.101 refers to
title 48, part 252, section 101.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 1996), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408.
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call 202-512-1800,
M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours
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Customer Service call 202-512-1803.
Richard L. Claypoole,
Director,
Office of the Federal Register.
October 1, 1996.
[[Page vii]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
eight volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts
201 to 251 and parts 252 to 299), chapters 3 to 6, chapters 7 to 14,
chapters 15 to 28 and chapter 29 to end. The contents of these volumes
represent all current regulations codified under this title of the CFR
as of October 1, 1996.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The two volumes containing chapter 1 include an index to the Federal
acquisition regulations. The second volume, containing chapter 1 (parts
52 to 99), includes contract clauses and forms.
For this volume, Ann Elise Maso was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
[[Page viii]]
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapter 2, parts 252 to 299)
------------------------------------------------------------------
Part
chapter 2--Department of Defense............................ 252
Pt. 252
[[Page 3]]
CHAPTER 2--DEPARTMENT OF DEFENSE
------------------------------------------------------------------
SUBCHAPTER H--CLAUSES AND FORMS
Part Page
252 Solicitation provisions and contract clauses 5
253 Forms....................................... 152
SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
Appendix A--Armed Services Board of Contract
Appeals................................. 181
Appendix B--Coordinated Acquisition
Assignments............................. 190
Appendix C [Reserved]
Appendix D--Component Breakout.............. 200
Appendix E--DoD Spare Parts Breakout Program 201
Appendix F--Material Inspection and
Receiving Report........................ 224
Appendix G--Activity Address Numbers........ 238
Appendix H--Debarment and Suspension
Procedures.............................. 280
Appendix I--Policy and Procedures for the
DOD Pilot Mentor-Protege Program........ 281
Note: Although the text of Manuals and Supplements to the Defense FAR
Supplement are not published in the Code of Federal Regulations, they
were listed for the convenience of the user. All of the Supplements have
been deleted. The only manuals which remain in effect are: Armed
Services Pricing Manual (1986) and Armed Services Pricing Manual, Volume
2, Price Analysis (1987).
[[Page 5]]
SUBCHAPTER H--CLAUSES AND FORMS
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents
Sec.
Subpart 252.1--Instructions for Using Provisions and Clauses
252.101 Using part 252.
Subpart 252.2--Texts of Provisions and Clauses
252.201-7000 Contracting officer's representative.
252.203-7000 Statutory prohibitions on compensation to former
Department of Defense employees.
252.203-7001 Special prohibition on employment.
252.203-7002 Display of DoD hotline poster.
252.204-7000 Disclosure of information.
252.204-7001 Commercial and Government Entity (CAGE) code reporting.
252.204-7002 Payment for subline items not separately priced.
252.204-7003 Control of government personnel work product.
252.205-7000 Provision of information to cooperative agreement holders.
252.206-7000 Domestic source restriction.
252.208-7000 Intent to furnish precious metals as Government-furnished
material.
252.209-7000 Acquisition from subcontractors subject to on-site
inspection under the Intermediate-Range Nuclear Forces (INF)
Treaty.
252.209-7001 Disclosure of ownership or control by the government of a
terrorist country.
252.209-7002 Disclosure of ownership or control by a foreign
government.
252.209-7003 Disclosure of commercial transactions with the government
of a terrorist country.
252.209-7004 Reporting of commercial transactions with the government
of a terrorist country.
252.209-7005 Military recruiting on campus.
252.211-7000 Acquisition streamlining.
252.211-7001 Availability of specifications and standards not listed in
DODISS, data item descriptions not listed in DoD 5010.12-L,
and plans, drawings, and other pertinent documents.
252.211-7002 Availability for examination of specifications, standards,
plans, drawings, data item descriptions, and other pertinent
documents.
252.211-7003 Brand name or equal.
252.211-7004 Alternate preservation, packaging, and packing.
252.212-7000 Offeror representations and certifications--Commercial
items.
252.212-7001 Contract terms and conditions required to implement
statutes or Executive Orders applicable to Defense
acquisitions of commercial items.
252.215-7000 Pricing adjustments.
252.215-7001 [Reserved]
252.215-7002 Cost estimating system requirements.
252.216-7000 Economic price adjustment--basic steel, aluminum, brass,
bronze, or copper mill products.
252.216-7001 Economic price adjustment--nonstandard steel items.
252.216-7002 Alternate.
252.217-7000 Exercise of option to fulfill foreign military sales
commitments.
252.217-7001 Surge option.
252.217-7002 Offering property for exchange.
252.217-7003 Changes.
252.217-7004 Job orders and compensation.
252.217-7005 Inspection and manner of doing work.
252.217-7006 Title.
252.217-7007 Payments.
252.217-7008 Bonds.
252.217-7009 Default.
252.217-7010 Performance.
252.217-7011 Access to vessel.
252.217-7012 Liability and insurance.
252.217-7013 Guarantees.
252.217-7014 Discharge of liens.
252.217-7015 Safety and health.
252.217-7016 Plant protection.
252.217-7017 Time of delivery.
252.217-7018 Change in plant location--bakery and dairy products.
252.217-7019 Sanitary conditions.
252.217-7020 Examination and testing.
252.217-7021 Deficiency adjustment.
252.217-7022 Code dating.
252.217-7023 Marking.
252.217-7024 Responsibility for containers and equipment.
252.217-7025 Containers and equipment.
252.217-7026 Identification of sources of supply.
252.217-7027 Contract definitization.
252.217-7028 Over and above work.
252.219-7000 Small disadvantaged business concern representation (DoD
contracts).
252.219-7001 Notice of partial small business set-aside with
preferential consideration for small disadvantaged business
concerns.
252.219-7002 Notice of small disadvantaged business set-aside.
252.219-7003 Small, small disadvantaged and women-owned small business
subcontracting plan (DoD contracts).
[[Page 6]]
252.219-7004 Small, small disadvantaged and women-owned small business
subcontracting plan (test program).
252.219-7005 Incentive for subcontracting with small businesses, small
disadvantaged businesses, historically black colleges and
universities, and minority institutions.
252.219-7006 Notice of evaluation preference for small disadvantaged
business concerns.
252.219-7007 Alternates.
252.219-7008 Notice of evaluation preference for small disadvantaged
business concerns--construction acquisitions--test program.
252.222-7000 Restrictions on employment of personnel.
252.222-7001 Right of first refusal of employment--Closure of military
installations.
252.223-7000 [Reserved]
252.223-7001 Hazard warning labels.
252.223-7002 Safety precautions for ammunition and explosives.
252.223-7003 Change in place of performance--ammunition and explosives.
252.223-7004 Drug-Free Work Force.
252.223-7005 Hazardous waste liability.
252.223-7006 Prohibition on storage and disposal of toxic and hazardous
materials.
252.223-7007 Safeguarding sensitive conventional arms, ammunition, and
explosives.
252.225-7000 Buy American Act--Balance of Payments Program Certificate.
252.225-7001 Buy American Act and Balance of Payments Program.
252.225-7002 Qualifying country sources as subcontractors.
252.225-7003 Information for duty-free entry evaluation.
252.225-7004 Nondomestic construction materials.
252.225-7005 Identification of expenditures in the United States.
252.225-7006 Buy American Act--Trade Agreements--Balance of Payments
Program Certificate.
252.225-7007 Trade Agreements.
252.225-7008 Supplies to be accorded duty-free entry.
252.225-7009 Duty-free entry--qualifying country end products and
supplies.
252.225-7010 Duty-free entry--additional provisions.
252.225-7011 Restriction on acquisition of supercomputers.
252.225-7012 Preference for certain domestic commodities.
252.225-7013 [Reserved]
252.225-7014 Preference for domestic specialty metals.
252.225-7015 Preference for domestic hand or measuring tools.
252.225-7016 Restriction on acquisition of ball and roller bearings.
252.225-7017 Preference for United States and Canadian valves and
machine tools.
252.225-7018 Notice of prohibition of certain contracts with foreign
entities for the conduct of Ballistic Missile Defense RDT&E.
252.225-7019 Restriction on acquisition of foreign anchor and mooring
chain.
252.225-7020--252.225-7021 [Reserved]
252.225-7022 Restriction on acquisition of polyacrylonitrile (PAN)
based carbon fiber.
252.225-7023 [Reserved]
252.225-7024 Restriction on acquisition of night vision image
intensifier tubes and devices.
252.225-7025 Foreign source restrictions.
252.225-7026 Reporting of contract performance outside the United
States.
252.225-7027 Limitation on sales commissions and fees.
252.225-7028 Exclusionary policies and practices of foreign
governments.
252.225-7029 Preference for United States or Canadian air circuit
breakers.
252.225-7030 Restriction on acquisition of carbon, alloy, and armor
steel plate.
252.225-7031 Secondary Arab boycott of Israel.
252.225-7032 Waiver of United Kingdom levies.
252.225-7033 Restriction on acquisition of four ton dolly jacks.
252.225-7034 Restriction on acquisition of coal and petroleum pitch
carbon fiber.
252.225-7035 Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program Certificate.
252.225-7036 North American Free Trade Agreement Implementation Act.
252.225-7037 Duty-free entry--NAFTA country end products and supplies.
252.225-7038 Restriction on acquisition of aircraft fuel cells.
252.225-7039 Restriction on acquisition of totally enclosed lifeboat
survival systems.
252.225-7040 Machine tool list.
252.226-7000 Notice of historically black college or university and
minority institution set-aside.
252.226-7001 Historically black college or university and minority
institution certification.
252.227-7000 Non-estoppel.
252.227-7001 Release of past infringement.
252.227-7002 Readjustment of payments.
252.227-7003 Termination.
252.227-7004 License grant.
252.227-7005 License term.
252.227-7006 License grant--running royalty.
252.227-7007 License term--running royalty.
252.227-7008 Computation of royalties.
252.227-7009 Reporting and payment of royalties.
252.227-7010 License to other Government agencies.
252.227-7011 Assignments.
[[Page 7]]
252.227-7012 Patent license and release contract.
252.227-7013 Rights in technical data--Noncommercial items.
252.227-7014 Rights in noncommercial computer software and
noncommercial computer software documentation.
252.227-7015 Technical data--Commercial items.
252.227-7016 Rights in bid or proposal information.
252.227-7017 Identification and assertion of use, release, or
disclosure restrictions.
252.227-7018 Rights in noncommercial technical data and computer
software--Small Business Innovation Research (SBIR) Program.
252.227-7019 Validation of asserted restrictions--Computer software.
252.227-7020 Rights in special works.
252.227-7021 Rights in data--existing works.
252.227-7022 Government rights (unlimited).
252.227-7023 Drawings and other data to become property of Government.
252.227-7024 Notice and approval of restricted designs.
252.227-7025 Limitations on the use or disclosure of government-
furnished information marked with restrictive legends.
252.227-7026 Deferred delivery of technical data or computer software.
252.227-7027 Deferred ordering of technical data or computer software.
252.227-7028 Technical data or computer software previously delivered
to the government.
252.227-7029 [Reserved]
252.227-7030 Technical data--withholding of payment.
252.227-7031 [Reserved]
252.227-7032 Rights in technical data and computer software (foreign).
252.227-7033 Rights in shop drawings.
252.227-7034 Patents--subcontracts.
252.227-7035 [Reserved]
252.227-7036 Certification of technical data conformity.
252.227-7037 Validation of restrictive markings on technical data.
252.227-7038 [Reserved]
252.227-7039 Patents--reporting of subject inventions.
252.228-7000 Reimbursement for war-hazard losses.
252.228-7001 Ground and flight risk.
252.228-7002 Aircraft flight risk.
252.228-7003 Capture and detention.
252.228-7004 Bonds or other security.
252.228-7005 Accident reporting and investigation involving aircraft,
missiles, and space launch vehicles.
252.231-7000 Supplemental cost principles.
252.232-7000 Advance payment pool.
252.232-7001 Disposition of payments.
252.232-7002 Progress payments for foreign military sales acquisitions.
252.232-7003 Flexible progress payments.
252.232-7004 DoD progress payment rates.
252.232-7005 Reimbursement of subcontractor advance payments--DoD pilot
mentor-protege program.
252.232-7006 Reduction or suspension of contract payments upon finding
of fraud.
252.232-7007 Limitation of Government's obligation.
252.233-7000 Certification of claims and requests for adjustment or
relief.
252.234-7000 Notice of cost/schedule control systems.
252.234-7001 Cost/schedule control systems.
252.235-7000 Indemnification under 10 U.S.C. 2354--fixed price.
252.235-7001 Indemnification under 10 U.S.C. 2354--cost reimbursement.
252.235-7002 Animal welfare.
252.235-7003 Frequency authorization.
252.235-7004 Option to extend the term of the contract.
252.235-7005 Contractor-acquired property.
252.235-7006 Title to contractor-acquired property.
252.235-7007 Advance payments.
252.235-7008 Inspection and acceptance.
252.235-7009 Restriction on printing.
252.235-7010 Acknowledgement of support and disclaimer.
252.235-7011 Final scientific or technical report.
252.236-7000 Modification proposals--price breakdown.
252.236-7001 Contract drawings, maps, and specifications.
252.236-7002 Obstruction of navigable waterways.
252.236-7003 Payment for mobilization and preparatory work.
252.236-7004 Payment for mobilization and demobilization.
252.236-7005 Airfield safety precautions.
252.236-7006 Cost limitation.
252.236-7007 Additive or deductive items.
252.236-7008 Contract prices--bidding schedules.
252.236-7009 Option for supervision and inspection services.
252.237-7000 Notice of special standards of responsibility.
252.237-7001 Compliance with audit standards.
252.237-7002 Award to single offeror.
252.237-7003 Requirements.
252.237-7004 Area of performance.
252.237-7005 Performance and delivery.
252.237-7006 Subcontracting.
252.237-7007 Termination for default.
252.237-7008 Group interment.
252.237-7009 Permits.
252.237-7010 Facility requirements.
252.237-7011 Preparation history.
252.237-7012 Instruction to offerors (count-of-articles).
252.237-7013 Instruction to offerors (bulk weight).
[[Page 8]]
252.237-7014 Loss or damage (count-of-articles).
252.237-7015 Loss or damage (weight of articles).
252.237-7016 Delivery tickets.
252.237-7017 Individual laundry.
252.237-7018 Special definitions of Government property.
252.237-7019 Identification of uncompensated overtime.
252.237-7020--252.237-7021 [Reserved]
252.237-7022 Services at installations being closed.
252.239-7000 Protection against compromising emanations.
252.239-7001 [Reserved]
252.239-7002 Access.
252.239-7003 Facilities and services to be furnished--common carriers.
252.239-7004 Orders for facilities and services--common carriers.
252.239-7005 Rates, charges, and services--common carriers.
252.239-7006 Tariff information.
252.239-7007 Cancellation or termination of orders--common carriers.
252.239-7008 Reuse arrangements.
252.239-7009 Submission of cost or pricing data--common carriers.
252.239-7010 Audit and records--common carriers.
252.239-7011 Special construction and equipment charges.
252.239-7012 Title to telecommunication facilities and equipment.
252.239-7013 Obligation of the Government.
252.239-7014 Term of agreement.
252.239-7015 Continuation of communication service authorizations.
252.239-7016 Telecommunications security equipment, devices,
techniques, and services.
252.241-7000 Superseding contract.
252.241-7001 Government access.
252.242-7000 Postaward conference.
252.242-7001 [Reserved]
252.242-7002 Submission of commercial freight bills for audit.
252.242-7003 Application for U.S. Government shipping documentation/
instructions.
252.242-7004 Material management and accounting system.
252.242-7005 Cost/schedule status report.
252.243-7000 Engineering change proposals.
252.243-7001 Pricing of contract modifications.
252.245-7000 Government-furnished mapping, charting, and geodesy
property.
252.245-7001 Reports of Government property.
252.246-7000 Material inspection and receiving report.
252.246-7001 Warranty of data.
252.247-7000 Hardship conditions.
252.247-7001 Price adjustment.
252.247-7002 Revision of prices.
252.247-7003 Termination.
252.247-7004 Indefinite quantities--fixed charges.
252.247-7005 Indefinite quantities--no fixed charges.
252.247-7006 Removal of Contractor's employees.
252.247-7007 Liability and insurance.
252.247-7008 Evaluation of bids.
252.247-7009 Award.
252.247-7010 Scope of contract.
252.247-7011 Period of contract.
252.247-7012 Ordering limitation.
252.247-7013 Contract areas of performance.
252.247-7014 Demurrage.
252.247-7015 Requirements.
252.247-7016 Contractor liability for loss or damage.
252.247-7017 Erroneous shipments.
252.247-7018 Subcontracting.
252.247-7019 Drayage.
252.247-7020 Additional services.
252.247-7021 Returnable containers other than cylinders.
252.247-7022 Representation of extent of transportation by sea.
252.247-7023 Transportation of supplies by sea.
252.247-7024 Notification of transportation of supplies by sea.
252.247-7025 Reflagging or repair work.
252.248-7000 Preparation of value engineering change proposals.
252.249-7000 Special termination costs.
252.249-7001 Notification of substantial impact on employment.
252.249-7002 Notification of proposed program termination or reduction.
252.251-7000 Ordering from Government supply sources.
252.251-7001 Use of Interagency Fleet Management System (IFMS) vehicles
and related services.
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
Source: 56 FR 36479, July 31, 1991, unless otherwise noted.
Subpart 252.1--Instructions for Using Provisions and Clauses
Sec. 252.101 Using part 252.
(b) Numbering.
(2) Provisions or clauses that supplement the FAR.
(ii)(B) DFARS provisions or clauses use a four digit sequential
number in the 7000 series, e.g., -7000, -7001, -7002. Department or
agency supplemental provisions or clauses use four digit sequential
numbers in the 9000 series.
[[Page 9]]
Subpart 252.2--Text of Provisions And Clauses
Sec. 252.201-7000 Contracting officer's representative.
As prescribed in 201.602-70, use the following clause:
Contracting Officer's Representative (Dec. 1991)
(a) Definition. Contracting officer's representative means an
individual designated in accordance with subsection 201.602-2 of the
Defense Federal Acquisition Regulation Supplement and authorized in
writing by the contracting officer to perform specific technical or
administrative functions.
(b) If the Contracting Officer designates a contracting officer's
representative (COR), the Contractor will receive a copy of the written
designation. It will specify the extent of the COR's authority to act on
behalf of the contracting officer. The COR is not authorized to make any
commitments or changes that will affect price, quality, quantity,
delivery, or any other term or condition of the contract.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992]
Sec. 252.203-7000 Statutory prohibitions on compensation to former Department of Defense employees.
As prescribed in 203.170-4, use the following clause:
Statutory Prohibition on Compensation to Former Department of Defense
Employees (NOV 1995)
(a) Definitions.
As used in this clause--
(1) Armed Forces means the uniformed military services, excluding
the U.S. Coast Guard.
(2) Compensation means any payment, gift, benefit, reward, favor, or
gratuity which is provided directly or indirectly for services rendered
by the person accepting such payment, gift, benefit, reward, favor, or
gratuity, and which has a fair market value in excess of $250.
Compensation is indirectly provided if it is paid to an entity other
than the individual, specifically in exchange for services performed by
the individual.
(3) Defense contractor means an entity (including affiliates and
subsidiaries which clearly engage in the performance of Department of
Defense (DoD) contracts) that contracts directly with the DoD to supply
goods or services. ``Defense contractor'' does not include a State or
local government or any person who contracts to supply the Department of
Defense only commercial items.
(4) Designated agency ethics official means a DoD officer or
employee who has been appointed to administer the provisions of the
Ethics in Government Act, as amended.
(5) Former DoD employee means a person who served in the DoD in a
civilian position for which the rate of pay was equal to or greater than
the minimum rate of pay for grade GS-13 of the General Schedule, or
served in the Armed Forces in a pay grade of 04 or higher.
(6) Former DoD official means--
(i) A former DoD employee who spent the majority of working days
during the last two years of DoD service performing a procurement
function relating to:
(A) A DoD contract, at a site or plant that was owned or operated by
the Contractor, and which was the principal location of such person's
performance of that procurement function; or
(B) A major defense system and, in the performance of such function,
participated on any occasion personally and substantially in a manner
involving decision making responsibilities with respect to a contract
for that system through contact with the Contractor;
(ii) An individual who served in a civilian position for which the
rate of pay is equal to or greater than the minimum rate of pay for a
Senior Executive Service position or other executive position at the
same or higher level, and an individual who served in the Armed Forces
in the pay grade of 07 or higher, if such individual during the last two
years of DoD service--
(A) Acted as one of the primary Government representatives in the
negotiation with a defense contractor of a DoD contractual action in an
amount in excess of $10 million; or
(B) Acted as one of the primary Government representatives in the
negotiation of a settlement of an unresolved claim of such a defense
contractor in an amount in excess of $10 million. An unresolved claim
shall be, for the purposes of this section, valued by the greater of the
amount of the claim or the amount of the settlement.
(7) Major defense contractor means any business entity which, during
the Government fiscal year preceding the Government fiscal year in which
compensation was first provided to a former DoD employee, was awarded
DoD contracts in a total amount of $10 million or more.
(8) Major defense system means a combination of elements that will
function together to produce the capability required to fulfill a
mission need. Elements may include hardware, equipment, software, or any
combination thereof, but exclude construction or other improvements to
real property. A system shall be considered a major defense system if--
[[Page 10]]
(i) The DoD is responsible for the system and the total expenditures
(based on fiscal year 1980 constant dollars) for research, development,
test and evaluation for the system, are estimated to exceed $75 million
or the eventual total expenditure for procurement is estimated to exceed
$300 million; or
(ii) The system is designated a major system by the head of the
agency responsible for the system.
(9) Negotiation means exchanges of positions between representatives
of the Government and a contractor with the view of reaching agreement
regarding respective liabilities of the parties on a particular contract
or claim. It includes deliberations regarding contract specifications,
terms of delivery, allowability of costs, pricing of change orders, etc.
(10) Primary Government representative means, if more than one
Government representative is involved in any particular transaction, the
official or officials supervising the Government's effort in the matter.
To act as a ``representative'' requires personal and substantial
participation in the transaction, by personal presence, telephone
conversation, or similar involvement with representatives of a
contractor.
(11) Procurement-related function (or procurement function) means
any function relating to--
(i) The negotiation, award, administration, or approval of a
contract;
(ii) The selection of a contractor;
(iii) The approval of a change in a contract;
(iv) The performance of quality assurance, operational and
developmental testing, the approval of payment, or auditing under a
contract; or
(v) The management of a procurement program.
(b) Prohibition on compensation. (1) 10 U.S.C. 2397b and 2397c
prohibit a major defense contractor from offering or providing any
compensation valued in excess of $250 to a former DoD official who left
DoD service on or after April 16, 1987, and who, while employed by DoD,
performed procurement-related functions in connection with that defense
contractor. This prohibition runs for the two year period beginning on
the date of the official's separation from service in DoD.
(2) The Contractor, if a major defense contractor, agrees not to
provide, for the two year period, any compensation to the former DoD
official.
(3) DoD employees may request from their Designated Agency Ethics
Official (DAEO) a written opinion on the applicability of 10 U.S.C.
2397b prior to the acceptance of compensation. If the opinion of the
DAEO is that the law is not applicable, and that the individual may
accept compensation from the Contractor, there shall be a conclusive
presumption that the offering and the acceptance of such compensation is
not a violation of the statute.
(c) Report concerning former DoD employees. (1) The Contractor shall
submit a separate written report, as described in paragraph (c)(2) of
this clause, for each calendar year covered by this contract (extending
through final payment) if the calendar year commenced after the end of a
Government fiscal year in which the Contractor was awarded one or more
DoD contracts aggregating $10 million or more. In multidivisional
corporations, the corporate headquarters, and each segment which
contracts directly with the Government, shall report separately. Each
report shall list those persons employed or otherwise compensated, who
are former DoD employees who left service on or after April 16, 1987,
if--
(i) They were compensated by the Contractor during the reporting
period; and
(ii) The compensation was provided within two years after the person
left service in the DoD.
(2) The report shall contain:
(i) Each person's name and the agency in which the person was
employed or served on active duty during the last two years of service
with DoD;
(ii) Each person's job title(s) during the last two years of service
with DoD, and a list of major defense systems on which each person
performed any work;
(iii) A complete description (exclusive of proprietary information)
of any work that each person is performing, or did perform, on behalf of
the Contractor during the calendar year covered by the report. If the
work is classified, the Contractor may use a generalized description
which will not compromise its classified nature;
(iv) An identification of each major defense system on which each
individual has performed any work on behalf of the Contractor.
(3) Submit each report not later than April 1 of the year following
the end of the calendar year for which the report is being made. Send
reports to the Office of the Assistant General Counsel (Legal Counsel),
Standards of Conduct Office, Attn: OAGC/LC, Pentagon, Washington, DC
20301-1600.
(4) A properly executed DD Form 1787 (Employment, Report of DoD and
Defense Related) may be submitted to satisfy the reporting requirement
as to any single person.
(5) The Contractor need not submit duplicate reports to the
Government. Submission of a report meeting the requirements of this
clause, under another, concurrent contract with DoD will satisfy the
reporting requirement of this contract.
(d) Penalties for failure to comply--(1) Civil fines. A Contractor
who knowingly offers or provides any compensation to a former DoD
official in violation of the statute, and who
[[Page 11]]
knew or should have known that the acceptance of such compensation would
be in violation of such statute, shall be subject to a civil fine, not
to exceed $500,000.
(2) Liquidated damages. (i) For each knowing violation of the
statutory prohibition on providing compensation, the Contractor agrees
to pay to the Government as liquidated damages the greater of either
$100,000, or three times the total amount of compensation paid by the
Contractor to the former DoD official during the period in which such
compensation was in violation of the statutory prohibition.
(ii) Liability for liquidated damages under this clause survives
final payment under this contract and may be recouped against payments
due under other contracts with the Contractor.
(iii) Liquidated damages will be computed based upon the number of
actual violations by the Contractor, and not on the number of contracts
in which this clause appears.
(3) Administrative penalty. If the Contractor knowingly fails to
file a report in accordance with paragraph (c) of this clause, the
Contractor shall be subject to an administrative penalty not to exceed
$10,000. The final determination of the penalty to be charged to the
Contractor shall be made by the Secretary of Defense or designee after
the Contractor is afforded an opportunity for an agency hearing on the
record in accordance with agency hearing procedures. The Secretary's
determination shall form a part of the record and shall be subject to
judicial review under chapter 7 of title 5, United States Code.
(e) The rights and remedies under this clause are in addition to,
and do not limit, any rights afforded the Government under this contract
or as otherwise provided by law.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 61600, Nov. 30, 1995]
Sec. 252.203-7001 Special prohibition on employment.
As prescribed in 203.570-5, use the following clause:
Special Prohibition on Employment (NOV 1995)
(a) Definitions.
As used in this clause--
(1) Arising out of a contract with the DoD means any act in
connection with--
(i) Attempting to obtain,
(ii) Obtaining, or
(iii) Performing a contract or first-tier subcontract of any agency,
department, or component of the Department of Defense (DoD).
(2) Conviction of fraud or any other felony means any conviction for
fraud or a felony in violation of state or Federal criminal statutes,
whether entered on a verdict or plea, including a plea of nolo
contendere, for which sentence has been imposed.
(3) Date of conviction means the date judgment was entered against
the individual.
(b) 10 U.S.C. 2408 provides that any individual who is convicted
after September 29, 1988, of fraud or any other felony arising out of a
contract with the DoD is prohibited from:
(1) Working in a management or supervisory capacity on any DoD
contract or first-tier subcontract;
(2) Serving on the board of directors of any DoD contractor or
first-tier subcontractor; or
(3) Serving as a consultant to any DoD contractor or first-tier
subcontractor.
(c) Unless waived, the prohibition in paragraph (b) applies for five
years from the date of conviction.
(d) 10 U.S.C. 2408 further provides that a defense contractor or
first-tier subcontractor shall be subject to a criminal penalty of not
more than $500,000 if convicted of knowingly--
(1) Employing a person under a prohibition specified in paragraph
(b) of this clause; or
(2) Allowing such a person to serve on the board of directors of the
contractor or first-tier subcontractor.
(e) In addition to the criminal penalties contained in 10 U.S.C.
2408, the Government may consider other available remedies, such as--
(1) Suspension or debarment;
(2) Cancellation of the contract at no cost to the Government; or
(3) Termination of the contract for default.
(f) The Contractor may submit written requests for waiver of the
prohibitions in paragraph (b) of this clause to the Contracting Officer.
Requests shall clearly identify--
(1) The person involved;
(2) The nature of the conviction and resultant sentence or
punishment imposed;
(3) The reasons for the requested waiver; and,
(4) An explanation of why a waiver is in the interest of national
security.
(g) The Contractor agrees to include the substance of this clause,
appropriately modified to reflect the identity and relationship of the
parties, in all first-tier subcontracts exceeding the simplified
acquisition threshold in part 13 of the Federal Acquisition Regulation,
except those for commercial items or components.
(h) Pursuant to 10 U.S.C. 2408(c), defense contractors and
subcontractors may obtain information as to whether a particular person
has been convicted of fraud or any other felony arising out of a
contract with the DoD by contacting The Office of Justice Programs, The
Denial of Benefits Office, U.S.
[[Page 12]]
Department of Justice, telephone (202) 307-1065.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 58 FR 28471, May 13, 1993; 59
FR 27675, May 27, 1994; 60 FR 61600, Nov. 30, 1995]
Sec. 252.203-7002 Display of DoD hotline poster.
As prescribed in 203.7002, use the following clause:
Display of DOD Hotline Poster (Dec. 1991)
(a) The Contractor shall display prominently in common work areas
within business segments performing work under Department of Defense
(DoD) contracts, DoD Hotline Posters prepared by the DoD Office of the
Inspector General.
(b) DoD Hotline Posters may be obtained from the DoD Inspector
General, Attn: Defense Hotline, 400 Army Navy Drive, Washington, DC
22202-2884.
(c) The Contractor need not comply with paragraph (a) of this clause
if it has established a mechanism, such as a hotline, by which employees
may report suspected instances of improper conduct, and instructions
that encourage employees to make such reports.
(End of clause)
Sec. 252.204-7000 Disclosure of Information.
As prescribed in 204.404-70(a), use the following clause:
Disclosure of Information (Dec. 1991)
(a) The Contractor shall not release to anyone outside the
Contractor's organization any unclassified information, regardless of
medium (e.g., film, tape, document), pertaining to any part of this
contract or any program related to this contract, unless--
(1) The Contracting Officer has given prior written approval; or
(2) The information is otherwise in the public domain before the
date of release.
(b) Requests for approval shall identify the specific information to
be released, the medium to be used, and the purpose for the release. The
Contractor shall submit its request to the Contracting Officer at least
45 days before the proposed date for release.
(c) The Contractor agrees to include a similar requirement in each
subcontract under this contract. Subcontractors shall submit requests
for authorization to release through the prime contractor to the
Contracting Officer.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 57 FR 14996, Apr. 23, 1992]
Sec. 252.204-7001 Commercial and Government Entity (CAGE) code reporting.
As prescribed in 204.602-70, use the following provision:
Commercial and Government Entity (CAGE) Code Reporting (Dec. 1991)
(a) The Offeror is requested to enter its CAGE code on its offer in
the block with its name and address. The CAGE code entered must be for
that name and address. Enter CAGE before the number.
(b) If the Offeror does not have a CAGE code, it may ask the
Contracting Officer to request one from the Defense Logistics Services
Center (DLSC). The Contracting Officer will--
(1) Ask the Contractor to complete section B of a DD Form 2051,
Request for Assignment of a Commercial and Government Entity (CAGE)
Code;
(2) Complete section A and forward the form to DLSC; and
(3) Notify the Contractor of its assigned CAGE code.
(c) Do not delay submission of the offer pending receipt of a CAGE
code.
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 60 FR 61600, Nov. 30, 1995]
Sec. 252.204-7002 Payment for subline items not separately priced.
As prescribed in 204.7104-1(b)(3)(iv), use the following clause:
Payment for Subline Items not Separately Priced (Dec. 1991)
(a) If the schedule in this contract contains any contract subline
items or exhibit subline items identified as not separately priced
(NSP), it means that the unit price for that subline item is included in
the unit price of another, related line or subline item.
(b) The Contractor shall not invoice the Government for any portion
of a contract line item or exhibit line item which contains an NSP
until--
(1) The Contractor has delivered the total quantity of all related
contract subline items or exhibit subline items; and
(2) The Government has accepted them.
(c) This clause does not apply to technical data.
[[Page 13]]
(End of clause)
Sec. 252.204-7003 Control of government personnel work product.
As prescribed in 204.404-70(b), use the following clause:
Control of Government Personnel Work Product (Apr. 1992)
The Contractor's procedures for protecting against unauthorized
disclosure of information shall not require Department of Defense
employees or members of the Armed Forces to relinquish control of their
work products, whether classified or not, to the contractor.
(End of clause)
[57 FR 14996, Apr. 23, 1992]
Sec. 252.205-7000 Provision of information to cooperative agreement holders.
As prescribed in 205.470-2, use the following clause:
Provision of Information to Cooperative Agreement Holders (Dec. 1991)
(a) Definition.
Cooperative agreement holder means a State or local government; a
private, nonprofit organization; a tribal organization (as defined in
section 4(c) of the Indian Self-Determination and Education Assistance
Act (Pub. L. 93-268; 25 U.S.C. 450(c))); or an economic enterprise (as
defined in section 3(e) of the Indian Financing Act of 1974 (Pub. L. 93-
362; 25 U.S.C. 1452(e))) whether such economic enterprise is organized
for profit or nonprofit purposes; which has an agreement with the
Defense Logistics Agency to furnish procurement technical assistance to
business entities.
(b) The Contractor shall provide cooperative agreement holders, upon
their request, with a list of those appropriate employees or offices
responsible for entering into subcontracts under defense contracts. The
list shall include the business address, telephone number, and area of
responsibility of each employee or office.
(c) The Contractor need not provide the listing to a particular
cooperative agreement holder more frequently than once a year.
(End of clause)
Sec. 252.206-7000 Domestic source restriction.
As prescribed at 206.302-3-70, use the following provision:
Domestic Source Restriction (Dec. 1991)
This solicitation is restricted to domestic sources under the
authority of 10 U.S.C. 2304(c)(3). Foreign sources, except Canadian
sources, are not eligible for award.
(End of provision)
Sec. 252.208-7000 Intent to furnish precious metals as Government-furnished material.
As prescribed in 208.7305(a), use the following clause:
Intent To Furnish Precious Metals as Government-Furnished Material (Dec.
1991)
(a) The Government intends to furnish precious metals required in
the manufacture of items to be delivered under the contract if the
Contracting Officer determines it to be in the Government's best
interest. The use of Government-furnished silver is mandatory when the
quantity required is one hundred troy ounces or more. The precious
metal(s) will be furnished pursuant to the Government Furnished Property
clause of the contract.
(b) The Offeror shall cite the type (silver, gold, platinum,
palladium, iridium, rhodium, and ruthenium) and quantity in whole troy
ounces of precious metals required in the performance of this contract
(including precious metals required for any first article or production
sample), and shall specify the national stock number (NSN) and
nomenclature, if known, of the deliverable item requiring precious
metals.
------------------------------------------------------------------------
Deliverable item
Precious metal* Quantity (NSN and
nomenclature)
------------------------------------------------------------------------
......................................................................
------------------------------------------------------------------------
*If platinum or palladium, specify whether sponge or granules are
required.
(c) Offerors shall submit two prices for each deliverable item which
contains precious metals--one based on the Government furnishing
precious metals, and one based on the Contractor furnishing precious
metals. Award will be made on the basis which is in the best interest of
the Government.
(d) The Contractor agrees to insert this clause, including this
paragraph (d), in solicitations for subcontracts and purchase orders
issued in performance of this contract, unless the Contractor knows that
the item being purchased contains no precious metals.
[[Page 14]]
(End of clause)
Sec. 252.209-7000 Acquisition from subcontractors subject to on-site inspection under the Intermediate-Range Nuclear Forces (INF) Treaty.
As prescribed in 209.103-70, use the following clause:
Acquisition From Subcontractors Subject to On-Site Inspection Under the
Intermediate-Range Nuclear Forces (INF) Treaty (NOV 1995)
(a) The Contractor shall not deny consideration for a subcontract
award under this contract to a potential subcontractor subject to on-
site inspection under the INF Treaty, or a similar treaty, solely or in
part because of the actual or potential presence of Soviet inspectors at
the subcontractor's facility, unless the decision is approved by the
Contracting Officer.
(b) The Contractor shall incorporate this clause, including this
paragraph (b), in all solicitations and contracts exceeding the
simplified acquisition threshold in part 13 of the Federal Acquisition
Regulation, except those for commercial items.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 61600, Nov. 30, 1995]
Sec. 252.209-7001 Disclosure of ownership or control by the government of a terrorist country.
As prescribed in 209.104-70(a), use the following provision:
Disclosure of Ownership or Control by the Government of a Terrorist
Country (Sep. 1994)
(a) Definitions. As used in this provision--
(1) Government of a terrorist country includes the state and the
government of a terrorist country, as well as any political subdivision,
agency, or instrumentality thereof.
(2) Terrorist country means a country determined by the Secretary of
State, under section 6(j)(1)(A) of the Export Administration Act of 1979
(50 U.S.C. App. 2405(j)(i)(A)), to be a country the government of which
has repeatedly provided support for acts of international terrorism. As
of the date of this provision, terrorist countries include: Cuba, Iran,
Iraq, Libya, North Korea, Sudan, and Syria.
(3) Significant interest means--
(i) Ownership of or beneficial interest in 5 percent or more of the
firm's or subsidiary's securities. Beneficial interest includes holding
5 percent or more of any class of the firm's securities in ``nominee
shares,'' ``street names,'' or some other method of holding securities
that does not disclose the beneficial owner;
(ii) Holding a management position in the firm, such as a director
or officer;
(iii) Ability to control or influence the election, appointment, or
tenure of directors or officers in the firm;
(iv) Ownership of 10 percent or more of the assets of a firm such as
equipment, buildings, real estate, or other tangible assets of the firm;
or
(v) Holding 50 percent or more of the indebtedness of a firm.
(b) Prohibition on award. In accordance with 10 U.S.C. 2327, no
contract may be awarded to a firm or a subsidiary of a firm if the
government of a terrorist country has a significant interest in the firm
or subsidiary, unless a waiver is granted by the Secretary of Defense.
(c) Disclosure. If the government of a terrorist country has a
significant interest in the Offeror or a subsidiary of the Offeror, the
Offeror shall disclose such interest in an attachment to its offer. If
the Offeror is a subsidiary, it shall also disclose any significant
interest the government of a terrorist country has in any firm that owns
or controls the subsidiary. The disclosure shall include--
(1) Identification of each government holding a significant
interest; and
(2) A description of the significant interest held by each
government.
(End of provision)
[59 FR 51131, Oct. 7, 1994]
Sec. 252.209-7002 Disclosure of ownership or control by a foreign government.
As prescribed in 209.104-70(b), use the following provision:
Disclosure of Ownership or Control by a Foreign Government (Sep. 1994)
(a) Definitions. As used in this provision--
(1) Effectively owned or controlled means that a foreign government
or any entity controlled by a foreign government has the power, either
directly or indirectly, whether exercised or exercisable, to control the
election, appointment, or tenure of the Offeror's officers or a majority
of the Offeror's board of directors by any means, e.g., ownership,
contract, or operation of law (or equivalent power for unincorporated
organizations).
(2) Entity controlled by a foreign government--
(i) Means--
(A) Any domestic or foreign organization or corporation that is
effectively owned or controlled by a foreign government; or
(B) Any individual acting on behalf of a foreign government.
[[Page 15]]
(ii) Does not include an organization or corporation that is owned,
but is not controlled, either directly or indirectly, by a foreign
government if the ownership of that organization or corporation by that
foreign government was effective before October 23, 1992.
(3) Foreign government includes the state and the government of any
country (other than the United States and its possessions and trust
territories) as well as any political subdivision, agency, or
instrumentality thereof.
(4) Proscribed information means--
(i) Top Secret information;
(ii) Communications Security (COMSEC) information, except classified
keys used to operate secure telephone units (STU IIIs);
(iii) Restricted Data as defined in the U.S. Atomic Energy Act of
1954, as amended;
(iv) Special Access Program (SAP) information; or
(v) Sensitive Compartmented Information (SCI).
(b) Prohibition on award. No contract under a national security
program may be awarded to an entity controlled by a foreign government
if that entity requires access to proscribed information to perform the
contract, unless the Secretary of Defense or a designee has waived
application of 10 U.S.C. 2536(a).
(c) Disclosure. The Offeror shall disclose any interest a foreign
government has in the Offeror when that interest constitutes control by
a foreign government as defined in this provision. If the Offeror is a
subsidiary, it shall also disclose any reportable interest a foreign
government has in any entity that owns or controls the subsidiary,
including reportable interest concerning the Offeror's immediate parent,
intermediate parents, and the ultimate parent. Use separate paper as
needed, and provide the information in the following format: Offeror's
Point of Contact for Questions about Disclosure (Name and Phone Number
with Country Code, City Code and Area Code, as applicable)
Name and Address of Offeror
Name and Address of Entity Controlled by a Description of Interest,
Foreign Government. Ownership Percentage, and
Identification of Foreign
Government
(End of provision)
[58 FR 28471, May 13, 1993, as amended at 59 FR 51133, Oct. 7, 1994]
Sec. 252.209-7003 Disclosure of commercial transactions with the government of a terrorist country.
As prescribed in 209.104-70(c), use the following provision:
Disclosure of Commercial Transactions With the Government of a Terrorist
Country (Sep. 1994)
(a) Definitions.
Government of a terrorist country and terrorist country are defined
in the Reporting of Commercial Transactions with the Government of a
Terrorist Country clause of this solicitation.
(b) Disclosure.
(1) Section 843 of the National Defense Authorization Act for Fiscal
Year 1994 (Pub. L. 103-160) requires offerors to disclose commercial
transactions conducted with the government of a terrorist country. If
this offer exceeds $5,000,000, and if the Offeror has conducted such
transactions, the Offeror shall disclose, in an attachment to its offer,
each commercial transaction that it has conducted with the government of
a terrorist country since February 28, 1994. The disclosure shall
include--
(i) Identification of the government with which each transaction was
conducted; and
(ii) The nature of each transaction.
(2) This disclosure requirement does not apply to--
(i) Transactions conducted by affiliates or subsidiaries of the
Offeror; or
(ii) Payment or receipt of payment of a judgment or award ordered by
a court or arbitral tribunal of competent jurisdiction.
(End of provision)
[59 FR 51131, Oct. 7, 1994]
Sec. 252.209-7004 Reporting of commercial transactions with the government of a terrorist country.
As prescribed in 209.104-70(d), use the following clause:
Reporting of Commercial Transactions With the Government of a Terrorist
Country (Sep. 1994)
(a) Definitions. As used in this clause--
(1) Government of a terrorist country includes the state and the
government of a terrorist country, as well as any political subdivision,
agency, or instrumentality thereof.
(2) Terrorist country means a country determined by the Secretary of
State, under section 6(j)(1)(A) of the Export Administration Act of 1979
(50 U.S.C. App. 2405(j)(1)(A)), as of 60 days before the contract award
date, to be
[[Page 16]]
a country the government of which has repeatedly provided support for
acts of international terrorism. As of the date of this clause,
terrorist countries include: Cuba, Iran, Iraq, Libya, North Korea,
Sudan, and Syria.
(b) Reporting. (1) In accordance with section 843 of the National
Defense Authorization Act for Fiscal Year 1994 (Pub. L. 103-160), if
this contract exceeds $5,000,000, the Contractor shall report each
commercial transaction that it conducts with the government of a
terrorist country during the period of performance of this contract (but
not beyond September 30, 1996).
(2) This reporting requirement does not apply to--
(i) Transactions conducted by affiliates or subsidiaries of the
Contractor; or
(ii) Payment of receipt of payment of a judgment or award ordered by
a court or arbitral tribunal of competent jurisdiction.
(3) The Contractor shall submit reports in the following format:
Title of Report: Report of Commercial Transactions with the Government
of a Terrorist Country
Date of Report:
Contract Number:
Contractor's Name and Address:
Name and Telephone Number of Individual Submitting Report:
Commercial Transactions with the Government of a Terrorist Country:
Country
_______________________________________________________________________
_______________________________________________________________________
Nature of Commercial Transaction
_______________________________________________________________________
_______________________________________________________________________
(4) The Contractor shall submit reports annually by September 30,
but not beyond September 30, 1996. Each report shall include
transactions conducted during the preceding one-year period of contract
performance.
(5) The Contractor shall submit reports to: Deputy Director of
Defense Procurement (Foreign Contracting), OUSD(A&T)DP(FC), Washington,
DC 20301-3060.
(End of clause)
[59 FR 51131, Oct. 7, 1994, as amended at 60 FR 29502, June 5, 1995]
Sec. 252.209-7005 Military recruiting on campus.
As prescribed in 209.470-3, use the following clause:
Military Recruiting on Campus (FEB 1996)
(a) Definition.
Directory information, as used in this clause, means, with respect
to a student, the student's name, address, telephone listing, date and
place of birth, level of education, degrees received, and the most
recent previous educational institution enrolled in by the student.
Students are individuals who are 17 years of age or older.
(b) General. An institution of higher education that has been
determined, using procedures established by the Secretary of Defense at
32 CFR part 216: (1) to have a policy of denying, or (2) to effectively
prevent the Secretary of Defense from obtaining for military recruiting
purposes, entry to such institution's campuses, access to students on
those campuses, or access to directory information pertaining to its
students, is ineligible for contract award and payments under existing
contracts. In addition, the Government shall terminate this contract for
the Contractor's material failure to comply with the terms and
conditions of award.
(c) Agreement. The contractor represents that it does not now have
and agrees that during performance of this contract it will not adopt a
policy of denying, and that it does not, is not, and will not during
performance of the contract, effectively prevent the Secretary of
Defense from obtaining for military recruiting purposes entry to
campuses, access to students on campuses, or access to directory
information pertaining to students.
(End of clause)
[60 FR 13074, Mar. 10, 1995. Redesignated and amended at 60 FR 61600,
Nov. 30, 1995; 61 FR 7750, Feb. 29, 1996]
Sec. 252.211-7000 Acquisition streamlining.
As prescribed in 211.002-70, use the following clause:
Acquisition Streamlining (Dec. 1991)
(a) The Government's acquisition streamlining objectives are to--
(1) Acquire systems that meet stated performance requirements;
(2) Avoid over-specification; and
(3) Ensure that cost effective requirements are included in future
acquisitions.
(b) The Contractor shall--
(1) Prepare and submit acquisition streamlining recommendations in
accordance with the statement of work of this contract; and
(2) Format and submit the recommendations as prescribed by data
requirements on the contract data requirements list of this contract.
(c) The Government has the right to accept, modify, or reject the
Contractor's recommendations.
(d) The Contractor shall insert this clause, including this
paragraph (d), in all subcontracts over $1 million, awarded in the
performance of this contract.
[[Page 17]]
(End of clause)
[56 FR 36479, July 31, 1991. Redesignated and amended at 60 FR 61600,
Nov. 30, 1995]
Sec. 252.211-7001 Availability of specifications and standards Not listed in DODISS, data item descriptions Not listed in DoD 5010.12-L, and plans, drawings,
and other pertinent documents.
As prescribed in 211.204(c), use the following provision:
Availability of Specifications and Standards not Listed in DODISS, Data
Item Descriptions Not Listed in DOD 5010.12-L, and Plans, Drawings, and
Other Pertinent Documents (Dec. 1991)
Offerors may obtain the specifications, standards, plans, drawings,
data item descriptions, and other pertinent documents cited in this
solicitation by submitting a request to:
(Activity)______________________________________________________________
(Complete Address)______________________________________________________
Include the number of the solicitation and the title and number of
the specification, standard, plan, drawing, or other pertinent document.
(End of provision)
[56 FR 36479, July 31, 1991. Redesignated and amended at 60 FR 61600,
Nov. 30, 1995]
Sec. 252.211-7002 Availability for examination of specifications, standards, plans, drawings, data item descriptions, and other pertinent documents.
As prescribed in 211.204(c), use the following provision:
Availability for Examination of Specifications, Standards, Plans,
Drawings, Data Item Descriptions, and Other Pertinent Documents (Dec.
1991)
The specifications, standards, plans, drawings, data item
descriptions, and other pertinent documents cited in this solicitation
are not available for distribution but may be examined at the following
location:
_______________________________________________________________________
(Insert complete address)
(End of provision)
[56 FR 36479, July 31, 1991. Redesignated and amended at 60 FR 61600,
Nov. 30, 1995]
Sec. 252.211-7003 Brand name or equal.
As prescribed in 211.270-2, use the following provision:
Brand Name or Equal (Dec. 1991)
(a) If items in this solicitation are identified as ``brand name or
equal,'' the term is intended to be descriptive not restrictive. The
``brand name or equal'' description is used to portray the
characteristics and level of quality that will satisfy the Government's
needs. The salient physical, functional, and other characteristics which
``equal'' products must meet are specified in the solicitation.
(b) To be considered for award, offers of ``equal'' products,
including products (other than the ``brand name'' item) of the brand
name manufacturer, must--
(1) Meet the salient physical, functional, and other characteristics
specified in this solicitation;
(2) Clearly identify the item by--
(i) Brand name, if any; and
(ii) Make or model number;
(3) Include descriptive literature such as cuts, illustrations,
drawings, or a clear reference to previously furnished descriptive data
or information available to the Contracting Officer; and
(4) Clearly describe any modifications the Offeror plans to make in
a product to make it conform to the solicitation requirements. Mark any
descriptive material to clearly show the modifications.
(c) The Contracting Officer will evaluate ``equal'' products on the
basis of information furnished by the Offeror or identified in the offer
and reasonably available to the Contracting Officer. The Contracting
Officer is not responsible for locating or securing any information not
identified in the offer and reasonably available.
(d) Unless the Offeror clearly indicates in the offer that the
product being offered is an ``equal'' product, the Contracting Officer
will consider the offer as offering a brand name product referenced in
the solicitation.
(End of provision)
[56 FR 36479, July 31, 1991. Redesignated and amended at 60 FR 61600,
Nov. 30, 1995]
Sec. 252.211-7004 Alternate preservation, packaging, and packing.
As prescribed in 211.272, use the following provision:
[[Page 18]]
Alternate Preservation, Packaging, and Packing (Dec. 1991)
(a) The Offeror may submit two unit prices for each item--one based
on use of the military preservation, packaging, or packing requirements
of the solicitation; and an alternate based on use of commercial or
industrial preservation, packaging, or packing of equal or better
protection than the military.
(b) If the Offeror submits two unit prices, the following
information, as a minimum, shall be submitted with the offer to allow
evaluation of the alternate--
(1) The per unit/item cost of commercial or industrial preservation,
packaging, and packing;
(2) The per unit/item cost of military preservation, packaging, and
packing;
(3) The description of commercial or industrial preservation,
packaging, and packing procedures, including material specifications,
when applicable, to include--
(i) Method of preservation;
(ii) Quantity per unit package;
(iii) Cleaning/drying treatment;
(iv) Preservation treatment;
(v) Wrapping materials;
(vi) Cushioning/dunnage material;
(vii) Thickness of cushioning;
(viii) Unit container;
(ix) Unit package gross weight and dimensions;
(x) Packing; and
(xi) Packing gross weight and dimensions; and
(4) Item characteristics, to include--
(i) Material and finish;
(ii) Net weight;
(iii) Net dimensions; and
(iv) Fragility.
(c) If the Contracting Officer does not evaluate or accept the
Offeror's proposed alternate commercial or industrial preservation,
packaging, or packing, the Offeror agrees to preserve, package, or pack
in accordance with the specified military requirements.
(End of provision)
[56 FR 36479, July 31, 1991. Redesignated and amended at 60 FR 61600,
Nov. 30, 1995]
Sec. 252.212-7000 Offeror representations and certifications--Commercial items.
As prescribed in 212.301(f)(ii), use the following provision:
Offeror Representations and Certifications--Commercial Items (NOV 1995)
(a) Definitions.
As used in this clause--
(1) Foreign person means any person other than a United States
person as defined in Section 16(2) of the Export Administration Act of
1979 (50 U.S.C. App. Sec. 2415).
(2) United States person is defined in Section 16(2) of the Export
Administration Act of 1979 and means any United States resident or
national (other than an individual resident outside the United States
and employed by other than a United States person), any domestic concern
(including any permanent domestic establishment of any foreign concern),
and any foreign subsidiary or affiliate (including any permanent foreign
establishment) of any domestic concern which is controlled in fact by
such domestic concern, as determined under regulations of the President.
(b) Certification.
By submitting this offer, the Offeror, if a foreign person, company
or entity, certifies that it--
(1) Does not comply with the Secondary Arab Boycott of Israel; and
(2) Is not taking or knowingly agreeing to take any action, with
respect to the Secondary Boycott of Israel by Arab countries, which 50
U.S.C. App. Sec. 2407(a) prohibits a United States person from taking.
(c) Representation of Extent of Transportation by Sea. (This
representation does not apply to solicitations for the direct purchase
of ocean transportation services).
(1) The Offeror shall indicate by checking the appropriate blank in
paragraph (c)(2) of this provision whether transportation of supplies by
sea is anticipated under the resultant contract. The term ``supplies''
is defined in the Transportation of Supplies by Sea clause of this
solicitation.
(2) Representation.
The Offeror represents that it--
______Does anticipate that supplies will be transported by sea in
the performance of any contract or subcontract resulting from this
solicitation.
______ Does not anticipate that supplies will be transported by sea
in the performance of any contract or subcontract resulting from this
solicitation.
(3) Any contract resulting from this solicitation will include the
Transportation of Supplies by Sea clause. If the Offeror represents that
it will not use ocean transportation, the resulting contract will also
include the Defense Federal Acquisition Regulation Supplement clause at
252.247-7024, Notification of Transportation of Supplies by Sea.
(End of provision)
[60 FR 61600, Nov. 30, 1995, as amended at 61 FR 50455, Sept. 26, 1996]
[[Page 19]]
Sec. 252.212-7001 Contract terms and conditions required to implement statutes or Executive Orders applicable to Defense acquisitions of commercial items.
As prescribed in 212.301(f)(iii), use the following clause:
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders Applicable to Defense Acquisitions of Commercial Items
(NOV 1995)
(a) The Contractor agrees to comply with the Defense Federal
Acquisition Regulation Supplement (DFARS) clause 252.247-7023,
Transportation of Supplies by Sea, which is included in this contract by
reference to implement 10 U.S.C. 2631.
(b) The Contractor agrees to comply with any clause that is checked
on the following list of DFARS clauses which, if checked, is included in
this contract by reference to implement provisions of law or Executive
Orders applicable to acquisitions of commercial items or components.
______ 252.205-7000 Provision of Information to Cooperative Agreement
Holders (10 U.S.C. 2416).
______ 252.206-7000 Domestic Source Restriction (10 U.S.C. 2304).
______ 252.219-7001 Notice of Partial Small Business Set-Aside with
Preferential Consideration for Small Disadvantaged Business
Concerns (____ Alternate I) (Section 9004, Pub. L. 101-165 (10
U.S.C. 2301 (repealed) note)).
______ 252.219-7002 Notice of Small Disadvantaged Business Set-Aside
(____ Alternate I) (15 U.S.C. 644).
______ 252.219-7003 Small Business and Small Disadvantaged Business
Subcontracting Plan (DoD Contracts) (15 U.S.C. 637).
______ 252.219-7005 Incentive for Subcontracting with Small Businesses,
Small Disadvantaged Businesses, Historically Black Colleges
and Universities and Minority Institutions (____ Alternate I)
(Section 9004, Pub. L. 101-165 (10 U.S.C. 2301 (repealed)
note)).
______ 252.219-7006 Noice of Evaluation Preference for Small
Disadvantaged Business Concerns (____ Alternate I) (15 U.S.C.
644).
______ 252.225-7001 Buy American Act and Balance of Payment Program (41
U.S.C. 10, E.O. 10582).
______ 252.225-7007 Trade Agreements (10 U.S.C. 2501-2582).
______ 252.225-7012 Preference for Certain Domestic Commodities.
______ 252.225-7014 Preference for Domestic Speciality Metals (10
U.S.C. 2241 note).
______ 252.225-7015 Preference for Domestic Hand or Measuring Tools (10
U.S.C. 2241 note).
______ 252.225-7017 Preference for United States and Canadian Valves
and Machine Tools (10 U.S.C. 2534(c)(2)).
______ 252.225-7027 Limitation on Sales Commissions and Fees (12 U.S.C.
2779).
______ 252.225-7028 Exclusionary Policies and Practices of Foreign
Governments (22 U.S.C. 2755).
______ 252.225-7029 Restriction on Acquisition of Air Circuit Breakers
(10 U.S.C. 2534(a)(3)).
______ 252.225-7036 North American Free Trade Agreement Implementation
Act.
______ 252.227-7015 Technical Data--Commercial Items (10 U.S.C. 2320).
______ 252.227-7037 Validation of Restrictive Markings on Technical
Data (10 U.S.C. 2321).
______ 252.233-7000 Certification of Claims and Requests for Adjustment
or Relief (10 U.S.C. 2410).
______ 252.242-7002 Submission of Commercial Freight Bills for Audit
(31 U.S.C. 3726).
______ 252.247-7024 Notification of Transportation of Supplies by Sea
(10 U.S.C. 2631).
______ 252.249-7001 Notification of Substantial Impact on Employment
(10 U.S.C. 2501 note).
(End of clause)
[60 FR 61601, Nov. 30, 1995, as amended at 61 FR 50455, Sept. 26, 1996]
Sec. 252.215-7000 Pricing adjustments.
As prescribed in 215.804-8(1), use the following clause:
Pricing Adjustments (Dec. 1991)
The term ``pricing adjustment,'' as used in paragraph (a) of the
clauses entitled ``Price Reduction for Defective Cost or Pricing Data--
Modifications,'' ``Subcontractor Cost or Pricing Data,'' and
``Subcontractor Cost or Pricing Data--Modifications,'' means the
aggregate increases and/or decreases in cost plus applicable profits.
(End of clause)
252.215-7001 [Reserved]
Sec. 252.215-7002 Cost estimating system requirements.
As prescribed in 215.811-70(h), use the following clause:
Cost Estimating System Requirements (Dec. 1991)
(a) Definition.
[[Page 20]]
Estimating system means the Contractor's policies, procedures, and
practices for generating estimates of costs and other data included in
proposals submitted to customers in the expectation of receiving
contract awards. Estimating system includes the Contractor's--
(1) Organizational structure;
(2) Established lines of authority, duties, and responsibilities;
(3) Internal controls and managerial reviews;
(4) Flow of work, coordination, and communication; and
(5) Estimating methods, techniques, accumulation of historical
costs, and other analyses used to generate cost estimates.
(b) General. (1) The Contractor shall establish, maintain, and
comply with an estimating system that is consistently applied and
produces reliable, verifiable, supportable, and documented cost
estimates that are an acceptable basis for negotiation of fair and
reasonable prices.
(2) The system should be--
(i) Consistent and integrated with the Contractor's related
management systems; and
(ii) Subject to applicable financial control systems.
(c) Applicability. Paragraphs (d) and (e) of this clause apply if
the contractor is a large business and either--
(1) In its fiscal year preceding award of this contract, received
Department of Defense (DoD) prime contracts or subcontracts, totaling
$50 million or more for which certified cost or pricing data were
required; or
(2) In its fiscal year preceding award of this contract--
(i) Received DoD prime contracts or subcontracts totaling $10
million or more (but less than $50 million) for which certified cost or
pricing data were required; and
(ii) Was notified in writing by the Contracting Officer that
paragraphs (d) and (e) of this clause apply.
(d) System requirements. (1) The Contractor shall disclose its
estimating system to the Administrative Contracting Officer (ACO) in
writing. If the Contractor wishes the Government to protect the
information as privileged or confidential, the Contractor must mark the
documents with the appropriate legends before submission.
(2) An estimating system disclosure is adequate when the Contractor
has provided the ACO with documentation which--
(i) Accurately describes those policies, procedures, and practices
that the Contractor currently uses in preparing cost proposals; and
(ii) Provides sufficient detail for the Government to reasonably
make an informed judgment regarding the adequacy of the contractor's
estimating practices.
(3) The Contractor shall--
(i) Comply with its disclosed estimating system; and
(ii) Disclose significant changes to the cost estimating system to
the ACO on a timely basis.
(e) Estimating system deficiencies. (1) The Contractor shall respond
to a written report from the Government which identifies deficiencies in
the Contractor's estimating system as follows:
(i) If the Contractor agrees with the report findings and
recommendations, the Contractor shall--
(A) Within 30 days, state its agreement in writing; and
(B) Within 60 days, correct the deficiencies or submit a corrective
action plan showing proposed milestones and actions leading to
elimination of the deficiencies.
(ii) If the Contractor disagrees with the report, the Contractor
shall, within 30 days, state its rationale for disagreeing.
(2) The ACO will evaluate the Contractor's response and notify the
Contractor of the determination concerning remaining deficiencies and/or
the adequacy of any proposed or completed corrective action.
(End of clause)
Sec. 252.216-7000 Economic price adjustment--basic steel, aluminum, brass, bronze, or copper mill products.
As prescribed in 216.203-4-70(a), use the following clause:
Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, or
Copper Mill Products (Dec. 1991)
(a) Definitions.
As used in this clause,
Established price means a price which--
(1) Is an established catalog or market price for a commercial item
sold in substantial quantities to the general public; and
(2) Meets the criteria of FAR 15.804-3.
Unit price excludes any part of the price which reflects
requirements for preservation, packaging, and packing beyond standard
commercial practice.
(b) The Contractor warrants that the unit price stated for (Identify
the item) is not in excess of the Contractor's established price in
effect on the date set for opening of bids (or the contract date if this
is a negotiated contract) for like quantities of the same item. This
price is the net price after applying any applicable standard trade
discounts offered by the Contractor from its catalog, list, or schedule
price.
(c) The Contractor shall promptly notify the Contracting Officer of
the amount and effective date of each decrease in any established price.
[[Page 21]]
(1) Each corresponding contract unit price shall be decreased by the
same percentage that the established price is decreased.
(2) This decrease shall apply to items delivered on or after the
effective date of the decrease in the Contractor's established price.
(3) This contract shall be modified accordingly.
(4) The Contractor shall certify on each invoice that each unit
price stated reflects all decreases required by this clause, or shall
certify on the final invoice that all price decreases required by this
clause have been applied as required.
(d) If the Contractor's established price is increased after the
date set for opening of bids (or the contract date if this is a
negotiated contract), upon the Contractor's written request to the
Contracting Officer, the corresponding contract unit price shall be
increased by the same percentage that the established price is
increased, and this contract shall be modified accordingly, provided--
(1) The aggregate of the increases in any contract unit price under
this contract shall not exceed 10 percent of the original contract unit
price;
(2) The increased contract unit price shall be effective on the
effective date of the increase in the applicable established price if
the Contractor's written request is received by the Contracting Officer
within ten days of the change. If it is not, the effective date of the
increased unit price shall be the date of receipt of the request by the
Contracting Officer; and
(3) The increased contract unit price shall not apply to quantities
scheduled for delivery before the effective date of the increased
contract unit price unless the Contractor's failure to deliver before
that date results from causes beyond the control and without the fault
or negligence of the Contractor, within the meaning of the Default
clause of this contract.
(4) The Contracting Officer shall not execute a modification
incorporating an increase in a contract unit price under this clause
until the increase is verified.
(e) Within 30 days after receipt of the Contractor's written
request, the Contracting Officer may cancel, without liability to either
party, any portion of the contract affected by the requested increase
and not delivered at the time of such cancellation, except as follows--
(1) The Contractor may after that time deliver any items which the
Contractor certifies, by notice received by the Contracting Officer
within ten days after the Contractor receives the cancellation notice,
were completed or in the process of manufacture at the time of receipt
of the cancellation notice.
(2) The Government shall pay for those items at the contract unit
price increased to the extent provided by paragraph (d) of this clause.
(3) Any standard steel supply item shall be deemed to be in the
process of manufacture when the steel for that item is in the state of
processing after the beginning of the furnace melt.
(f) Pending any cancellation of this contract under paragraph (e) of
this clause, or if there is no cancellation, the Contractor shall
continue deliveries according to the delivery schedule of the contract.
The Contractor shall be paid for those deliveries at the contract unit
price increased to the extent provided by paragraph (d) of this clause.
(End of clause)
Sec. 252.216-7001 Economic price adjustment--nonstandard steel items.
As prescribed in 216.203-4-70(b), use the following clause:
Economic Price Adjustment--Nonstandard Steel Items (Dec. 1991)
(a) Definitions.
As used in this clause--
Base labor index means the average of the labor indices for the
three months which consist of the month of bid opening (or offer
submission) and the months immediately preceding and following that
month.
Base steel index means the Contractor's established price (see note
6) including all applicable extras of $________ per __________ (see note
1) for __________ (see note 2) on the date set for bid opening (or the
date of submission of the offer).
Current labor index means the average of the labor indices for the
month in which delivery of supplies is required to be made and the month
preceding.
Current steel index means the Contractor's established price (see
note 6) for that item, including all applicable extras in effect
________ days (see note 3) prior to the first day of the month in which
delivery is required.
Established price is--
(1) A price which--
(i) Is an established catalog or market price of a commercial item
sold in substantial quantities to the general public; and
(ii) Meets the criteria of FAR 15.804-3; and
(2) The net price after applying any applicable standard trade
discounts offered by the Contractor from its catalog, list, or schedule
price. (But see note 6.)
Labor index means the average straight time hourly earnings of the
Contractor's employees in the ________ shop of the Contractor's
__________ plant (see note 4) for any particular month.
Month means calendar month. However, if the Contractor's accounting
period does not coincide with the calendar month, then that
[[Page 22]]
accounting period shall be used in lieu of month.
(b) Each contract unit price shall be subject to revision, under the
terms of this clause, to reflect changes in the cost of labor and steel.
For purpose of this price revision, the proportion of the contract unit
price attributable to costs of labor not otherwise included in the price
of the steel item identified under the base steel index definition in
paragraph (a) shall be ______ percent, and the proportion of the
contract unit price attributable to the cost of steel shall be ______
percent. (See note 5.)
(c)(1) Unless otherwise specified in this contract, the labor index
shall be computed by dividing the total straight time earnings of the
Contractor's employees in the shop identified in paragraph (a) for any
given month by the total number of straight time hours worked by those
employees in that month.
(2) Any revision in a contract unit price to reflect changes in the
cost of labor shall be computed solely by reference to the ``base labor
index'' and the ``current labor index.''
(d) Any revision in a contract unit price to reflect changes in the
cost of steel shall be computed solely by reference to the ``base steel
index'' and the ``current steel index.''
(e)(1) Each contract unit price shall be revised for each month in
which delivery of supplies is required to be made.
(2) The revised contract unit price shall apply to the deliveries of
those quantities required to be made in that month regardless of when
actual delivery is made.
(3) Each revised contract unit price shall be computed by adding--
(i) The adjusted cost of labor (obtained by multiplying ______
percent of the contract unit price by a fraction, of which the numerator
shall be the current labor index and the denominator shall be the base
labor index);
(ii) The adjusted cost of steel (obtained by multiplying ______
percent of the contract unit price by a fraction, of which the numerator
shall be the current steel index and the denominator shall be the base
steel index); and
(iii) The amount equal to ______ percent of the original contract
unit price (representing that portion of the unit price which relates
neither to the cost of labor nor the cost of steel, and which is
therefore not subject to revision (see note 5)).
(4) The aggregate of the increases in any contract unit price under
this contract shall not exceed ten percent of the original contract unit
price.
(5) Computations shall be made to the nearest one-hundredth of one
cent.
(f)(1) Pending any revisions of the contract unit prices, the
Contractor shall be paid the contract unit price for deliveries made.
(2) Within 30 days after final delivery (or such other period as may
be authorized by the Contracting Officer), the Contractor shall furnish
a statement identifying and certifying the correctness of--
(i) The average straight time hourly earnings of the Contractor's
employees in the shop identified in paragraph (a) that are relevant to
the computations of the base labor index and the current labor index;
and
(ii) The Contractor's established prices (see note 6), including all
applicable extras for like quantities of the item that are relevant to
the computation of the base steel index and the current steel index.
(3) Upon request of the Contracting Officer, the Contractor shall
make available all records used in the computation of the labor indices.
(4) Upon receipt of the certified statement, the Contracting Officer
will compute the revised contract unit prices and modify the contract
accordingly. No modification to this contract will be made pursuant to
this clause until the Contracting Officer has verified the revised
established price (see note 6).
(g)(1) In the event any item of this contract is subject to a total
or partial termination for convenience, the month in which the
Contractor receives notice of the termination, if prior to the month in
which delivery is required, shall be considered the month in which
delivery of the terminated item is required for the purposes of
determining the current labor and steel indices under paragraphs (c) and
(d).
(2) For any item which is not terminated for convenience, the month
in which delivery is required under the contract shall continue to apply
for determining those indices with respect to the quantity of the non-
terminated item.
(3) If this contract is terminated for default, any price revision
shall be limited to the quantity of the item which has been delivered by
the Contractor and accepted by the Government prior to receipt by the
Contractor of the notice of termination.
(h) If the Contractor's failure to make delivery of any required
quantity arises out of causes beyond the control and without the fault
or negligence of the Contractor, within the meaning of the clause of
this contract entitled ``Default,'' the quantity not delivered shall be
delivered as promptly as possible after the cessation of the cause of
the failure, and the delivery schedule set forth in this contract shall
be amended accordingly.
Notes:
1 Offeror insert the unit price and unit measure of the standard
steel mill item to be used in the manufacture of the contract item.
2 Offeror identify the standard steel mill item to be used in the
manufacture of the contract item.
[[Page 23]]
3 Offeror insert best estimate of the number of days required for
processing the standard steel mill item in the shop identified under the
labor index definition.
4 Offeror identify the shop and plant in which the standard steel
mill item identified under the base steel index definition will be
finally fabricated or processed into the contract item.
5 Offeror insert the same percentage figures for the corresponding
blanks in paragraphs (b), (e)(3)(i), and (e)(3)(ii). In paragraph
(e)(3)(iii), insert the percentage representing the difference between
the sum of the percentages inserted in paragraph (b) and 100 percent.
6 In negotiated acquisitions of nonstandard steel items, when there
is no established price or when it is not desirable to use this price,
this paragraph may refer to another appropriate price basis, e.g., an
established interplant price.
(End of clause)
Sec. 252.216-7002 Alternate.
Alternate A (Oct. 1994)
As prescribed in 216.307(i), substitute the following paragraphs (b)
and (g) for paragraphs (b) and (g) of the clause at FAR 52.216-15,
Predetermined Indirect Cost Rates:
(b) Not later than 90 days after the expiration of the Contractor's
fiscal year (or other period specified in the Schedule), the Contractor
shall submit to the cognizant Contracting Officer under subpart 42.7 of
the Federal Acquisition Regulation (FAR) and, if required by agency
procedures, to the cognizant Government audit activity, proposed
predetermined indirect cost rates and supporting cost data. The proposed
rate shall be based on the Contractor's actual cost experience during
that fiscal year (or other period specified in the Schedule).
Negotiations of predetermined indirect cost rates shall begin as soon as
practical after receipt of the contractor's proposal.
(g) Allowable indirect costs for the period from the beginning of
performance until the end of the Contractor's fiscal year (or other
period specified in the Schedule) shall be obtained using the
predetermined indirect cost rates and the bases shown in the Schedule.
[59 FR 53116, Oct. 21, 1994]
Sec. 252.217-7000 Exercise of option to fulfill foreign military sales commitments.
As prescribed in 217.208-70(a), use the following clause:
Exercise of Option To Fulfill Foreign Military Sales Commitments (Dec.
1991)
(a) The Government may exercise the option(s) of this contract to
fulfill foreign military sales commitments.
(b) The foreign military sales commitments are for:
_______________________________________________________________________
(Insert name of country, or To Be Determined)
_______________________________________________________________________
(Insert applicable CLIN)
(End of clause)
Alternate I (Dec. 1991)
As prescribed in 217.208-70(a)(1), substitute the following
paragraph (b) for paragraph (b) of the basic clause:
(b) On the date the option is exercised, the Government shall
identify the foreign country for the purpose of negotiating any
equitable adjustment attributable to foreign military sales. Failure to
agree on an equitable adjustment shall be treated as a dispute under the
Disputes clause of this contract.
Sec. 252.217-7001 Surge option.
As prescribed in 217.208-70(b), use the following clause:
Surge Option (Aug. 1992)
(a) General. The Government has the option to--
(1) Increase the quantity of supplies or services called for under
this contract by no more than ______ percent; and/or
(2) Accelerate the rate of delivery called for under this contract,
at a price or cost established before contract award or to be
established by negotiation as provided in this clause.
(b) Schedule. (1) When the Production Surge Plan (DI-MGMT-80969) is
included in the contract, the option delivery schedule shall be the
production rate provided with the Plan. If the Plan was negotiated
before contract award, then the negotiated schedule shall be used.
(2) If there is no Production Surge Plan in the contract, the
Contractor shall, within 30 days from the date of award, furnish the
Contracting Officer a delivery schedule showing the maximum sustainable
rate of delivery for items in this contract. This delivery schedule
shall provide acceleration by month up to the maximum sustainable rate
of delivery achievable within the Contractor's existing facilities,
equipment, and subcontracting structure.
(3) The Contractor shall not revise the option delivery schedule
without approval from the Contracting Officer.
[[Page 24]]
(c) Exercise of option. (1) The Contracting Officer may exercise
this option at any time before acceptance by the Government of the final
scheduled delivery.
(2) The Contracting Officer will provide a preliminary oral or
written notice to the Contractor stating the quantities to be added or
accelerated under the terms of this clause, followed by a contract
modification incorporating the transmitted information and instructions.
The notice and modification will establish a not-to-exceed price equal
to the highest contract unit price or cost of the added or accelerated
items as of the date of the notice.
(3) The Contractor will not be required to deliver at a rate greater
than the maximum sustainable delivery rate under paragraph (b)(2) of
this clause, nor will the exercise of this option extend delivery more
than 24 months beyond the scheduled final delivery.
(d) Price negotiation. (1) Unless the option cost or price was
previously agreed upon, the Contractor shall, within 30 days from the
date of option exercise, submit to the Contracting Officer a cost or
price proposal (including a cost breakdown) for the added or accelerated
items.
(2) Failure to agree on a cost or price in negotiations resulting
from the exercise of this option shall constitute a dispute concerning a
question of fact within the meaning of the Disputes clause of this
contract. However, nothing in this clause shall excuse the Contractor
from proceeding with the performance of the contract, as modified, while
any resulting claim is being settled.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992]
Sec. 252.217-7002 Offering property for exchange.
As prescribed in 217.7005, use the following provision:
Offering Property for Exchange (Dec. 1991)
(a) The property described in item number ________, is being offered
in accordance with the exchange provisions of section 201(c) of the
Federal Property and Administrative Services Act of 1949, 63 Stat. 384
(40 U.S.C. 481(c)).
(b) The property is located at (insert address). Offerors may
inspect the property during the period (insert beginning and ending
dates and insert hours during day).
(End of provision)
Sec. 252.217-7003 Changes.
As prescribed in 217.7104(a), use the following clause:
Changes (Dec. 1991)
(a) The Contracting Officer may, at any time and without notice to
the sureties, by written change order, make changes within the general
scope of any job order issued under the Master Agreement in--
(1) Drawings, designs, plans, and specifications;
(2) Work itemized;
(3) Place of performance of the work;
(4) Time of commencement or completion of the work; and
(5) Any other requirement of the job order.
(b) If a change causes an increase or decrease in the cost of, or
time required for, performance of the job order, whether or not changed
by the order, the Contracting Officer shall make an equitable adjustment
in the price or date of completion, or both, and shall modify the job
order in writing.
(1) Within ten days after the Contractor receives notification of
the change, the Contractor shall submit to the Contracting Officer a
request for price adjustment, together with a written estimate of the
increased cost.
(2) The Contracting Officer may grant an extension of this period if
the Contractor requests it within the ten day period.
(3) If the circumstances justify it, the Contracting Officer may
accept and grant a request for equitable adjustment at any later time
prior to final payment under the job order, except that the Contractor
may not receive profit on a payment under a late request.
(c) If the Contractor includes in its claim the cost of property
made obsolete or excess as a result of a change, the Contracting Officer
shall have the right to prescribe the manner of disposition of that
property.
(d) Failure to agree to any adjustment shall be a dispute within the
meaning of the Disputes clause.
(e) Nothing in this clause shall excuse the Contractor from
proceeding with the job order as changed.
(End of clause)
Sec. 252.217-7004 Job orders and compensation.
As prescribed in 217.7104(a), use the following clause:
[[Page 25]]
Job Orders and Compensation (Dec. 1991)
(a) The Contracting Officer shall solicit bids or proposals and make
award of job orders in accordance with FAR part 14 or 15, as applicable.
The issuance of a job order signed by the Contracting Officer
constitutes award. The job order shall incorporate the terms and
conditions of the Master Agreement.
(b) Whenever the Contracting Officer determines that a vessel, its
cargo or stores, would be endangered by delay, or whenever the
Contracting Officer determines that military necessity requires that
immediate work on a vessel is necessary, the Contracting Officer may
issue a written order to perform that work and the Contractor hereby
agrees to comply with that order and to perform work on such vessel
within its capabilities.
(1) As soon as practicable after the issuance of the order, the
Contracting Officer and the Contractor shall negotiate a price for the
work and the Contracting Officer shall issue a job order covering the
work.
(2) The Contractor shall, upon request, furnish the Contracting
Officer with a breakdown of costs incurred by the Contractor and an
estimate of costs expected to be incurred in the performance of the
work. The Contractor shall maintain, and make available for inspection
by the Contracting Officer or the Contracting Officer's representative,
records supporting the cost of performing the work.
(3) Failure of the parties to agree upon the price of the work shall
constitute a dispute within the meaning of the Disputes clause of the
Master Agreement. In the meantime, the Contractor shall diligently
proceed to perform the work ordered.
(c)(1) If the nature of any repairs is such that their extent and
probable cost cannot be ascertained readily, the Contracting Officer may
issue a job order (on a sealed bid or negotiated basis) to determine the
nature and extent of required repairs.
(2) Upon determination by the Contracting Officer of what work is
necessary, the Contractor, if requested by the Contracting Officer,
shall negotiate prices for performance of that work. The prices agreed
upon shall be set forth in a modification of the job order.
(3) Failure of the parties to agree upon the price shall constitute
a dispute under the Disputes clause. In the meantime, the Contractor
shall diligently proceed to perform the work ordered.
(End of clause)
Sec. 252.217-7005 Inspection and manner of doing work.
As prescribed in 217.7104(a), use the following clause:
Inspection and Manner of Doing Work (Dec. 1991)
(a) The Contractor shall perform work in accordance with the job
order, any drawings and specifications made a part of the job order, and
any change or modification issued under the Changes clause of the Master
Agreement.
(b)(1) Except as provided in paragraph (b) (2) of this clause, and
unless otherwise specifically provided in the job order, all operational
practices of the Contractor and all workmanship, material, equipment,
and articles used in the performance of work under the Master Agreement
shall be in accordance with the best commercial marine practices and the
rules and requirements of the American Bureau of Shipping, the U.S.
Coast Guard, and the Institute of Electrical and Electronic Engineers,
in effect at the time of Contractor's submission of bid (or acceptance
of the job order, if negotiated).
(2) When Navy specifications are specified in the job order, the
Contractor shall follow Navy standards of material and workmanship. The
solicitation shall prescribe the Navy standard whenever applicable.
(c) The Government may inspect and test all material and workmanship
at any time during the Contractor's performance of the work.
(1) If, prior to delivery, the Government finds any material or
workmanship is defective or not in accordance with the job order, in
addition to its rights under the Guarantees clause of the Master
Agreement, the Government may reject the defective or nonconforming
material or workmanship and require the Contractor to correct or replace
it at the Contractor's expense.
(2) If the Contractor fails to proceed promptly with the replacement
or correction of the material or workmanship, the Government may replace
or correct the defective or nonconforming material or workmanship and
charge the Contractor the excess costs incurred.
(3) As specified in the job order, the Contractor shall provide and
maintain an inspection system acceptable to the Government.
(4) The Contractor shall maintain complete records of all inspection
work and shall make them available to the Government during performance
of the job order and for 90 days after the completion of all work
required.
(d) The Contractor shall not permit any welder to work on a vessel
unless the welder is, at the time of the work, qualified to the
standards established by the U.S. Coast Guard, American Bureau of
Shipping, or Department of the Navy for the type of welding being
performed. Qualifications of a welder shall be as specified in the job
order.
(e) The Contractor shall--
[[Page 26]]
(1) Exercise reasonable care to protect the vessel from fire;
(2) Maintain a reasonable system of inspection over activities
taking place in the vicinity of the vessel's magazines, fuel oil tanks,
or storerooms containing flammable materials;
(3) Maintain a reasonable number of hose lines ready for immediate
use on the vessel at all times while the vessel is berthed alongside the
Contractor's pier or in dry dock or on a marine railway;
(4) Unless otherwise provided in a job order, provide sufficient
security patrols to reasonably maintain a fire watch for protection of
the vessel when it is in the Contractor's custody;
(5) To the extent necessary, clean, wash, and steam out or otherwise
make safe, all tanks under alteration or repair;
(6) Furnish the Contracting Officer a ``gas-free'' or ``safe-for-
hotwork'' certificate before any hot work is done on a tank;
(7) Treat the contents of any tank as Government property in
accordance with the Government Property (Fixed-Price Contracts) clause;
and
(8) Dispose of the contents of any tank only at the direction, or
with the concurrence, of the Contracting Officer.
(f) Except as otherwise provided in the job order, when the vessel
is in the custody of the Contractor or in dry dock or on a marine
railway and the temperature is expected to go as low as 35 deg.F, the
Contractor shall take all necessary steps to--
(1) Keep all hose pipe lines, fixtures, traps, tanks, and other
receptacles on the vessel from freezing; and
(2) Protect the stern tube and propeller hubs from frost damage.
(g) The Contractor shall, whenever practicable--
(1) Perform the required work in a manner that will not interfere
with the berthing and messing of Government personnel attached to the
vessel; and
(2) Provide Government personnel attached to the vessel access to
the vessel at all times.
(h) Government personnel attached to the vessel shall not interfere
with the Contractor's work or workers.
(i)(1) The Government does not guarantee the correctness of the
dimensions, sizes, and shapes set forth in any job order, sketches,
drawings, plans, or specifications prepared or furnished by the
Government, unless the job order requires that the Contractor perform
the work prior to any opportunity to inspect.
(2) Except as stated in paragraph (i)(1) of this clause, and other
than those parts furnished by the Government, the Contractor shall be
responsible for the correctness of the dimensions, sizes, and shapes of
parts furnished under this agreement.
(j) The Contractor shall at all times keep the site of the work on
the vessel free from accumulation of waste material or rubbish caused by
its employees or the work. At the completion of the work, unless the job
order specifies otherwise, the Contractor shall remove all rubbish from
the site of the work and leave the immediate vicinity of the work area
``broom clean.''
(End of clause)
Sec. 252.217-7006 Title.
As prescribed in 217.7104(a), use the following clause:
Title (Dec. 1991)
(a) Unless otherwise provided, title to all materials and equipment
to be incorporated in a vessel in the performance of a job order shall
vest in the Government upon delivery at the location specified for the
performance of the work.
(b) Upon completion of the job order, or with the approval of the
Contracting Officer during performance of the job order, all Contractor-
furnished materials and equipment not incorporated in, or placed on, any
vessel, shall become the property of the Contractor, unless the
Government has reimbursed the Contractor for the cost of the materials
and equipment.
(c) The vessel, its equipment, movable stores, cargo, or other
ship's materials shall not be considered Government-furnished property.
(End of clause)
Sec. 252.217-7007 Payments.
As prescribed in 217.7104(a), use the following clause:
Payments (Dec. 1991)
(a) Progress payments, as used in this clause, means payments made
before completion of work in progress under a job order.
(b) Upon submission by the Contractor of invoices in the form and
number of copies directed by the Contracting Officer, and as approved by
the Contracting Officer, the Government will make progress payments as
work progresses under the job order.
(1) Generally, the Contractor may submit invoices on a semi-monthly
basis, unless expenditures justify a more frequent submission.
(2) The Government need not make progress payments for invoices
aggregating less than $5,000.
(3) The Contracting Officer shall approve progress payments based on
the value, computed on the price of the job order, of labor and
materials incorporated in the work, materials suitably stored at the
site of the
[[Page 27]]
work, and preparatory work completed, less the aggregate of any previous
payments.
(4) Upon request, the Contractor will furnish the Contracting
Officer any reports concerning expenditures on the work to date that the
Contracting Officer may require.
(c) The Government will retain until final completion and acceptance
of all work covered by the job order, an amount estimated or approved by
the Contracting Officer under paragraph (b) of this clause. The amount
retained will be in accordance with the rate authorized by Congress for
Naval vessel repair contracts at the time of job order award.
(d) The Contracting Officer may direct that progress payments be
based on the price of the job order as adjusted as a result of change
orders under the Changes clause of the Master Agreement. If the
Contracting Officer does not so direct--
(1) Payments of any increases shall be made from time to time after
the amount of the increase is determined under the Changes clause of the
Master Agreement; and
(2) Reductions resulting from decreases shall be made for the
purposes of subsequent progress payments as soon as the amounts are
determined under the Changes clause of the Master Agreement.
(e) Upon completion of the work under a job order and final
inspection and acceptance, and upon submission of invoices in such form
and with such copies as the Contracting Officer may prescribe, the
Contractor shall be paid for the price of the job order, as adjusted
pursuant to the Changes clause of the Master Agreement, less any
performance reserves deemed necessary by the Contracting Officer, and
less the amount of any previous payments.
(f) All materials, equipment, or any other property or work in
process covered by the progress payments made by the Government, upon
the making of those progress payments, shall become the sole property of
the Government, and are subject to the provisions of the Title clause of
the Master Agreement.
(End of clause)
Sec. 252.217-7008 Bonds.
As prescribed in 217.7104(a), use the following clause:
Bonds (Dec. 1991)
(a) If the solicitation requires an offeror to submit a bid bond,
the Offeror may furnish, instead, an annual bid bond (or evidence
thereof) or an annual performance and payment bond (or evidence
thereof).
(b) If the solicitation does not require a bid bond, the Offeror
shall not include in the price any contingency to cover the premium of
such a bond.
(c) Even if the solicitation does not require bonds, the Contracting
Officer may nevertheless require a performance and payment bond, in
form, amount, and with a surety acceptable to the Contracting Officer.
Where performance and payment bond is required, the offer price shall be
increased upon the award of the job order in an amount not to exceed the
premium of a corporate surety bond.
(d) If any surety upon any bond furnished in connection with a job
order under this agreement fails to submit requested reports as to its
financial condition or otherwise becomes unacceptable to the Government,
the Contracting Officer may require the Contractor to furnish whatever
additional security the Contracting Officer determines necessary to
protect the interests of the Government and of persons supplying labor
or materials in the performance of the work contemplated under the
Master Agreement.
(End of clause)
Sec. 252.217-7009 Default.
As prescribed in 217.7104(a), use the following clause:
Default (Dec. 1991)
(a) The Government may, subject to the provisions of paragraph (b)
of this clause, by written notice of default to the Contractor,
terminate the whole or any part of a job order if the Contractor fails
to--
(1) Make delivery of the supplies or to perform the services within
the time specified in a job order or any extension;
(2) Make progress, so as to endanger performance of the job order;
or
(3) Perform any of the other provisions of this agreement or a job
order.
(b) Except for defaults of subcontractors, the Contractor shall not
be liable for any excess costs if failure to perform the job order
arises from causes beyond the control and without the fault or
negligence of the Contractor. Examples of such causes include acts of
God or of the public enemy, acts of the Government in either its
sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, and unusually severe weather.
(c) If the Contractor's failure to perform is caused by the default
of a subcontractor, and if such default arises out of causes beyond the
control of both the Contractor and subcontractor, and without the fault
or negligence of either, the Contractor shall not be liable for any
excess costs for failure to perform, unless the supplies or services to
be furnished by the subcontractor were obtainable from other sources in
sufficient time to
[[Page 28]]
permit the Contractor to perform the job order within the time
specified.
(d) If the Government terminates the job order in whole or in part
as provided in paragraph (a) of this clause--
(1) The Government may, upon such terms and in such manner as the
Contracting Officer may deem appropriate, arrange for the completion of
the work so terminated, at such plant or plants, including that of the
Contractor, as may be designated by the Contracting Officer.
(i) The Contractor shall continue the performance of the job order
to the extent not terminated under the provisions of this clause.
(ii) If the work is to be completed at the plant, the Government may
use all tools, machinery, facilities, and equipment of the Contractor
determined by the Contracting Office to be necessary for that purpose.
(iii) If the cost to the Government of the work procured or
completed (after adjusting such cost to exclude the effect of changes in
the plans and specifications made subsequent to the date of termination)
exceeds the price fixed for work under the job order (after adjusting
such price on account of changes in the plans and specifications made
before the date of termination), the Contractor, or the Contractor's
surety, if any, shall be liable for such excess.
(2) The Government, in addition to any other rights provided in this
clause, may require the Contractor to transfer title and delivery to the
Government, in the manner and to the extent directed by the Contracting
Officer, any completed supplies and such partially completed supplies
and materials, parts, tools, dies, jigs, fixtures, plans, drawings,
information and contract rights (hereinafter called ``manufacturing
materials'') as the Contractor has specifically produced or specifically
acquired for the performance of the terminated part of the job order.
(i) The Contractor shall, upon direction of the Contracting Officer,
protect and preserve property in possession of the Contractor in which
the Government has an interest.
(ii) The Government shall pay to the Contractor the job order price
for completed items of work delivered to and accepted by the Government,
and the amount agreed upon by the Contractor and the Contracting Officer
for manufacturing materials delivered to and accepted by the Government,
and for the protection and preservation of property. Failure to agree
shall be a dispute concerning a question of fact within the meaning of
the Disputes clause.
(e) If, after notice of termination of the job order, it is
determined that the Contractor was not in default, or that the default
was excusable, the rights and obligations of the parties shall be the
same as if the notice of termination had been issued for the convenience
of the Government.
(f) If the Contractor fails to complete the performance of a job
order within the time specified, or any extension, the actual damage to
the Government for the delay will be difficult or impossible to
determine.
(1) In lieu of actual damage, the Contractor shall pay to the
Government as fixed, agreed, and liquidated damages for each calendar
day of delay the amount, if any, set forth in the job order (prorated to
the nearest hour for fractional days).
(2) If the Government terminates the job order, the Contractor shall
be liable, in addition to the excess costs provided in paragraph (d) of
this clause, for liquidated damages accruing until such time as the
Government may reasonably obtain completion of the work.
(3) The Contractor shall not be charged with liquidated damages when
the delay arises out of causes beyond the control and without the fault
or negligence of the Contractor. Subject to the provisions of the
Disputes clause of the Master Agreement, the Contracting Officer shall
ascertain the facts and the extent of the delay and shall extend the
time for performance when in the judgment of the Contracting Officer,
the findings of fact justify an extension.
(g) The rights and remedies of the Government provided in this
clause shall not be exclusive and are in addition to any other rights
and remedies provided by law under this agreement.
(End of clause)
Sec. 252.217-7010 Performance.
As prescribed in 217.7104(a), use the following clause:
Performance (Dec. 1991)
(a) Upon the award of a job order, the Contractor shall promptly
start the work specified and shall diligently prosecute the work to
completion. The Contractor shall not start work until the job order has
been awarded except in the case of emergency work ordered by the
Contracting Officer under the Job Orders and Compensation clause of the
Master Agreement.
(b) The Government shall deliver the vessel described in the job
order at the time and location specified in the job order. Upon
completion of the work, the Government shall accept delivery of the
vessel at the time and location specified in the job order.
(c) The Contractor shall, without charge and without specific
requirement in a job order,--
(1) Make available at the plant to personnel of the vessel while in
dry dock or on a marine railway, sanitary lavatory and similar
facilities acceptable to the Contracting Officer;
[[Page 29]]
(2) Supply and maintain suitable brows and gangways from the pier,
dry dock, or marine railway to the vessel;
(3) Treat salvage, scrap or other ship's material of the Government
resulting from performance of the work as items of Government-furnished
property, in accordance with the Government Property (Fixed Price
Contracts) clause;
(4) Perform, or pay the cost of, any repair, reconditioning or
replacement made necessary as the result of the use by the Contractor of
any of the vessel's machinery, equipment or fittings, including, but not
limited to, winches, pumps, rigging, or pipe lines; and
(5) Furnish suitable offices, office equipment and telephones at or
near the site of the work for the Government's use.
(d) The job order will state whether dock and sea trials are
required to determine whether or not the Contractor has satisfactorily
performed the work.
(1) If dock and sea trials are required, the vessel shall be under
the control of the vessel's commander and crew.
(2) The Contractor shall not conduct dock and sea trials not
specified in the job order without advance approval of the Contracting
Officer. Dock and sea trials not specified in the job order shall be at
the Contractor's expense and risk.
(3) The Contractor shall provide and install all fittings and
appliances necessary for dock and sea trials. The Contractor shall be
responsible for care, installation, and removal of instruments and
apparatus furnished by the Government for use in the trials.
(End of clause)
Sec. 252.217-7011 Access to vessel.
As prescribed at 217.7104(a), use the following clause:
Access to Vessel (Dec. 1991)
(a) Upon the request of the Contracting Officer, the Contractor
shall grant admission to the Contractor's facilities and access to
vessel, on a non-interference basis, as necessary to perform their
respective responsibilities, to a reasonable number of:
(1) Government and other Government contractor employees (in
addition to those Government employees attached to the vessel); and
(2) Representatives of offerors on other contemplated Government
work.
(b) All personnel granted access shall comply with Contractor rules
governing personnel at its shipyard.
(End of clause)
Sec. 252.217-7012 Liability and insurance.
As prescribed in 217.7104(a), use the following clause:
Liability and Insurance (Dec. 1991)
(a) The Contractor shall exercise its best efforts to prevent
accidents, injury, or damage to all employees, persons, and property, in
and about the work, and to the vessel or part of the vessel upon which
work is done.
(b) Loss or damage to the vessel, materials, or equipment. (1)
Unless otherwise directed or approved in writing by the Contracting
Officer, the Contractor shall not carry insurance against any form of
loss or damage to the vessel(s) or to the materials or equipment to
which the Government has title or which have been furnished by the
Government for installation by the Contractor. The Government assumes
the risks of loss of and damage to that property.
(2) The Government does not assume any risk with respect to loss or
damage compensated for by insurance or otherwise or resulting from risks
with respect to which the Contractor has failed to maintain insurance,
if available, as required or approved by the Contracting Officer.
(3) The Government does not assume risk of and will not pay for any
costs of the following:
(i) Inspection, repair, replacement, or renewal of any defects in
the vessel(s) or material and equipment due to--
(A) Defective workmanship performed by the Contractor or its
subcontractors;
(B) Defective materials or equipment furnished by the Contractor or
its subcontracts; or
(C) Workmanship, materials, or equipment which do not conform to the
requirements of the contract, whether or not the defect is latent or
whether or not the nonconformance is the result of negligence.
(ii) Loss, damage, liability, or expense caused by, resulting from,
or incurred as a consequence of any delay or disruption, willful
misconduct or lack of good faith by the Contractor or any of its
representatives that have supervision or direction of--
(A) All or substantially all of the Contractor's business; or
(B) All or substantially all of the Contractor's operation at any
one plant.
(4) As to any risk that is assumed by the Government, the Government
shall be subrogated to any claim, demand or cause of action against
third parties that exists in favor of the Contractor. If required by the
Contracting Officer, the Contractor shall execute a formal assignment or
transfer of the claim, demand, or cause of action.
(5) No party other than the Contractor shall have any right to
proceed directly
[[Page 30]]
against the Government or join the Government as a co-defendant in any
action.
(6) Notwithstanding the foregoing, the Contractor shall bear the
first $5,000 of loss or damage from each occurrence or incident, the
risk of which the Government would have assumed under the provisions of
this paragraph (b).
(c) Indemnification. The Contractor indemnifies the Government and
the vessel and its owners against all claims, demands, or causes of
action to which the Government, the vessel or its owner(s) might be
subject as a result of damage or injury (including death) to the
property or person of anyone other than the Government or its employees,
or the vessel or its owner, arising in whole or in part from the
negligence or other wrongful act of the Contractor or its agents or
employees, or any subcontractor, or its agents or employees.
(1) The Contractor's obligation to indemnify under this paragraph
shall not exceed the sum of $300,000 as a consequence of any single
occurrence with respect to any one vessel.
(2) The indemnity includes, without limitation, suits, actions,
claims, costs, or demands of any kind, resulting from death, personal
injury, or property damage occurring during the period of performance of
work on the vessel or within 90 days after redelivery of the vessel. For
any claim, etc., made after 90 days, the rights of the parties shall be
as determined by other provisions of this agreement and by law. The
indemnity does apply to death occurring after 90 days where the injury
was received during the period covered by the indemnity.
(d) Insurance. (1) The Contractor shall, at its own expense, obtain
and maintain the following insurance--
(i) Casualty, accident, and liability insurance, as approved by the
Contracting Officer, insuring the performance of its obligations under
paragraph (c) of this clause.
(ii) Workers Compensation Insurance (or its equivalent) covering the
employees engaged on the work.
(2) The Contractor shall ensure that all subcontractors engaged on
the work obtain and maintain the insurance required in paragraph (d)(1)
of this clause.
(3) Upon request of the Contracting Officer, the Contractor shall
provide evidence of the insurance required by paragraph (d) of this
clause.
(e) The Contractor shall not make any allowance in the job order
price for the inclusion of any premium expense or charge for any reserve
made on account of self-insurance for coverage against any risk assumed
by the Government under this clause.
(f) The Contractor shall give the Contracting Officer written notice
as soon as practicable after the occurrence of a loss or damage for
which the Government has assumed the risk.
(1) The notice shall contain full details of the loss or damage.
(2) If a claim or suit is later filed against the Contractor as a
result of the event, the Contractor shall immediately deliver to the
Government every demand, notice, summons, or other process received by
the Contractor or its employees or representatives.
(3) The Contractor shall cooperate with the Government and, upon
request, shall assist in effecting settlements, securing and giving
evidence, obtaining the attendance of witnesses, and in the conduct of
suits. The Government shall reimburse the Contractor for expenses
incurred in this effort, other than the cost of maintaining the
Contractor's usual organization.
(4) The Contractor shall not, except at its own expense, voluntarily
make any payment, assume any obligation, or incur any expense other than
what would be imperative for the protection of the vessel(s) at the time
of the event.
(g) In the event or loss of or damage to any vessel(s), material, or
equipment which may result in a claim against the Government under the
insurance provisions of this contract, the Contractor shall promptly
notify the Contracting Officer of the loss or damage. The Contracting
Officer may, without prejudice to any other right of the Government,
either--
(1) Order the Contractor to proceed with replacement or repair, in
which event the Contractor shall effect the replacement or repair;
(i) The Contractor shall submit to the Contracting Officer a request
for reimbursement of the cost of the replacement or repair together with
whatever supporting documentation the Contracting Officer may reasonably
require, and shall identify the request as being submitted under the
Insurance clause of the agreement.
(ii) If the Government determines that the risk of the loss or
damage is within the scope of the risks assumed by the Government under
this clause, the Government will reimburse the Contractor for the
reasonable, allowable cost of the replacement or repair, plus a
reasonable profit (if the work or replacement or repair was performed by
the Contractor) less the deductible amount specified in paragraph (b) of
this clause.
(iii) Payments by the Government to the Contractor under this clause
are outside the scope of and shall not affect the pricing structure of
the contract, and are additional to the compensation otherwise payable
to the Contractor under this contract; or
(2) In the event the Contracting Officer decides that the loss or
damage shall not be replaced or repaired, the Contracting Officer
shall--
[[Page 31]]
(i) Modify the contract appropriately, consistent with the reduced
requirements reflected by the unreplaced or unrepaired loss or damage;
or
(ii) Terminate the repair of any part or all of the vessel(s) under
the Termination for Convenience of the Government clause of this
agreement.
(End of clause)
Sec. 252.217-7013 Guarantees.
As prescribed in 217.7104(a), use the following clause:
Guarantees (Dec. 1991)
(a) In the event any work performed or materials furnished by the
contractor under the Master Agreement prove defective or deficient
within 90 days from the date of redelivery of the vessel(s), the
Contractor, as directed by the Contracting Officer and at its own
expense, shall correct and repair the deficiency to the satisfaction of
the Contracting Officer.
(b) If the Contractor or any subcontractor has a guarantee for work
performed or materials furnished that exceeds the 90 day period, the
Government shall be entitled to rely upon the longer guarantee until its
expiration.
(c) With respect to any individual work item identified as
incomplete at the time of redelivery of the vessel(s), the guarantee
period shall run from the date the item is completed.
(d) If practicable, the Government shall give the Contractor an
opportunity to correct the deficiency.
(1) If the Contracting Officer determines it is not practicable or
is otherwise not advisable to return the vessel(s) to the Contractor, or
the Contractor fails to proceed with the repairs promptly, the
Contracting Officer may direct that the repairs be performed elsewhere,
at the Contractor's expense.
(2) If correction and repairs are performed by other than the
Contractor, the Contracting Officer may discharge the Contractor's
liability by making an equitable deduction in the price of the job
order.
(e) The Contractor's liability shall extend for an additional 90 day
guarantee period on those defects or deficiencies that the Contractor
corrected.
(f) At the option of the Contracting Officer, defects and
deficiencies may be left uncorrected. In that event, the Contractor and
Contracting Officer shall negotiate an equitable reduction in the job
price. Failure to agree upon an equitable reduction shall constitute a
dispute under the Disputes clause of this agreement.
(End of clause)
Sec. 252.217-7014 Discharge of liens.
As prescribed in 217.7104(a), use the following clause:
Discharge of Liens (Dec. 1991)
(a) The Contractor shall immediately discharge, or cause to be
discharged, any lien or right in rem of any kind, other than in favor of
the Government, that exists or arises in connection with work done or
material furnished under any job order under this agreement.
(b) If any lien or right in rem is not immediately discharged, the
Government, at the expense of the Contractor, may discharge, or cause to
be discharged, the lien or right.
(End of clause)
Sec. 252.217-7015 Safety and health.
As prescribed in 217.7104(a), use the following clause:
Safety and Health (Dec. 1991)
Nothing contained in the Master Agreement or any job order shall
relieve the Contractor of any obligations it may have to comply with--
(a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 651,
et seq.);
(b) The Safety and Health Regulations for Ship Repairing (29 CFR
part 1915); or
(c) Any other applicable Federal, State, and local laws, codes,
ordinances, and regulations.
(End of clause)
Sec. 252.217-7016 Plant protection.
As prescribed in 217.7104(a), use the following clause:
Plant Protection (Dec. 1991)
(a) The Contractor shall provide, for the plant and work in process,
reasonable safeguards against all hazards, including unauthorized entry,
malicious mischief, theft, vandalism, and fire.
(b) The Contractor shall also provide whatever additional safeguards
are necessary to protect the plant and work in process from espionage,
sabotage, and enemy action.
(1) The Government shall reimburse the Contractor for that portion
of the costs of the additional safeguards that is allocable to the
contract in the same manner as if the Contracting Officer had issued a
change order for the additional safeguards.
(2) The costs reimbursed shall not include any overhead allowance,
unless the overhead
[[Page 32]]
is incident to the construction or installation of necessary security
devices or equipment.
(c) Upon payment by the Government of the cost of any device or
equipment required or approved under paragraph (b) of this clause, title
shall vest in the Government.
(1) The Contractor shall comply with the instructions of the
Contracting Officer concerning its identification and disposition.
(2) No such device or equipment shall become a fixture as a result
of its being affixed to realty not owned by the Government.
(End of clause)
Sec. 252.217-7017 Time of delivery.
As prescribed in 217.7203(a)(1), use the following clause:
Time of Delivery (Dec. 1991)
(a) Ordering offices shall specify delivery locations and quantities
in all oral or written delivery orders under this contract.
(b) The Contractor shall complete deliveries within the hours
prescribed in the schedule of this contract and on the days specified by
the order.
(c) Orders requiring delivery within 24 hours from Contractor
receipt are governed by paragraph (e) of the Requirements clause of this
contract.
(End of clause)
Alternate I (Dec. 1991)
As prescribed in 217.7203(a)(1), substitute the following paragraph
(c) for paragraph (c) of the basic clause:
(c) The Contractor shall not be required to deliver within less than
______ hours from the time the Contractor receives a delivery order.
Sec. 252.217-7018 Change in plant location--bakery and dairy products.
As prescribed in 217.7203(a)(2), use the following clause:
Change in Plant Location--Bakery and Dairy Products (Dec. 1991)
(a) The Offeror shall identify in the clause in this solicitation
entitled Place of Performance, all plants to be used for manufacturing,
processing, and shipment. Failure to furnish this information with the
offer may result in rejection of the offer.
(b) The Offeror shall not change any place of performance between
the date set for receipt of offers and the award, except where time
permits and then only after receipt of the Contracting Officer's written
approval.
(c) The Contractor shall not change any place of performance after
contract award without advance approval by the Contracting Officer.
(End of clause)
Sec. 252.217-7019 Sanitary conditions.
As prescribed in 217.7203(a)(3), use the following clause:
Sanitary Conditions (Dec. 1991)
(a) The Contractor shall ensure that all supplies delivered under
this contract, and all plant facilities, machinery, equipment, and
apparatus used in the production, processing, handling, storage, or
delivery of these supplies, meet the sanitary standards (including
bacteriological requirements) prescribed by the specifications cited in
this contract.
(b) The Government reserves the right to inspect and test at any
reasonable times all plant facilities, machinery, equipment, and parts
used in the production, processing, handling, storage, transportation,
or delivery of supplies under this contract.
(c) The Contracting Officer or representative shall notify the
Contractor in writing of any failure to meet the sanitary standards
(including bacteriological requirements) prescribed by this contract. If
the Contractor does not correct the failure within three days from
receipt of notice, the Contracting Officer may--
(1) Terminate for default all or part of this contract; or
(2) Suspend work (wholly or partially) under the contract for ten
days or any longer period considered necessary to allow correction of
the failure.
(d) The suspension does not extend the life of this contract and
shall not be considered sufficient reason for extending the delivery
time.
(e) During the suspension period, the Government reserves the right
to acquire similar supplies from other sources, on whatever terms and in
whatever manner the Contracting Officer considers appropriate. The
Contractor shall be liable to the Government for any excess costs for
those similar supplies.
(f) If the Contractor does not correct the failure within the
suspension period, the Contracting Officer may terminate for default the
unexpired portion of this contract without allowing additional time for
correction, notwithstanding paragraph (a)(2) of the Default (Fixed-Price
Supply and Service) clause of this contract.
[[Page 33]]
(End of clause)
Alternate I (Dec. 1991)
As prescribed in 217.7203(a)(3), add the following to paragraph (d)
of the basic clause:
In a suspension, the quantity of supplies designated in the schedule as
a minimum shall be reduced by an amount proportionate to the ratio
between (1) the number of days the work is suspended; and (2) the number
of days in the contract period. The quantity of supplies designated as
maximum shall not be reduced.
Sec. 252.217-7020 Examination and testing.
As prescribed in 217.7203(b)(1), use the following clause:
Examination and Testing (Dec. 1991)
(a) The Government reserves the right to examine and test all
products to be delivered under the contract. Examination and testing of
dairy products shall be in accordance with the Veterinary/Medical
Wholesomeness Assurance Program for Fresh and Cultured Dairy Products
and Frozen Desserts (AR 40-70; NAVSUPINST 4355.6; AFR 161-46; and MCO
10110.44).
(b) Samples. (1) The Government shall select the samples. For
purposes of this clause, the Contractor agrees that a lot consists of a
day's production of the type of product delivered, or intended to be
delivered, under this contract.
(2) Samples selected at origin shall be furnished at the
Contractor's expense, and shall be considered representative of all the
products delivered to the Government from the lot sampled.
(3) Samples selected at destination shall be furnished at Government
expense, and shall be considered representative of all of that type
product delivered to the Government on the date sampled.
(4) When samples are selected from containers of 1/2 gallon size or
smaller, the entire contents of the container shall constitute the
sample. When samples are selected from containers larger than 1/2
gallon, a 1/2 pint sample shall be taken for laboratory analysis.
(c) Deficiencies in amounts. The Contractor shall reimburse the
Government for deficiencies (i.e., amounts less than required in this
contract) in the amount of butterfat, milk solids non-fat, or total
solids of any type of product as determined by chemical analysis. The
amount of the reimbursement shall be determined in accordance with the
Deficiency Adjustment clause of this contract. The Government shall not
reimburse the Contractor for butterfat, milk solids non-fat, and total
solids content in excess of the amount required by this contract.
(d) Deficiencies in products. (1) The Contracting Officer or
representative shall notify the Contractor orally (with written
confirmation) or in writing when two of the last four consecutive lots
tested are nonconforming for the same specification requirements. The
notice shall be in effect as long as two of the last four consecutive
lots tested exceed the same limit of the specification. The Government
will take additional samples between 3 and 14 days after the date of the
notice.
(2) The Contracting Officer may suspend work under this contract for
up to ten days when three out of the last five consecutive lots tested
are nonconforming for the same specification requirement, or when any
deficiency causes the production of a product which is considered to be
a health hazard.
(e) Suspension. (1) During the suspension period, the Government
reserves the right to acquire similar supplies from other sources, on
whatever terms and in whatever manner the Contracting Officer considers
appropriate. The Contractor shall be liable to the Government for any
excess costs for those similar supplies.
(2) The Contractor shall use the suspension period to correct the
deficiencies. The Contractor shall notify the Government when corrective
action is complete.
(3) The Contracting Officer shall lift the suspension only after the
Government has verified the corrective action and notified the
Contractor in writing.
(4) The suspension does not extend the life of this contract and
shall not be considered sufficient reason for extending the delivery
time.
(5) If the Contractor does not correct the failure within the
suspension period, the Contracting Officer may terminate for default the
unexpired portion of this contract without allowing additional time for
correction, notwithstanding paragraph (a)(2) of the Default (Fixed-Price
Supply and Service) clause of this contract.
(End of clause)
Alternate I (Dec. 1991)
As prescribed in 217.7203(b)(1), add the following to paragraph
(d)(2) of the basic clause:
In a suspension, the quantity of supplies designated in the schedule
as minimum shall be reduced by an amount proportionate to the ratio
between (i) the number of days the work is suspended; and (ii) the
number of days in the contract period. The quantity of supplies
designated as maximum shall not be reduced.
[[Page 34]]
Sec. 252.217-7021 Deficiency adjustment.
As prescribed in 217.7203(b)(2), use the following clause:
Deficiency Adjustment (Dec. 1991)
(a) When the Contractor is required under the Examination and
Testing clause of the contract to reimburse the Government for
deficiencies in the amount of butterfat, milk solids non-fat, or total
solids, reimbursement shall be determined by the following formula--
(1) Butterfat. Subtract the total pounds of butterfat delivered from
the total pounds of butterfat required to be delivered, and multiply the
remainder by the butterfat value. The butterfat value is 1.30 multiplied
by the average Central States top ``Wholesale Selling Price'' of Grade
A, 92 score butter during the monthly period for which the deficiency is
computed, as reported in the Dairy Market News, published by the
Department of Agriculture, Agricultural Marketing Service, Madison,
Wisconsin.
(2) Milk solids nonfat. Subtract the total pounds of milk solids
non-fat delivered from the total pounds of milk solids non-fat required
to be delivered, and multiply the remainder by the milk solids non-fat
value. The milk solids non-fat value is 1.45 multiplied by the average
Central States top price for ``Extra Grade, Non-fat Dry Milk, Spray
(bags)'' during the monthly period for which the deficiency is computed,
as reported in the Dairy Market News.
(3) Total solids. Add to the total solids delivered the total amount
of any shortages for butterfat and milk solids non-fat that the
Contractor has already reimbursed. Subtract this amount from the total
solids required to be delivered. Multiply the remainder by the milk
solids non-fat value.
(b) The Government will not assess amounts totaling $25 or less
during a monthly accounting period. Monthly periods begin on the first
day of the contract period and on the same day of each succeeding month.
(c) The butterfat, milk solids non-fat, and total solids content of
one type of product shall not be averaged with or offset against the
content of another type of product, and the content of products
delivered in any one monthly period will not be averaged with or offset
against the content of products delivered in any other monthly period.
(d) The Contractor shall identify the tare weights of all containers
on the shipping documents, and furnish a copy to the Government
inspector at destination. The tare weight of dispenser containers shall
include all parts of the container delivered as a unit, including lids,
tubes, and seals. If different types of containers with different tares
are included in a single delivery, the Contractor shall furnish the tare
weight and identifying characteristics of each type of container.
(e) The Government shall inspect a representative sample of the line
item. If volume and net weight shortages are found, the Government will
adjust the entire quantity of the line item delivered on the day the
shortage is discovered. For the purpose of determining net weight, the
following weight factors apply:
------------------------------------------------------------------------
Product Weight factor
------------------------------------------------------------------------
Chocolate flavored milk or drink.... 8.8 pounds/gallon.
Milk whole fresh, buttermilk fluid, 8.6 pounds/gallon.
milk whole fresh. cultured, and
milk skim fresh.
Fresh cream (18 percent butterfat or 8.5 pounds/gallon.
less), half-and-half fresh, and
cream sour cultured.
Fresh cream (more than 18 percent 8.4 pounds/gallon.
butterfat).
Cottage cheese, butter, and other Weight on container.
non-frozen products.
Ice cream and frozen desserts....... Applicable commodity
specification.
------------------------------------------------------------------------
(f) Contractor reimbursement for deficient supplies does not
prejudice the Government's right to terminate for default or to pursue
any other remedy under this contract or as provided by law.
(End of clause)
Sec. 252.217-7022 Code dating.
As prescribed in 217.7203(a)(4), use the following clause:
Code Dating (Dec. 1991)
(a) The Contractor may use a code to comply with the requirement
stated in the schedule or specifications of this contract for showing a
date on the labels of delivered items.
(b) Before using a code, the Contractor shall--
(1) Provide a written explanation to the Contracting Officer; and
(2) Obtain the Contracting Officer's approval in writing.
(c) The Contractor shall also obtain the Contracting Officer's
written approval before making any changes in the code symbols, system,
or explanation.
(End of clause)
Sec. 252.217-7023 Marking.
As prescribed in 217.7203(a)(5), use the following clause:
Marking (Dec. 1991)
Commercial markings are acceptable, notwithstanding any
specification references to MIL-STD-129.
[[Page 35]]
(End of clause)
Sec. 252.217-7024 Responsibility for containers and equipment.
As prescribed in 217.7203(a)(6), use the following clause:
Responsibility for Containers and Equipment (Dec. 1991)
(a) The Contractor shall--
(1) Maintain all reusable containers and equipment in a sanitary
condition and in a good state of repair and working order; and
(2) Remove all empty, reusable containers from Government premises
at the time of each delivery, unless the Contracting Officer grants
permission in writing for less frequent removal.
(b) The Government shall not be liable for any damage to, or loss or
destruction of, containers and equipment furnished by the Contractor.
(End of clause)
Sec. 252.217-7025 Containers and equipment.
As prescribed in 217.7203(b)(3), use the following clause:
Containers and Equipment (Dec. 1991)
(a) The Contractor shall ensure that dispenser containers and
filling equipment used in the performance of this contract, and any
Contractor-furnished refrigerated bulk milk dispenser cabinets, comply
with MIL-STD-175, Minimum Sanitary Standards for the Equipment and
Methods for Handling of Milk and Milk Products in Bulk Milk Dispensing
Operations.
(b) The Contractor shall install, service, and maintain any
Contractor-furnished bulk milk dispenser cabinets to the Contracting
Officer's satisfaction. The Contractor has sole responsibility for the
supply, installation, maintenance, and removal of the cabinets,
including labor and material costs, and for any damage to, or loss or
destruction of, such cabinets.
(c) When the Contractor fails to furnish milk dispenser cabinets or
milk dispenser containers as required in the schedule, or does not
properly service, maintain, and repair such dispenser cabinets, so that
milk cannot be dispensed as needed by the Government, the Contractor
shall, for as long as such conditions exist, deliver a sufficient
quantity of milk in half-pint containers to satisfy orders for milk
dispenser containers. The price per gallon for milk dispenser containers
shall apply.
(d) When any loss of contents of a dispenser container occurs
(including loss due to contamination, spoilage, or leakage) as a result
of functional failure of the dispenser cabinet or dispenser containers,
the Contractor shall immediately replace the lost contents without cost
to the Government, unless such functional failure was due to a general
power failure at the Government installation.
(End of clause)
Sec. 252.217-7026 Identification of sources of supply.
As prescribed in 217.7303, use the following provision:
Identification of Sources of Supply (NOV 1995)
(a) The Government is required under 10 U.S.C. 2384 to obtain
certain information on the actual manufacturer or sources of supplies it
acquires.
(b) The apparently successful Offeror agrees to complete and submit
the following table before award:
[[Page 36]]
Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source of supply
Line items National stock No. Commercial item (Y ------------------------------------------------------------ Actual mfg?
or N) Company Address Part No.
(1) (2)............... (3)............... (4)............... (4)............... (5)............... (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
______.......................... ______............ ______............ ______............ ______............ ______............ ______
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) List each deliverable item of supply and item of technical data.
(2) If there is no national stock number, list ``none.''
(3) Use ``Y'' if the item is a commercial item; otherwise use ``N.'' If ``Y'' is listed, the Offeror need not complete the remaining columns in the
table.
(4) For items of supply, list all sources. For technical data, list the source.
(5) For items of supply, list each source's part number for the item.
(6) Use ``Y'' if the source of supply is the actual manufacturer; ``N'' if it is not; and ``U'' if unknown.
[[Page 37]]
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 59 FR 27675, May 27, 1994; 60
FR 61601, Nov. 30, 1995]
Sec. 252.217-7027 Contract definitization.
As prescribed in 217.7406(b), use the following clause:
Contract Definitization (FEB 1996)
(a) A ______(insert specific type of contract action) is
contemplated. The Contractor agrees to begin promptly negotiating with
the Contracting Officer the terms of a definitive contract that will
include (1) all clauses required by the Federal Acquisition Regulation
(FAR) on the date of execution of the underfinitized contract action,
(2) all clauses required by law on the date of execution of the
definitive contract action, and (3) any other mutually agreeable
clauses, terms, and conditions. The Contractor agrees to submit a
______(insert type of proposal; e.g., fixed-price or cost-and-fee)
proposal and cost or pricing data supporting its proposal.
(b) The schedule for definitizing this contract is as follows
(insert target date for definitization of the contract action and dates
for submission of proposal, beginning of negotiations, and, if
appropriate, submission of the make-or-buy and subcontracting plans and
cost or pricing data).
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(c) If agreement on a definitive contract action to supersede this
undefinitized contract action is not reached by the target date in
paragraph (b) of this clause, or within any extension of it granted by
the Contracting Officer, the Contracting Officer may, with the approval
of the head of the contracting activity, determine a reasonable price or
fee in accordance with subpart 15.8 and part 31 of the FAR, subject to
Contractor appeal as provided in the Disputes clause. In any event, the
Contractor shall proceed with completion of the contract, subject only
to the Limitation of Government Liability clause.
(1) After the Contracting Officer's determination of price or fee,
the contract shall be governed by--
(i) All clauses required by the FAR on the date of execution of this
underfinitized contract action for either fixed-price or cost-
reimbursement contracts, as determined by the Contracting Officer under
this paragraph (c);
(ii) All clauses required by law as of the date of the Contracting
Officer's determination; and
(iii) Any other clauses, terms, and conditions mutually agreed upon.
(2) To the extent consistent with paragraph (c)(1) of this clause,
all clauses, terms, and conditions included in this undefinitized
contract action shall continue in effect, except those that by their
nature apply only to an undefinitized contract action.
(d) The definitive contract resulting from this undefinitized
contract action will include a negotiated ____________________ (insert
``cost/price ceiling'' or ``firm-fixed price'') in no event to exceed
____________________ (insert the not-to-exceed amount).
(End of clause)
[61 FR 7750, Feb. 29, 1996; 61 FR 18195, Apr. 24, 1996]
Sec. 252.217-7028 Over and above work.
As prescribed in 217.7702, use a clause substantially as follows:
Over and Above Work (Dec. 1991)
(a) Definitions.
As used in this clause--
(1) Over and above work means work discovered during the course of
performing overhaul, maintenance, and repair efforts that is--
(i) Within the general scope of the contract;
(ii) Not covered by the line item(s) for the basic work under the
contract; and
(iii) Necessary in order to satisfactorily complete the contract.
(2) Work request means a document prepared by the Contractor which
describes over and above work being proposed.
(b) The Contractor and Administrative Contracting Officer shall
mutually agree to procedures for Government administration and
Contractor performance of over and above work requests. If the parties
cannot agree upon the procedures, the Administrative Contracting Officer
has the unilateral right to direct the over and above work procedures to
be followed. These procedures shall, as a minimum, cover--
(1) The format, content, and submission of work requests by the
Contractor. Work requests shall contain data on the type of discrepancy
disclosed, the specific location of the discrepancy, and the estimated
labor hours and material required to correct the discrepancy. Data shall
be sufficient to satisfy contract requirements and obtain the
authorization of the Contracting Officer to perform the proposed work;
(2) Government review, verification, and authorization of the work;
and
(3) Proposal pricing, submission, negotiation, and definitization.
(c) Upon discovery of the need for over and above work, the
Contractor shall prepare and
[[Page 38]]
furnish to the Government a work request in accordance with the agreed-
to procedures.
(d) The Government shall--
(1) Promptly review the work request;
(2) Verify that the proposed work is required and not covered under
the basic contract line item(s);
(3) Verify that the proposed corrective action is appropriate; and
(4) Authorize over and above work as necessary.
(e) The Contractor shall promptly submit to the Contracting Officer,
a proposal for the over and above work. The Government and Contractor
will then negotiate a settlement for the over and above work. Contract
modifications will be executed to definitize all over and above work.
(f) Failure to agree on the price of over and above work shall be a
dispute within the meaning of the Disputes clause of this contract.
(End of clause)
Sec. 252.219-7000 Small disadvantaged business concern representation (DoD contracts).
As prescribed in 219.304(b), use the following provision:
Small Disadvantaged Business Concern Representation (DoD Contracts)
(Apr. 1994)
(a) Definition. Small disadvantaged business concern, as used in
this provision, means a small business concern, owned and controlled by
individuals who are both socially and economically disadvantaged, as
defined by the Small Business Administration at 13 CFR part 124, the
majority of earnings of which directly accrue to such individuals. This
term also means a small business concern owned and controlled by an
economically disadvantaged Indian tribe or Native Hawaiian organization
which meets the requirements of 13 CFR 124.112 or 13 CFR 124.113,
respectively. In general, 13 CFR part 124 describes a small
disadvantaged business concern as a small business concern--
(1) Which is at least 51 percent unconditionally owned by one or
more socially and economically disadvantaged individuals; or
(2) In the case of any publicly owned business, at least 51 percent
of the voting stock is unconditionally owned by one or more socially and
economically disadvantaged individuals; and
(3) Whose management and daily business operations are controlled by
one or more such individuals.
(b) Representations. Check the category in which your ownership
falls--
________Subcontinent Asian (Asian-Indian) American (U.S. citizen with
origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, or Nepal)
________Asian-Pacific American (U.S. citizen with origins from Japan,
China, the Philippines, Vietnam, Korea, Samoa, Guam, U.S. Trust
Territory of the Pacific Islands (Republic of Palau), the Northern
Mariana Islands, Laos, Kampuchea (Cambodia), Taiwan, Burma, Thailand,
Malaysia, Indonesia, Singapore, Brunei, Republic of the Marshall
Islands, or the Federated States of Micronesia)
________Black American (U.S. citizen)
________Hispanic American (U.S. citizen with origins from South America,
Central America, Mexico, Cuba, the Dominican Republic, Puerto Rico,
Spain, or Portugal)
________Native American (American Indians, Eskimos, Aleuts, or Native
Hawaiians, including Indian tribes or Native Hawaiian organizations)
________Individual/concern, other than one of the preceding, currently
certified for participation in the Minority Small Business and Capital
Ownership Development Program under section 8(a) of the Small Business
Act
________Other
(c) Certifications. Complete the following--
(1) The offeror is ____ is not ____ a small disadvantaged business
concern.
(2) The Small Business Administration (SBA) has ____ has not ____
made a determination concerning the offeror's status as a small
disadvantaged business concern. If the SBA has made a determination, the
date of the determination was ____ and the offeror--
________Was found by SBA to be socially and economically disadvantaged
and no circumstances have changed to vary that determination.
________Was found by SBA not to be socially and economically
disadvantaged but circumstances which caused the determination have
changed.
(d) Penalties and remedies. Anyone who misrepresents the status of a
concern as a small disadvantaged business for the purpose of securing a
contract or subcontract shall--
(1) Be punished by imposition of a fine, imprisonment, or both;
(2) Be subject to administrative remedies, including suspension and
debarment; and
(3) Be ineligible for participation in programs conducted under
authority of the Small Business Act.
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 59 FR 22131, Apr. 29, 1994]
[[Page 39]]
Sec. 252.219-7001 Notice of partial small business set-aside with preferential consideration for small disadvantaged business concerns.
As prescribed in 219.508(d), use the following clause:
Notice of Partial Small Business Set-Aside With Preferential
Consideration for Small Disadvantaged Business Concerns (May 1995)
(a) Definitions.
Labor surplus area, as used in this clause, means a geographical
area identified by the Department of Labor as an area of labor surplus.
Labor surplus area concern, as used in this clause, means a concern
that, together with its first tier subcontractors, will perform
substantially in labor surplus areas.
Perform substantially in labor surplus areas, as used in this
clause, means that the costs incurred under the contract on account of
manufacturing, production, and performance of services in labor surplus
areas exceed 50 percent of the contract price.
Small business concern, as used in this clause, means a concern,
including its affiliates, that is independently owned and operated, not
dominant in the field of operation in which it is bidding on Government
contracts, and qualified as a small business under the size standards in
this solicitation.
Small disadvantaged business concern, as used in this clause, means
a small business concern, owned and controlled by individuals who are
both socially and economically disadvantaged, as defined by the Small
Business Administration at 13 CFR part 124, the majority of earnings of
which directly accrue to such individuals. This term also means a small
business concern owned and controlled by an economically disadvantaged
Indian tribe or Native Hawaiian organization which meets the
requirements of 13 CFR 124.112 or 13 CFR 124.113, respectively.
United States, as used in this clause, means the United States, its
territories and possessions, the Commonwealth of Puerto Rico, the U.S.
Trust Territory of the Pacific Islands, or the District of Columbia.
(b) General. A portion of this requirement, identified elsewhere in
this solicitation, has been set-aside for award to one or more small
business concerns. After offers for the non-set-aside portion have been
evaluated, negotiations will be conducted for the set-aside portion.
(1) Offers on the non-set-aside portion will be evaluated and award
made in accordance with the other provisions of this solicitation.
(2) The set-aside portion will be negotiated, in accordance with
this clause, with small business concerns which submitted offers on the
non-set-aside portion.
(c) Award of the set-aside portion. (1) Small business offerors on
the non-set-aside portion will be selected for negotiation of the set-
aside portion based on their standing--first in terms of group and then
in terms of lowest responsive offer on the non-set-aside portion.
(i) Group 1--Small disadvantaged business concerns which are also
labor surplus area concerns.
(ii) Group 2--Small business concerns which are also labor surplus
area concerns.
(iii) Group 3--Other small disadvantaged business concerns.
(iv) Group 4--Other small business concerns.
(2) The set-aside portion will be awarded at the highest unit
price(s) in the contract(s) for the non-set-aside portion, adjusted to
reflect transportation and other costs appropriate for the selected
contractor(s), except--
(i) Award of the set-aside portion to a small disadvantaged business
concern will be at the lower of--
(A) The price offered by the concern on the non-set-aside portion;
or
(B) A price that does not exceed the award price on the non-set-
aside portion by more than ten percent.
(ii) When award under the set-aside portion is to a concern offering
a nonqualifying country end product and the highest unit price in the
contract(s) is for a domestic or qualifying country end product, the
set-aside price will be the higher of--
(A) The highest award price for a nonqualifying country end product
under the nonset-aside; or
(B) A price which, when adjusted by the Buy American Act evaluation
factor, would equal the highest unit price in the contract(s).
(iii) When award under the set-aside portion is to a concern
offering a domestic end product and the highest unit price in the
contract(s) is for a nonqualifying country end product which was
evaluated using the Buy American Act evaluation factor, the set-aside
price will be awarded at the evaluated price of the non-qualifying
country.
(iv) When award under the set-aside portion is to a concern offering
a domestic end product and the highest unit price in the contract(s) is
for a nonqualifying country end product which was evaluated without the
Buy American Act factor--
(A) And award was made to a domestic or qualifying country offer at
a price lower than the high contract price, the set-aside price will be
the highest unit price in the contract(s).
(B) And award was not made to a domestic or qualifying country offer
at a price lower than the high contract price, the set-aside price will
be the lower of--
[[Page 40]]
(1) The highest unit price under the contract(s) as adjusted by the
Buy American Act evaluation factor; or
(2) The lowest offered price for a domestic or qualifying country
end product which was not awarded under the nonset-aside.
(v) Where the Trade Agreements Act applies to the nonset-aside
portion, offers of eligible products will be treated as if they were
qualifying country end products.
(vi) Discount terms used in evaluation of the highest non-set-aside
award price will apply to the set-aside award price.
(3) If negotiations are not successful for any part of the set-aside
portion, the set-aside will be dissolved for that part and the
requirement will be resolicited.
(d) Token offers. The Government reserves the right to not consider
token offers or offers designed to secure an unfair advantage over other
offerors eligible for the set-aside portion.
(e) Eligibility for preference as a labor surplus area concern.
Small business or small disadvantaged business offerors which claim
preference for the set-aside portion as a labor surplus area concern,
must list the labor surplus area location(s) of offeror or first tier
subcontractors, which account for more than 50 percent of the contract
price.
Name of Company:
Street Address:
City/County:
State:
(f) Agreements.
(1) If awarded a contract as a small disadvantaged business-labor
surplus area concern or as a small business-labor surplus area concern,
the offeror--
(i) Will perform the contract, or cause it to be performed,
substantially in areas classified as labor surplus areas.
(ii) If the contract is in excess of $25,000, will submit a report
to the Contracting Officer within 30 days after award that contains the
following information--
(A) The dollar amount of the contract.
(B) Identification of each labor surplus area in which contract and
subcontract performance is taking or will take place.
(C) The total costs incurred and to be incurred under the contract
in each of the labor surplus areas by the contractor and first tier
subcontractors.
(D) The total dollar amount attributable to performance in labor
surplus areas.
(2) A manufacturer or regular dealer, which claims preference as a
small disadvantaged business and submits an offer in its own name,
agrees to furnish in performing this contract only end items
manufactured or produced by small disadvantaged business concerns in the
United States, except, as provided in section 8051 of Pub. L. 103-139
and section 8012 of Pub. L. 103-335, for contracts awarded during fiscal
years 1994 and 1995, a small disadvantaged business manufacturer or
regular dealer owned by an Indian tribe, including an Alaska Native
Corporation, agrees to furnish only end items manufactured or produced
by small business concerns in the United States.
(End of clause)
Alternate I (May 1994)
As prescribed in 219.508(d), substitute the following paragraph
(f)(2) for paragraph (f)(2) of the basic clause:
(f)(2) A regular dealer, which claims preference as a small
disadvantaged business and submits an offer in its own name, agrees to
furnish in performing this contract only end items manufactured or
produced by small business concerns in the United States.
[56 FR 36479, July 31, 1991, as amended at 59 FR 24959, May 13, 1994; 60
FR 29502, June 5, 1995]
Sec. 252.219-7002 Notice of small disadvantaged business set-aside.
As prescribed in 219.508-70, use the following clause:
Notice of Small Disadvantaged Business Set-Aside (May 1995)
(a) Definitions.
Small disadvantaged business concern, as used in this clause, means
a small business concern, owned and controlled by individuals who are
both socially and economically disadvantaged, as defined by the Small
Business Administration at 13 CFR part 124, the majority of earnings of
which directly accrue to such individuals. This term also means a small
business concern owned and controlled by an economically disadvantaged
Indian tribe or Native Hawaiian organization which meets the
requirements of 13 CFR 124.112 or 13 CFR 124.113, respectively.
United States, as used in this clause, means the United States, its
territories and possessions, the Commonwealth of Puerto Rico, the U.S.
Trust Territory of the Pacific Islands, or the District of Columbia.
(b) General. Offers are solicited only from small disadvantaged
business concerns. Offers received from concerns that are not small
disadvantaged businesses are nonresponsive and will be rejected.
(c) Agreement. A small disadvantaged business manufacturer or
regular dealer, submitting an offer in its own name, agrees to furnish
in performing this contract only end items manufactured or produced by
small disadvantaged business concerns in the United States, except, as
provided in section 8051 of Pub. L. 103-139 and section 8012 of Pub. L.
103-335, for contracts awarded during fiscal years 1994 and 1995, a
small disadvantaged business manufacturer or regular dealer
[[Page 41]]
owned by an Indian tribe, including an Alaska Native Corporation, agrees
to furnish only end items manufactured or produced by small business
concerns in the United States.
(End of clause)
Alternate I (May 1994)
As prescribed in 219.508-70, substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(c) Agreement. A small disadvantaged business regular dealer
submitting an offer in its own name agrees to furnish in performing this
contract only end items manufactured or produced by small business
concerns in the United States.
[56 FR 36479, July 31, 1991, as amended at 59 FR 24959, May 13, 1994; 60
FR 29502, June 5, 1995]
Effective Date Note: At 60 FR 54955, Oct. 27, 1995, Sec. 252.219-
7002 was suspended indefinately.
Sec. 252.219-7003 Small, small disadvantaged and women-owned small business subcontracting plan (DoD contracts).
As prescribed in 219.708(b)(1)(A), use the following clause:
Small, Small Disadvantaged and Women-Owned Small Business Subcontracting
Plan (DoD Contracts) (APR 1996)
This clause supplements the Federal Acquisition Regulation 52.219-9,
Small, Small Disadvantaged and Women-Owned Small Business Subcontracting
Plan, clause of this contract.
(a) Definitions. Historically black colleges and universities, as
used in this clause, means institutions determined by the Secretary of
Education to meet the requirements of 34 CFR 608.2. The term also means
any nonprofit research institution that was an integral part of such a
college or university before November 14, 1986.
Minority institutions, as used in this clause, means institutions
meeting the requirements of section 1046(3) of the Higher Education Act
of 1965 (20 U.S.C. 1135d-5(3)). The term also includes Hispanic-serving
institutions as defined in section 316(b)(1) of such Act (20 U.S.C.
1059c (b)(1)).
(b) Except for company or division-wide commercial items
subcontracting plans, the term small disadvantaged business, when used
in the FAR 52.219-9 clause, includes historically black colleges and
universities and minority institutions, in addition to small
disadvantaged business concerns.
(c) Work under the contract or its subcontracts shall be credited
toward meeting the small disadvantaged business concern goal required by
paragraph (d) of the FAR 52.219-9 clause when:
(1) It is performed on Indian lands or in joint venture with an
Indian tribe or a tribally-owned corporation, and
(2) It meets the requirements of 10 U.S.C. 2323a.
(d) Subcontracts awarded to workshops approved by the Committee for
Purchase from People Who Are Blind or Severely Disabled (41 U.S.C. 46-
48), may be counted toward the Contractor's small business
subcontracting goal.
(e) A mentor firm, under the Pilot Mentor-Protege Program
established under Section 831 of Pub. L. 101-510, as amended, may count
toward its small disadvantaged business goal, subcontracts awarded--
(1) Protege firms which are qualified organizations employing the
severely handicapped; and
(2) Former protege firms that meet the criteria in Section 831(g)(4)
of Pub. L. 101-510.
(f) The master plan approval referred to in paragraph (f) of the FAR
52.219-9 clause is approval by the Contractor's cognizant contract
administration activity.
(g) In those subcontracting plans which specifically identify small,
small disadvantaged, and women-owned small businesses, the Contractor
shall notify the Administrative Contracting Officer of any substitutions
of firms that are not small, small disadvantaged, or women-owned small
businesses for the firms listed in the subcontracting plan.
Notifications shall be in writing and shall occur within a reasonable
period of time after award of the subcontract. Contractor-specified
formats shall be acceptable.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 22131, Apr. 29, 1994;
59 FR 27675, May 27, 1994; 60 FR 61601, Nov. 30, 1995; 61 FR 18688, Apr.
29, 1996]
Sec. 252.219-7004 Small, small disadvantaged and women-owned small business subcontracting plan (test program).
As prescribed in 219.708(b)(1)(B), use the following clause:
Small, Small Disadvantaged and Women-Owned Small Business Subcontracting
Plan (Test Program) (JUL 1996)
(a) Definition. Subcontract, as used in this clause, means any
agreement (other than one involving an employer-employee relationship)
entered into by a Federal Government prime Contractor or subcontractor
calling for supplies or services required for performance of the
contract or subcontract.
[[Page 42]]
(b) The Offeror's comprehensive small business subcontracting plan
and its successors, which are authorized by and approved under the test
program of Section 834 of Pub. L. 101-189, as amended, shall be included
in and made a part of the resultant contract. Upon expulsion from the
test program or expiration of the test program, the Contractor shall
negotiate an individual subcontracting plan for all future contracts
that meet the requirements of Section 211 of Pub. L. 95-507.
(c) The Contractor shall submit Standard Form 295, Summary
Subcontract Report, in accordance with the instructions on the form,
except Item 14, Remarks, shall be completed to include semi-annual
cumulative (1) small business, small disadvantaged business, and women-
owned small business goals, and (2) small business and small
disadvantaged business goals, actual accomplishments, and percentages
for each of the two designated industry categories.
(d) The failure of the Contractor or subcontractor to comply in good
faith with (1) the clause of this contract entitled ``Utilization of
Small, Small Disadvantaged and Women-Owned Small Business Concerns,'' or
(2) an approved plan required by this clause, shall be a material breach
of the contract.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 35668, July 10, 1995;
61 FR 39901, July 31, 1996]
Sec. 252.219-7005 Incentive for subcontracting with small businesses, small disadvantaged businesses, historically black colleges and universities, and
minority institutions.
As prescribed in 219.708(c)(1), use the following clause:
Incentive for Subcontracting With Small Businesses, Small Disadvantaged
Businesses, Historically Black Colleges and Universities, and Minority
Institutions (NOV 1995)
(a) If the Contractor exceeds the small disadvantaged business,
historically black college and university, minority institution goal of
its subcontracting plan, at completion of contract performance, the
Contractor will receive (Insert appropriate number between 1 and 10)
percent of the excess.
(b) The Contractor will not receive this incentive if the
Contracting Officer determines that exceeding the goal was not due to
the Contractor's efforts (e.g., a subcontractor cost overrun or award of
subcontracts planned but not disclosed in the subcontracting plan).
Determinations made under this paragraph are not subject to the Disputes
clause.
(c) If this is a cost contract, the limitations in FAR subpart 15.9
may not be exceeded.
(d) This clause does not apply if the subcontracting plan is a
plant, division, or company-wide commercial items plan.
(End of clause)
Alternate I (Dec. 1991)
As prescribed in 219.708(c)(1), add the following paragraph (b) to
the basic clause and renumber the existing paragraphs (b), (c), and (d)
as (c), (d), and (e).
(b) If the Contractor exceeds the small business goal of its
subcontracting plan, at completion of contract performance, the
Contractor will receive (Insert appropriate number between 1 and 10)
percent of the excess.
[56 FR 36479, July 31, 1991, as amended at 60 FR 61601, Nov. 30, 1995]
Sec. 252.219-7006 Notice of evaluation preference for small disadvantaged business concerns.
As prescribed in 219.7003, use the following clause:
Notice of Evaluation Preference for Small Disadvantaged Business
Concerns (May 1995)
(a) Definitions. Historically black colleges and universities, as
used in this clause, means institutions determined by the Secretary of
Education to meet the requirements of 34 CFR 608.2. The term also means
any nonprofit research institution that was an integral part of such a
college or university before November 14, 1986.
Minority institutions, as used in this clause, means institutions
meeting the requirements of section 1046(3) of the Higher Education Act
of 1965 (20 U.S.C. 1135d-5(3)). The term also includes Hispanic-serving
institutions as defined in section 316(b)(1) of such Act (20 U.S.C.
1059c(b)(1)).
United States, as used in this clause, means the United States, its
territories and possessions, the Commonwealth of Puerto Rico, the U.S.
Trust Territory of the Pacific Islands, or the District of Columbia.
(b) Evaluation preference. (1) Offers will be evaluated by adding a
factor of ten percent to the price of all offers, except--
(i) Offers from small disadvantaged business concerns, which have
not waived the preference;
(ii) Offers from historically black colleges and universities or
minority institutions, which have not waived the preference;
(iii) Otherwise successful offers of--
[[Page 43]]
(A) Eligible products under the Trade Agreements Act when the dollar
threshold for application of the Act is exceeded;
(B) Qualifying country end products (as defined in the Defense
Federal Acquisition Regulation Supplement clause at 252.225-7001, Buy
American Act and Balance of Payments Program); and
(iv) Offers where application of the factor would be inconsistent
with a Memorandum of Understanding or other international agreement with
a foreign government.
(2) The ten percent factor will be applied on a line item by line
item basis or to any group of items on which award may be made. Other
evaluation factors described in the solicitation will be applied before
application of the ten percent factor. The ten percent factor will not
be applied if using the preference would cause the contract award to be
made at a price which exceeds the fair market price by more than ten
percent.
(c) Waiver of evaluation preference. A small disadvantaged business,
historically black college or university, or minority institution
offeror may elect to waive the preference, in which case the ten percent
factor will be added to its offer for evaluation purposes. The
agreements in paragraph (d) do not apply to offers which waive the
preference.
________ Offeror elects to waive the preference
(d) Agreements. (1) A small disadvantaged business concern,
historically black college or university, or minority institution
offeror, which did not waive the preference, agrees that in performance
of the contract, in the case of a contract for--
(i) Services, except construction, at least 50 percent of the cost
of personnel for contract performance will be spent for employees of the
concern.
(ii) Supplies, at least 50 percent of the cost of manufacturing,
excluding the cost of materials, will be performed by the concern.
(iii) General construction, at least 15 percent of the cost of the
contract, excluding the cost of materials, will be performed by
employees of the concern.
(iv) Construction by special trade contractors, at least 25 percent
of the cost of the contract, excluding the cost of materials, will be
performed by employees of the concern.
(2) A small disadvantaged business, historically black college or
university, or minority institution regular dealer submitting an offer
in its own name agrees to furnish in performing this contract only end
items manufactured or produced by small disadvantaged business concerns,
historically black colleges or universities, or minority institutions in
the United States, except, as provided in section 8051 of Pub. L. 103-
139 and section 8012 of Pub. L. 103-335, for contracts awarded during
fiscal years 1994 and 1995, a small disadvantaged business manufacturer
or regular dealer owned by an Indian tribe, including an Alaska Native
Corporation, agrees to furnish only end items manufactured or produced
by small business concerns in the United States.
(3) Upon request, a historically black college or university or
minority institution offeror will provide the Contracting Officer
evidence that it has been determined to be an HBCU or MI by the
Secretary of Education.
(End of clause)
Alternate I (May 1994)
As prescribed in 219.7003, substitute the following paragraph (d)(2)
for paragraph (d)(2) of the basic clause:
(d)(2) A small disadvantaged business, historically black college or
university, or minority institution regular dealer submitting an offer
in its own name agrees to furnish in performing this contract only end
items manufactured or produced by small business concerns, historically
black colleges or universities, or minority institutions in the United
States.
[56 FR 36479, July 31, 1991, as amended at 59 FR 22131, Apr. 29, 1994;
59 FR 24959, May 13, 1994; 60 FR 29502, June 5, 1995]
Sec. 252.219-7007 Alternates.
Alternate A (Aug. 1992)
As prescribed in 219.811-3(a), substitute the following paragraph
(d) for paragraph (d) of the clause at FAR 52.219-11:
(d) That payments to be made under the contract will be deposited by
the contracting activity to a special account established by the
subcontractor and that all disbursements will be subject to approval of
the Contracting Officer.
Alternate B (Apr. 1993)
As prescribed in 219.811-3(b), delete paragraph (c) of the clause at
FAR 52.219-12 and add the following subparagraphs (5), (6), and (7) to
paragraph (b):
(5) That, in accordance with section 813 of Pub. L. 102-190, it will
establish a special account, at a bank insured by the Federal Deposit
Insurance Corporation, under which--
(i) All payments under this subcontract will be deposited directly
by the (insert name of contracting activity); and
(ii) All disbursements will be subject to approval of the Department
of Defense's Contracting Officer.
(6) That it will make timely payment to all suppliers of material
and labor.
[[Page 44]]
(7) That it will notify all suppliers of material or labor and will
obtain written acknowledgement from such suppliers, that the contract is
exempt from the Miller Act's bonding requirement and that neither the
SBA nor the (insert name of contracting activity) are liable for payment
to suppliers for materials or labor. Such acknowledgements must be
provided to the Contracting Officer before approval of disbursements to
the Contractor from the special bank account.
Alternate C (Apr. 1993)
As prescribed in 219.811-3(c), substitute the following paragraphs
(a)(3) and (b) for paragraphs (a)(3) and (b) of the clause at FAR
52.219-17:
(a)(3) That payments to be made under the contract will be deposited
by the contracting activity to a special account established by the
subcontractor and that all disbursements will be subject to approval of
the Department of Defense Contracting Officer.
(b) The (insert name of subcontractor), hereafter referred to as the
subcontractor, agrees and acknowledges as follows:
(1) That it will, for and on behalf of the SBA, fulfill and perform
all of the requirements of the contract.
(2) That, in accordance with section 813 of Pub. L. 102-190, it will
establish a special account, at a bank insured by the Federal Deposit
Insurance Corporation, under which--
(i) All payments under this subcontract will be deposited directly
by the (insert name of contracting activity; and
(ii) All disbursements will be subject to approval of the Department
of Defense's Contracting Officer.
(3) That it will make timely payment to all suppliers of material
and labor.
(4) That it will notify all suppliers of material or labor and will
obtain written acknowledgement from such suppliers, that the contract is
exempt from the Miller Act's bonding requirement and that neither the
SBA nor the (insert name of contracting activity are liable for payment
to suppliers for materials or labor. Such acknowledgements must be
provided to the Department of Defense Contracting Officer before
approval of disbursements to the subcontractor from the special bank
account.
[57 FR 38287, Aug. 24, 1992, as amended at 58 FR 28472, May 13, 1993; 58
FR 32416, June 9, 1993]
Sec. 252.219-7008 Notice of evaluation preference for small disadvantaged business concerns--construction acquisitions--test program.
As prescribed in 219.7204, use the following clause:
Notice of Evaluation Preference for Small Disadvantaged Business
Concerns--Construction Acquisitions--Test Program (APR 1996)
(a) Definitions.
As used in this clause--
``Historically black colleges and universities (HBCUs),'' means
institutions determined by the Secretary of Education to meet the
requirements of 34 CFR Section 608.2. The term also means any nonprofit
research institution that was an integral part of such a college or
university before November 14, 1986.
``Minority institutions,'' means institutions meeting the
requirements of paragraphs (3), (4), and (5) of Section 1046(3) of the
Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)). The term also
includes Hispanic-serving institutions as defined in Section 316(b)(1)
of such Act (20 U.S.C. 1059c(b)(1)).
``Small disadvantaged business (SDB) concern,'' means a small
business concern, owned and controlled by individuals who are both
socially and economically disadvantaged, as defined by the Small
Business Administration at 13 CFR Part 124, the majority of earnings of
which directly accrue to such individuals. This term also means a small
business concern owned and controlled by an economically disadvantaged
Indian tribe or Native Hawaiian organization which meets the
requirements of 13 CFR 124.112 or 13 CFR 124.113, respectively.
(b) Evaluation preference.
(1) Offerors shall separately state bond costs in the offer. Bond
costs include the costs of bid, performance, and payment bonds.
(2) Offers will be evaluated initially based on their total prices.
If the apparently successful offeror is an SDB concern, no preference-
based evaluation will be conducted.
(3) If the apparently successful offeror is not an SDB concern,
offers will be evaluated based on their prices excluding bond costs. If,
after excluding bond costs, the apparently successful offeror is an SDB
concern, bond costs will be added back to all offers, and offers from
SDB concerns will be given a preference in evaluation by adding a factor
of 10 percent to the total price of all offers, except--
(i) Offers from SDBs which have not waived the evaluation
preference; and
(ii) Offers from HBCUs or minority institutions, which have not
waived the evaluation preference.
(c) Waiver of evaluation preference.
A small disadvantaged business, historically black college or
university, or minority institution offeror may elect to waive the
preference. The agreements in paragraph (d) of this clause do not apply
to offers which waive the preference.
[[Page 45]]
________Offeror elects to waive the preference.
(d) Agreements.
A small disadvantaged business concern, historically black college
or university, or minority institution offeror, which did not waive the
preference, agrees that in performance of the contract, in the case of a
contract for--
(i) General construction, at least 15 percent of the cost of the
contract, excluding the cost of materials, will be performed by
employees of the concern.
(ii) Construction by special trade contractors, at least 25 percent
of the cost of the contract, excluding the cost of materials, will be
performed by employees of the concern.
(End of clause)
[61 FR 18688, Apr. 29, 1996]
Sec. 252.222-7000 Restrictions on employment of personnel.
As prescribed in 222.7003, use the following clause:
Restrictions on Employment of Personnel (Dec. 1991)
(a) The Contractor shall employ, for the purposes of performing that
portion of the contract work in the State of (insert appropriate State),
individuals who are residents of the State, and who, in the case of any
craft or trade, possess or would be able to acquire promptly the
necessary skills to perform the contract.
(b) The Contractor agrees to insert the substance of this clause,
including this paragraph (b), in each subcontract.
(End of clause)
Sec. 252.222-7001 Right of First Refusal of Employment--Closure of Military Installations.
As prescribed in 222.7102, use the following clause:
Right of First Refusal of Employment--Closure of Military Installations
(Apr. 1992)
(a) The Contractor shall give Government employees, who have been or
will be adversely affected by the closure of the military installation
where this contract will be performed, the right of first refusal for
employment openings under the contract. This right applies to positions
for which the employee is qualified, if consistent with post-Government
employment conflict of interest standards.
(b) Government personnel seeking preference under this clause shall
provide the Contractor with evidence from the Government personnel
office.
(End of clause)
[57 FR 52594, Nov. 4, 1992, as amended at 58 FR 28472, May 13, 1993]
252.223-7000 [Reserved]
Sec. 252.223-7001 Hazard warning labels.
As prescribed in 223.303, use the following clause:
Hazard Warning Labels (Dec. 1991)
(a) ``Hazardous material,'' as used in this clause, is defined in
the Hazardous Material Identification and Material Safety Data clause of
this contract.
(b) The Contractor shall label the item package (unit container) of
any hazardous material to be delivered under this contract in accordance
with the Hazard Communication Standard (29 CFR 1910.1200 et seq). The
Standard requires that the hazard warning label conform to the
requirements of the standard unless the material is otherwise subject to
the labelling requirements of one of the following statutes:
(1) Federal Insecticide, Fungicide and Rodenticide Act;
(2) Federal Food, Drug and Cosmetics Act;
(3) Consumer Product Safety Act;
(4) Federal Hazardous Substances Act; or
(5) Federal Alcohol Administration Act.
(c) The Offeror shall list which hazardous material listed in the
Hazardous Material Identification and Material Safety Data clause of
this contract will be labelled in accordance with one of the Acts in
paragraphs (b) (1) through (5) of this clause instead of the Hazard
Communication Standard. Any hazardous material not listed will be
interpreted to mean that a label is required in accordance with the
Hazard Communication Standard.
------------------------------------------------------------------------
Material (if none, insert ``none.'') Act
------------------------------------------------------------------------
________ ________
________ ________
------------------------------------------------------------------------
(d) The apparently successful Offeror agrees to submit, before
award, a copy of the hazard warning label for all hazardous materials
not listed in paragraph (c) of this clause. The Offeror shall submit the
label with the Material Safety Data Sheet being furnished under the
Hazardous Material Identification and Material Safety Data clause of
this contract.
(e) The Contractor shall also comply with MIL-STD-129, Marking for
Shipment and Storage (including revisions adopted during the term of
this contract).
[[Page 46]]
(End of clause)
Sec. 252.223-7002 Safety precautions for ammunition and explosives.
As prescribed in 223.370-5, use the following clause:
Safety Precautions for Ammunition and Explosives (May 1994)
(a) Definition. Ammunition and explosives, as used in this clause--
(1) Means liquid and solid propellants and explosives, pyrotechnics,
incendiaries and smokes in the following forms:
(i) Bulk,
(ii) Ammunition;
(iii) Rockets;
(iv) Missiles;
(v) Warheads;
(vi) Devices; and
(vii) Components of (i) through (vi), except for wholly inert items.
(2) This definition does not include the following, unless the
Contractor is using or incorporating these materials for initiation,
propulsion, or detonation as an integral or component part of an
explosive, an ammunition or explosive end item, or of a weapon system--
(i) Inert components containing no explosives, propellants, or
pyrotechnics;
(ii) Flammable liquids;
(iii) Acids;
(iv) Oxidizers;
(v) Powdered metals; or
(vi) Other materials having fire or explosive characteristics.
(b) Safety requirements. (1) The Contractor shall comply with the
requirements of the DoD Contractors' Safety Manual for Ammunition and
Explosives, DoD 4145.26-M, hereafter referred to as ``the manual,'' in
effect on the date of the solicitation for this contract. The Contractor
shall also comply with any other additional requirements included in the
schedule of this contract.
(2) The Contractor shall allow the Government access to the
Contractor's facilities, personnel, and safety program documentation.
The Contractor shall allow authorized Government representatives to
evaluate safety programs, implementation, and facilities.
(c) Noncompliance with the manual. (1) If the Contracting Officer
notifies the Contractor of any noncompliance with the manual or schedule
provisions, the Contractor shall take immediate steps to correct the
noncompliance. The Contractor is not entitled to reimbursement of costs
incurred to correct noncompliances unless such reimbursement is
specified elsewhere in the contract.
(2) The Contractor has 30 days from the date of notification by the
Contracting Officer to correct the noncompliance and inform the
Contracting Officer of the actions taken. The Contracting Officer may
direct a different time period for the correction of noncompliances.
(3) If the Contractor refuses or fails to correct noncompliances
within the time period specified by the Contracting Officer, the
Government has the right to direct the Contractor to cease performance
on all or part of this contract. The Contractor shall not resume
performance until the Contracting Officer is satisfied that the
corrective action was effective and the Contracting Officer so informs
the Contractor.
(4) The Contracting Officer may remove Government personnel at any
time the Contractor is in noncompliance with any safety requirement of
this clause.
(5) If the direction to cease work or the removal of Government
personnel results in increased costs to the Contractor, the Contractor
shall not be entitled to an adjustment in the contract price or a change
in the delivery or performance schedule unless the Contracting Officer
later determines that the Contractor had in fact complied with the
manual or schedule provisions. If the Contractor is entitled to an
equitable adjustment, it shall be made in accordance with the Changes
clause of this contract.
(d) Mishaps. If a mishap involving ammunition or explosives occurs,
the Contractor shall--
(1) Notify the Contracting Officer immediately;
(2) Conduct an investigation in accordance with other provisions of
this contract or as required by the Contracting Officer; and
(3) Submit a written report to the Contracting Officer.
(e) Contractor responsibility for safety. (1) Nothing in this
clause, nor any Government action or failure to act in surveillance of
this contract, shall relieve the Contractor of its responsibility for
the safety of--
(i) The Contractor's personnel and property;
(ii) The Government's personnel and property; or
(iii) The general public.
(2) Nothing in this clause shall relieve the Contractor of its
responsibility for complying with applicable Federal, State, and local
laws, ordinances, codes, and regulations (including those requiring the
obtaining of licenses and permits) in connection with the performance of
this contract.
(f) Contractor responsibility for contract performance. (1) Neither
the number or frequency of inspections performed by the Government, nor
the degree of surveillance exercised by the Government, relieve the
Contractor of its responsibility for contract performance.
(2) If the Government acts or fails to act in surveillance or
enforcement of the safety requirements of this contract, this does not
[[Page 47]]
impose or add to any liability of the Government.
(g) Subcontractors. (1) The Contractor shall insert this clause,
including this paragraph (g), in every subcontract that involves
ammunition or explosives.
(i) The clause shall include a provision allowing authorized
Government safety representatives to evaluate subcontractor safety
programs, implementation, and facilities as the Government determines
necessary.
(ii) Note: The Government Contracting Officer or authorized
representative shall notify the prime Contractor of all findings
concerning subcontractor safety and compliance with the manual. The
Contracting Officer or authorized representative may furnish copies to
the subcontractor. The Contractor in turn shall communicate directly
with the subcontractor, substituting its name for references to ``the
Government''. The Contractor and higher tier subcontractors shall also
include provisions to allow direction to cease performance of the
subcontract if a serious uncorrected or recurring safety deficiency
potentially causes an imminent hazard to DoD personnel, property, or
contract performance.
(2) The Contractor agrees to ensure that the subcontractor complies
with all contract safety requirements. The Contractor will determine the
best method for verifying the adequacy of the subcontractor's
compliance.
(3) The Contractor shall ensure that the subcontractor understands
and agrees to the Government's right to access to the subcontractor's
facilities, personnel, and safety program documentation to perform
safety surveys. The Government performs these safety surveys of
subcontractor facilities solely to prevent the occurrence of any mishap
which would endanger the safety of DoD personnel or otherwise adversely
impact upon the Government's contractual interests.
(4) The Contractor shall notify the Contracting Officer or
authorized representative before issuing any subcontract when it
involves ammunition or explosives. If the proposed subcontract
represents a change in the place of performance, the Contractor shall
request approval for such change in accordance with the clause of this
contract entitled ``Change in Place of Performance--Ammunition and
Explosives''.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 27675, May 27, 1994]
Sec. 252.223-7003 Change in place of performance--ammunition and explosives.
As prescribed in 223.370-5, use the following clause:
Change in Place of Performance--Ammunition and Explosives (Dec. 1991)
(a) The Offeror shall identify, in the ``Place of Performance''
provision of this solicitation, the place of performance of all
ammunition and explosives work covered by the Safety Precautions for
Ammunition and Explosives clause of this solicitation. Failure to
furnish this information with the offer may result in rejection of the
offer.
(b) The Offeror agrees not to change the place of performance of any
portion of the offer covered by the Safety Precautions for Ammunition
and Explosives clause contained in this solicitation after the date set
for receipt of offers without the written approval of the Contracting
Officer. The Contracting Officer shall grant approval only if there is
enough time for the Government to perform the necessary safety reviews
on the new proposed place of performance.
(c) If a contract results from this offer, the Contractor agrees not
to change any place of performance previously cited without the advance
written approval of the Contracting Officer.
(End of clause)
Sec. 252.223-7004 Drug-Free Work Force.
As prescribed in 223.570-4, use the following clause:
Drug-Free Work Force (Sep. 1988)
(a) Definitions. (1) Employee in a sensitive position, as used in
this clause, means an employee who has been granted access to classified
information; or employees in other positions that the Contractor
determines involve national security, health or safety, or functions
other than the foregoing requiring a high degree of trust and
confidence.
(2) Illegal drugs, as used in this clause, means controlled
substances included in Schedules I and II, as defined by section 802(6)
of title 21 of the United States Code, the possession of which is
unlawful under chapter 13 of that title. The term ``illegal drugs'' does
not mean the use of a controlled substance pursuant to a valid
prescription or other uses authorized by law.
(b) The Contractor agrees to institute and maintain a program for
achieving the objective of a drug-free work force. While this clause
defines criteria for such a program, contractors are encouraged to
implement alternative approaches comparable to the criteria in paragraph
(c) that are designed to achieve the objectives of this clause.
(c) Contractor programs shall include the following, or appropriate
alternatives:
(1) Employee assistance programs emphasizing high level direction,
education, counseling, rehabilitation, and coordination with available
community resources;
[[Page 48]]
(2) Supervisory training to assist in identifying and addressing
illegal drug use by Contractor employees;
(3) Provision for self-referrals as well as supervisory referrals to
treatment with maximum respect for individual confidentiality consistent
with safety and security issues;
(4) Provision for identifying illegal drug users, including testing
on a controlled and carefully monitored basis. Employee drug testing
programs shall be established taking account of the following:
(i) The Contractor shall establish a program that provides for
testing for the use of illegal drugs by employees in sensitive
positions. The extent of and criteria for such testing shall be
determined by the Contractor based on considerations that include the
nature of the work being performed under the contract, the employee's
duties, the efficient use of Contractor resources, and the risks to
health, safety, or national security that could result from the failure
of an employee adequately to discharge his or her position.
(ii) In addition, the Contractor may establish a program for
employee drug testing--
(A) When there is a reasonable suspicion that an employee uses
illegal drugs; or
(B) When an employee has been involved in an accident or unsafe
practice;
(C) As part of or as a follow-up to counseling or rehabilitation for
illegal drug use;
(D) As part of a voluntary employee drug testing program.
(iii) The Contractor may establish a program to test applicants for
employment for illegal drug use.
(iv) For the purpose of administering this clause, testing for
illegal drugs may be limited to those substances for which testing is
prescribed by section 2.1 of subpart B of the ``Mandatory Guidelines for
Federal Workplace Drug Testing Programs'' (53 FR 11980 (April 11 1988)),
issued by the Department of Health and Human Services.
(d) Contractors shall adopt appropriate personnel procedures to deal
with employees who are found to be using drugs illegally. Contractors
shall not allow any employee to remain on duty or perform in a sensitive
position who is found to use illegal drugs until such times as the
Contractor, in accordance with procedures established by the Contractor,
determines that the employee may perform in such a position.
(e) The provisions of this clause pertaining to drug testing program
shall not apply to the extent they are inconsistent with state or local
law, or with an existing collective bargaining agreement; provided that
with respect to the latter, the Contractor agrees that those issues that
are in conflict will be a subject of negotiation at the next collective
bargaining session.
(End of clause)
[57 FR 32737, July 23, 1992]
Sec. 252.223-7005 Hazardous waste liability.
As prescribed in 223.7002, use the following clause:
Hazardous Waste Liability (Oct. 1992)
(a) Definitions.
As used in this clause--
(1) Hazardous waste has the meaning given that term by section
1004(5) of the Solid Waste Disposal Act (42 U.S.C. 6903(5)), except that
such term also includes polychlorinated biphenyls (PCB).
(2) Polychlorinated biphenyls (PCB) has the meaning given that term
under section 6(e) of the Toxic Substances Control Act (15 U.S.C.
2605(e)).
(b) Upon receipt of hazardous waste properly characterized pursuant
to applicable laws and regulations, the Contractor agrees that it shall
reimburse the Government for any penalties assessed against, all
liabilities incurred by, costs incurred by, and damages suffered by, the
Government that are caused by--
(1) The Contractor's breach of any term of the contract; or
(2) Any negligent or willful act or omission of the Contractor or
employees of the Contractor, in the performance of the contract.
(c) Not later than 30 days after the award date of the contract, the
Contractor shall demonstrate the ability to reimburse the Government as
provided in paragraph (b) of this clause, by providing evidence to the
Contracting Officer that--
(1) The facility has liability insurance meeting the requirements of
40 CFR 264.147; or
(2) The facility meets the financial assurance requirements of 40
CFR 264.147 for sudden and nonsudden accidental occurrences.
(d) This clause does not apply to--
(1) Performance of remedial action or corrective action under--
(i) The Defense Environmental Restoration Program;
(ii) Other programs or activities of the Department of Defense; or
(iii) Authorized State hazardous waste programs;
(2) Disposal of hazardous waste when the generation of such waste is
incidental to the performance of the contract: or
(3) Disposal of ammunition or solid rocket motors.
(e) The Contractor shall include this clause, including this
paragraph (e), in each subcontract under which the subcontractor
receives hazardous waste from a defense facility.
[[Page 49]]
(End of clause)
[57 FR 53601, Nov. 12, 1992; 58 FR 40388, July 28, 1993]
Sec. Sec. 252.223-7006 Prohibition on storage and disposal of toxic and hazardous materials.
As prescribed in 223.7103(a), use the following clause:
Prohibition on Storage and Disposal of Toxic and Hazardous Materials
(Apr. 1993)
(a) Definitions.
As used in this clause--
(1) Storage means a non-transitory, semi-permanent or permanent
holding, placement, or leaving of material. It does not include a
temporary accumulation of a limited quantity of a material used in or a
waste generated or resulting from authorized activities, such as
servicing, maintenance, or repair of Department of Defense (DoD) items,
equipment, or facilities.
(2) Toxic or hazardous materials means:
(i) Materials referred to in section 101(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) of 1980
(42 U.S.C. 9601(14)) and materials designated under section 102 of
CERCLA (42 U.S.C. 9602) (40 CFR part 302);
(ii) Materials that are of an explosive, flammable, or pyrotechnic
nature; or
(iii) Materials otherwise identified by the Secretary of Defense as
specified in DoD regulations.
(b) In accordance with 10 U.S.C. 2692, the Contractor is prohibited
from storing or disposing of non-DoD-owned toxic or hazardous materials
on a DoD installation, except to the extent authorized by a statutory
exception to 10 U.S.C. 2692 or as authorized by the Secretary of Defense
or his designee.
Alternate I (NOV 1995)
As prescribed in 223.7103(b), add the following paragraphs (c) and
(d) to the basic clause:
(c) With respect to treatment or disposal authorized pursuant to 10
U.S.C. 2692(b)(9), and notwithstanding any other provision of the
contract, the Contractor assumes all financial and environmental
responsibility and liability resulting from any treatment or disposal of
non-DoD-owned toxic or hazardous materials on a military installation.
The Contractor shall indemnify, defend, and hold the Government harmless
for all costs, liability, or penalties resulting from the Contractor's
treatment or disposal of non-DoD-owned toxic or hazardous materials on a
military installation.
(d) The Contractor shall include this clause, including this
paragraph (d), in each subcontract which requires, may require, or
permits a subcontractor to treat or dispose of non-DoD-owned toxic or
hazardous materials as defined in this clause.
[58 FR 28472, May 13, 1993, as amended at 60 FR 13076, Mar. 10, 1995; 60
FR 61601, Nov. 30, 1995]
Sec. 252.223-7007 Safeguarding sensitive conventional arms, ammunition, and explosives.
As prescribed in 223.7203, use the following clause:
Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives
(FEB 1996)
(a) Definition.
``Arms, ammunition, and explosives (AA&E),'' as used in this clause,
means those items within the scope (chapter 1, paragraph B) of DoD
5100.76-M, Physical Security of Sensitive Conventional Arms, Ammunition,
and Explosives.
(b) The requirements of DoD 5100.76-M apply to the following items
of AA&E being developed, produced, manufactured, or purchased for the
Government, or provided to the Contractor as Government-furnished
property under this contract:
------------------------------------------------------------------------
National
Nomenclature stock Sensitivity
number category
------------------------------------------------------------------------
------------------------------------------------------------------------
(c) The Contractor shall comply with the requirements of DoD
5100.76-M, as specified in the statement of work. The edition of DoD
5100.76-M in effect on the date of issuance of the solicitation for this
contract shall apply.
(d) The Contractor shall allow representatives of the Defense
Investigative Service (DIS), and representatives of other appropriate
offices of the Government, access at all reasonable times into its
facilities and those of its subcontractors, for the purpose of
performing surveys, inspections, and investigations necessary to review
compliance with the physical security standards applicable to this
contract.
(e) The Contractor shall notify the cognizant DIS field office of
any subcontract involving AA&E within 10 days after award of the
subcontract.
(f) The Contractor shall ensure that the requirements of this clause
are included in all subcontracts, at every tier--
(1) For the development, production, manufacture, or purchase of
AA&E; or
(2) When AA&E will be provided to the subcontractor as Government-
furnished property.
[[Page 50]]
(g) Nothing in this clause shall relieve the Contractor of its
responsibility for complying with applicable Federal, state, and local
laws, ordinances, codes, and regulations (including requirements for
obtaining licenses and permits) in connection with the performance of
this contract.
(End of clause)
[61 FR 7750, Feb. 29, 1996]
Sec. 252.225-7000 Buy American Act--Balance of Payments Program Certificate.
As prescribed in 225.109(a), use the following provision:
Buy American Act--Balance of Payments Program Certificate (Dec. 1991)
(a) Definitions. Domestic end product, qualifying country,
qualifying country end product, and qualifying country end product have
the meanings given in the Buy American Act and Balance of Payments
Program clause of this solicitation.
(b) Evaluation. Offers will be evaluated by giving preference to
domestic end products and qualifying country end products over
nonqualifying country end products.
(c) Certifications. (1) The Offeror certifies that--
(i) Each end product, except those listed in paragraphs (c) (2) or
(3) of this clause, is a domestic end product; and
(ii) Components of unknown origin are considered to have been mined,
produced, or manufactured outside the United States or a qualifying
country.
(2) The Offeror certifies that the following end products are
qualifying country end products:
Qualifying Country End Products
------------------------------------------------------------------------
Line item No. Country of origin
------------------------------------------------------------------------
________ ________
------------------------------------------------------------------------
(List only qualifying country end products.)
(3) The Offeror certifies that the following end products are
nonqualifying country end products:
Nonqualifying Country End Products
------------------------------------------------------------------------
Line item No. Country of origin (If known)
------------------------------------------------------------------------
________ ________
------------------------------------------------------------------------
(End of provision)
Sec. 252.225-7001 Buy American Act and Balance of Payments Program.
As prescribed in 225.109(d), use the following clause:
Buy American Act and Balance of Payments Program (Jan. 1994)
(a) Definitions. (1) Components means those articles, materials, and
supplies directly incorporated into end products.
(2) Qualifying country means any country set forth in subsection
225.872-1 of the Defense FAR Supplement.
(3) Qualifying country component means an item mined, produced, or
manufactured in a qualifying country.
(4) End product means those articles, materials, and supplies to be
acquired for public use under the contract. For this contract, the end
products are the line items to be delivered to the Government (including
supplies to be acquired by the Government for public use in connection
with service contracts, but excluding installation and other services to
be performed after delivery).
(5) Domestic end product means--
(i) An unmanufactured end product which has been mined or produced
in the United States; or
(ii) An end product manufactured in the United States if the cost of
its qualifying country components and its components which are mined,
produced, or manufactured in the United States exceeds 50 percent of the
cost of all its components. The cost of components shall include
transportation costs to the place of incorporation into the end product
and U.S. duty (whether or not a duty-free entry certificate may be
issued). Consider a component to have been mined, produced, or
manufactured in the United States (regardless of its source in fact) if
the end product in which it is incorporated is manufactured in the
United States and the component is of a class or kind--
(A) Determined to be not mined, produced, or manufactured in the
United States in sufficient and reasonably available commercial
quantities and of a satisfactory quality; or
(B) Which the Secretary concerned determines would be inconsistent
with the public interest to apply the restrictions of the Buy American
Act.
(6) Nonqualifying country end product means an end product which is
neither a domestic end product nor a qualifying country end product.
(7) Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a qualifying
country; or
(ii) An end product manufactured in a qualifying country if the cost
of the components mined, produced, or manufactured in the qualifying
country and its components mined, produced, or manufactured in the
United States exceeds 50 percent of the cost of all its components.
(b) This clause implements the Buy American Act (41 U.S.C. 10a-d) in
a manner that will encourage a favorable international balance of
payments by providing a preference
[[Page 51]]
to domestic end products over other end products, except for end
products which are qualifying country end products.
(c) The Contractor agrees that it will deliver only domestic end
products unless, in its offer, it specified delivery of other end
products in the Buy American Act and Balance of Payments Certificate or
the Buy American Act--Trade Agreements--Balance of Payments Program
Certificate. An offer certifying that a qualifying country end product
will be supplied requires the Contractor to deliver a qualifying country
end product or a domestic end product.
(d) The offered price of nonqualifying country end products must
include all applicable duty. Generally, when the Buy American Act is
applicable, each nonqualifying country offer is adjusted for the purpose
of evaluation by adding 50 percent of the offer, inclusive of duty.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 1290, Jan. 10, 1994]
Sec. 252.225-7002 Qualifying country sources as subcontractors.
As prescribed in 225.109-70(a), use the following clause:
Qualifying Country Sources as Subcontractors (Dec. 1991)
Subject to the restrictions in section 225.872 of the Defense FAR
Supplement, the Contractor shall not preclude qualifying country sources
and U.S. sources from competing for subcontracts under this contract.
(End of clause)
Sec. 252.225-7003 Information for duty-free entry evaluation.
As prescribed in 225.109-70(b), use the following provision:
Information for Duty-Free Entry Evaluation (Aug. 1992)
(a) Is the offer based on furnishing any supplies (i.e., end items,
components, or material) of foreign origin other than those for which
duty-free entry is to be accorded pursuant to the Duty-Free Entry--
Qualifying Country End Products and Supplies clause of this
solicitation?
Yes ( )
No ( )
(b) If the answer in paragraph (a) is yes, answer the following
questions:
(1) Are such foreign supplies now in the United States?
Yes ( )
No ( )
(2) Has the duty on such foreign supplies been paid?
Yes ( )
No ( )
(3) If the answer to paragraph (b)(2) is no, what amount is included
in the offer to cover such duty? $______
(c) If the duty has not been paid, the Government may elect to make
award on a duty-free basis. If so, the offered price will be reduced in
the contract award by the amount specified in paragraph (b)(3). The
Offeror agrees to identify, at the request of the Contracting Officer,
the foreign supplies which are subject to duty-free entry.
(d) Offers will be evaluated on a duty included basis except to the
extent that--
(1) The supplies are qualifying country end products as defined in
the Buy American Act and Balance of Payments Program clause of this
solicitation; or
(2) The duty-free price is specified for use in the evaluation
procedure.
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992]
Sec. 252.225-7004 Nondomestic construction materials.
As prescribed in 225.205-70, use the following clause:
Nondomestic Construction Materials (Dec. 1991)
The requirements of the Buy American Act clause of this contract do
not apply to the following items:
_______________________________________________________________________
_______________________________________________________________________
(End of clause)
Sec. 252.225-7005 Identification of expenditures in the United States.
As prescribed in 225.305-70, use the following clause:
Identification of Expenditures in the United States (Dec. 1991)
(a) On each invoice, voucher, or other request for payment under
this contract, the Contractor shall identify that part of the requested
payment which represents estimated expenditures in the United States.
The identification--
(1) May be expressed either as dollar amounts or as percentages of
the total amount of the request for payment.
(2) Should be based on reasonable estimates.
[[Page 52]]
(3) Shall consist of stating the full amount of the payment
requested, subdivided into the following categories:
(i) U.S. products--expenditures for material and equipment
manufactured or produced in the United States, excluding transportation;
(ii) U.S. services--expenditures for services performed in the
United States, including charges for overhead, other indirect costs, and
profit;
(iii) Transportation on U.S. carriers--expenditures for
transportation furnished by U.S. flag, ocean, surface, and air carriers;
and
(iv) Expenditures not identified under paragraphs (a) (1), (2), and
(3).
(b) If this contract is principally for supplies or if the
Contractor is not an incorporated concern incorporated in the United
States, or an unincorporated concern having its principal place of
business in the United States, the amounts identified under paragraphs
(a)(3) (i), (ii), and (iii) will be limited to payments made pursuant to
the requirements either of the United States Products and Services
clause, if any, or of any other specific provision of this contract that
obligates the Contractor to acquire certain materials, equipment,
transportation, or services from U.S. sources.
(c) Nothing in this clause requires the establishment or maintenance
of detailed accounting records or gives the U.S. Government any right to
audit the Contractor's books or records.
(End of clause)
Sec. 252.225-7006 Buy American Act--Trade Agreements--Balance of Payments Program Certificate.
As prescribed in 225.407(a)(1), use the following provision:
Buy American Act--Trade Agreements--Balance of Payments Program
Certificate (Jan. 1994)
(a) Definitions.
Caribbean Basin country end product, designated country end product,
domestic end product, NAFTA country end product, nondesignated country
end product, qualifying country end product, and U.S. made end product
have the meanings given in the Trade Agreements or Buy American Act and
Balance of Payments Program clauses of this solicitation.
(b) Evaluation.
Offers will be evaluated by giving preference to U.S. made end
products, qualifying country end products, designated country end
products, NAFTA country end products, and Caribbean Basin country end
products over other end products.
(c) Certifications. (1) The Offeror certifies that--
(i) Each end product, except the end products listed in paragraph
(c)(2) of this provision, is a domestic end product (as defined in the
Buy American Act and Balance of Payments Program clause of this
solicitation); and
(ii) Components of unknown origin are considered to have been mined,
produced, or manufactured outside the United States or a qualifying
country.
(2) The Offeror must identify and certify all end products that are
not domestic end products.
(i) The Offeror certifies that the following supplies qualify as
U.S. made end products but do not meet the definition of domestic end
product:
_______________________________________________________________________
(insert line item number)
(ii) The Offeror certifies that the following supplies are
qualifying country end products:
_______________________________________________________________________
(insert line item number)
_______________________________________________________________________
(insert country of origin)
(iii) The Offeror certifies that the following supplies qualify as
designated country end products:
_______________________________________________________________________
(insert line item number)
_______________________________________________________________________
(insert country of origin)
(iv) The Offeror certifies that the following supplies qualify as
Caribbean Basin country end products:
_______________________________________________________________________
(insert line item number)
_______________________________________________________________________
(insert country of origin)
(v) The Offeror certifies that the following supplies qualify as
NAFTA country end products:
_______________________________________________________________________
(insert line item number)
_______________________________________________________________________
(insert country of origin)
(vi) The Offeror certifies that the following supplies are other
nondesignated country end products.
_______________________________________________________________________
(insert line item number)
_______________________________________________________________________
(insert country of origin)
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 56 FR 67221, Dec. 30, 1991;
59 FR 1290, Jan. 10, 1994]
Sec. 252.225-7007 Trade Agreements.
As prescribed in 225.408(a)(2), use the following clause:
[[Page 53]]
Trade Agreements (JUL 1996)
(a) Definitions.
(1) Caribbean Basin country end product--
(i) Means an article that--
(A) Is wholly the growth, product, or manufacture of a Caribbean
Basin country (as defined in 25.401 of the FAR); or
(B) Has, in the case of an article which consists in whole or in
part of materials from another country or instrumentality, been
substantially transformed into a new and different article of commerce
with a name, character, or use distinct from that of the article or
articles from which it was so transformed. The term includes services
(except transportation services) incidental to its supply, provided that
the value of those incidental services does not exceed the value of the
product itself. It does not include service contracts as such.
(ii) Excludes products, other than petroleum and any product derived
from petroleum, that are not granted duty-free treatment under the
Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These
exclusions presently consist of--
(A) Textiles and apparel articles that are subject to textile
agreements;
(B) Footwear, handbags, luggage, flat goods, work gloves, and
leather wearing apparel not designated as eligible articles for the
purpose of the Generalized System of Preferences under title V of the
Trade Act of 1974;
(C) Tuna, prepared or preserved in any manner in airtight
containers; and
(D) Watches and watch parts (including cases, bracelets, and straps)
of whatever type, including, but not limited to, mechanical, quartz
digital, or quartz analog, if such watches or watch parts contain any
material which is the product of any country to which Harmonized Tariff
Schedule column 2 rates of duty apply.
(2) Components, domestic end product, end product, nonqualifying
country, qualifying country, and qualifying country end product have the
meanings given in the Buy American Act and Balance of Payments Program
clause of this contract.
(3) Designated country means:
Aruba
Austria
Bangladesh
Belgium
Benin
Bhutan
Botswana
Burkina Faso
Burundi
Canada
Cape Verde
Central African Republic
Chad
Comoros
Denmark
Finland
France
Gambia
Germany
Greece
Guinea
Haiti
Ireland
Israel
Italy
Japan
Lesotho
Liechtenstein
Luxembourg
Malawi
Maldives
Mali
Nepal
Netherlands
Niger
Norway
Portugal
Republic of Korea
Rwanda
Singapore
Somalia
Spain
Sudan
Sweden
Switzerland
Tanzania U.R.
Uganda
United Kingdom
Western Samoa
Yemen
(4) Designated country end product means an article that--
(i) Is wholly the growth, product, or manufacture of the designated
country; or
(ii) Has, in the case of an article which consists in whole or in
part of materials from another country or instrumentality, been
substantially transformed into a new and different article of commerce
with a name, character, or use distinct from that of the article or
articles from which it was so transformed. The term includes services
(except transportation services) incidental to its supply, provided that
the value of those incidental services does not exceed the value of the
product itself. It does not include service contracts as such.
(5) NAFTA country end product means an article that--
(i) Is wholly the growth, product, or manufacture of the NAFTA
country; or
(ii) Has, in the case of an article which consists in whole or in
part of materials from another country or instrumentality, been
substantially transformed in a NAFTA country into a new and different
article of commerce with a name, character, or use distinct from that of
the article or articles from which it was so transformed. The term
includes services (except transportation services) incidental to its
supply, provided
[[Page 54]]
that the value of those incidental services does not exceed the value of
the product itself. It does not include service contracts as such.
(6) North American Free Trade Agreement (NAFTA) country means Canada
or Mexico.
(7) Nondesignated country end product means any end product which is
not a U.S. made end product or a designated country end product.
(8) United States means the United States, its possessions, Puerto
Rico, and any other place subject to its jurisdiction, but does not
include leased bases or trust territories.
(9) U.S. made end product means an article which is--
(i) Wholly the growth, product or manufacture of the United States,
or
(ii) In the case of an article which consists in whole or in part of
materials from another country or instrumentality, has been
substantially transformed in the United States into a new and distinct
article of commerce with a name, character, or use distinct from that of
the article or articles from which it was so transformed.
(b) This clause implements the Trade Agreements Act of 1979 (19
U.S.C. 2501 et seq.), the North American Free Trade Agreement
Implementation Act of 1993, and the Caribbean Basin Initiative by
providing a preference for U.S. made end products and designated country
end products over nondesignated country end products, except
nondesignated country end products which are qualifying country end
products, NAFTA country end products, or Caribbean Basin end products.
(c) The Contractor agrees to deliver under this contract only U.S.
made end products unless, in its offer, it specified delivery of
qualifying country, designated country, NAFTA country, or nondesignated
country end products in the Buy American Act--Trade Agreements--Balance
of Payments Program Certificate provision.
(1) Offerors may not supply a nondesignated country end product
unless--
(i) It is a qualifying country end product, a Caribbean Basin
country end product, or a NAFTA country end product;
(ii) The Contracting Officer has determined that offers of U.S. made
end products or qualifying, designated, NAFTA, or Caribbean Basin
country end products from responsive, responsible offerors are either
not received or are insufficient to fill the Government's requirements;
or
(iii) A national interest waiver has been granted under Section 302
of the Trade Agreements Act of 1979 (see FAR 25.402(c)).
(2) An offer certifying that a qualifying country end product, a
designated country end product, a NAFTA country end product, or a
Caribbean Basin country end product will be supplied, requires the
Contractor to supply a qualifying country end product, a designated
country end product, a NAFTA country end product, or a Caribbean Basin
country end product, whichever is certified, or, at the Contractor's
option, a U.S. made end product.
(d) The offered price of end products listed and certified under
paragraphs (c)(2)(i) and (vi) of the Buy American Act--Trade
Agreements--Balance of Payments Program Certificate provision of the
solicitation must include all applicable duty. The offered price of
qualifying country end products, designated country end products, NAFTA
country end products, and Caribbean Basin country end products for line
items subject to the Trade Agreements Act or the North American Free
Trade Agreement Implementation Act, should not include custom fees or
duty.
(End of clause)
Alternate I (APR 1996)
As prescribed in 225.408(a)(2), delete Singapore from the list of
designated countries in paragraph (a)(3) of the basic clause.
[56 FR 36479, July 31, 1991, as amended at 59 FR 1290, Jan. 10, 1994; 59
FR 8041, Feb. 17, 1994; 61 FR 130, Jan. 3, 1996; 61 FR 16880, Apr. 18,
1996; 61 FR 37842, July 22, 1996]
Sec. 252.225-7008 Supplies to be accorded duty-free entry.
As prescribed in 225.605-70(a), use the following clause:
Supplies To Be Accorded Duty-Free Entry (Dec. 1991)
In accordance with paragraph (a) of the Duty-Free Entry clause and/
or paragraph (b) of the Duty-Free Entry--Qualifying Country End Products
and Supplies clause of this contract, the following supplies are
accorded duty-free entry:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(End of clause)
Sec. 252.225-7009 Duty-free entry--qualifying country end products and supplies.
As prescribed in 225.605-70(b), use the following clause:
Duty-Free Entry--Qualifying Country End Products and Supplies (Dec.
1991)
(a) Definitions.
Qualifying country and qualifying country end products have the
meaning given in the Buy American Act and Balance of Payments Program
clause of this contract.
[[Page 55]]
(b) The requirements of this clause apply to this contract and
subcontracts, including purchase orders, that involve supplies to be
accorded duty-free entry whether--
(1) Placed directly with a foreign concern as a prime contract; or
(2) As a subcontract or purchase order under a contract placed with
a domestic concern.
(c) Except as otherwise approved by the Contracting Officer, no
amount is or will be included in the contract price for duty for--
(1) End items that are qualifying country end products; or
(2) Supplies (including without limitation, raw materials,
components, and intermediate assemblies) produced or made in qualifying
countries, that are to be incorporated in the end items to be delivered
under this contract, provided that the end items are manufactured in the
United States or in a qualifying country, except supplies imported into
the United States before the date of this contract or, in the case of
supplies imported by a first or lower tier subcontractor, before the
date of the subcontract.
(d) The Contractor warrants that--
(1) All qualifying country supplies, for which duty-free entry is to
be claimed, are intended to be delivered to the Government or
incorporated in the end items to be delivered under this contract; and
(2) The Contractor will pay duty to the extent that such supplies,
or any portion thereof (if not scrap or salvage) are diverted to
nongovernmental use, other than as a result of a competitive sale made,
directed, or authorized by the Contracting Officer.
(e) The Government agrees to execute duty-free entry certificates
and to afford such assistance as appropriate to obtain the duty-free
entry of qualifying country supplies for which the shipping documents
bear the notation specified in paragraph (f) of this clause, except as
the Contractor may otherwise agree.
(f) All shipping documents submitted to Customs, covering foreign
end products or supplies for which duty-free entry certificates are to
be issued under this clause, shall--
(1) Consign the shipments to the appropriate--
(i) Military department in care of the Contractor, including the
Contractor's delivery address; or
(ii) Military installation; and
(2) Include the following information--
(i) Prime contract number, and delivery order if applicable;
(ii) Number of the subcontract/purchase order for foreign supplies
if applicable;
(iii) Identification of carrier;
(iv) The notation: UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE
Duty-Free Entry to be claimed pursuant to section XXII, chapter 98,
subchapter VIII, item 9808.00.30 of the Harmonized Tariff Schedule of
the United States. Upon arrival of shipment at the appropriate port of
entry, District Director of Customs, please release shipment under 19
CFR part 142 and notify Commander, Defense Contract Management Area
Operations (DCMAO) New York, attn: Customs Team, DCMDN-GNIC, 207 New
York Avenue, Staten Island, New York, 10305-5013, for execution of
Customs Forms 7501, 7501A, or 7506 and any required duty-free entry
certificates. (Note: This notation shall be used only for direct
shipments to a U.S. military installation. In cases where the shipment
will be consigned to other than a military installation, e.g., a
domestic contractor's plant, the shipping document notation shall be
altered to insert the name and address of the contractor, agent or
broker who will notify Commander, Defense Contract Management Area
Operations (DCMAO) New York, for execution of the duty-free
certificate.)
(v) Gross weight in pounds (if freight is based on space tonnage,
state cubic feet in addition to gross shipping weight);
(vi) Estimated value in U.S. dollars; and
(vii) Activity Address Number of the contract administration office
actually administering the prime contract, e.g., for DCMAO Dayton,
DLA8DP.
(g) Preparation of customs forms. (1) Except for shipments consigned
to a military installation, the Contractor shall prepare, or authorize
an agent to prepare, any customs forms required for the entry of foreign
supplies in connection with DoD contracts into the United States, its
possessions, or Puerto Rico. Submit the completed customs forms to the
District Director of Customs with a copy to DCMAO NY for execution of
any required duty-free entry certificates. Shipments consigned directly
to a military installation will be released in accordance with 10.101
and 10.102 of the U.S. Custom regulations.
(2) For shipments containing both supplies which are to be accorded
duty-free entry and supplies which are not, the Contractor shall
identify on the customs forms those items that are eligible for duty-
free entry.
(h) The contractor agrees--
(1) To prepare (if this contract is placed directly with a foreign
supplier), or to instruct the foreign supplier to prepare, a sufficient
number of copies of the bill of lading (or other shipping document) so
that at least two of the copies accompanying the shipment will be
available for use by the District Director of Customs at the port of
entry;
(2) To consign the shipment as specified in paragraph (f) of this
clause; and
(3) To mark the exterior of all packages as follows:
(i) ``UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE;'' and
[[Page 56]]
(ii) The activity address number of the contract administration
office actually administering the prime contract.
(i) The Contractor agrees to notify the Contracting Officer
administering the prime contract in writing of any purchase under the
contract of qualifying country supplies to be accorded duty-free entry
that are to be imported into the United States for delivery to the
Government or for incorporation in end items to be delivered to the
Government. The notice shall be furnished to the contract administration
office immediately upon award to the qualifying country supplier. The
notice shall contain--
(1) Prime contractor's name, address, and CAGE code;
(2) Prime contract number, and delivery order number if applicable;
(3) Total dollar value of the prime contract or delivery order;
(4) Expiration date of the prime contract or delivery order;
(5) Foreign supplier's name and address;
(6) Number of the subcontract/purchase order for foreign supplies;
(7) Total dollar value of the subcontract for foreign supplies;
(8) Expiration date of the subcontract for foreign supplies;
(9) List of items purchased; and
(10) Certification by the purchaser of foreign supplies as follows:
I certify that all supplies for which duty-free entry is to be claimed
are intended to be delivered to the Government or incorporated in the
end items to be delivered under this contract, and that duty shall be
paid by the Contractor to the extent that such supplies, or any portion
(if not scrap or salvage) are diverted to nongovernmental use other than
as a result of a competitive sale made, directed or authorized by the
Contracting Officer;
(11) The qualifying country; and
(12) The scheduled delivery date(s).
(j) This clause does not apply to purchases of qualifying country
supplies in connection with this contract if--
(1) The qualifying country supplies are identical in nature to
supplies purchased by the Contractor or any subcontractor in connection
with its commercial business; and
(2) It is not economical or feasible to account for such supplies so
as to ensure that the amount of the supplies for which duty-free entry
is claimed does not exceed the amount purchased in connection with this
contract.
(k) The Contractor agrees to insert the substance of this clause,
including this paragraph (k) in all subcontracts for supplies. Each
subcontract shall require the subcontractor to identify this contract by
including its contract number on any shipping documents submitted to
Customs covering supplies for which duty-free entry is to be claimed
pursuant to this clause. The Contractor also agrees that the name and
address of the Contracting Officer administering the prime contract
(name and address of the contract administration office cognizant of the
prime contract), and its activity address number (appendix G of the
Defense FAR Supplement), and the information required by paragraphs (i)
(1), (2), and (3) of this clause will be included in applicable
subcontracts.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 56 FR 67221, Dec. 30, 1991;
60 FR 29502, June 5, 1995]
Sec. 252.225-7010 Duty-free entry--additional provisions.
As prescribed in 225.605-70(d), use the following clause:
Duty-free Entry--Additional Provisions (Dec. 1991)
(a) The requirements of this clause supplement the Duty-Free Entry
clause of this contract.
Both of these clauses apply to this contract and subcontracts,
including purchase orders, that involve supplies to be accorded duty-
free entry whether placed--
(1) Directly with a foreign concern as a prime contract; or
(2) As a subcontractor purchase order under a contract with a
domestic concern.
(b) The Contractor shall send the notification required by paragraph
(b)(1) of the Duty-Free Entry clause of this contract to the Contracting
Officer administering this contract.
(c) In addition to any data required by paragraph (b)(1) of the
Duty-Free Entry clause, the Contractor shall furnish the following for
all foreign supplies to be imported pursuant to paragraphs (a) or (b) of
the Duty-Free Entry clause. Furnish this information to the Contracting
Officer administering the prime contract immediately upon award of any
contract or subcontract involving supplies to be accorded duty-free
entry.
(1) Prime contractor's name, address, and CAGE code;
(2) Prime contract number plus delivery order number, if applicable;
(3) Total dollar value of the prime contract or delivery order;
(4) Expiration date of the prime contract or delivery order;
(5) Foreign supplier's name and address;
(6) Number of the subcontract/purchase order for foreign supplies;
(7) Total dollar value of the subcontract for foreign supplies;
(8) Expiration date of the subcontract for foreign supplies;
[[Page 57]]
(9) List of items purchased; and
(10) Certification by the purchaser of foreign supplies as follows:
I certify that all supplies for which duty-free entry is to be claimed
are to be delivered to the Government or incorporated in the end items
to be delivered under this contract, and that duty shall be paid by the
Contractor to the extent that such supplies, or any portion (if not
scrap or salvage) are diverted to nongovernmental use other than as a
result of a competitive sale made, directed, or authorized by the
Contracting Officer.
(d) The Contractor agrees to incorporate the substance of this
clause, including this paragraph (d), in any subcontract (including
purchase orders) in accordance with paragraph (i) of the Duty-Free Entry
clause of this contract. The Contractor agrees that the name and address
of the Contracting Officer administering the prime contract (name and
address of the contract administration office cognizant of the prime
contract and its activity address number (appendix G of the Defense FAR
Supplement)) and the information required by paragraphs (c)(1), (2), and
(3) of this clause will be included in applicable subcontracts.
(e) To properly complete the shipping document instructions as
required by paragraph (f) of the Duty-Free Entry clause, the Contractor
shall insert Defense Contract Management Area Operations (DCMAO) New
York, attn: Customs Team, DCMDN-GNIC, 207 New York Avenue, Staten
Island, New York, 10305-5013, as the cognizant contract administration
office (for paragraph (f) only) in those cases when the shipment is
consigned directly to a military installation. When the shipment will be
consigned to a location other than a military installation, e.g., a
domestic contractor's plant, change the shipping document notation
required by paragraph (f) of the clause to insert the name and address
of the Contractor, agent or broker that will prepare the customs
documentation for execution of the Duty-Free Entry certificates. In
either case, the shipping documents will contain the following items in
addition to those required by paragraph (f) of the Duty-Free Entry
clause:
(1) Delivery order number on the Government prime contract, if
applicable;
(2) Number of the subcontract/purchase order for foreign supplies,
if applicable;
(3) Activity address number of the contract administration office
actually administering the prime contract, e.g., for DCMAO Dayton,
DLA8DP.
(f) Except for shipments consigned to a military installation, the
Contractor shall prepare, or authorize an agent to prepare, any customs
forms required for the entry into the United States, its possessions, or
Puerto Rico of foreign supplies in connection with DoD contracts. The
Contractor shall submit the completed customs forms to the District
Director of Customs with a copy to DCMAO New York for execution of any
required duty-free entry certificates. For shipments containing both
supplies which are to be accorded duty-free entry and supplies which are
not, the Contractor shall identify on the customs forms those items
which are eligible for duty-free entry under the provisions of the Duty-
Free Entry clause. Shipments consigned directly to a military
installation will be released in accordance with Secs. 10.101 and 10.102
of the U.S. Customs regulations.
(g) The Contractor shall ensure that all exterior containers are
marked in accordance with paragraph (g) of the Duty-Free Entry clause,
including the following additional data--
(1) ``UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE;'' and
(2) The activity address number for the contract administration
office actually administering the prime contract.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 1291, Jan. 10, 1994; 60
FR 29502, June 5, 1995]
Sec. 252.225-7011 Restriction on acquisition of supercomputers.
As prescribed in 225.7023-3, use the following clause:
Restriction on Acquisition of Supercomputers (July 1995)
The Contractor agrees that any supercomputers furnished under this
contract have been manufactured in the United States.
(End of clause)
[60 FR 34471, July 3, 1995]
Sec. 252.225-7012 Preference for certain domestic commodities.
As prescribed in 225.7002-3(a), use the following clause:
Preference for Certain Domestic Commodities (NOV 1995)
(a) The Contractor agrees to deliver under this contract only such
of the following articles that have been grown, reprocessed, reused, or
produced in the United States, its possessions, or Puerto Rico--
(1) Food;
(2) Clothing;
(3) Tents, tarpaulins, or covers;
(4) Cotton and other natural fiber products;
(5) Woven silk or woven silk blends;
(6) Spun silk yarn for cartridge cloth;
[[Page 58]]
(7) Synthetic fabric, and coated synthetic fabric;
(8) Canvas products;
(9) Wool (whether in the form of fiber or yarn or contained in
fabrics, materials, or manufactured articles); or
(10) Any item of individual equipment manufactured from or
containing such fibers, yarns, fabrics, or materials.
(b) This clause does not apply--
(1) To supplies listed in FAR section 25.108(d)(1), or other
supplies for which the Government has determined that a satisfactory
quality and sufficient quantity cannot be acquired as and when needed at
U.S. market prices;
(2) To foods which have been manufactured or processed in the United
States, its possessions, or Puerto Rico;
(3) To chemical warfare protective clothing produced in the
countries listed in subsection 225.872-1 of the Defense FAR Supplement;
or
(4) To commercial items or components purchased from subcontractors
or suppliers.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 27675, May 27, 1994; 60
FR 61601, Nov. 30, 1995; 61 FR 50455, Sept. 26, 1996]
252.225-7013 [Reserved]
Sec. 252.225-7014 Preference for domestic specialty metals.
As prescribed in 225.7002-3(b), use the following clause:
Preference for Domestic Specialty Metals (NOV 1995)
(a) Definition.
Specialty metals means--
(1) Steel--
(i) Where the maximum alloy content exceeds one or more of the
following limits: manganese, 1.65 percent; silicon, 0.60 percent; or
copper, 0.60 percent; or
(ii) Which contains more than 0.25 percent of any of the following
elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel,
titanium, tungsten, or vanadium;
(2) Metal alloys consisting of nickel, iron-nickel, and cobalt base
alloys containing a total of other alloying metals (except iron) in
excess of ten percent;
(3) Titanium and titanium alloys; or
(4) Zirconium and zirconium base alloys.
(b) The Contractor agrees that any specialty metals incorporated in
articles delivered under this contract will be melted in the United
States, its possessions, or Puerto Rico.
(c) This clause does not apply to the extent that--
(1) The Secretary or designee determines that a satisfactory quality
and sufficient quantity of such articles cannot be acquired when needed
at U.S. market prices;
(2) The acquisition is for an end product of a country listed in
subsection 225.872-1 of the Defense Federal Acquisition Regulation
Supplement;
(3) The acquisition is necessary to comply with agreements with
foreign governments requiring the United States to purchase supplies
from foreign sources to offset sales made by the U.S. Government or U.S.
firms under approved programs; or
(4) The specialty metal is contained in a commercial item or
component purchased from subcontractors or suppliers.
(End of clause)
Alternate I (Dec. 1991)
As prescribed in 225.7002-3(b), use the basic clause with the
following paragraph (d):
(d) The Contractor agrees to include this clause, including this
paragraph (d), in every subcontract or purchase order unless the item
being purchased contains no specialty metals.
[56 FR 36479, July 31, 1991, as amended at 60 FR 61602, Nov. 30, 1995;
61 FR 50455, Sept. 26, 1996]
Sec. 252.225-7015 Preference for domestic hand or measuring tools.
As prescribed in 225.7002-3(c), use the following clause:
Preference for Domestic Hand or Measuring Tools (Dec. 1991)
The Contractor agrees to deliver under this contract only hand or
measuring tools produced in the United States or its possessions.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 27675, May 27, 1994; 61
FR 50455, Sept. 26, 1996]
Sec. 252.225-7016 Restriction on acquisition of ball and roller bearings.
As prescribed in 225.7019-4, use the following clause:
Restriction on Acquisition of Ball and Roller Bearings (SEP 1996)
(a) Definitions.
As used in this clause--
(1) ``Bearing components'' means the bearing element, retainer,
inner race, or outer race.
[[Page 59]]
(2) ``Miniature and instrument ball bearings'' means all rolling
contact ball bearings with a basic outside diameter (exclusive of flange
diameters) of 30 millimeters or less, regardless of material, tolerance,
performance, or quality characteristics.
(b) The Contractor agrees that all ball and roller bearings and ball
and roller bearing components (including miniature and instrument ball
bearings) delivered under this contract, either as end items or
components of end items, shall be wholly manufactured in the United
States or Canada. Unless otherwise specified, raw materials, such as
preformed bar, tube, or rod stock and lubricants, need not be mined or
produced in the United States or Canada.
(c) The restriction in paragraph (b) of this clause does not apply
to the extent that the end items or components containing ball or roller
bearings are commercial items. The commercial item exception does not
include items designed or developed under a Government contract or
contracts where the end item is bearings and bearing components.
(d) The restriction in paragraph (b) of this clause may be waived
upon request from the Contractor in accordance with subsection 225.7019-
3 of the Defense Federal Acquisition Regulation Supplement. If the
restriction is waived for miniature and instrument ball bearings, the
Contractor agrees to acquire a like quantity and type of domestic
manufacture for nongovernmental use.
(e) The Contractor agrees to retain records showing compliance with
this restriction until 3 years after final payment and to make records
available upon request of the Contracting Office.
(f) The Contractor agrees to insert this clause, including this
paragraph (f), in every subcontract and purchase order issued in
performance of this contract, unless items acquired are--
(1) Commercial items other than ball or roller bearings; or
(2) Items that do not contain ball or roller bearings.
(End of clause)
[61 FR 50455, Sept. 26, 1996]
Sec. 252.225-7017 Preference for United States and Canadian valves and machine tools.
As prescribed in 225.7004-6(a), use the following clause:
Preference for United States and Canadian Valves and Machine Tools (Apr.
1995)
(a) For the purpose of this clause, a valve, machine tool, or
machine tool accessory is considered to be of United States or Canadian
origin if--
(1) It is manufactured in the United States or Canada; and
(2) The cost of its components manufactured in the United States or
Canada exceeds 50 percent of the cost of all its components. The cost of
components includes transportation costs to the place of incorporation
into the end item and duty (whether or not a duty-free entry certificate
may be issued).
(b) Unless otherwise specified in its offer, the Contractor agrees
that valves used in piping for naval surface ships and submarines within
Federal supply classifications 4810 (valves, powered) and 4820 (valves,
non-powered), machine tools within the Federal supply classifications
for metalworking machinery numbered 3405, 3408, 3410 through 3419, 3426,
3433, 3438, 3441 through 3443, 3445, 3446, 3448 and 3449, and machine
tool accessories numbered 3460 and 3461 delivered as end items or
purchased indirectly on behalf of the Government under this contract
shall be of United States or Canadian origin.
(c) Unless an exception applies or a waiver is granted under
225.7004-4(a) of the Defense Federal Acquisition Regulation Supplement,
preference will be given to valves and machine tools of United States or
Canadian origin by adding 50 percent to the offered price of all other
valves and machine tools for evaluation purposes.
(End of clause)
[57 FR 14996, Apr. 23, 1992, as amended at 60 FR 19534, Apr. 19, 1995]
Sec. 252.225-7018 Notice of prohibition of certain contracts with foreign entities for the conduct of Ballistic Missile Defense RDT&E.
As prescribed in 225.7011-5, use the following provision:
Notice of Prohibition of Certain Contracts With Foreign Entities for the
Conduct of Ballistic Missile Defense RDT&E (May 1994)
(a) Definitions.
(1) Competent means the ability of an offeror to satisfy the
requirements of the solicitation. This determination is based on a
comprehensive assessment of each offeror's proposal including
consideration of the specific areas of evaluation criteria in the
relative order of importance described in the solicitation.
(2) Foreign firm means a business entity owned or controlled by one
or more foreign nationals or a business entity in which more than 50
percent of the stock is owned or controlled by one or more foreign
nationals.
[[Page 60]]
(3) U.S. firm means a business entity other than a foreign firm.
(b) This provision implements section 222 of the Defense
Authorization Act for FYs 1988 and 1989 (Pub. L. 100-180) prohibiting
the award of certain contracts, for the conduct of Ballistic Missile
Defense (BMD) Program research, development, test, or evaluation
(RDT&E), to foreign governments or firms.
(c) Except as provided in paragraph (d) of this provision, any funds
appropriated to, or for the use of, the DoD, may not be used to enter
into or carry out any contract, including any contract awarded as a
result of a broad agency announcement (BAA), with a foreign government
or firm if the contract provides for the conduct of RDT&E in connection
with the BMD. Foreign governments and firms, however, are encouraged to
submit offers since this provision is not intended to restrict BMD
access to unique foreign expertise when contract performance requires a
level of competency unavailable in the United States.
(d) The prohibition does not apply to a foreign government or firm
if--
(1) The contract will be performed within the United States;
(2) The contract is exclusively for RDT&E in connection with
antitactical ballistic missile systems;
(3) The foreign government or firm agrees to share a substantial
portion of the total contract cost. The foreign share is considered
substantial where it is equitable with respect to the relative benefits
to be derived from the contract by the United States and the foreign
parties. For example, if the contract is more beneficial to the foreign
party, its share of the costs should be correspondingly higher; or
(4) The U.S. Government determines that the contract cannot be
competently performed by a U.S. firm at a price equal to or less than
the price at which the RDT&E can be performed by a foreign government or
firm.
(e) The Offeror hereby certifies that (________) it is (________) is
not a U.S. firm.
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 59 FR 27675, May 27, 1994]
Sec. 252.225-7019 Restriction on acquisition of foreign anchor and mooring chain.
As prescribed in 225.7012-3, use the following clause:
Restriction on Acquisition of Foreign Anchor and Mooring Chain (Dec.
1991)
(a) Welded shipboard anchor and mooring chain, four inches in
diameter and under, delivered under this contract--
(1) Shall be manufactured in the United States, including cutting,
heat treating, quality control, testing, and welding (both forging and
shot blasting process); and
(2) The cost of the components manufactured in the United States
shall exceed 50 percent of the total cost of components.
(b) The Contractor may request a waiver of this restriction if
adequate domestic supplies meeting the above requirements are not
available to meet the contract delivery schedule.
(c) The Contractor shall include this clause, including this
paragraph (c), in all subcontracts, unless the items acquired contain
none of the restricted welded shipboard anchor and mooring chain.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 61 FR 13108, Mar. 26, 1996]
252.225-7020--252.225-7021 [Reserved]
Sec. 252.225-7022 Restriction on acquisition of polyacrylonitrile (PAN) based carbon fiber.
As prescribed in 225.7013-2, use the following clause:
Restriction on Acquisition of Polyacrylonitrile (PAN) Based Carbon Fiber
(Dec. 1991)
(a) This clause applies only if the end product furnished under this
contract contains polyacrylonitrile carbon fibers (alternatively
referred to as PAN-based fibers or PAN-based graphite fibers).
(b) PAN carbon fibers contained in the end product shall be
manufactured in the United States or Canada using PAN precursor produced
in the United States or Canada.
(c) The Contracting Officer may waive the requirement in paragraph
(b) in whole or in part. The Contractor may request a waiver from the
Contracting Officer by identifying the circumstances and including a
plan to qualify domestic or Canadian sources expeditiously.
[[Page 61]]
(End of clause)
252.225-7023 [Reserved]
Sec. 252.225-7024 Restriction on acquisition of night vision image intensifier tubes and devices.
As prescribed in 225.7015-3, use the following clause:
Restriction on Acquisition of Night Vision Image Intensifier Tubes and
Devices (Dec. 1991)
All second and third generation night vision image intensifier tubes
and devices provided under this contract shall be manufactured in the
United States or Canada.
(End of clause)
Sec. 252.225-7025 Foreign source restrictions.
As prescribed in 225.7105, use the following clause:
Foreign Source Restrictions (SEP 1996)
(a) Definitions.
As used in this clause--
(1) Domestic manufacture means manufactured in the United States or
Canada if the Canadian firm--
(i) Normally produces similar items or is currently producing the
item in support of DoD contracts (as prime or subcontractor); and
(ii) Agrees to become (upon receiving a contract/order) a planned
producer under DoD's Industrial Preparedness Program (IPP), if it is not
already a planned producer for the item.
(2) Forging items means--
------------------------------------------------------------------------
Items Categories
------------------------------------------------------------------------
Ship propulsion shafts.................... Excludes service and landing
craft shafts.
Periscope tubes........................... All.
Ring forgings for bull gears.............. All greater than 120 inches
in diameter.
------------------------------------------------------------------------
(b) The Contractor agrees that end items and their components
delivered under this contract shall contain forging items that are of
domestic manufacture only.
(c) The restriction in paragraph (b) of this clause may be waived
upon request from the Contractor in accordance with section 225.7104 of
the Defense Federal Acquisition Regulation Supplement.
(d) The Contractor agrees to retain records showing compliance with
this restriction until 3 years after final payment and to make records
available upon request of the Contracting Officer.
(e) The Contractor agrees to insert this clause, including this
paragraph (e), in subcontracts and purchase orders issued in performance
of this contract, when products purchased contain restricted forging
items.
(End of clause)
[61 FR 50456, Sept. 26, 1996]
Sec. 252.225-7026 Reporting of contract performance outside the United States.
As prescribed in 225.7203, use the following clause:
Reporting of Contract Performance Outside the United States (NOV 1995)
(a) Reporting criteria. Reporting under this clause is required
for--
(1) Offers exceeding $10 million, if the Offeror is aware at the
time the offer is submitted that it or its first-tier subcontractor
intends to perform any part of the contract that exceeds $500,000
outside the United States and Canada, if that part could be performed
inside the United States or Canada;
(2) Contracts exceeding $10 million, when any part that exceeds
$500,000 could be performed inside the United States or Canada, but will
be performed outside the United States and Canada. If the information
was submitted with the offer, it need not be resubmitted unless it
changes; and
(3) Contracts exceeding $500,000, when any part that exceeds $25,000
will be performed outside the United States, unless a foreign place of
performance is--
(i) The principal place of performance; and
(ii) Indicated by the Offeror's entry in the Place of Performance
provision of the solicitation.
(b) Submission of reports. (1) The Offeror shall submit reports
required by paragraph (a)(1) of this clause with its offer.
(2) The Contractor shall submit reports required by paragraph (a)(2)
of this clause to the Contracting Officer as soon as the information is
known, with a copy to the addressee in paragraph (b)(3) of this clause.
With respect to performance by a first-tier subcontractor, this
information shall be reported, to the maximum extent practicable, at
least 30 days before award of the subcontract.
(3) The Contractor shall submit reports required by paragraph (a)(3)
of this clause within 10 days of the end of each Government quarter to--
Deputy Director of Defense Procurement (Foreign Contracting)
OUSD(A&T)DP(FC) Washington, DC 20301-3060
(4) The Offeror/Contractor shall submit reports on DD Form 2139,
Report of Contract Performance Outside the United States. Computer-
generated reports are acceptable, provided the report contains all
information
[[Page 62]]
required by DD Form 2139. Copies of DD Form 2139 may be obtained from
the Contracting Officer.
(c) Flowdown requirements. (1) The Contractor shall include a clause
substantially the same as this one in all first-tier subcontracts
exceeding $100,000, except subcontracts for commercial items,
construction, ores, natural gases, utilities, petroleum products and
crudes, timber (logs), or subsistence.
(2) The Contractor shall provide the prime contract number to
subcontractors for reporting purposes.
(d) Information required. Information to be reported on the part of
this contract performed outside the United States (or outside the United
States and Canada for reports required by paragraphs (a)(1) and (a)(2)
of this clause) includes that for--
(i) Subcontracts;
(ii) Purchases; and
(iii) Intracompany transfers when transfers originate in a foreign
location.
(End of clause)
[58 FR 28474, May 13, 1993, as amended at 60 FR 29502, June 5, 1995; 60
FR 61602, Nov. 30, 1995]
Sec. 252.225-7027 Limitation on sales commissions and fees.
As prescribed in 225.7308(a), use the following clause:
Limitation on Sales Commissions and Fees (Dec. 1991)
Unless the sales commission and fee have been identified and payment
approved in writing by the Government of ____________ before contract
award, the following provisions, as appropriate, shall apply--
(a) For firm-fixed-price contracts or fixed-price contracts with
economic price adjustment, the Contractor certifies that the contract
price (including any subcontracts) does not include any direct or
indirect cost of sales commissions or fees for contractor sales
representatives for solicitation or promotion or otherwise to secure the
conclusion of the sale of any of the supplies or services called for by
this contract to the Government of ____________.
(b) For all other types of contracts, notwithstanding any other
provision of this contract, any direct or indirect cost of sales
commissions or fees for Contractor (or subcontractor) sales
representatives for solicitation or promotion or otherwise to secure the
conclusion of the sale of any of the supplies or services called for by
this contract to the Government of ____________ are an unallowable item
of cost under this contract.
(End of clause)
Sec. 252.225-7028 Exclusionary policies and practices of foreign governments.
As prescribed in 225.7308(b), use the following clause:
Exclusionary Policies and Practices of Foreign Governments (Dec. 1991)
No person, partnership, corporation, or other entity performing
functions pursuant to this contract, shall, in employing or assigning
personnel to participate in the performance of any such function,
whether in the United States or abroad, take into account the
exclusionary policies or practices of any foreign government where such
policies or practices are based on race, religion, national origin, or
sex.
(End of clause)
Sec. 252.225-7029 Preference for United States or Canadian air circuit breakers.
As prescribed in 225.7016-4, use the following clause:
Preference for United States or Canadian Air Circuit Breakers (Apr.
1995)
(a) Unless otherwise specified in its offer, the Contractor agrees
that air circuit breakers for naval vessels provided under this contract
shall be manufactured in the United States or Canada.
(b) Unless an exception applies or a waiver is granted under
225.7016-3(a) of the Defense Federal Acquisition Regulation Supplement,
preference will be given to air circuit breakers manufactured in the
United States or Canada by adding 50 percent to the offered price of all
other air circuit breakers for evaluation purposes.
(End of clause)
[60 FR 19534, Apr. 19, 1995]
Sec. 252.225-7030 Restriction on acquisition of carbon, alloy, and armor steel plate.
As prescribed in 225.7017-4, use the following clause:
Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate (Oct.
1992)
The Contractor agrees that all carbon, alloy, and armor steel plate
in Federal supply class 9515, or described by American Society for
Testing Materials (ASTM) or American Iron and Steel Institute (AISI)
specifications, furnished as a deliverable under
[[Page 63]]
this contract, or purchased by the contractor as a raw material, for use
in a Government-owned facility or a facility under the control of the
Department of Defense, shall be melted and rolled in the United States
or Canada.
(End of clause)
[57 FR 53601, Nov. 12, 1992]
Sec. 252.225-7031 Secondary Arab boycott of Israel.
As prescribed in 225.770-5, use the following clause:
Secondary Arab Boycott of Israel (Jun. 1992)
(a) Definitions.
As used in this clause--
Foreign person means any person other than a United States person as
defined in section 16(2) of the Export Administration Act of 1979 (50
U.S.C. App. Sec 2415).
United States person is defined in section 16(2) of the Export
Administration Act of 1979 and means any United States resident or
national (other than an individual resident outside the United States
and employed by other than a United States person), any domestic concern
(including any permanent domestic establishment of any foreign concern),
and any foreign subsidiary or affiliate (including any permanent foreign
establishment) of any domestic concern which is controlled in fact by
such domestic concern, as determined under regulations of the President.
(b) Certification. By submitting this offer, the Offeror, if a
foreign person, company or entity, certifies that it--
(1) Does not comply with the Secondary Arab Boycott of Israel; and
(2) Is not taking or knowingly agreeing to take any action, with
respect to the Secondary Boycott of Israel by Arab countries, which 50
U.S.C. App. Sec. 2407(a) prohibits a United States person from taking.
(End of clause)
[57 FR 29041, June 30, 1992, as amended at 59 FR 27675, May 27, 1994]
Sec. 252.225-7032 Waiver of United Kingdom levies.
As prescribed in 225.873-3, use the following clause:
Waiver of United Kingdom Levies (Oct. 1992)
(a) Offered prices for contracts and subcontracts with United
Kingdom (U.K.) firms may contain commercial exploitation levies assessed
by the Government of the U.K. The Offeror shall identify to the
Contracting Officer all levies included in the offered price by
describing--
(1) The name of the U.K. firm;
(2) The item to which the levy applies and quantity; and
(3) The amount of levy plus any associated indirect costs and profit
or fee.
(b) If, after award of the prime contract, the Contractor
contemplates award of a subcontract over $1 million to a U.K. firm, the
Contractor shall identify any levy before award of the subcontract and
shall provide the following information to the Contracting Officer--
(1) Name of the U.K. firm;
(2) Prime contract number;
(3) Description of item to which levy applies:
(4) Quantity being acquired; and
(5) Amount of levy plus any associated indirect costs and profit or
fee.
(c) The Offeror/Contractor should obtain assistance in identifying
the levy from the U.K. firm. In the event of difficulty, the Offeror/
Contractor may seek advice through Director of Procurement, United
Kingdom Defence Procurement Office, British Embassy, 3100 Massachusetts
Avenue, NW, Washington, DC 20006.
(d) The U.S. Government may attempt to obtain a waiver of levies
pursuant to the U.S./U.K. reciprocal waiver agreement of July 1987.
(1) Where levies are waived before contract award, the offer will be
evaluated without the levy.
(2) Where levies are identified but not waived before contract
award, the offer will be evaluated inclusive of the levies.
(3) Where a waiver of the levy is obtained after award, the U.S.
Government reserves the right to reduce the contract price by the amount
of the levy waived plus associated indirect costs, profit or fee.
(e) The Contractor agrees to insert the substance of this clause,
including this paragraph (e), in any subcontract for supplies where a
lower tier subcontract over $1 million with a U.K. firm is anticipated.
(End of clause)
[57 FR 53602, Nov. 12, 1992]
Sec. 252.225-7033 Restriction on acquisition of four ton dolly jacks.
As prescribed in 225.7018-3, use the following clause:
Restriction on Acquisition of Four Ton Dolly Jacks (Apr. 1993)
Four ton dolly jacks delivered under this contract shall be
manufactured in the United
[[Page 64]]
States unless a waiver is granted in accordance with subsection
225.7018-2 of the Defense Federal Acquisition Regulation Supplement.
(End of clause)
[58 FR 28474, May 13, 1993]
Sec. Sec. 252.225-7034 Restriction on acquisition of coal and petroleum pitch carbon fiber.
As prescribed in 225.7020-2, use the following clause:
Restriction on Acquisition of Coal and Petroleum Pitch Carbon Fiber (May
1994)
(a) This clause applies only if the end product furnished under this
contract contains coal and petroleum pitch carbon fibers.
(b) Coal and petroleum pitch carbon fibers contained in the end
product shall be manufactured in the United States or Canada using coal
and petroleum pitch precursor produced in the United States or Canada.
(c) The Contracting Officer may waive the requirement in paragraph
(b) in whole or in part. The Contractor may request a waiver from the
Contracting Officer by identifying the circumstances and including a
plan to qualify U.S. or Canadian sources expeditiously.
(End of clause)
[59 FR 27675, May 27, 1994]
Sec. 252.225-7035 Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate.
As prescribed in 225.408(a)(3), use the following provision:
Buy American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program Certificate (May 1995)
(a) Definitions.
Domestic end product, qualifying country end product, and U.S. made
end product have the meanings given in the North American Free Trade
Agreement Implementation Act or Buy American Act and Balance of Payments
Program clauses of this solicitation.
(b) Evaluation. Offers will be evaluated by giving preference to
U.S. made end products, qualifying country end products, or NAFTA
country end products over other end products.
(c) Certifications. (1) The Offeror certifies that--
(i) Each end product, except the end products listed in paragraph
(c)(2) of this provision, is a domestic end product (as defined in the
Buy American Act and Balance of Payments Program clause of this
solicitation); and
(ii) Components of unknown origin are considered to have been mined,
produced, or manufactured outside the United States or a qualifying
country.
(2) The Offeror must identify and certify all end products that are
not domestic end products.
(i) The Offeror certifies that the following supplies qualify as
``U.S. made end products'' but do not meet the definition of ``domestic
end product'': (insert line item number).
(ii) The Offeror certifies that the following supplies are
qualifying country (except Canada) end products:
(iii) The Offeror certifies that the following supplies qualify as
NAFTA country end products: (insert line item number (insert country of
origin).
(iv) The Offeror certifies that the following supplies are other
non-NAFTA country end products: (insert line item number) (insert
country of origin).
(End of provision)
[59 FR 1291, Jan. 10, 1994, as amended at 60 FR 29502, June 5, 1995]
Sec. 252.225-7036 North American Free Trade Agreement Implementation Act.
As prescribed in 225.408(a)(4), use the following clause:
North American Free Trade Agreement Implementation Act (Jan. 1994)
(a) Definitions.
(1) Components, domestic end product, end product, nonqualifying
country, qualifying country, and qualifying country end product have the
meanings given in the Buy American Act and Balance of Payments Program
clause of this contract.
(2) North American Free Trade Agreement (NAFTA) country means Canada
or Mexico.
(3) NAFTA country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a NAFTA
country; or
(ii) Has, in the case of an article which consists in whole or in
part of materials from another country or instrumentality, been
substantially transformed in a NAFTA country into a new and different
article of commerce with a name, character, or use distinct from that of
the article or articles from which it was so transformed. The term
includes services (except transportation services) incidental to its
supply, provided that the value of those incidental services
[[Page 65]]
does not exceed the value of the product itself. It does not include
service contracts as such.
(4) Non-NAFTA country end product means any end product which is not
a U.S. made end product or a NAFTA country end product.
(5) United States means the United States, its designated
possessions, Puerto Rico, and any other place subject to its
jurisdiction, but does not include leased bases or trust territories.
(6) U.S. made end product means an article which is--
(i) Wholly the growth, product or manufacture of the United States,
or
(ii) In the case of an article which consists in whole or in part of
materials from another country or instrumentality, has been
substantially transformed in the United States into a new and distinct
article of commerce with a name, character, or use distinct from that of
the article or articles from which it was so transformed.
(b) This clause implements the North American Free Trade Agreement
Implementation Act of 1993 by providing a preference for U.S. made end
products and NAFTA country end products over non-NAFTA country end
products, except non-NAFTA country end products which are qualifying
country end products.
(c) The Contractor agrees to deliver under this contract only U.S.
made end products unless, in its offer, it specified delivery of
qualifying country, NAFTA country, or non-NAFTA country end products in
the Buy American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program Certificate provision. An offer
certifying that a qualifying country end product or a NAFTA country end
product will be supplied requires the Contractor to supply a qualifying
country end product or a NAFTA country end product, whichever is
certified, or, at the Contractor's option, a U.S. made end produce.
(d) The offered price of end products listed and certified under
paragraphs (c)(2)(i) and (iv) of the Buy American Act--North American
Free Trade Agreement Implementation Act-Balance of Payments Program
Certificate provision of the solicitation must include all applicable
duty. The offered price of qualifying country end products or NAFTA
country end products for line items subject to the North American Free
Trade Agreement Implementation Act, should not include custom fees or
duty.
Alternate I (May 1995)
As prescribed in 225.408(a)(4)(B)(ii), add the following paragraph
(a)(7) to the basic clause, and substitute the following paragraph (c)
in place of paragraph (c) of the basic clause:
(a)(7) ``Canadian end product,'' means an article that--
(i) Is wholly the growth, product, or manufacturer of Canada; or
(ii) Has, in the case of an article which consists in whole or in
part of materials from another country or instrumentality, been
substantially transformed in Canada into a new and different article of
commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term includes
services (except transportation services) incidental to its supply;
provided, that the value of those incidental services does not exceed
that of the product itself. It does not include service contracts as
such.
(c) The Contractor agrees to deliver under this contract only U.S.
made end products unless, in its offer, it specified delivery of
qualifying country, NAFTA country, or non-NAFTA country end products in
the Buy American Act-North American Free Trade Agreement Implementation
Act-Balance of Payments Program Certificate provision. An offer
certifying that a qualifying country end product or a Canadian end
product will be supplied requires the Contractor to supply a qualifying
country end product or a Canadian end product, whichever is certified,
or, at the Contractor's option, a U.S. made end product.
(End of clause)
[59 FR 1291, Jan. 10, 1994, as amended at 60 FR 29502, June 5, 1995]
Sec. 252.225-7037 Duty-free entry--NAFTA country end products and supplies.
As prescribed in 225.605-70(c), use the following clause:
Duty-Free Entry--NAFTA Country End Products and Supplies (Jan. 1994)
(a) Definitions.
NAFTA country and NAFTA country end products have the meaning given
in the North American Free Trade Agreement Implementation Act clause of
this contract.
(b) The requirements of this clause apply to this contract and
subcontracts, including purchase orders, that involve supplies to be
accorded duty-free entry whether--
(1) Placed directly with a foreign concern as a prime contract; or
(2) As a subcontract or purchase order under a contract placed with
a domestic concern.
(c) Except as otherwise approved by the Contracting Officer, no
amount is or will be included in the contract price for duty for NAFTA
country end products.
(d) The Contractor warrants that--
[[Page 66]]
(1) All NAFTA country supplies, for which duty-free entry is to be
claimed, are intended to be delivered to the Government; and
(2) The Contractor will pay duty to the extent that such supplies,
or any portion thereof (if not scrap or salvage) are diverted to
nongovernmental use, other than as a result of a competitive sale made,
directed, or authorized by the Contracting Officer.
(e) The Government agrees to execute duty-free entry certificates
and to afford such assistance as appropriate to obtain the duty-free
entry of NAFTA country supplies for which the shipping documents bear
the notation specified in paragraph (f) of this clause, except as the
Contractor may otherwise agree.
(f) All shipping documents submitted to Customs, covering foreign
end products or supplies for which duty-free entry certificates are to
be issued under this clause, shall--
(1) Consign the shipments to the appropriate--
(i) Military department in care of the Contractor, including the
Contractor's delivery address; or
(ii) Military installation; and
(2) Include the following information--
(i) Prime contract number, and delivery order if applicable;
(ii) Number of the subcontract/purchase order for foreign supplies
if applicable;
(iii) Identification of carrier;
(iv) The notation: United States Government, Department of Defense
Duty-Free Entry to be claimed pursuant to Section XXII, Chapter 98,
Subchapter VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of
the United States. Upon arrival of shipment at the appropriate port of
entry, District Director of Customs, please release shipment under 19
CFR part 142, and notify Commander, Defense Contract Management Area
Operations (DCMAO) New York, ATTN: Customs Team, DCMDN-GNIC, 207 New
York Avenue, Staten Island, New York 10305-5013, for execution of
Customs Forms 7501, 7501A, or 7506 and any required duty-free entry
certificates. (Note: This notation shall be used only for direct
shipments to a U.S. military installation. In cases where the shipment
will be consigned to other than a military installation, e.g., a
domestic contractor's plant, the shipping document notation shall be
altered to insert the name and address of the contractor, agent or
broker who will notify Commander, DCMAO, NY, for execution of the duty-
free certificate.)
(v) Gross weight in pounds (if freight is based on space tonnage,
state cubic feet in addition to gross shipping weight);
(vi) Estimated value in U.S. dollars; and
(vii) Activity Address Number of the contract administration office
actually administering the prime contract, e.g., for DCMAO Dayton,
DLA8DP.
(g) Prepartion of customs forms.
(1) Except for shipments consigned to a military installation, the
contractor shall prepare, or authorize an agent to prepare, any customs
forms required for the entry of foreign supplies in connection with DoD
contracts into the United States, its possessions, or Puerto Rico,
Submit the completed customs forms to the District Director of Customs
with a copy to DCMAO NY for execution of any required duty-free entry
certificates. Shipments consigned directly to a military installation
will be released in accordance with 10.101 and 10.102 of the U.S.
Customs regulations.
(2) For shipments containing both supplies which are to be accorded
duty-free entry and supplies which are not, the Contractor shall
identify on the customs forms those items that are eligible for duty-
free entry.
(h) The Contractor agrees--
(1) To prepare (if this contract is placed directly with a foreign
supplier), or to instruct the foreign supplier to prepare, a sufficient
number of copies of the bill of lading (or other shipping document) so
that at least two of the copies accompanying the shipment will be
available for use by the District Director of Customs at the port of
entry:
(2) To consign the shipment as specified in paragraph (f) of this
clause; and
(3) To mark the exterior of all packages as follows:
(i) ``United States Government, Department of Defense;'' and
(ii) The activity address number of the contract administration
office actually administering the prime contract.
(i) The Contractor agrees to notify the Contracting Officer
administering the prime contract in writing of any purchase under the
contract of NAFTA country supplies to be accorded duty-free entry that
are to be imported into the United States for delivery to the Government
or for incorporation in end items to be delivered to the Government. The
notice shall be furnished to the contract administration office
immediately upon award to the qualifying country supplier. The notice
shall contain--
(1) Prime contractor's name, address, and CAGE code;
(2) Prime contract number, and delivery order number if applicable;
(3) Total dollar value of the prime contract or delivery order;
(4) Expiration date of the prime contract or delivery order;
(5) Foreign supplier's name and address;
(6) Number of the subcontract/purchase order for NAFTA supplies;
(7) Total dollar value of the subcontract for NAFTA supplies;
(8) Expiration date of the subcontract for NAFTA supplies;
(9) List of items purchased; and
[[Page 67]]
(10) Certification by the purchaser of NAFTA supplies as follows: I
certify that all supplies for which duty-free entry is to be claimed are
intended to be delivered to the Government or incorporated in the end
items to be delivered under this contract, and that duty shall be paid
by the Contractor to the extent that such supplies, or any portion (if
not scrap or salvage) are diverted to nongovernmental use other than as
a result of a competitive sale made, directed or authorized by the
Contracting Officer; and
(11) The scheduled delivery date(s).
(j) This clause does not apply to purchases of NAFTA country
supplies in connection with this contract if--
(1) The NAFTA country supplies are identical in nature to supplies
purchased by the Contractor or any subcontractor in connection with its
commercial business; and
(2) It is not economical or feasible to account for such supplies so
as to ensure that the amount of the supplies for which duty-free entry
is claimed does not exceed the amount purchased in connection with this
contract.
(k) The Contractor agrees to insert the substance of this clause,
including this paragraph (k) in all subcontracts for supplies. Each
subcontract shall require the subcontractor to identify this contract by
including its contract number on any shipping documents submitted to
Customs covering supplies for which duty-free entry is to be claimed
pursuant to this clause. The Contractor also agrees that the name and
address of the Contracting Officer administering the prime contract
(name and address of the contract administration office cognizant of the
prime contract), and its activity address number (Appendix G of the
Defense FAR Supplement), and the information required by paragraphs (i)
(1), (2), and (3) of this clause will be included in applicable
subcontracts.
(End of clause)
[59 FR 1292, Jan. 10, 1994; 59 FR 8041, Feb. 17, 1994, as amended at 60
FR 29503, June 5, 1995]
Sec. 252.225-7038 Restriction on acquisition of aircraft fuel cells.
As prescribed in 225.7021-3, use the following clause:
Restriction on Acquisition of Aircraft Fuel Cells (Feb. 1994)
The Contractor agrees that all aircraft fuel cells furnished under
this contract have been manufactured in the United States by a domestic-
operated entity.
(End of clause)
[59 FR 11729, Mar. 14, 1994; 59 FR 38931, Aug. 1, 1994]
Sec. 252.225-7039 Restriction on Acquisition of totally enclosed lifeboat survival systems.
As prescribed in 225.7022-4, use the following clause:
Restriction on Acquisition of Totally Enclosed Lifeboat Survival Systems
(APR 1996)
For totally enclosed lifeboat survival systems furnished under this
contract, which consist of lifeboat and associated davits and winches,
the Contractor agrees that--
(a) 50 percent or more of the components have been manufactured in
the United States, and
(b) 50 percent or more of the labor in the manufacture and assembly
of the entire system has been performed in the United States.
(End of clause)
[59 FR 19146, Apr. 22, 1994, as amended at 61 FR 13108, Mar. 26, 1996]
Sec. 252.225-7040 Machine tool list.
As prescribed in 225.7004-6(c), use the following provision:
Machine Tool List (May 1995)
The Government has identified those items listed as machine tool
accessories which are not listed in the schedule as separate line items.
The Offeror must also list any accessories to be provided which are not
specifically required by the specifications. Where the machine tool
accessory is not of U.S. or Canadian origin, as defined in the
Preference for United States and Canadian Valves and Machine Tools
clause of this solicitation, indicate the country in which the accessory
was manufactured and the cost of the accessory.
------------------------------------------------------------------------
Country of
Line Item No. Accessory manufacture Cost
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[[Page 68]]
(End of provision)
[60 FR 29503, June 5, 1995, as amended at 60 FR 61602, Nov. 30, 1995]
Sec. 252.226-7000 Notice of historically black college or university and minority institution set-aside.
As prescribed in 226.7008(a), use the following clause:
Notice of Historically Black College or University and Minority
Institution Set-Aside (Apr. 1994)
(a) Definitions. Historically black colleges and universities, as
used in this clause, means institutions determined by the Secretary of
Education to meet the requirements of 34 CFR 608.2. The term also means
any nonprofit research institution that was an integral part of such a
college or university before November 14, 1986.
Minority institutions, as used in this clause, means institutions
meeting the requirements of section 1046(3) of the Higher Education Act
of 1965 (20 U.S.C. 1135d-5(3)). The term also includes Hispanic-serving
institutions as defined in section 316(b)(1) of such Act (20 U.S.C.
1059c(b)(1)).
(b) General. (1) Offers are solicited only from historically black
colleges or universities and minority institutions.
(2) Any award resulting from this solicitation will be made only to
an offeror which is a historically black college or university or a
minority institution at the time of submission of its initial offer
including price.
(c) Agreements. The offeror will--
(1) Perform at least 50 percent of the cost of contract performance
incurred for personnel with its own employees; and
(2) Upon request by the Contracting Officer, provide evidence prior
to award that the Secretary of Education has determined the offeror to
be a historically black college or university or minority institution.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 22131, Apr. 29, 1994]
Sec. 252.226-7001 Historically black college or university and minority institution certification.
As prescribed in 226.7008(b), use the following provision:
Historically Black College or University and Minority Institution
Certification (Apr. 1994)
(a) Definitions. Historically black colleges and universities, as
used in this provision, means institutions determined by the Secretary
of Education to meet the requirements of 34 CFR 608.2. The term also
means any nonprofit research institution that was an integral part of
such a college or university before November 14, 1986.
Minority institutions, as used in this provision, means institutions
meeting the requirements of section 1046(3) of the Higher Education Act
of 1965 (20 U.S.C. 1135d-5(3)). The term also includes Hispanic-serving
institutions as defined in section 316(b)(1) of such Act (20 U.S.C.
1059c(b)(1)).
(b) Certification. The offeror certifies that it is--
________
A historically black college or university.
________
A minority institution.
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 59 FR 22131, Apr. 29, 1994]
Sec. 252.227-7000 Non-estoppel.
As prescribed at 227.7009-1, insert the following clause in patent
releases, license agreements, and assignments:
Non-Estoppel (Oct. 1966)
The Government reserves the right at any time to contest the
enforceability, validity, scope of, or the title to any patent or patent
application herein licensed without waiving or forfeiting any right
under this contract.
(End of clause)
Sec. 252.227-7001 Release of past infringement.
As prescribed at 227.7009-2(a), insert the following clause in
patent releases, license agreements, and assignments:
Release of Past Infringement (Aug. 1984)
The Contractor hereby releases each and every claim and demand which
he now has or may hereafter have against the Government for the
manufacture or use by or for the Government prior to the effective date
of this contract, of any inventions covered by (i) any of the patents
and applications for patent identified in this contract, and (ii) any
other patent or application for patent owned or hereafter acquired by
him, insofar as and only to the extent that such other patent or patent
application covers the manufacture, use, or disposition of (description
of subject matter).*
*Bracketed portions of the clause may be omitted when not
appropriate or not encompassed by the release as negotiated.
[[Page 69]]
---------------------------------------------------------------------------
(End of clause)
Sec. 252.227-7002 Readjustment of payments.
As prescribed at 227.7009-2(b), insert the following clause in
patent releases, license agreements, and assignments:
Readjustment of Payments (Oct. 1966)
(a) If any license, under substantially the same patents and
authorizing substantially the same acts which are authorized under this
contract, has been or shall hereafter be granted within the United
States, on royalty terms which are more favorable to the licensee than
those contained herein, the Government shall be entitled to the benefit
of such more favorable terms with respect to all royalties accruing
under this contract after the date such more favorable terms become
effective, and the Contractor shall promptly notify the Secretary in
writing of the granting of such more favorable terms.
(b) In the event any claim of any patent hereby licensed is
construed or held invalid by decision of a court of competent
jurisdiction, the requirement to pay royalties under this contract
insofar as its arises solely by reason of such claim, and any other
claim not materially different therefrom, shall be interpreted in
conformity with the court's decision as to the scope of validity of such
claims; Provided, however, that in the event such decision is modified
or reversed on appeal, the requirement to pay royalties under this
contract shall be interpreted in conformity with the final decision
rendered on such appeal.
(End of clause)
Sec. 252.227-7003 Termination.
As prescribed at 227.7009-2(c), insert the following clause in
patent releases, license agreements, and assignments:
Termination (Aug. 1984)
Notwithstanding any other provision of this contract, the Government
shall have the right to terminate the within license, in whole or in
part, by giving the Contractor not less than thirty (30) days notice in
writing of the date such termination is to be effective; provided,
however, that such termination shall not affect the obligation of the
Government to pay royalties which have accrued prior to the effective
date of such termination.
(End of clause)
Sec. 252.227-7004 License grant.
As prescribed at 227.7009-3(a), insert the following clause in
patent releases, license agreements, and assignments:
License Grant (Aug. 1984)
(a) The Contractor hereby grants to the Government an irrevocable,
nonexclusive, nontransferable, and paid up license under the following
patents, applications for patent, and any patents granted on such
applications, and under any patents which may issue as the result of any
reissue, division or continuation thereof, to practice by or cause to be
practiced for the Government throughout the world, any and all of the
inventions thereunder, in the manufacture and use of any article or
material, in the use of any method or process, and in the disposition of
any article or material in accordance with law:
U.S. Patent No._________________________________________________________
Date____________________________________________________________________
Application Serial No.__________________________________________________
Filing Date_____________________________________________________________
together with corresponding foreign patents and foreign applications for
patents, insofar as the Contractor has the right to grant licenses
thereunder without incurring an obligation to pay royalties or other
compensation to others solely on account of such grant.
(b) No rights are granted or implied by the agreement under any
other patents other than as provided above or by operation of law.
(c) Nothing contained herein shall limit any rights which the
Government may have obtained by virtue of prior contracts or by
operation of law or otherwise.
(End of clause)
Sec. 252.227-7005 License term.
As prescribed at 227.7009-3(b), insert one of the following clauses
in patent releases, license agreements, and assignments:
License Term (Aug. 1984)
Alternate I (Aug. 1984)
The license hereby granted shall remain in full force and effect for
the full term of each of the patents referred to in the ``License
Grant'' clause of this contract and any and all patents hereafter issued
on applications for patent referred to in such ``License Grant'' clause.
[[Page 70]]
Alternate II (Aug. 1984)
The license hereby granted shall terminate on the ________day of
________ 19________; Provided, however, that said termination shall be
without prejudice to the completion of any contract entered into by the
Government prior to said date of termination or to the use or
disposition thereafter of any articles or materials manufactured by or
for the Government under this license.
Sec. 252.227-7006 License grant--running royalty.
As prescribed at 227.7009-4(a), insert the following clause in
patent releases, license agreements, and assignments:
License Grant--Running Royalty (Aug. 1984)
(a) The Contractor hereby grants to the Government, as represented
by the Secretary of __________, an irrevocable, nonexclusive,
nontransferable license under the following patents, applications for
patent, and any patents granted on such applications, and under any
patents which may issue as the result of any reissue, division, or
continuation thereunder to practice by or cause to be practiced for the
Department of ________, throughout the world, any and all of the
inventions thereunder in the manufacture and use of any article or
material, in the use of any method or process, and in the disposition of
any article or material in accordance with law:
U.S. Patent No._________________________________________________________
Date____________________________________________________________________
Application Serial No.__________________________________________________
Filing Date_____________________________________________________________
together with corresponding foreign patents and foreign applications for
patent, insofar as the Contractor has the right to grant licenses
thereunder without incurring an obligation to pay royalties or other
compensation to others solely on account of such grant.
(b) No rights are granted or implied by the agreement under any
other patents other than as provided above or by operation of law.
(c) Nothing contained herein shall limit any rights which the
Government may have obtained by virtue of prior contracts or by
operation of law or otherwise.
(End of clause)
Sec. 252.227-7007 License term--running royalty.
As prescribed at 227.7009-4(b), insert the following clause in
patent releases, license agreements, and assignments:
License Term--Running Royalty (Aug. 1984)
The license hereby granted shall remain in full force and effect for
the full term of each of the patents referred to in the ``License
Grant'' clause of this contract and any and all patents hereafter issued
on applications for patent referred to above unless sooner terminated as
elsewhere herein provided.
(End of clause)
Sec. 252.227-7008 Computation of royalties.
As prescribed at 227.7009-4(c), insert the following clause in
patent releases, license agreements, and assignments:
Computation of Royalties (Aug. 1984)
Subject to the conditions hereinafter stated, royalties shall accrue
to the Contractor under this agreement on all articles or materials
embodying, or manufactured by the use of, any or all inventions claimed
under any unexpired United States patent licensed herein, upon
acceptance thereof by the Department of ____________, at the rate of
________ percent of the net selling price of such articles or materials
(amount) per (name of item) * whether manufactured by the Government or
procured under a fixed price contract, and at the rate of (amount) per
(name of item) acquired or manufactured by a Contractor performing under
a cost-reimbursement contract. With respect to such articles or
materials made by the Department of ____________, ``net selling price,''
as used in this paragraph, means the actual cost of direct labor and
materials without allowance for overhead and supervision.
* Use bracketed matter as appropriate.
(End of clause)
Sec. 252.227-7009 Reporting and payment of royalties.
As prescribed at 227.7009-4(d), insert the following clause in
patent releases, license agreements, and assignments:
Reporting and Payment of Royalties (Aug. 1984)
(a) The (procuring office) shall, on or before the sixtieth (60th)
day next following the end of each yearly* period ending
[[Page 71]]
____________ during which royalties have accrued under this license,
deliver to the Contractor, subject to military security regulations, a
report in writing furnishing necessary information relative to royalties
which have accrued under this contract.
---------------------------------------------------------------------------
* The frequency, date, and length of reporting periods should be
selected as appropriate to the particular circumstances of the contract.
---------------------------------------------------------------------------
(b) Royalties which have accrued under this contract during the
yearly* period ending ____________ shall be paid to the Contractor (if
appropriations therefor are available or become available) within sixty
(60) days next following the receipt of a voucher from the Contractor
submitted in accordance with the report referred to in (a) of this
clause; Provided, that the Government shall not be obligated to pay, in
respect of any such yearly period, on account of the combined royalties
accruing under this contract directly and under any separate licenses
granted pursuant to the ``License to Other Government Agencies'' clause
(if any) of this contract, an amount greater than ____________ dollars
($____________), and if such combined royalties exceed the said maximum
yearly obligation, each department or agency shall pay a pro rata share
of the said maximum yearly obligation as determined by the proportion
its accrued royalties bear to the combined total of accrued royalties.
(End of clause)
Sec. 252.227-7010 License to other Government agencies.
As prescribed at 227.7009-4(e), insert the following clause in
patent releases, license agreements, and assignments:
License to Other Government Agencies (Aug. 1984)
The Contractor hereby agrees to grant a separate license under the
patents, applications for patents, and improvements referred to in the
``License Grant'' clause of this contract, on the same terms and
conditions as appear in this license contract, to any other department
or agency of the Government at any time on receipt of a written request
for such a license from such department or agency; Provided, however,
that as to royalties which accrue under such separate licenses, reports
and payments shall be made directly to the Contractor by each such other
department or agency pursuant to the terms of such separate licenses.
The Contractor shall notify the Licensee hereunder promptly upon receipt
of any request for license hereunder.
(End of clause)
Sec. 252.227-7011 Assignments.
As prescribed at 227.7010, insert the following clause in
assignments.
Assignment (Aug. 1984)
The Contractor hereby conveys to the Government, as represented by
the Secretary of ____________, the entire right, title, and interest in
and to the following patents (and applications for patent), in and to
the inventions thereof, and in and to all claims and demands whatsoever
for infringement thereof heretofore accrued, the same to be held and
enjoyed by the Government through its duly appointed representatives to
the full end of the term of said patents (and to the full end of the
terms of all patents which may be granted upon said applications for
patent, or upon any division, continuation-in-part or continuation
thereof):
U.S. Patent No._________________________________________________________
Date____________________________________________________________________
Name of Inventor________________________________________________________
U.S. Application Serial No._____________________________________________
Filing Date_____________________________________________________________
Name of Inventor________________________________________________________
together with corresponding foreign patents and applications for patent
insofar as the Contractor has the right to assign the same.
(End of clause)
Sec. 252.227-7012 Patent license and release contract.
As prescribed at 227.7012, insert the following clause in patent
releases, license agreements, and assignments:
____________(Contract No.)
Patent License and Release Contract (Aug. 1984)
THIS CONTRACT is effective as of the ____________ day of
____________ 19____________, between the UNITED STATES OF AMERICA
(hereinafter called the Government), and ____________ (hereinafter
called the Contractor), (a corporation organized and existing under the
laws of the State of ____________), (a partnership consisting of
____________), (an individual trading as ____________), of the City of
____________, in the State of ____________.
Whereas, Contractor warrants that he has the right to grant the
within license and release, and the Government desires to procure the
same, and
Whereas, this contract is authorized by law, including 10 U.S.C.
2386.
Now Therefore, in consideration of the grant, release and agreements
hereinafter recited, the parties have agreed as follows:
Article 1. License Grant.*
---------------------------------------------------------------------------
* If only a release is procured, delete this article; if an
assignment is procured, use the clause at 252.227-7011.
---------------------------------------------------------------------------
[[Page 72]]
(Insert the clause at 252.227-7004 for a paid up license, or the
---------------------------------------------------------------------------
clause at 252.227-7006 for a license on a running royalty basis.)
Article 2. License Term.*
(Insert the appropriate alternative clause at 252.227-7005 for a
paid up license, or the clause at 252.227-7007 for a license on a
running royalty basis.)
Article 3. Release of Past Infringement.
(Insert the clause at 252.227-7001.)
Article 4. Non-Estoppel.
(Insert the clause at 252.227-7000.)
Article 5. Payment.
The Contractor shall be paid the sum of ________ Dollars
($____________) in full compensation for the rights herein granted and
agreed to be granted. (For a license on a running royalty basis, insert
the clause at 252.227-7006 in accordance with the instructions therein,
and also the clause as specified at 252.227-7002 and 252.227-7009 and
252.227-7010.)
Article 6. Officials Not to Benefit.
(Insert the clause at FAR 52.203-1.)
Article 7. Covenant Against Contingent Fees.
(Insert the clause at FAR 52.203-5.)
Article 8. Assignment of Claims.
(Insert the clause at FAR 52.232-23.)
Article 9. Gratuities.
(Insert the clause at FAR 52.203-3.)
Article 10. Disputes.
(Insert the clause at FAR 52.233-1.)
Article 11. Successors and Assignees.
This Agreement shall be binding upon the Contractor, his
successors** and assignees, but nothing contained in this Article shall
authorize an assignment of any claim against the Government otherwise
than as permitted by law.
---------------------------------------------------------------------------
** When the Contractor is an individual, change ``successors'' to
``heirs''; if a partnership, modify appropriately.
---------------------------------------------------------------------------
In Witness Whereof, the parties hereto have executed this contract.
THE UNITED STATES OF AMERICA
By______________________________________________________________________
Date____________________________________________________________________
(Signature and Title of Contractor)_____________________________________
By______________________________________________________________________
Date____________________________________________________________________
(End of clause)
Sec. 252.227-7013 Rights in technical data--Noncommercial items.
As prescribed in 227.7103-6(a), use the following clause:
Rights in Technical Data--Noncommercial Items (NOV 1995)
(a) Definitions. As used in this clause:
(1) Computer data base means a collection of data recorded in a form
capable of being processed by a computer. The term does not include
computer software.
(2) Computer program means a set of instructions, rules, or routines
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
(3) Computer software means computer programs, source code, source
code listings, object code listings, design details, algorithms,
processes, flow charts, formulae and related material that would enable
the software to be reproduced, recreated, or recompiled. Computer
software does not include computer data bases or computer software
documentation.
(4) Computer software documentation means owner's manuals, user's
manuals, installation instructions, operating instructions, and other
similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
(5) Detailed manufacturing or process data means technical data that
describe the steps, sequences, and conditions of manufacturing,
processing or assembly used by the manufacturer to produce an item or
component or to perform a process.
(6) Developed means that an item, component, or process exists and
is workable. Thus, the item or component must have been constructed or
the process practiced. Workability is generally established when the
item, component, or process has been analyzed or tested sufficiently to
demonstrate to reasonable people skilled in the applicable art that
there is a high probability that it will operate as intended. Whether,
how much, and what type of analysis or testing is required to establish
workability depends on the nature of the item, component, or process,
and the state of the art. To be considered ``developed,'' the item,
component, or process need not be at the stage where it could be offered
for sale or sold on the commercial market, nor must the item, component,
or process be actually reduced to practice within the meaning of Title
35 of the United States Code.
(7) Developed exclusively at private expense means development was
accomplished entirely with costs charged to indirect cost pools, costs
not allocated to a government contract, or any combination thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater than
the firm-fixed-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at government,
private, or mixed expense.
[[Page 73]]
(8) Developed exclusively with government funds means development
was not accomplished exclusively or partially at private expense.
(9) Developed with mixed funding means development was accomplished
partially with costs charged to indirect cost pools and/or costs not
allocated to a government contract, and partially with costs charged
directly to a government contract.
(10) Form, fit, and function data means technical data that
describes the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item, component, or process to the extent necessary to
permit identification of physically and functionally interchangeable
items.
(11) Government purpose means any activity in which the United
States Government is a party, including cooperative agreements with
international or multi-national defense organizations, or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose technical data for commercial
purposes or authorize others to do so.
(12) Government purpose rights means the rights to--
(i) Use, modify, reproduce, release, perform, display, or disclose
technical data within the Government without restriction; and
(ii) Release or disclose technical data outside the Government and
authorize persons to whom release or disclosure has been made to use,
modify, reproduce, release, perform, display, or disclose that data for
United States government purposes.
(13) Limited rights means the rights to use, modify, reproduce,
release, perform, display, or disclose technical data, in whole or in
part, within the Government. The Government may not, without the written
permission of the party asserting limited rights, release or disclose
the technical data outside the Government, use the technical data for
manufacture, or authorize the technical data to be used by another
party, except that the Government may reproduce, release or disclose
such data or authorize the use or reproduction of the data by persons
outside the Government if reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure of technical data (other than detailed
manufacturing or process data) to, or use of such data by, a foreign
government that is in the interest of the Government and is required for
evaluational or informational purposes;
(iii) Subject to a prohibition on the further reproduction, release,
disclosure, or use of the technical data; and
(iv) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
(14) Technical data means recorded information, regardless of the
form or method of the recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or data incidental to contract administration, such as
financial and/or management information.
(15) Unlimited rights means rights to use, modify, reproduce,
perform, display, release, or disclose technical data in whole or in
part, in any manner, and for any purpose whatsoever, and to have or
authorize others to do so.
(b) Rights in technical data. The Contractor grants or shall obtain
for the Government the following royalty free, world-wide, nonexclusive,
irrevocable license rights in technical data other than computer
software documentation (see the Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation clause of
this contract for rights in computer software documentation):
(1) Unlimited rights. The Government shall have unlimited rights in
technical data that are--
(i) Data pertaining to an item, component, or process which has been
or will be developed exclusively with Government funds;
(ii) Studies, analyses, test data, or similar data produced for this
contract, when the study, analysis, test, or similar work was specified
as an element of performance;
(iii) Created exclusively with Government funds in the performance
of a contract that does not require the development, manufacture,
construction, or production of items, components, or processes;
(iv) Form, fit, and function data;
(v) Necessary for installation, operation, maintenance, or training
purposes (other than detailed manufacturing or process data);
(vi) Corrections or changes to technical data furnished to the
Contractor by the Government;
(vii) Otherwise publicly available or have been released or
disclosed by the Contractor or subcontractor without restrictions on
further use, release or disclosure, other than a release or disclosure
resulting from the sale, transfer, or other assignment of interest in
the technical data to another party or the sale or transfer of some or
all of a business entity or its assets to another party;
(viii) Data in which the Government has obtained unlimited rights
under another Government contract or as a result of negotiations; or
[[Page 74]]
(ix) Data furnished to the Government, under this or any other
Government contract or subcontract thereunder, with--
(A) Government purpose license rights or limited rights and the
restrictive condition(s) has/have expired; or
(B) Government purpose rights and the Contractor's exclusive right
to use such data for commercial purposes has expired.
(2) Government purpose rights. (i) The Government shall have
government purpose rights for a five-year period, or such other period
as may be negotiated, in technical data--
(A) That pertain to items, components, or processes developed with
mixed funding except when the Government is entitled to unlimited rights
in such data as provided in paragraphs (b)(ii) and (b)(iv) through
(b)(ix) of this clause; or
(B) Created with mixed funding in the performance of a contract that
does not require the development, manufacture, construction, or
production of items, components, or processes.
(ii) The five-year period, or such other period as may have been
negotiated, shall commence upon execution of the contract, subcontract,
letter contract (or similar contractual instrument), contract
modification, or option exercise that required development of the items,
components, or processes or creation of the data described in paragraph
(b)(2)(i)(B) of this clause. Upon expiration of the five-year or other
negotiated period, the Government shall have unlimited rights in the
technical data.
(iii) The Government shall not release or disclose technical data in
which it has government purpose rights unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the non-disclosure agreement at 227.7103-7 of the Defense
Federal Acquisition Regulation Supplement (DFARS); or
(B) The recipient is a Government contractor receiving access to the
data for performance of a Government contract that contains the clause
at DFARS 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends.
(iv) The Contractor has the exclusive right, including the right to
license others, to use technical data in which the Government has
obtained government purpose rights under this contract for any
commercial purpose during the time period specified in the government
purpose rights legend prescribed in paragraph (f)(2) of this clause.
(3) Limited rights. (i) Except as provided in paragraphs (b)(1)(ii)
and (b)(1)(iv) through (b)(1)(ix) of this clause, the Government shall
have limited rights in technical data--
(A) Pertaining to items, components, or processes developed
exclusively at private expense and marked with the limited rights legend
prescribed in paragraph (f) of this clause; or
(B) Created exclusively at private expense in the performance of a
contract that does not require the development, manufacture,
construction, or production of items, components, or processes.
(ii) The Government shall require a recipient of limited rights data
for emergency repair or overhaul to destroy the data and all copies in
its possession promptly following completion of the emergency repair/
overhaul and to notify the Contractor that the data have been destroyed.
(iii) The Contractor, its subcontractors, and suppliers are not
required to provide the Government additional rights to use, modify,
reproduce, release, perform, display, or disclose technical data
furnished to the Government with limited rights. However, if the
Government desires to obtain additional rights in technical data in
which it has limited rights, the Contractor agrees to promptly enter
into negotiations with the Contracting Officer to determine whether
there are acceptable terms for transferring such rights. All technical
data in which the Contractor has granted the Government additional
rights shall be listed or described in a license agreement made part of
the contract. The license shall enumerate the additional rights granted
the Government in such data.
(4) Specifically negotiated license rights. The standard license
rights granted to the Government under paragraphs (b)(1) through (b)(3)
of this clause, including the period during which the Government shall
have government purpose rights in technical data, may be modified by
mutual agreement to provide such rights as the parties consider
appropriate but shall not provide the Government lesser rights than are
enumerated in paragraph (a)(13) of this clause. Any rights so negotiated
shall be identified in a license agreement made part of this contract.
(5) Prior government rights. Technical data that will be delivered,
furnished, or otherwise provided to the Government under this contract,
in which the Government has previously obtained rights shall be
delivered, furnished, or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
reproduce, release, perform, display, or disclose the data have expired
or no longer apply.
(6) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of technical
data made in accordance with paragraph (a)(13) or (b)(2)(iii) of this
clause, in accordance with the terms of a license negotiated under
paragraph (b)(4) of this clause,
[[Page 75]]
or by others to whom the recipient has released or disclosed the data
and to seek relief solely from the party who has improperly used,
modified, reproduced, released, performed, displayed, or disclosed
Contractor data marked with restrictive legends.
(c) Contractor rights in technical data. All rights not granted to
the Government are retained by the Contractor.
(d) Third party copyrighted data. The Contractor shall not, without
the written approval of the Contracting Officer, incorporate any
copyrighted data in the technical data to be delivered under this
contract unless the Contractor is the copyright owner or has obtained
for the Government the license rights necessary to perfect a license or
licenses in the deliverable data of the appropriate scope set forth in
paragraph (b) of this clause, and has affixed a statement of the license
or licenses obtained on behalf of the Government and other persons to
the data transmittal document.
(e) Identification and delivery of data to be furnished with
restrictions on use, release, or disclosure. (1) This paragraph does not
apply to restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause, technical
data that the Contractor asserts should be furnished to the Government
with restrictions on use, release, or disclosure are identified in an
attachment to this contract (the Attachment). The Contractor shall not
deliver any data with restrictive markings unless the data are listed on
the Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new information
or inadvertent omissions unless the inadvertent omissions would have
materially affected the source selection decision. Such identification
and assertion shall be submitted to the Contracting Officer as soon as
practicable prior to the scheduled date for delivery of the data, in the
following format, and signed by an official authorized to contractually
obligate the Contractor: Identification and Assertion of Restrictions on
the Government's Use, Release, or Disclosure of Technical Data.
The Contractor asserts for itself, or the persons identified below,
that the Government's rights to use, release, or disclose the following
technical data should be restricted--
----------------------------------------------------------------------------------------------------------------
Technical data to be furnished with Basis for assertion Asserted rights Name of person asserting
restrictions \1\ \2\ category \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST)................................ (LIST)................ (LIST)............... (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components or processes developed at private expense, identify both
the data and each such item, component, or process.
\2\ Generally, the development of an item, component, or process at private expense, either exclusively or
partially, is the only basis for asserting restrictions on the Government's rights to use, release, or
disclose technical data pertaining to such items, components, or processes. Indicate whether development was
exclusively or partially at private expense. If development was not at private expense, enter the specific
reason for asserting that the Government's rights should be restricted.
\3\ Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in
SBIR data generated under another contract, limited or government purpose rights under this or a prior
contract, or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date____________________________________________________________________
Printed Name and Title__________________________________________________
_______________________________________________________________________
Signature_______________________________________________________________
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor shall
provide sufficient information to enable the Contracting Officer to
evaluate the Contractor's assertions. The Contracting Officer reserves
the right to add the Contractor's assertions to the Attachment and
validate any listed assertion, at a later date, in accordance with the
procedures of the Validation of Restrictive Markings on Technical Data
clause of this contract.
(f) Marking requirements. The Contractor, and its subcontractors or
suppliers, may only assert restrictions on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose technical
data to be delivered under this contract by marking the deliverable data
subject to restriction. Except as provided in paragraph (f)(5) of this
clause, only the following legends are authorized under this contract:
the government purpose rights legend at paragraph (f)(2) of this clause;
the limited rights legend at paragraph (f)(3) of this clause; or the
special license rights legend at paragraph (f)(4) of this clause; and/or
a notice of copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark the
appropriate legend on all technical data that qualify for such markings.
The authorized legends shall be placed on the transmittal document or
storage container and, for printed material, each page of the printed
material containing technical data for which restrictions are asserted.
When only portions of a page of printed material are subject to the
asserted restrictions, such portions shall be identified by circling,
underscoring, with a note, or other appropriate identifier. Technical
data transmitted directly from one computer or computer terminal to
another shall contain a notice of asserted restrictions. Reproductions
of technical data or any
[[Page 76]]
portions thereof subject to asserted restrictions shall also reproduce
the asserted restrictions.
(2) Government purpose rights markings. Data delivered or otherwise
furnished to the Government purpose rights shall be marked as follows:
Government Purpose Rights
Contract No.____________________________________________________________
Contractor Name_________________________________________________________
Contractor Address______________________________________________________
_______________________________________________________________________
Expiration Date_________________________________________________________
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose these technical data are restricted by paragraph
(b)(2) of the Rights in Technical Data--Noncommercial Items clause
contained in the above identified contract. No restrictions apply after
the expiration date shown above. Any reproduction of technical data or
portions thereof marked with this legend must also reproduce the
markings.
(End of legend)
(3) Limited rights markings. Data delivered or otherwise furnished
to the Government with limited rights shall be marked with the following
legend:
Limited Rights
Contract No.____________________________________________________________
Contractor Name_________________________________________________________
Contractor Address______________________________________________________
_______________________________________________________________________
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose these technical data are restricted by paragraph
(b)(3) of the Rights in Technical Data--Noncommercial Items clause
contained in the above identified contract. Any reproduction of
technical data or portions thereof marked with this legend must also
reproduce the markings. Any person, other than the Government, who has
been provided access to such data must promptly notify the above named
Contractor.
(End of legend)
(4) Special license rights markings. (i) Data in which the
Government's rights stem from a specifically negotiated license shall be
marked with the following legend:
Special License Rights
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose these data are restricted by Contract No.
________________ (Insert contract number) ________________, License No.
________________ (Insert license identifier) ________________. Any
reproduction of technical data or portions thereof marked with this
legend must also reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not include
government purpose license rights acquired under a prior contract (see
paragraph (b)(5) of this clause).
(5) Pre-existing data markings. If the terms of a prior contract or
license permitted the Contractor to restrict the Government's rights to
use, modify, reproduce, release, perform, display, or disclose technical
data deliverable under this contract, and those restrictions are still
applicable, the Contractor may mark such data with the appropriate
restrictive legend for which the data qualified under the prior contract
or license. The marking procedures in paragraph (f)(1) of this clause
shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the Contractor and its subcontractors or suppliers that
will deliver technical data with other than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by the
terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data delivered under this contract.
(h) Removal of unjustified and nonconforming markings. (1)
Unjustified technical data markings. The rights and obligations of the
parties regarding the validation of restrictive markings on technical
data furnished or to be furnished under this contract are contained in
the Validation of Restrictive Markings on Technical Data clause of this
contract. Notwithstanding any provision of this contract concerning
inspection and acceptance, the Government may ignore or, at the
Contractor's expense, correct or strike a marking if, in accordance with
the procedures in the Validation of Restrictive Markings on Technical
Data clause of this contract, a restrictive marking is determined to be
unjustified.
(2) Nonconforming technical data markings. A nonconforming marking
is a marking placed on technical data delivered or otherwise furnished
to the Government under this contract that is not in the format
authorized by this contract. Correction of nonconforming markings is not
subject to the Validation of Restrictive Markings on Technical Data
clause of this contract. If the Contracting Officer notifies the
Contractor of a nonconforming marking and the Contractor fails to remove
or correct such marking within sixty (60) days, the Government may
ignore or, at the Contractor's expense, remove or correct any
nonconforming marking.
[[Page 77]]
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed as
affecting the scope of any license or other right otherwise granted to
the Government under any patent.
(j) Limitation on charges for rights in technical data. (1) The
Contractor shall not charge to this contract any cost, including, but
not limited to, license fees, royalties, or similar charges, for rights
in technical data to be delivered under this contract when--
(i) The Government has acquired, by any means, the same or greater
rights in the data; or
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at any
tier, or costs incurred by the Contractor to acquire rights in
subcontractor or supplier technical data, if the subcontractor or
supplier has been paid for such rights under any other Government
contract or under a license conveying the rights to the Government; and
(ii) Does not include the reasonable costs of reproducing, handling,
or mailing the documents or other media in which the technical data will
be delivered.
(k) Applicability to subcontractors or suppliers. (1) The Contractor
shall ensure that the rights afforded its subcontractors and suppliers
under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion,
and delivery processes of paragraph (e) of this clause are recognized
and protected.
(2) Whenever any technical data for noncommercial items is to be
obtained from a subcontractor or supplier for delivery to the Government
under this contract, the Contractor shall use this same clause in the
subcontract or other contractual instrument, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties. No other clause shall be used to enlarge or
diminish the Government's, the Contractor's, or a higher-tier
subcontractor's or supplier's rights in a subcontractor's or supplier's
technical data.
(3) Technical data required to be delivered by a subcontractor or
supplier shall normally be delivered to the next higher-tier contractor,
subcontractor, or supplier. However, when there is a requirement in the
prime contract for data which may be submitted with other than unlimited
rights by a subcontractor or supplier, then said subcontractor or
supplier may fulfill its requirement by submitting such data directly to
the Government, rather than through a higher-tier contractor,
subcontractor, or supplier.
(4) The Contractor and higher-tier subcontractors or suppliers shall
not use their power to award contracts as economic leverage to obtain
rights in technical data from their subcontractors or suppliers.
(5) In no event shall the Contractor use its obligation to recognize
and protect subcontractor or supplier rights in technical data as an
excuse for failing to satisfy its contractual obligations to the
Government.
(End of clause)
Alternate I (June 1995)
As prescribed in 227.7103-6(b), add the following paragraph (l) to
the basic clause:
(l) Publication for sale. (1) This paragraph only applies to
technical data in which the Government has obtained unlimited rights or
a license to make an unrestricted release of technical data.
(2) The Government shall not publish a deliverable technical data
item or items identified in this contract as being subject to paragraph
(l) of this clause or authorize others to publish such data on its
behalf if, prior to publication for sale by the Government and within
twenty-four (24) months following the date specified in this contract
for delivery of such data or the removal of any national security or
export control restrictions, whichever is later, the Contractor
publishes that item or items for sale and promptly notifies the
Contracting Officer of such publication(s). Any such publication shall
include a notice identifying the number of this contract and the
Government's rights in the published data.
(3) This limitation on the Government's right to publish for sale
shall continue as long as the data are reasonably available to the
public for purchase.
[60 FR 33490, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995]
Sec. 252.227-7014 Rights in noncommercial computer software and noncommercial computer software documentation.
As prescribed in 227.7203-6(a)(1), use the following clause.
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation (June 1995)
(a) Definitions. As used in this clause:
(1) Commercial computer software means software developed or
regularly used for nongovernmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) Has not been offered, sold, leased, or licensed to the public
but will be available for commercial sale, lease, or license in time
[[Page 78]]
to satisfy the delivery requirements of this contract; or
(iv) Satisfies a criterion expressed in paragraph (a)(1) (i), (ii),
or (iii) of this clause and would require only minor modification to
meet the requirements of this contract.
(2) Computer database means a collection of recorded data in a form
capable of being processed by a computer. The term does not include
computer software.
(3) Computer program means a set of instructions, rules, or
routines, recorded in a form that is capable of causing a computer to
perform a specific operation or series of operations.
(4) Computer software means computer programs, source code, source
code listings, object code listings, design details, algorithms,
processes, flow charts, formulae, and related material that would enable
the software to be reproduced, recreated, or recompiled. Computer
software does not include computer databases or computer software
documentation.
(5) Computer software documentation means owner's manuals, user's
manuals, installation instructions, operating instructions, and other
similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
(6) Developed means that--
(i) A computer program has been successfully operated in a computer
and tested to the extent sufficient to demonstrate to reasonable persons
skilled in the art that the program can reasonably be expected to
perform its intended purpose;
(ii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to reasonable
persons skilled in the art that the software can reasonably be expected
to perform its intended purpose; or
(iii) Computer software documentation required to be delivered under
a contract has been written, in any medium, in sufficient detail to
comply with requirements under that contract.
(7) Developed exclusively at private expense means development was
accomplished entirely with costs charged to indirect cost pools, costs
not allocated to a government contract, or any combination thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater than
the firm-fixed-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at government,
private, or mixed expense.
(8) Developed exclusively with government funds means development
was not accomplished exclusively or partially at private expense.
(9) Developed with mixed funding means development was accomplished
partially with costs charged to indirect cost pools and/or costs not
allocated to a government contract, and partially with costs charged
directly to a government contract.
(10) Government purpose means any activity in which the United
States Government is a party, including cooperative agreements with
international or multi-national defense organizations or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose computer software or computer
software documentation for commercial purposes or authorize others to do
so.
(11) Government purpose rights means the rights to--
(i) Use, modify, reproduce, release, perform, display, or disclose
computer software or computer software documentation within the
Government without restriction; and
(ii) Release or disclose computer software or computer software
documentation outside the Government and authorize persons to whom
release or disclosure has been made to use, modify, reproduce, release,
perform, display, or disclose the software or documentation for United
States government purposes.
(12) Minor modification means a modification that does not
significantly alter the nongovernmental function or purpose of the
software or is of the type customarily provided in the commercial
marketplace.
(13) Noncommercial computer software means software that does not
qualify as commercial computer software under paragraph (a)(1) of this
clause.
(14) Restricted rights apply only to noncommercial computer software
and mean the Government's rights to--
(i) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(ii) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of this
clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs (a)(14)
(i) and (iii) of this clause; and
[[Page 79]]
(B) Not release or disclose the modified software except as provided
in paragraphs (a)(14) (ii), (v) and (vi) of this clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in support
of this or a related contract to use computer software to diagnose and
correct deficiencies in a computer program, to modify computer software
to enable a computer program to be combined with, adapted to, or merged
with other computer programs or when necessary to respond to urgent
tactical situations, provided that--
(A) The Government notifies the party which has granted restricted
rights that a release or disclosure to particular contractors or
subcontractors was made;
(B) Such contractors or subcontractors are subject to the use and
non-disclosure agreement at 227.7103-7 of the Defense Federal
Acquisition Regulation Supplement (DFARS) or are Government contractors
receiving access to the software for performance of a Government
contract that contains the clause at DFARS 252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(14)(iv) of this clause, for any other purpose;
and
(D) Such use is subject to the limitation in paragraph (a)(14)(i) of
this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under this
or a related contract to use the computer software when necessary to
perform the repairs or overhaul, or to modify the computer software to
reflect the repairs or overhaul made, provided that--
(A) The intended recipient is subject to the use and non-disclosure
agreement at DFARS 227.7103-7 or is a Government contractor receiving
access to the software for performance of a Government contract that
contains the clause at DFARS 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information Marked with Restrictive
Legends; and
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(14)(iv) of this clause, for any other purpose.
(15) Unlimited rights means rights to use, modify, reproduce,
release, perform, display, or disclose computer software or computer
software documentation in whole or in part, in any manner and for any
purpose whatsoever, and to have or authorize others to do so.
(b) Rights in computer software or computer software documentation.
The Contractor grants or shall obtain for the Government the following
royalty free, world-wide, nonexclusive, irrevocable license rights in
noncommercial computer software or computer software documentation. All
rights not granted to the Government are retained by the Contractor.
(1) Unlimited rights. The Government shall have unlimited rights
in--
(i) Computer software developed exclusively with Government funds;
(ii) Computer software documentation required to be delivered under
this contract;
(iii) Corrections or changes to computer software or computer
software documentation furnished to the Contractor by the Government;
(iv) Computer software or computer software documentation that is
otherwise publicly available or has been released or disclosed by the
Contractor or subcontractor without restriction on further use, release
or disclosure, other than a release or disclosure resulting from the
sale, transfer, or other assignment of interest in the software to
another party or the sale or transfer of some or all of a business
entity or its assets to another party;
(v) Computer software or computer software documentation obtained
with unlimited rights under another Government contract or as a result
of negotiations; or
(vi) Computer software or computer software documentation furnished
to the Government, under this or any other Government contract or
subcontract thereunder with--
(A) Restricted rights in computer software, limited rights in
technical data, or government purpose license rights and the restrictive
conditions have expired; or
(B) Government purpose rights and the Contractor's exclusive right
to use such software or documentation for commercial purposes has
expired.
(2) Government purpose rights. (i) Except as provided in paragraph
(b)(1) of this clause, the Government shall have government purpose
rights in computer software development with mixed funding.
(ii) Government purpose rights shall remain in effect for a period
of five years unless a different period has been negotiated. Upon
expiration of the five-year or other negotiated period, the Government
shall have unlimited rights in the computer software or computer
software documentation. The government purpose rights period shall
commence upon execution of the contract, subcontract, letter contract
(or similar contractual instrument), contract modification, or option
exercise that required development of the computer software.
[[Page 80]]
(iii) The Government shall not release or disclose computer software
in which it has government purpose rights to any other person unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at DFARS 227.7103-7; or
(B) The recipient is a Government contractor receiving access to the
software or documentation for performance of a Government contract that
contains the clause at DFARS 252.227-7025, Limitations on the Use or
Disclosure of Government Furnished Information Marked with Restrictive
Legends.
(3) Restricted rights. (i) The Government shall have restricted
rights in noncommercial computer software required to be delivered or
otherwise provided to the Government under this contract that were
developed exclusively at private expense.
(ii) The Contractor, its subcontractors, or suppliers are not
required to provide the Government additional rights in noncommercial
computer software delivered or otherwise provided to the Government with
restricted rights. However, if the Government desires to obtain
additional rights in such software, the Contractor agrees to promptly
enter into negotiations with the Contracting Officer to determine
whether there are acceptable terms for transferring such rights. All
noncommercial computer software in which the Contractor has granted the
Government additional rights shall be listed or described in a license
agreement made part of the contract (see paragraph (b)(4) of this
clause). The license shall enumerate the additional rights granted the
Government.
(4) Specifically negotiated license rights. (i) The standard license
rights granted to the Government under paragraphs (b)(1) through (b)(3)
of this clause, including the period during which the Government shall
have government purpose rights in computer software, may be modified by
mutual agreement to provide such rights as the parties consider
appropriate but shall not provide the Government lesser rights in
computer software than are enumerated in paragraph (a)(14) of this
clause or lesser rights in computer software documentation than are
enumerated in paragraph (a)(13) of the Rights in Technical Data--
Noncommercial Items clause of this contract.
(ii) Any rights so negotiated shall be identified in a license
agreement made part of this contract.
(5) Prior government rights. Computer software or computer software
documentation that will be delivered, furnished, or otherwise provided
to the Government under this contract, in which the Government has
previously obtained rights shall be delivered, furnished, or provided
with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
reproduce, release, perform, display, or disclose the data have expired
or no longer apply.
(6) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of computer
software made in accordance with paragraph (a)(14) or (b)(2)(iii) of
this clause, in accordance with the terms of a license negotiated under
paragraph (b)(4) of this clause, or by others to whom the recipient has
released or disclosed the software, and to seek relief solely from the
party who has improperly used, modified, reproduced, released,
performed, displayed, or disclosed Contractor software marked with
restrictive legends.
(c) Rights in derivative computer software or computer software
documentation. The Government shall retain its rights in the unchanged
portions of any computer software or computer software documentation
delivered under this contract that the Contractor uses to prepare, or
includes in, derivative computer software or computer software
documentation.
(d) Third party copyrighted computer software or computer software
documentation. The Contractor shall not, without the written approval of
the Contracting Officer, incorporate any copyrighted computer software
or computer software documentation in the software or documentation to
be delivered under this contract unless the Contractor is the copyright
owner or has obtained for the Government the license rights necessary to
perfect a license or licenses in the deliverable software or
documentation of the appropriate scope set forth in paragraph (b) of
this clause, and prior to delivery of such--
(1) Computer software, has provided a statement of the license
rights obtained in a form acceptable to the Contracting Officer; or
(2) Computer software documentation, has affixed to the transmittal
document a statement of the license rights obtained.
(e) Identification and delivery of computer software and computer
software documentation to be furnished with restrictions on use,
release, or disclosure. (1) This paragraph does not apply to
restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause, computer
software that the Contractor asserts should be furnished to the
Government with restrictions on use, release, or disclosure is
identified in an attachment to this contract (the Attachment). The
Contractor shall not deliver any software with restrictive markings
unless the software is listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be
[[Page 81]]
identified after award when based on new information or inadvertent
omissions unless the inadvertent omissions would have materially
affected the source selection decision. Such identification and
assertion shall be submitted to the Contracting Officer as soon as
practicable prior to the scheduled data for delivery of the software, in
the following format, and signed by an official authorized to
contractually obligate the Contractor: Identification and Assertion of
Restrictions on the Government's Use, Release, or Disclosure of Computer
Software.
The Contractor asserts for itself, or the persons identified below,
that the Government's rights to use, release, or disclose the following
computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Computer Software to be Furnished Asserted Rights Name of Person Asserting
With Restrictions* Basis for Assertion** Category*** Restrictions****
----------------------------------------------------------------------------------------------------------------
(LIST) (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
*Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions on the Government's rights to use, release, or disclose computer software.
**Indicate whether development was exclusively or partially at private expense. If development was not at
private expense, enter the specific reason for asserting that the Government's rights should be restricted.
***Enter asserted rights category (e.g., restricted or government purpose rights in computer software,
government purpose license rights from a prior contract, rights in SBIR software generated under another
contract, or specifically negotiated licenses).
****Corporation, individual, or other person, as appropriate.
Date____________________________________________________________________
Printed Name and Title__________________________________________________
_______________________________________________________________________
Signature_______________________________________________________________
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor shall
provide sufficient information to enable the Contracting Officer to
evaluate the Contractor's assertions. The Contracting Officer reserves
the right to add the Contractor's assertions to the Attachment and
validate any listed assertion, at a later date, in accordance with the
procedures of the Validation of Asserted Restrictions--Computer Software
clause of this contract.
(f) Marking requirements. The Contractor, and its subcontractors or
suppliers, may only assert restrictions on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose computer
software by marking the deliverable software or documentation subject to
restriction. Except as provided in paragraph (f)(5) of this clause, only
the following legends are authorized under this contract; the government
purpose rights legend at paragraph (f)(2) of this clause; the restricted
rights legend at paragraph (f)(3) of this clause; or the special license
rights legend at paragraph (f)(4) of this clause; and/or a notice of
copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark the
appropriate legend on all computer software that qualify for such
markings. The authorized legends shall be placed on the transmitted
document or software storage container and each page, or portions
thereof, of printed material containing computer software for which
restrictions are asserted. Computer software transmitted directly from
one computer or computer terminal to another shall contain a notice of
asserted restrictions. However, instructions that interfere with or
delay the operation of computer software in order to display a
restrictive rights legend or other license statement at any time prior
to or during use of the computer software, or otherwise cause such
interference or delay, shall not be inserted in software that will or
might be used in combat or situations that simulate combat conditions,
unless the Contracting Officer's written permission to deliver such
software has been obtained prior to delivery. Reproductions of computer
software or any portions thereof subject to asserted restrictions, shall
also reproduce the asserted restrictions.
(2) Government purpose rights markings. Computer software delivered
or otherwise furnished to the Government with government purpose rights
shall be marked as follows:
GOVERNMENT PURPOSE RIGHTS
Contract No.____________________________________________________________
Contractor Name_________________________________________________________
Contractor Address______________________________________________________
_______________________________________________________________________
Expiration Date_________________________________________________________
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose this software are restricted by paragraph (b)(2) of
the Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation clause contained in the above identified
contract. No restrictions apply after the expiration date shown above.
Any reproduction of the software or portions thereof marked with this
legend must also reproduce the markings.
(End of legend)
(3) Restricted rights markings. Software delivered or otherwise
furnished to the Government with restricted rights shall be marked with
the following legend:
RESTRICTED RIGHTS
Contract No.____________________________________________________________
Contractor Name_________________________________________________________
Contractor Address______________________________________________________
[[Page 82]]
________________________________________________________________________
_______________________________________________________________________
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose this software are restricted by paragraph (b)(3) of
the Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation clause contained in the above identified
contract. Any reproduction of computer software or portions thereof
marked with this legend must also reproduce the markings. Any person,
other than the Government, who has been provided access to such software
must promptly notify the above named Contractor.
(End of legend)
(4) Special license rights markings. (i) Computer software or
computer documentation in which the Government's rights stem from a
specifically negotiated license shall be marked with the following
legend:
SPECIAL LICENSE RIGHTS
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose this software are restricted by Contract No.
________(Insert contract number)________, License No.________(Insert
license identifier)________. Any reproduction of computer software,
computer software documentation, or portions thereof marked with this
legend must also reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not include
government purpose license rights acquired under a prior contract (see
paragraph (b)(5) of this clause).
(5) Pre-existing markings. If the terms of a prior contract or
license permitted the Contractor to restrict the Government's rights to
use, modify, release, perform, display, or disclose computer software or
computer software documentation and those restrictions are still
applicable, the Contractor may mark such software or documentation with
the appropriate restrictive legend for which the software qualified
under the prior contract or license. The marking procedures in paragraph
(f)(1) of this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the Contractor and its subcontractors or suppliers that
will deliver computer software or computer software documentation with
other than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by the
terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on computer software or computer software
documentation delivered under this contract.
(h) Removal of unjustified and nonconforming markings. (1)
Unjustified computer software or computer software documentation
markings. The rights and obligations of the parties regarding the
validation of restrictive markings on computer software or computer
software documentation furnished or to be furnished under this contract
are contained in the Validation of Asserted Restrictions--Computer
Software and the Validation of Restrictive Markings on Technical Data
clauses of this contract, respectively. Notwithstanding any provision of
this contract concerning inspection and acceptance, the Government may
ignore or, at the Contractor's expense, correct or strike a marking if,
in accordance with the procedures of those clauses, a restrictive
marking is determined to be unjustified.
(2) Nonconforming computer software or computer software
documentation markings. A nonconforming marking is a marking placed on
computer software or computer software documentation delivered or
otherwise furnished to the Government under this contract that is not in
the format authorized by this contract. Correction of nonconforming
markings is not subject to the Validation of Asserted Restrictions--
Computer Software or the Validation of Restrictive Markings on Technical
Data clause of this contract. If the Contracting Officer notifies the
Contractor of a nonconforming marking or markings and the Contractor
fails to remove or correct such markings within sixty (60) days, the
Government may ignore or, at the Contractor's expense, remove or correct
any nonconforming markings.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed as
affecting the scope of any license or other right otherwise granted to
the Government under any patent.
(j) Limitation on charges for rights in computer software or
computer software documentation. (1) The Contractor shall not charge to
this contract any cost, including but not limited to license fees,
royalties, or similar charges, for rights in computer software or
computer software documentation to be delivered under this contract
when--
(i) The Government has acquired, by any means, the same or greater
rights in the software or documentation; or
(ii) The software or documentation are available to the public
without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at any
tier, or costs incurred by the Contractor to acquire rights in
subcontractor or supplier computer software or computer software
documentation, if the subcontractor or supplier has been paid for
[[Page 83]]
such rights under any other Government contract or under a license
conveying the rights to the Government; and
(ii) Does not include the reasonable costs of reproducing, handling,
or mailing the documents or other media in which the software or
documentation will be delivered.
(k) Applicability to subcontractors or suppliers. (1) Whenever any
noncommercial computer software or computer software documentation is to
be obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use this same
clause in its subcontracts or other contractual instruments, and require
its subcontractors or suppliers to do so, without alteration, except to
identify the parties. No other clause shall be used to enlarge or
diminish the Government's, the Contractor's, or a higher tier
subcontractor's or supplier's rights in a subcontractor's or supplier's
computer software or computer software documentation.
(2) The Contractor and higher tier subcontractors or suppliers shall
not use their power to award contracts as economic leverage to obtain
rights in computer software or computer software documentation from
their subcontractors or suppliers.
(3) The Contractor shall ensure that subcontractor or supplier
rights are recognized and protected in the identification, assertion,
and delivery processes required by paragraph (e) of this clause.
(4) In no event shall the Contractor use its obligation to recognize
and protect subcontractor or supplier rights in computer software or
computer software documentation as an excuse for failing to satisfy its
contractual obligation to the Government.
(End of clause)
Alternate I (Jun. 1995)
As prescribed in 227.7203-6(a)(2), add the following paragraph (l)
to the basic clause:
(l) Publication for sale. (1) This paragraph only applies to
computer software or computer software documentation in which the
Government has obtained unlimited rights or a license to make an
unrestricted release of the software or documentation.
(2) The Government shall not publish a deliverable item or items of
computer software or computer software documentation identified in this
contract as being subject to paragraph (l) of this clause or authorize
others to publish such software or documentation on its behalf if, prior
to publication for sale by the Government and within twenty-four (24)
months following the date specified in this contract for delivery of
such software or documentation, or the removal of any national security
or export control restrictions, whichever is later, the Contractor
publishes that item or items for sale and promptly notifies the
Contracting Officer of such publication(s). Any such publication shall
include a notice identifying the number of this contract and the
Government's rights in the published software or documentation.
(3) This limitation on the Government's rights to publish for sale
shall continue as long as the software or documentation are reasonably
available to the public for purchase.
[60 FR 33493, June 28, 1995]
Sec. 252.227-7015 Technical data--Commercial items.
As prescribed in 227.7102-3, use the following clause:
Technical Data--Commercial Items (NOV 1995)
(a) Definitions. As used in this clause:
(1) Commercial item does not include commercial computer software.
(2) Form, fit, and function data means technical data that describes
the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item, component, or process to the extent necessary to
permit identification of physically and functionally interchangeable
items.
(3) The term item includes components or processes.
(4) Technical data means recorded information, regardless of the
form or method of recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or data incidental to contract administration, such as
financial and/or management information.
(b) License. (1) The Government shall have the unrestricted right to
use, modify, reproduce, release, perform, display, or disclose technical
data, and to permit others to do so, that--
(i) Have been provided to the Government or others without
restrictions on use, modification, reproduction, release, or further
disclosure other than a release or disclosure resulting from the sale,
transfer, or other assignment of interest in the technical data to
another party or the sale or transfer of some or all of a business
entity or its assets to another party;
(ii) Are form, fit, and function data;
(iii) Are a correction or change to technical data furnished to the
Contractor by the Government;
(iv) Are necessary for operation, maintenance, installation, or
training (other than detailed manufacturing or process data); or
[[Page 84]]
(v) Have been provided to the Government under a prior contract or
licensing agreement through which the Government has acquired the rights
to use, modify, reproduce, release, perform, display, or disclose the
data without restrictions.
(2) Except as provided in paragraph (b)(1) of this clause, the
Government may use, modify, reproduce, release, perform, display, or
disclose technical data within the Government only. The Government shall
not--
(i) Use the technical data to manufacture additional quantities of
the commercial items; or
(ii) Release, perform, display, disclose, or authorize use of the
technical data outside the Government without the Contractor's written
permission unless a release, disclosure or permitted use is necessary
for emergency repair or overhaul of the commercial items furnished under
this contract.
(c) Additional license rights. The Contractor, its subcontractors,
and suppliers are not required to provide the Government additional
rights to use, modify, reproduce, release, perform, display, or disclose
technical data. However, if the Government desires to obtain additional
rights in technical data, the Contractor agrees to promptly enter into
negotiations with the Contracting Officer to determine whether there are
acceptable terms for transferring such rights. All technical data in
which the Contractor has granted the Government additional rights shall
be listed or described in a special license agreement made part of this
contract. The license shall enumerate the additional rights granted the
Government in such data.
(d) Release from liability. The Contractor agrees that the
Government, and other persons to whom the Government may have released
or disclosed technical data delivered or otherwise furnished under this
contract, shall have no liability for any release or disclosure of
technical data that are not marked to indicate that such data are
licensed data subject to use, modification, reproduction, release,
performance, display, or disclosure restrictions.
(End of clause)
[60 FR 33497, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995]
Sec. 252.227-7016 Rights in bid or proposal information.
As prescribed in 227.7103-6(e)(1), 227.7104(e)(1), or 227.7203-6(b),
use the following clause:
Rights in Bid or Proposal Information (Jun. 1995)
(a) Definitions. (1) For contracts that require the delivery of
technical data, the terms ``technical data'' and ``computer software''
are defined in the Rights in Technical Data--Noncommercial Item clause
of this contract or, if this is a contract awarded under the Small
Business Innovative Research Program, the Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovative Research
(SBIR) Program clause of this contract.
(2) For contracts that do not require the delivery of technical
data, the term ``computer software'' is defined in the Rights in
Noncommercial Computer and Noncommercial Computer Software Documentation
clause of this contract or, if this is a contract awarded under the
Small Business Innovative Research Program, the Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovative Research
(SBIR) Program clause of this contract.
(b) Government rights to contract award. By submission of its offer,
the Offeror agrees that the Government--
(1) May reproduce the bid or proposal, or any portions thereof, to
the extent necessary to evaluate the offer.
(2) Except as provided in paragraph (d) of this clause, shall use
information contained in the bid or proposal only for evaluational
purposes and shall not disclose, directly or indirectly, such
information to any person including potential evaluators, unless that
person has been authorized by the head of the agency, his or her
designee, or the Contracting Officer to receive such information.
(c) Government rights subsequent to contract award. The Contractor
agrees--
(1) Except as provided in paragraphs (c)((2), (d), and (e) of this
clause, the Government shall have the rights to use, modify, reproduce,
release, perform, display, or disclose information contained in the
Contractor's bid or proposal within the Government. The Government shall
not release, perform, display, or disclose such information outside the
Government without the Contractor's written permission.
(2) The Government's right to use, modify, reproduce, release,
perform, display, or disclose information that is technical data or
computer software required to be delivered under this contract are
determined by the Rights in Technical Data--Noncommercial Items, Rights
in Noncommercial Computer Software and Noncommercial Computer Software
Documentation, or Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovative Research (SBIR) Program clause(s) of
this contract.
(d) Government-furnished information. The Government's rights with
respect to technical data or computer software contained in the
Contractor's bid or proposal that were provided to the Contractor by the
Government are subject only to restrictions on use, modification,
reproduction, release, performance, display, or disclosure, if any,
imposed
[[Page 85]]
by the developer or licensor of such data or software.
(e) Information available without restrictions. The Government's
rights to use, modify, reproduce, release, perform, display, or,
disclose information contained in a bid or proposal, including technical
data or computer software, and to permit others to do so, shall not be
restricted in any manner if such information has been released or
disclosed to the Government or to other persons without restrictions
other than a release or disclosure resulting from the sale, transfer, or
other assignment of interest in the information to another party or the
sale or transfer of some or all of a business entity or its assets to
another party.
(f) Flowdown. Contractor shall include this clause in all
subcontracts or similar contractual instruments and require its
subcontractors or suppliers to do so without alteration, except to
identify the parties.
(End of clause)
[60 FR 33498, June 28, 1995]
Sec. 252.227-7017 Identification and assertion of use, release, or disclosure restrictions.
As prescribed in 227.7103-3(b), 227.7104(e)(2), or 227.7203-3(a),
use the following provision:
Identification and Assertion of Use, Release, or Disclosure Restrictions
(Jun. 1995)
(a) The terms used in this provision are defined in following clause
or clauses contained in this solicitation--
(1) If a successful offeror will be required to deliver technical
data, the Rights in Technical Data--Noncommercial Items clause, or, if
this solicitation contemplates a contract under the Small Business
Innovative Research Program, the Rights in Noncommercial Technical Data
and Computer Software--Small Business Innovative Research (SBIR) Program
clause.
(2) If a successful offeror will not be required to deliver
technical data, the Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation clause, or, if this
solicitation contemplates a contract under the Small Business Innovative
Research Program, the Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovative Research (SBIR) Program
clause.
(b) The identification and assertion requirements in this provision
apply only to technical data, including computer software documents, or
computer software to be delivered with other than unlimited rights. For
contracts to be awarded under the Small Business Innovative Research
Program, the notification requirements do not apply to technical data or
computer software that will be generated under the resulting contract.
Notification and identification is not required for restrictions based
solely on copyright.
(c) Offers submitted in response to this solicitation shall
identify, to the extent known at the time an offer is submitted to the
Government, the technical data or computer software that the Offeror,
its subcontractors or suppliers, or potential subcontractors or
suppliers, assert should be furnished to the Government with
restrictions on use, release, or disclosure.
(d) The Offeror's assertions, including the assertions of its
subcontractors or suppliers or potential subcontractors or suppliers
shall be submitted as an attachment to its offer in the following
format, dated and signed by an official authorized to contractually
obligate the Offeror:
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data or Computer Software
The Offeror asserts for itself, or the persons identified below,
that the Government's rights to use, release, or disclose the following
technical data or computer software should be restricted:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Technical Data or Computer Software to be Furnished With Name of Person Asserting
Restrictions* Basis for Assertion** Asserted Rights Category*** Restrictions****
--------------------------------------------------------------------------------------------------------------------------------------------------------
(LIST)***** (LIST) (LIST) (LIST)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify
both the deliverable technical data and each such items, component, or process. For computer software or computer software documentation identify the
software or documentation.
**Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions. For technical data, other
than computer software documentation, development refers to development of the item, component, or process to which the data pertain. The Government's
rights in computer software documentation generally may not be restricted. For computer software, development refers to the software. Indicate whether
development was accomplished exclusively or partially at private expense. If development was not accomplished at private expense, or for computer
software documentation, enter the specific basis for asserting restrictions.
***Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract,
limited, restricted, or government purpose rights under this or a prior contract, or specially negotiated licenses).
****Corporation, individual, or other person, as appropriate.
*****Enter ``none'' when all data or software will be submitted without restrictions.
[[Page 86]]
Date____________________________________________________________________
Printed Name and Title__________________________________________________
_______________________________________________________________________
Signature_______________________________________________________________
(End of identification and assertion)
(e) An offeror's failure to submit, complete, or sign the
notification and identification required by paragraph (d) of this
provision with its offer may render the offer ineligible for award.
(f) If the Offeror is awarded a contract, the assertions identified
in paragraph (d) of this provision shall be listed in an attachment to
that contract. Upon request by the Contracting Officer, the Offeror
shall provide sufficient information to enable the Contracting Officer
to evaluate any listed assertion.
(End of provision)
[60 FR 33498, June 28, 1994]
Sec. 252.227-7018 Rights in noncommercial technical data and computer software--Small Business Innovation Research (SBIR) Program.
As prescribed in 227.7104(a), use the following clause:
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research (SBIR) Program (Jun. 1995)
(a) Definitions. As used in this clause:
(1) Commercial computer software means software developed or
regularly used for nongovernmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) Has not been offered, sold, leased, or licensed to the public
but will be available for commercial sale, lease, or license in time to
satisfy the delivery requirements of this contract; or
(iv) Satisfies a criterion expressed in paragraph (a)(1)(i), (ii),
or (iii) of this clause and would require only minor modification to
meet the requirements of this contract.
(2) Computer database means a collection of recorded data in a form
capable of being processed by a computer. The term does not include
computer software.
(3) Computer program means a set of instructions, rules, or
routines, recorded in a form that is capable of causing a computer to
perform a specific operation or series of operations.
(4) Computer software means computer programs, source code, source
code listings, object code listings, design details, algorithms,
processes, flow charts, formulae, and related material that would enable
the software to be reproduced, re-created, or recompiled. Computer
software does not include computer databases or computer software
documentation.
(5) Computer software documentation means owner's manuals, user's
manuals, installation instructions, operating instructions, and other
similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
(6) Detailed manufacturing or process data means technical data that
describe the steps, sequences, and conditions of manufacturing,
processing or assembly used by the manufacturer to produce an item or
component or to perform a process.
(7) Developed means--
(i) (Applicable to technical data other than computer software
documentation.) An item, component, or process, exists and is workable.
Thus, the item or component must have been constructed or the process
practiced. Workability is generally established when the item,
component, or process has been analyzed or tested sufficiently to
demonstrate to reasonable people skilled in the applicable art that
there is a high probability that it will operate as intended. Whether,
how much, and what type of analysis or testing is required to establish
workability depends on the nature of the item, component, or process,
and the state of the art. To be considered ``developed,'' the item,
component, or process need not be at the stage where it could be offered
for sale or sold on the commercial market, nor must the item, component
or process be actually reduced to practice within the meaning of Title
35 of the United States Code;
(ii) A computer program has been successfully operated in a computer
and tested to the extent sufficient to demonstrate to reasonable persons
skilled in the art that the program can reasonably be expected to
perform its intended purpose;
(iii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to reasonable
persons skilled in the art that the software can reasonably be expected
to perform its intended purpose; or
(iv) Computer software documentation required to be delivered under
a contract has been written, in any medium, in sufficient detail to
comply with requirements under that contract.
(8) Developed exclusively at private expense means development was
accomplished entirely with costs charged to indirect cost pools, costs
not allocated to a government contract, or any combination thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater than
the firm-fixed-price or ceiling price of the contract, the additional
[[Page 87]]
development costs necessary to complete development shall not be
considered when determining whether development was at government,
private, or mixed expense.
(9) Developed exclusively with government funds means development
was not accomplished exclusively or partially at private expense.
(10) Developed with mixed funding means development was accomplished
partially with costs charged to indirect cost pools and/or costs not
allocated to a government contract, and partially with costs charged
directly to a government contract.
(11) Form, fit, and function data means technical data that describe
the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item, component, or process to the extent necessary to
permit identification of physically and functionally interchangeable
items.
(12) Generated means technical data or computer software first
created in the performance of this contract.
(13) Government purpose means any activity in which the United
States Government is a party, including cooperative agreements with
international or multi-national defense organizations or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose technical data or computer
software for commercial purposes or authorize others to do so.
(14) Limited rights means the rights to use, modify, reproduce,
release, perform, display, or disclose technical data, in whole or in
part, within the Government. The Government may not, without the written
permission of the party asserting limited rights, release or disclose
the technical data outside the Government, use the technical data for
manufacture, or permit the technical data to be used by another party,
except that the Government may reproduce, release or disclose such data
or permit the use or reproduction of the data by persons outside the
Government if reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure of technical data (other than detailed
manufacturing or process data) to, or use of such data by, a foreign
government that is in the interest of the Government and is required for
evaluational or informational purposes;
(iii) Subject to a prohibition on the further reproduction, release
disclosure, or use of the technical data; and
(iv) The Contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
(15) Minor modification means a modification that does not
significantly alter the nongovernmental function or purpose of computer
software or is of the type customarily provided in the commercial
marketplace.
(16) Noncommercial computer software means software that does not
qualify as commercial computer software under paragraph (a)(1) of this
clause.
(17) Restricted rights apply only to noncommercial computer software
and mean the Government's rights to--
(i) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(ii) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of this
clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs (a)(17)
(i) and (iii) of this clause; and
(B) Not release or disclose the modified software except as provided
in paragraphs (a)(17) (ii), (v) and (vi) of this clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in support
of this or a related contract to use computer software to diagnose and
correct deficiencies in a computer program, to modify computer software
to enable a computer program to be combined with, adapted to, or merged
with other computer programs or when necessary to respond to urgent
tactical situations, provided that--
(A) The Government notifies the party which has granted restricted
rights that a release or disclosure to particular contractors or
subcontractors was made;
(B) Such contractors or subcontractors are subject to the non-
disclosure agreement at 227.7103-7 of the Defense Federal Acquisition
Regulation Supplement (DFARS or are Government contractors receiving
access to the software for performance of a Government contract that
contains the clause at DFARS 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information Marked with Restrictive
Legends;
(C) The Government shall not permit the recipient to decompile
disassemble, or reverse engineer the software, or use software
[[Page 88]]
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(17)(iv) of this clause, for any other purpose;
and
(D) Such use is subject to the limitation in paragraph (a)(17)(i) of
this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items, procured under this
or a related contract to use the computer software when necessary to
perform the repairs or overhaul, or to modify the computer software to
reflect the repairs or overhaul made, provided that--
(A) The intended recipient is subject to the non-disclosure
agreement at DFARS 227.7103-7 or is a Government contractor receiving
access to the software for performance of a Government contract that
contains the clause at DFARS 252.227-7025, Limitations on the Use or
Disclosure of Government Furnished Information Marked with Restrictive
Legends; and
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(17)(iv) of this clause, for any other purpose.
(18) SBIR data rights means a royalty-free license for the
Government, including its support service contractors, to use, modify,
reproduce, release, perform, display, or disclose technical data or
computer software generated and delivered under this contract for any
United States Government purpose.
(19) Technical data means recorded information, regardless of the
form or method of the recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or data incidental to contract administration, such as
financial and/or management information.
(20) Unlimited rights means rights to use, modify, reproduce,
release, perform, display, or disclose, technical data or computer
software in whole or in part, in any manner and for any purpose
whatsoever, and to have or authorize others to do so.
(b) Rights in technical data and computer software. The Contractor
grants or shall obtain for the Government the following royalty-free,
world-wide, nonexclusive, irrevocable license rights in technical data
or noncommercial computer software. All rights not granted to the
Government are retained by the Contractor.
(1) Unlimited rights. The Government shall have unlimited rights in
technical data, including computer software documentation, or computer
software generated under this contract that are--
(i) Form, fit, and function data;
(ii) Necessary for installation, operation, maintenance, or training
purposes (other than detailed manufacturing or process data);
(iii) Corrections or changes to Government-furnished technical data
or computer software;
(iv) Otherwise publicly available or have been released or disclosed
by the Contractor or a subcontractor without restrictions on further
use, release or disclosure other than a release or disclosure resulting
from the sale, transfer, or other assignment of interest in the
technical data or computer software to another party or the sale or
transfer of some or all of a business entity or its assets to another
party;
(v) Data or software in which the Government has acquired previously
unlimited rights under another Government contract or through a specific
license; and
(vi) SBIR data upon expiration of the SBIR data rights period.
(2) Limited rights. The Government shall have limited rights in
technical data, that were not generated under this contract, pertain to
items, components or processes developed exclusively at private expense,
and are marked, in accordance with the marking instructions in paragraph
(f)(1) of this clause, with the legend prescribed in paragraph (f)(2) of
this clause.
(3) Restricted rights in computer software. The Government shall
have restricted rights in noncommercial computer software required to be
delivered or otherwise furnished to the Government under this contract
that were developed exclusively at private expense and were not
generated under this contract.
(4) SBIR data rights. (i) Except for technical data, including
computer software documentation, or computer software in which the
Government has unlimited rights under paragraph (b)(1) of this clause,
the Government shall have SBIR data rights in all technical data or
computer software generated under this contract during the period
commencing with contract award and ending upon the date five years after
completion of the project from which such data were generated.
(ii) The Government may not release or disclose SBIR data to any
person, other than its support services contractors, except--
(A) As expressly permitted by the Contractor;
(B) For evaluation purposes; or
(C) A release, disclosure, or use that is necessary for emergency
repair or overhaul of items operated by the Government.
(iii) A release or disclosure of SBIR data to the Government's
support services contractors, or a release or disclosure under paragraph
(b)(4)(ii)(B) or (C) of this clause, may be made only if, prior to
release or disclosure, the intended recipient is subject to the use and
non-disclosure agreement at DFARS
[[Page 89]]
227.7103-7 or is a Government contractor receiving access to the
technical data or software for performance of a Government contract that
contains the clause at DFARS 252.227-7025, Limitations on the Use of
Disclosure of Government-Furnished Information Marked with Restrictive
Legends.
(5) Specifically negotiated license rights. The standard license
rights granted to the Government under paragraphs (b)(1) through (b)(4)
of this clause may be modified by mutual agreement to provide such
rights as the parties consider appropriate but shall not provide the
Government lesser rights in technical data, including computer software
documentation, than are enumerated in paragraph (a)(14) of this clause
or lesser rights in computer software than are enumerated in paragraph
(a)(17) of this clause. Any rights so negotiated shall be identified in
a license agreement made part of this contract.
(6) Prior government rights. Technical data, including computer
software documentation, or computer software that will be delivered,
furnished, or otherwise provided to the Government under this contract,
in which the Government has previously obtained rights shall be
delivered, furnished, or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
release, perform, display, or disclose the technical data or computer
software have expired or no longer apply.
(7) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of technical
data, computer software, or computer software documentation made in
accordance with paragraph (a)(14), (a)(17), or (b)(4) of this clause, or
in accordance with the terms of a license negotiated under paragraph
(b)(5) of this clause, or by others to whom the recipient has released
or disclosed the data, software, or documentation and to seek relief
solely from the party who has improperly used, modified, reproduced,
released, performed, displayed, or disclosed Contractor data or software
marked with restrictive legends.
(c) Rights in derivative computer software or computer software
documentation. The Government shall retain its rights in the unchanged
portions of any computer software or computer software documentation
delivered under this contract that the Contractor uses to prepare, or
includes in, derivative software or documentation.
(d) Third party copyrighted technical data and computer software.
The Contractor shall not, without the written approval of the
Contracting Officer, incorporate any copyrighted technical data,
including computer software documentation, or computer software in the
data or software to be delivered under this contract unless the
Contractor is the copyright owner or has obtained for the Government the
license rights necessary to perfect a license or licenses in the
deliverable data or software of the appropriate scope set forth in
paragraph (b) of this clause and, prior to delivery of such--
(1) Technical data, has affixed to the transmittal document a
statement of the license rights obtained; or
(2) Computer software, has provided a statement of the license
rights obtained in a form acceptable to the Contracting Officer.
(e) Identification and delivery of technical data or computer
software to be furnished with restrictions on use, release, or
disclosure. (1) This paragraph does not apply to technical data or
computer software that were or will be generated under this contract or
to restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause, technical
data or computer software that the Contractor asserts should be
furnished to the Government with restrictions on use, release, or
disclosure is identified in an attachment to this contract (the
Attachment). The Contractor shall not deliver any technical data or
computer software with restrictive markings unless the technical data or
computer software are listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new information
or inadvertent omissions unless the inadvertent omissions would have
materially affected the source selection decision. Such identification
and assertion shall be submitted to the Contracting Officer as soon as
practicable prior to the scheduled date for delivery of the technical
data or computer software, in the following format, and signed by an
official authorized to contractually obligate the Contractor:
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data or Computer Software
The Contractor asserts for itself, or the persons identified below,
that the Government's rights to use, release, or disclose the following
technical data or computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Technical data or computer software to Basis for assertion Asserted rights Name of person asserting
be furnished with restrictions \1\ \2\ category \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST)................................ (LIST)................ (LIST)............... (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components, or processes developed at private expense, identify
both the technical data and each such item, component, or process.
[[Page 90]]
\2\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions on the Government's rights to use, release, or disclose technical data or computer software.
Indicate whether development was exclusively or partially at private expense. If development was not at
private expense, enter the specific reason for asserting that the Government's rights should be restricted.
\3\ Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or
government purpose license rights from a prior contract, SBIR data rights under another contract, or
specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date____________________________________________________________________
Printed Name and Title__________________________________________________
Signature_______________________________________________________________
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor shall
provide sufficient information to enable the Contracting Officer to
evaluate the Contractor's assertions. The Contracting Officer reserves
the right to add the Contractor's assertions to the Attachment and
validate any listed assertions, at a later date, in accordance with the
procedures of the Validation of Asserted Restrictions--Computer Software
and/or Validation of Restrictive Markings on Technical Data clauses of
this contract.
(f) Marking requirements. The Contractor, and its subcontractors or
suppliers, may only assert restrictions on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose technical
data or computer software to be delivered under this contract by marking
the deliverable data or software subject to restriction. Except as
provided in paragraph (f)(6) of this clause, only the following markings
are authorized under this contract: the limited rights legend at
paragraph (f)(2) of this clause; the restricted rights legend at
paragraph (f)(3) of this clause, the SBIR data rights legend at
paragraph (f)(4) of this clause, or the special license rights legend at
paragraphs (f)(5) of this clause; and/or a notice of copyright as
prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark the
appropriate legend to all technical data and computer software that
qualify for such markings. The authorized legends shall be placed on the
transmittal document or storage container and, for printed material,
each page of the printed material containing technical data or computer
software for which restrictions are asserted. When only portions of a
page of printed material are subject to the asserted restrictions, such
portions shall be identified by circling, underscoring, with a note, or
other appropriate identifier. Technical data or computer software
transmitted directly from one computer or computer terminal to another
shall contain a notice of asserted restrictions. However, instructions
that interfere with or delay the operation of computer software in order
to display a restrictive rights legend or other license statement at any
time prior to or during use of the computer software, or otherwise cause
such interference or delay, shall not be inserted in software that will
or might be used in combat or situations that simulate combat
conditions, unless the Contracting Officer's written permission to
deliver such software has been obtained prior to delivery. Reproductions
of technical data, computer software, or any portions thereof subject to
asserted restrictions shall also reproduce the asserted restrictions.
(2) Limited rights markings. Technical data not generated under this
contract that pertain to items, components, or processes developed
exclusively at private expense and delivered or otherwise furnished with
limited rights shall be marked with the following legend:
Limited Rights
Contract No.____________________________________________________________
Contractor Name_________________________________________________________
Contractor Address______________________________________________________
_______________________________________________________________________
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose these technical data are restricted by paragraph
(b)(2) of the Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovative Research (SBIR) Program clause
contained in the above identified contract. Any reproduction of
technical data or portions thereof marked with this legend must also
reproduce the markings. Any person, other than the Government, who has
been provided access to such data must promptly notify the above named
Contractor.
(End of legend)
(3) Restricted rights markings. Computer software delivered or
otherwise furnished to the Government with restricted rights shall be
marked with the following legend:
Restricted Rights
Contract No.____________________________________________________________
Contractor Name_________________________________________________________
Contractor Address______________________________________________________
[[Page 91]]
________________________________________________________________________
_______________________________________________________________________
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose this software are restricted by paragraph (b)(3) of
the Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovative Research (SBIR) Program clause contained in the
above identified contract. Any reproduction of computer software or
portions thereof marked with this legend must also reproduce the
markings. Any person, other than the Government, who has been provided
access to such data must promptly notify the above named Contractor.
(End of legend)
(4) SBIR data rights markings: Except for technical data or computer
software in which the Government has acquired unlimited rights under
paragraph (b)(1) of this clause, or negotiated special license rights as
provided in paragraph (b)(5) of this clause, technical data or computer
software generated under this contract shall be marked with the
following legend. The Contractor shall enter the expiration date for the
SBIR data rights period on the legend:
SBIR Data Rights
Contract No.____________________________________________________________
Contractor Name_________________________________________________________
Address_________________________________________________________________
_______________________________________________________________________
Expiration of SBIR Data Rights Period___________________________________
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose technical data or computer software marked with
this legend are restricted during the period shown as provided in
paragraph (b)(4) of the Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovative Research (SBIR) Program
clause contained in the above identified contract. No restrictions apply
after the expiration date shown above. Any reproduction of technical
data, computer software, or portions thereof marked with this legend
must also reproduce the markings.
(End of legend)
(5) Special license rights markings. (i) Technical data or computer
software in which the Government's rights stem from a specifically
negotiated license shall be marked with the following legend:
Special License Rights
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose this technical data or computer software are
restricted by Contract No. ________________ (Insert contract number)
________________, License No. ________________ (Insert license
identifier) ________________. Any reproduction of technical data,
computer software, or portions thereof marked with this legend must also
reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not include
government purpose license rights acquired under a prior contract (see
paragraph (b)(6) of this clause).
(6) Pre-existing data markings. If the terms of a prior contract or
license permitted the Contractor to restrict the Government's rights to
use, modify, reproduce, release, perform, display, or disclose technical
data or computer software, and those restrictions are still applicable,
the Contractor may mark such data or software with the appropriate
restrictive legend for which the data or software qualified under the
prior contract or license. The marking procedures in paragraph (f)(1) of
this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the Contractor, and its subcontractors or suppliers that
will deliver technical data or computer software with other than
unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by the
terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data or computer software delivered
under this contract.
(h) Removal of unjustified and nonconforming markings.
(1) Unjustified markings. The rights and obligations of the parties
regarding the validation of restrictive markings on technical data or
computer software furnished or to be furnished under this contract are
contained in the Validation of Restrictive Markings on Technical Data
and the Validation of Asserted Restrictions--Computer Software clauses
of this contract, respectively. Notwithstanding any provision of this
contract concerning inspection and acceptance, the Government may ignore
or, at the Contractor's expense, correct or strike a marking if, in
accordance with the applicable procedures of those clauses, a
restrictive marking is determined to be unjustified.
(2) Nonconforming markings. A nonconforming marking is a marking
placed on technical data or computer software delivered or otherwise
furnished to the Government under this contract that is not in the
format authorized by this contract. Correction of nonconforming markings
is not subject to the Validation of Restrictive Markings on Technical
Data or the Validation of Asserted
[[Page 92]]
Restrictions--Computer Software clause of this contract. If the
Contracting Officer notifies the Contractor of a nonconforming marking
or markings and the Contractor fails to remove or correct such markings
within sixty (6)) days, the Government may ignore or, at the
Contractor's expense, remove or correct any nonconforming markings.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed as
affecting the scope of any license or other right otherwise granted to
the Government under any patent.
(j) Limitation on charges for rights in technical data or computer
software. (1) The Contractor shall not charge to this contract any cost,
including but not limited to, license fees, royalties, or similar
charges, for rights in technical data or computer software to be
delivered under this contract when--
(i) The Government has acquired, by any means, the same or greater
rights in the data or software; or
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at any
tier, or costs incurred by the Contractor to acquire rights in
subcontractor of supplier technical data or computer software, if the
subcontractor or supplier has been paid for such rights under any other
Government contract or under a license conveying the rights to the
Government; and
(ii) Does not include the reasonable costs of reproducing, handling,
or mailing the documents or other media in which the technical data or
computer software will be delivered.
(k) Applicability to subcontractors or suppliers. (1) the Contractor
shall assure that the rights afforded its subcontractors and suppliers
under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion,
and delivery processes required by paragraph (e) of this clause are
recognized and protected.
(2) Whenever any noncommercial technical data or computer software
is to be obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use this same
clause in the subcontract or other contractual instrument, and require
its subcontractors or suppliers to do so, without alteration, except to
identify the parties. The Contractor shall use the Technical Data--
Commercial Items clause of this contract to obtain technical data
pertaining to commercial items, components, or processes. No other
clause shall be used to enlarge or diminish the Government's, the
Contractor's, or a higher tier subcontractor's or supplier's rights in a
subcontractor's or supplier's technical data or computer software.
(3) Technical data required to be delivered by a subcontractor or
supplier shall normally be delivered to the next higher tier contractor,
subcontractor, or supplier. However, when there is a requirement in the
prime contract for technical data which may be submitted with other than
unlimited rights by a subcontractor or supplier, then said subcontractor
or supplier may fulfill its requirement by submitting such technical
data directly to the Government, rather than through a higher tier
contractor, subcontractor, or supplier.
(4) The Contractor and higher tier subcontractors or suppliers shall
not use their power to award contracts as economic leverage to obtain
rights in technical data or computer software from their subcontractors
or suppliers.
(5) In no event shall the Contractor use its obligation to recognize
and protect subcontractor or supplier rights in technical data or
computer software as an excuse for failing to satisfy its contractual
obligation to the Government.
(End of clause)
Alternate I (June 1995)
As prescribed in 227.7104(d), add the following paragraph (l) to the
basic clause:
(l) Publication for sale. (1) This paragraph applies only to
technical data or computer software delivered to the Government with
SBIR data rights.
(2) Upon expiration of the SBIR data rights period, the Government
will not exercise its right to publish or authorize others to publish an
item of technical data or computer software identified in this contract
as being subject to paragraph (l) of this clause if the Contractor,
prior to the expiration of the SBIR data rights period, or within two
years following delivery of the data or software item, or within twenty-
four months following the removal of any national security or export
control restrictions, whichever is later, publishes such data or
software item(s) and promptly notifies the Contracting Officer of such
publication(s). Any such publication(s) shall include a notice
identifying the number of this contract and the Government's rights in
the published data.
(3) This limitation on the Government's right to publish for sale
shall continue as long as the technical data or computer software are
reasonably available to the public for purchase.
[60 FR 33499, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995]
[[Page 93]]
Sec. 252.227-7019 Validation of asserted restrictions--Computer software.
As prescribed in 227.7104(e)(3) or 227.7203-6(c), use the following
clause:
Validation of Asserted Restrictions--Computer Software (June 1995)
(a) Definitions. (1) As used in this clause, unless otherwise
specifically indicated, the term ``Contractor'' means the Contractor and
its subcontractors or suppliers.
(2) Other terms used in this clause are defined in the Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation clause of this contract.
(b) Justification. The Contractor shall maintain records sufficient
to justify the validity of any markings that assert restrictions on the
Government's rights to use, modify, reproduce, perform, display,
release, or disclose computer software delivered or required to be
delivered under this contract and shall be prepared to furnish to the
Contracting Officer a written justification for such restrictive
markings in response to a request for information under paragraph (d) or
a challenge under paragraph (f) of this clause.
(c) Direct contact with subcontractors or suppliers. The Contractor
agrees that the Contracting Officer may transact matters under this
clause directly with subcontractors or suppliers at any tier who assert
restrictions on the Government's right to use, modify, reproduce,
release, perform, display, or disclose computer software. Neither this
clause, nor any action taken by the Government under this clause,
creates or implies privity of contract between the Government and the
Contractor's subcontractors or suppliers.
(d) Requests for information. (1) The Contracting Officer may
request the Contractor to provide sufficient information to enable the
Contracting Officer to evaluate the Contractor's asserted restrictions.
Such information shall be based upon the records required by this clause
or other information reasonably available to the Contractor.
(2) Based upon the information provided, if the--
(i) Contractor agrees that an asserted restriction is not valid, the
Contracting Officer may--
(A) Strike or correct the unjustified marking at the Contractor's
expense; or
(B) Return the computer software to the Contractor for correction at
the Contractor's expense. If the Contractor fails to correct or strike
the unjustified restrictions and return the corrected software to the
Contracting Officer within sixty (60) days following receipt of the
software, the Contracting Officer may correct the strike the markings at
the Contractor's expense.
(ii) Contracting Officer concludes that the asserted restriction is
appropriate for this contract, the Contracting Officer shall so notify
the Contractor in writing.
(3) The Contractor's failure to provide a timely response to a
Contracting Officer's request for information or failure to provide
sufficient information to enable the Contracting Officer to evaluate an
asserted restriction shall constitute reasonable grounds for questioning
the validity of an asserted restriction.
(e) Government right to challenge and validate asserted
restrictions. (1) The Government, when there are reasonable grounds to
do so, has the right to review and challenge the validity of any
restrictions asserted by the Contractor on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose computer
software delivered, to be delivered under this contract, or otherwise
provided to the Government in the performance of this contract. Except
for software that is publicly available, has been furnished to the
Government without restrictions, or has been otherwise made available
without restrictions, the Government may exercise this right only within
three years after the date(s) the software is delivered or otherwise
furnished to the Government, or three years following final payment
under this contract, whichever is later.
(2) The absence of a challenge to an asserted restriction shall not
constitute validation under this clause. Only a Contracting Officer's
final decision or actions of an agency Board of Contract Appeals or a
court of competent jurisdiction that sustain the validity of an asserted
restriction constitute validation of the restriction.
(f) Challenge procedures. (1) A challenge must be in writing and
shall--
(i) State the specific grounds for challenging the asserted
restriction;
(ii) Require the Contractor to respond within sixty (60) days;
(iii) Require the Contractor to provide justification for the
assertion based upon records kept in accordance with paragraph (b) of
this clause and such other documentation that are reasonably available
to the Contractor, in sufficient detail to enable the Contracting
Officer to determine the validity of the asserted restrictions; and
(iv) State that a Contracting Officer's final decision, during the
three-year period preceding this challenge, or action of a court of
competent jurisdiction or Board of Contract Appeals that sustained the
validity of an identical assertion made by the Contractor (or a
licensee) shall serve as justification for the asserted restriction.
(2) The Contracting Officer shall extend the time for response if
the Contractor submits a written request showing the need for additional
time to prepare a response.
[[Page 94]]
(3) The Contracting Officer may request additional supporting
documentation if, in the Contracting Officer's opinion, the Contractor's
explanation does not provide sufficient evidence to justify the validity
of the asserted restrictions. The Contractor agrees to promptly respond
to the Contracting Officer's request for additional supporting
documentation.
(4) Notwithstanding challenge by the Contracting Officer, the
parties may agree on the disposition of an asserted restriction at any
time prior to a Contracting Officer's final decision or, if the
Contractor has appealed that decision, filed suit, or provided notice of
an intent to file suit, at any time prior to a decision by a court of
competent jurisdiction or Board of Contract Appeals.
(5) If the Contractor fails to respond to the Contracting Officer's
request for information or additional information under paragraph (f)(1)
of this clause, the Contracting Officer shall issue a final decision, in
accordance with the Disputes clause of this contract, pertaining to the
validity of the asserted restriction.
(6) If the Contracting Officer, after reviewing the written
explanation furnished pursuant to paragraph (f)(1) of this clause, or
any other available information pertaining to the validity of an
asserted restriction, determines that the asserted restriction has--
(i) Not been justified, the Contracting Officer shall issue promptly
a final decision, in accordance with the Disputes clause of this
contract, denying the validity of the asserted restriction; or
(ii) Been justified, the Contracting Officer shall issue promptly a
final decision, in accordance with the Disputes clause of this contract,
validating the asserted restriction.
(7) A Contractor receiving challenges to the same asserted
restriction(s) from more than one Contracting Officer shall notify each
Contracting Officer of the other challenges. The notice shall also state
which Contracting Officer initiated the first in time unanswered
challenge. The Contracting Officer who initiated the first in time
unanswered challenge, after consultation with the other Contracting
Officers who have challenged the restrictions and the Contractor, shall
formulate and distribute a schedule that provides the contractor a
reasonable opportunity for responding to each challenge.
(g) Contractor appeal--Government obligation. (1) The Government
agrees that, notwithstanding a Contracting Officer's final decision
denying the validity of an asserted restriction and except as provided
in paragraph (g)(3) of this clause, it will honor the asserted
restriction--
(i) For a period of ninety (90) days from the date of the
Contracting Officer's final decision to allow the Contractor to appeal
to the appropriate Board of Contract Appeals or to file suit in an
appropriate court;
(ii) For a period of one year from the date of the Contracting
Officer's final decision if, within the first ninety (90) days following
the Contracting Officer's final decision, the Contractor has provided
notice of an intent to file suit in an appropriate court; or
(iii) Until final disposition by the appropriate Board of Contract
Appeals or court of competent jurisdiction, if the Contractor has: (A)
appealed to the Board of Contract Appeals or filed suit an appropriate
court within ninety (90) days; or (B) submitted, within ninety (90)
days, a notice of intent to file suit in an appropriate court and filed
suit within one year.
(2) The Contractor agrees that the Government may strike, correct,
or ignore the restrictive markings if the Contractor fails to--
(i) Appeal to a Board of Contract Appeals within ninety (90) days
from the date of the Contracting Officer's final decision;
(ii) File suit in an appropriate court within ninety (90) days from
such date; or
(iii) File suit within one year after the date of the Contracting
Officer's final decision if the Contractor had provided notice of intent
to file suit within ninety (90) days following the date of the
Contracting Officer's final decision.
(3) The agency head, on a nondelegable basis, may determine that
urgent or compelling circumstances do not permit awaiting the filing of
suit in an appropriate court, or the rendering of a decision by a court
of competent jurisdiction or Board of Contract Appeals. In that event,
the agency head shall notify the Contractor of the urgent or compelling
circumstances. Notwithstanding paragraph (g)(1) of this clause, the
Contractor agrees that the agency may use, modify, reproduce, release,
perform, display, or disclose computer software marked with (i)
government purpose legends for any purpose, and authorize others to do
so; or (ii) restricted or special license rights for government purposes
only. The Government agrees not to release or disclose such software
unless, prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at 227.7103-7 of the
Defense Federal Acquisition Regulation Supplement (DFARS), or is a
Government contractor receiving access to the software for performance
of a Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished Information
Marked with Restrictive Legends. The agency head's determination may be
made at any time after the date of the Contracting Officer's final
decision and shall not affect the Contractor's right to damages against
the United States, or other relief provided by law, if its asserted
restrictions are ultimately upheld.
[[Page 95]]
(h) Final disposition of appeal or suit. If the Contractor appeals
or files suit and if, upon final disposition of the appeal or suit, the
Contracting Officer's decision is:
(1) Sustained--
(i) Any restrictive marking on such computer software shall be
struck or corrected at the contractor's expense or ignored; and
(ii) If the asserted restriction is found not to be substantially
justified, the Contractor shall be liable to the Government for payment
of the cost to the Government of reviewing the asserted restriction and
the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A))
incurred by the Government in challenging the restriction, unless
special circumstances would make such payment unjust.
(2) Not sustained--
(i) The Government shall be bound by the asserted restriction; and
(ii) If the challenge by the Government is found not to have been
made in good faith, the Government shall be liable to the Contractor for
payment of fees and other expenses (as defined in 28 U.S.C.
2412(d)(2)(A)) incurred by the Contractor in defending the restriction.
(i) Flowdown. The Contractor shall insert this clause in all
contracts, purchase orders, and other similar instruments with its
subcontractors or suppliers, at any tier, who will be furnishing
computer software to the Government in the performance of this contract.
The clause may not be altered other than to identify the appropriate
parties.
(End of clause)
[60 FR 33503, June 28, 1995]
Sec. 252.227-7020 Rights in special works.
As prescribed in 227.7105-3, 227.7106(a) or 227.7205(a), use the
following clause:
Rights in Special Works (June 1995)
(a) Applicability. This clause applies to works first created,
generated, or produced and required to be delivered under this contract.
(b) Definitions. As used in this clause:
(1) ``Computer data base'' means a collection of data recorded in a
form capable of being processed by a computer. The term does not include
computer software.
(2) ``Computer program'' means a set of instructions, rules, or
routines recorded in a form that is capable of causing a computer to
perform a specific operation or series of operations.
(3) ``Computer software'' means computer programs, source code,
source code listings, object code listings, design details, algorithms,
processes, flow charts, formulae and related material that would enable
the software to be reproduced, recreated, or recompiled. Computer
software does not include computer data bases or computer software
documentation.
(4) ``Computer software documentation'' means owner's manuals,
user's manuals, installation instructions, operating instructions, and
other similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
(5) ``Unlimited rights'' means the rights to use, modify, reproduce,
perform, display, release, or disclose a work in whole or in part, in
any manner, and for any purpose whatsoever, and to have or authorize
others to do so.
(6) The term ``works'' includes computer data bases, computer
software, or computer software documentation; literary, musical,
choreographic, or dramatic compositions; pantomimes; pictorial, graphic,
or sculptural compositions; motion pictures and other audiovisual
compositions; sound recordings in any medium; or, items of similar
nature.
(c) License rights. (1) The Government shall have unlimited rights
in works first produced, created, or generated and required to be
delivered under this contract.
(2) When a work is first produced, created, or generated under this
contract, and such work is required to be delivered under this contract,
the Contractor shall assign copyright in those works to the Government.
The Contractor, unless directed to the contrary by the Contracting
Officer, shall place the following notice on such works: ``
(Year date of delivery) United States Government, as represented by the
Secretary of (department). All rights reserved.''
For phonorecords, the ``'' markings shall be replaced by
a ``P''.
(3) The Contractor grants to the Government a royalty-free, world-
wide, nonexclusive, irrevocable license to reproduce, prepare derivative
works from, distribute, perform, or display, and to have or authorize
others to do so, the Contractor's copyrighted works not first produced,
created, or generated under this contract that have been incorporated
into the works deliverable under this contract.
(d) Third party copyrighted data. The Contractor shall not
incorporate, without the written approval of the Contracting Officer,
any copyrighted works in the works to be delivered under this contract
unless the Contractor is the copyright owner or has obtained for the
Government the license rights necessary to perfect a license of the
scope identified in paragraph (c)(3) of this clause and, prior to
delivery of such works--
(1) Has affixed to the transmittal document a statement of the
license rights obtained; or
[[Page 96]]
(2) For computer software, has provided a statement of the license
rights obtained in a form acceptable to the Contracting Officer.
(e) Indemnification. The Contractor shall indemnify and save and
hold harmless the Government, and its officers, agents and employees
acting for the Government, against any liability, including costs and
expenses, (1) for violation of proprietary rights, copyrights, or rights
of privacy or publicity, arising out of the creation, delivery, use,
modification, reproduction, release, performance, display, or disclosure
of any works furnished under this contract, or (2) based upon any
libelous or other unlawful matter contained in such works.
(f) Government-furnished information. Paragraphs (d) and (e) of this
clause are not applicable to information furnished to the Contractor by
the Government and incorporated in the works delivered under this
contract.
(End of clause)
[60 FR 33504, June 28, 1995]
Sec. 252.227-7021 Rights in data--existing works.
As prescribed at 227.7105-2(a), use the following clause:
Rights in Data--Existing Works (Mar. 1979)
(a) The term works as used herein includes literary, musical, and
dramatic works; pantomimes and choreographic works; pictorial, graphic
and sculptural works; motion pictures and other audiovisual works; sound
recordings; and works of a similar nature. The term does not include
financial reports, cost analyses, and other information incidental to
contract administration.
(b) Except as otherwise provided in this contract, the Contractor
hereby grants to the Government a nonexclusive, paid-up license
throughout the world (1) to distribute, perform publicly, and display
publicly the works called for under this contract and (2) to authorize
others to do so for Government purposes.
(c) The Contractor shall indemnify and save and hold harmless the
Government, and its officers, agents, and employees acting for the
Government, against any liability, including costs and expenses, (1) for
violation of proprietary rights, copyrights, or rights of privacy or
publicity arising out of the creation, delivery, or use, of any works
furnished under this contract, or (2) based upon any libelous or other
unlawful matter contained in same works.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33504, June 28, 1994]
Sec. 252.227-7022 Government rights (unlimited).
As prescribed at 227.7107-1(a), use the following clause:
Government Rights (Unlimited) (Mar. 1979)
The Government shall have unlimited rights, in all drawings,
designs, specifications, notes and other works developed in the
performance of this contract, including the right to use same on any
other Government design or construction without additional compensation
to the Contractor. The Contractor hereby grants to the Government a
paid-up license throughout the world to all such works to which he may
assert or establish any claim under design patent or copyright laws. The
Contractor for a period of three (3) years after completion of the
project agrees to furnish the original or copies of all such works on
the request of the Contracting Officer.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33504, June 28, 1994]
Sec. 252.227-7023 Drawings and other data to become property of government.
As prescribed at 227.7107-1(b), use the following clause:
Drawings and Other Data to Become Property of Government (Mar. 1979)
All designs, drawings, specifications, notes and other works
developed in the performance of this contract shall become the sole
property of the Government and may be used on any other design or
construction without additional compensation to the Contractor. The
Government shall be considered the ``person for whom the work was
prepared'' for the purpose of authorship in any copyrightable work under
17 U.S.C. 201(b). With respect thereto, the Contractor agrees not to
assert or authorize others to assert any rights nor establish any claim
under the design patent or copyright laws. The Contractor for a period
of three (3) years after completion of the project agrees to furnish all
retained works on the request of the Contracting Officer. Unless
otherwise provided in this contract, the Contractor shall have the right
to retain copies of all works beyond such period.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
[[Page 97]]
Sec. 252.227-7024 Notice and approval of restricted designs.
As prescribed at 227.7107-3, use the following clause:
Notice and Approval of Restricted Designs (Apr. 1984)
In the performance of this contract, the Contractor shall, to the
extent practicable, make maximum use of structures, machines, products,
materials, construction methods, and equipment that are readily
available through Government or competitive commercial channels, or
through standard or proven production techniques, methods, and
processes. Unless approved by the Contracting Officer, the Contractor
shall not produce a design or specification that requires in this
construction work the use of structures, products, materials,
construction equipment, or processes that are known by the Contractor to
be available only from a sole source. The Contractor shall promptly
report any such design or specification to the Contracting Officer and
give the reason why it is considered necessary to so restrict the design
or specification.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
Sec. 252.227-7025 Limitations on the use or disclosure of government-furnished information marked with restrictive legends.
As prescribed in 227.7103-6(c), 227.7104(f)(1), or 227.7203-6(d),
use the following clause:
Limitations on the Use or Disclosure of Government-Furnished Information
Marked With Restrictive Legends (June 1995)
(a)(1) For contracts requiring the delivery of technical data, the
terms ``limited rights'' and ``Government purpose rights'' are defined
in the Rights in Technical Data--Noncommercial Items clause of this
contract.
(2) For contracts that do not require the delivery of technical
data, the terms ``government purpose rights'' and ``restricted rights''
are defined in the Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation clause of this contract.
(3) For Small Business Innovative Research program contracts, the
terms ``limited rights'' and ``restricted rights'' are defined in the
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovative Research (SBIR) Program clause of this contract.
(b) Technical data or computer software provided to the Contractor
as Government furnished information (GFI) under this contract may be
subject to restrictions on use, modification, reproduction, release,
performance, display, or further disclosure.
(1) GFI marked with limited or restricted rights legends. The
Contractor shall use, modify, reproduce, perform, or display technical
data received from the Government with limited rights legends or
computer software received with restricted rights legends only in the
performance of this contract. The Contractor shall not, without the
express written permission of the party whose name appears in the
legend, release or disclose such data or software to any person.
(2) GFI marked with government purpose rights legends. The
Contractor shall use technical data or computer software received from
the Government with government purpose rights legends for government
purposes only. The Contractor shall not, without the express written
permission of the party whose name appears in the restrictive legend,
use, modify, reproduce, release, perform, or display such data or
software for any commercial purpose or disclose such data or software to
a person other than its subcontractors, suppliers, or prospective
subcontractors or suppliers, who require the data or software to submit
offers for, or perform, contracts under this contract. Prior to
disclosing the data or software, the Contractor shall require the
persons to whom disclosure will be made to complete and sign the non-
disclosure agreement at 227.7103-7 of the Defense Federal Acquisition
Regulation Supplement (DFARS).
(3) GFI marked with specially negotiated license rights legends. The
Contractor shall use, modify, reproduce, release, perform, or display
technical data or computer software received from the Government with
specially negotiated license legends only as permitted in the license.
Such data or software may not be released or disclosed to other persons
unless permitted by the license and, prior to release or disclosure, the
intended recipient has completed the non-disclosure agreement at DFARS
227.7103-7. The Contractor shall modify paragraph (1)(c) of the non-
disclosure agreement to reflect the recipient's obligations regarding
use, modification, reproduction, release, performance, display, and
disclosure of the data or software.
(c) Indemnification and creation of third party beneficiary rights.
The Contractor agrees--
(1) To indemnify and hold harmless the Government, its agents, and
employees from every claim or liability, including attorneys fees, court
costs, and expenses, arising out of, or in any way related to, the
misuse or unauthorized modification, reproduction, release, performance,
display, or disclosure of technical data or computer software received
[[Page 98]]
from the Government with restrictive legends by the Contractor or any
person to whom the Contractor has released or disclosed such data or
software; and
(2) That the party whose name appears on the restrictive legend, in
addition to any other rights it may have, is a third party beneficiary
who has the right of direct action against the Contractor, or any person
to whom the Contractor has released or disclosed such data or software,
for the unauthorized duplication, release, or disclosure of technical
data or computer software subject to restrictive legends.
(End of clause)
[60 FR 33505, June 28, 1995]
Sec. 252.227-7026 Deferred delivery of technical data or computer software.
As prescribed at 227.7103-8(a), use the following clause:
Deferred Delivery of Technical Data or Computer Software (Apr. 1988)
The Government shall have the right to require, at any time during
the performance of this contract, within two (2) years after either
acceptance of all items (other than data or computer software) to be
delivered under this contract or termination of this contract, whichever
is later, delivery of any technical data or computer software item
identified in this contract as ``deferred delivery'' data or computer
software. The obligation to furnish such technical data required to be
prepared by a subcontractor and pertaining to an item obtained from him
shall expire two (2) years after the date Contractor accepts the last
delivery of that item from that subcontractor for use in performing this
contract.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
Sec. 252.227-7027 Deferred ordering of technical data or computer software.
As prescribed at 227.7103-8(b), use the following clause:
Deferred Ordering of Technical Data or Computer Software (Apr. 1988)
In addition to technical data or computer software specified
elsewhere in this contract to be delivered hereunder, the Government
may, at any time during the performance of this contract or within a
period of three (3) years after acceptance of all items (other than
technical data or computer software) to be delivered under this contract
or the termination of this contract, order any technical data or
computer software generated in the performance of this contract or any
subcontract hereunder. When the technical data or computer software is
ordered, the Contractor shall be compensated for converting the data or
computer software into the prescribed form, for reproduction and
delivery. The obligation to deliver the technical data of a
subcontractor and pertaining to an item obtained from him shall expire
three (3) years after the date the Contractor accepts the last delivery
of that item from that subcontractor under this contract. The
Government's rights to use said data or computer software shall be
pursuant to the ``Rights in Technical Data and Computer Software''
clause of this contract.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
Sec. 252.227-7028 Technical data or computer software previously delivered to the government.
As prescribed in 227.7103-6(d), 227.7104(f)(2), or 227.7203-6(e),
use the following provision:
Technical Data or Computer Software Previously Delivered to the
Government (June 1995)
The Offeror shall attach to its offer an identification of all
documents or other media incorporating technical data or computer
software it intends to deliver under this contract with other than
unlimited rights that are identical or substantially similar to
documents or other media that the Offeror has produced for, delivered
to, or is obligated to deliver to the Government under any contract or
subcontract. The attachment shall identify--
(a) The contract number under which the data or software were
produced;
(b) The contract number under which, and the name and address of the
organization to whom, the data or software were most recently delivered
or will be delivered; and
(c) Any limitations on the Government's rights to use or disclose
the data or software, including, when applicable, identification of the
earliest date the limitations expire.
(End of provision)
[60 FR 33505, June 28, 1995]
[[Page 99]]
252.227-7029 [Reserved]
Sec. 252.227-7030 Technical data--withholding of payment.
As prescribed at 227.7103-6(f)(2) or 227.7104(e)(4), use the
following clause:
Technical Data--Withholding of Payment (Oct. 1988)
(a) If technical data specified to be delivered under this contract,
is not delivered within the time specified by this contract or is
deficient upon delivery (including having restrictive markings not
identified in the list described in the clause at 252.227-7013(k) of
this contract), the Contracting Officer may until such data is accepted
by the Government, withhold payment to the Contractor of ten percent
(10%) of the total contract price or amount unless a lesser withholding
is specified in the contract. Payments shall not be withheld nor any
other action taken pursuant to this paragraph when the Contractor's
failure to make timely delivery or to deliver such data without
deficiencies arises out of causes beyond the control and without the
fault or negligence of the Contractor.
(b) The withholding of any amount or subsequent payment to the
Contractor shall not be construed as a waiver of any rights accruing to
the Government under this contract.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
252.227-7031 [Reserved]
Sec. 252.227-7032 Rights in technical data and computer software (foreign).
As prescribed in 227.7103-17, use the following clause:
Rights in Technical Data and Computer Software (Foreign) (June 1975)
The United States Government may duplicate, use, and disclose in any
manner for any purposes whatsoever, including delivery to other
governments for the furtherance of mutual defense of the United States
Government and other governments, all technical data including reports,
drawings and blueprints, and all computer software, specified to be
delivered by the Contractor to the United States Government under this
contract.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
Sec. 252.227-7033 Rights in shop drawings.
As prescribed in 227.7107-(1)(c), use the following clause:
Rights in Shop Drawings (Apr. 1966)
(a) Shop drawings for construction means drawings, submitted to the
Government by the Construction Contractor, subcontractor or any lower-
tier subcontractor pursuant to a construction contract, showing in
detail (i) the proposed fabrication and assembly of structural elements
and (ii) the installation (i.e., form, fit, and attachment details) of
materials or equipment. The Government may duplicate, use, and disclose
in any manner and for any purpose shop drawings delivered under this
contract.
(b) This clause, including this paragraph (b), shall be included in
all subcontracts hereunder at any tier.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
Sec. 252.227-7034 Patents--subcontracts.
As prescribed at 227.304-4, insert the following clause:
Patents--Subcontracts (Apr. 1984)
The Contractor will include the clause at FAR 52.227-12, Patent
Rights--Retention by the Contractor (Long Form), suitably modified to
identify the parties, in all subcontracts, regardless of tier, for
experimental, developmental, or research work to be performed by other
than a small business firm or nonprofit organization.
(End of clause)
252.227-7035 [Reserved]
Sec. 252.227-7036 Certification of technical data conformity.
As prescribed in 227.7103-6(e)(3) or 227.7104(e)(5), use the
following clause:
Certification of Technical Data Conformity (May 1987)
(a) All technical data delivered under this contract shall be
accompanied by the following written certification:
The Contractor, ________, hereby certifies that, to the best of its
knowledge and belief, the technical data delivered herewith under
Contract No. ________ is complete, accurate, and complies with all
requirements of the
contract._______________________________________________________________
Date____________________________________________________________________
Name and Title of Certifying Official___________________________________
[[Page 100]]
This written certification shall be dated and the certifying
official (identified by name and title) shall be duly authorized to bind
the Contractor by the certification.
(b) The Contractor shall identify, by name and title, each
individual (official) authorized by the Contractor to certify in writing
that the technical data is complete, accurate, and complies with all
requirements of the contract. The Contractor hereby authorizes direct
contact with the authorized individual responsible for certification of
technical data. The authorized individual shall be familiar with the
Contractor's technical data conformity procedures and their application
to the technical data to be certified and delivered.
(c) Technical data delivered under this contract may be subject to
reviews by the Government during preparation and prior to acceptance.
Technical data is also subject to reviews by the Government subsequent
to acceptance. Such reviews may be conducted as a function ancillary to
other reviews, such as in-process reviews or configuration audit
reviews.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995]
Sec. 252.227-7037 Validation of restrictive markings on technical data.
As prescribed in 227.7102-3(c), 227.7103(e)(4), 227.7104(e)(6), or
227.7203-6(f), use the following clause:
Validation of Restrictive Markings on Technical Data (NOV 1995)
(a) Definitions. The terms used in this clause are defined in the
Rights in Technical Data--Noncommercial Items clause of this contract.
(b) Contracts for commercial items--presumption of development at
private expense. Under a contract for a commercial item, component, or
process, the Department of Defense shall presume that a Contractor's
asserted use or release restrictions are justified on the basis that the
item, component, or process was developed exclusively at private
expense. The Department shall not challenge such assertions unless
information the Department demonstrates that the item, component, or
process was not developed exclusively at private expense.
(c) Justification. The Contractor or subcontractor at any tier is
responsible for maintaining records sufficient to justify the validity
of its markings that impose restrictions on the Government and others to
use, duplicate, or disclose technical data delivered or required to be
delivered under the contract or subcontract. Except under contracts for
commercial items, the Contractor or subcontractor shall be prepared to
furnish to the Contracting Officer a written justification for such
restrictive markings in response to a challenge under paragraph (e) of
this clause.
(d) Prechallenge request for information. (1) The Contracting
Officer may request the Contractor or subcontractor to furnish a written
explanation for any restriction asserted by the Contractor or
subcontractor on the right of the United States or others to use
technical data. If, upon review of the explanation submitted, the
Contracting Officer remains unable to ascertain the basis of the
restrictive marking, the Contracting Officer may further request the
Contractor or subcontractor to furnish additional information in the
records of, or otherwise in the possession of or reasonably available
to, the Contractor or subcontractor to justify the validity of any
restrictive marking on technical data delivered or to be delivered under
the contract or subcontract (e.g., a statement of facts accompanied with
supporting documentation). The Contractor or subcontractor shall submit
such written data as requested by the Contracting Officer within the
time required or such longer period as may be mutually agreed.
(2) If the Contracting Officer, after reviewing the written data
furnished pursuant to paragraph (d)(1) of this clause, or any other
available information pertaining to the validity of a restrictive
marking, determines that reasonable grounds exist to question the
current validity of the marking and that continued adherence to the
marking would make impracticable the subsequent competitive acquisition
of the item, component, or process to which the technical data relates,
the Contracting Officer shall follow the procedures in paragraph (e) of
this clause.
(3) If the Contractor or subcontractor fails to respond to the
Contracting Officer's request for information under paragraph (d)(1) of
this clause, and the Contracting Officer determines that continued
adherence to the marking would make impracticable the subsequent
competitive acquisition of the item, component, or process to which the
technical data relates, the Contracting Officer may challenge the
validity of the marking as described in paragraph (e) of this clause.
(e) Challenge. (1) Notwithstanding any provision of this contract
concerning inspection and acceptance, if the Contracting Officer
determines that a challenge to the restrictive marking is warranted, the
Contracting Officer shall send a written challenge notice to the
Contractor or subcontractor asserting the restrictive markings. Such
challenge shall--
(i) State the specific grounds for challenging the asserted
restriction;
[[Page 101]]
(ii) Require a response within sixty (60) days justifying and
providing sufficient evidence as to the current validity of the asserted
restriction;
(iii) State that a DoD Contracting Officer's final decision, issued
pursuant to paragraph (g) of this clause, sustaining the validity of a
restrictive marking identical to the asserted restriction, within the
three-year period preceding the challenge, shall serve as justification
for the asserted restriction if the validated restriction was asserted
by the same Contractor or subcontractor (or any licensee of such
Contractor or subcontractor) to which such notice is being provided; and
(iv) State that failure to respond to the challenge notice may
result in issuance of a final decision pursuant to paragraph (f) of this
clause.
(2) The Contracting Officer shall extend the time for response as
appropriate if the Contractor or subcontractor submits a written request
showing the need for additional time to prepare a response.
(3) The Contractor's or subcontractor's written response shall be
considered a claim within the meaning of the Contract Disputes Act of
1978 (41 U.S.C. 601, et seq.), and shall be certified in the form
prescribed at 33.207 of the Federal Acquisition Regulation, regardless
of dollar amount.
(4) A Contractor or subcontractor receiving challenges to the same
restrictive markings from more than one Contracting Officer shall notify
each Contracting Officer of the existence of more than one challenge.
The notice shall also state which Contracting Officer initiated the
first in time unanswered challenge. The Contracting Officer initiating
the first in time unanswered challenge after consultation with the
Contractor or subcontractor and the other Contracting Officers, shall
formulate and distribute a schedule for responding to each of the
challenge notices to all interested parties. The schedule shall afford
the Contractor or subcontractor an opportunity to respond to each
challenge notice. All parties will be bound by this schedule.
(f) Final decision when Contractor or subcontractor fails to
respond. Upon a failure of a Contractor or subcontractor to submit any
response to the challenge notice, other than a failure to respond under
a contract for commercial items, the Contracting Officer will issue a
final decision to the Contractor or subcontractor in accordance with the
Disputes clause of this contract pertaining to the validity of the
asserted restriction. This final decision shall be issued as soon as
possible after the expiration of the time period of paragraph (e)(1)(ii)
or (e)(2) of this clause. Following issuance of the final decision, the
Contracting Officer will comply with the procedures in paragraphs (g)(2)
(ii) through (iv) of this clause.
(g) Final decision when Contractor or subcontractor responds. (1) if
the Contracting Officer determines that the Contractor or subcontractor
has justified the validity of the restrictive marking, the Contracting
Officer shall issue a final decision to the Contractor or subcontractor
sustaining the validity of the restrictive marking, and stating that the
Government will continue to be bound by the restrictive marking. This
final decision shall be issued within sixty (60) days after receipt of
the Contractor's or subcontractor's response to the challenge notice, or
within such longer period that the Contracting Officer has notified the
Contractor or subcontractor that the Government will require. The
notification of a longer period for issuance of a final decision will be
made within sixty (60) days after receipt of the response to the
challenge notice.
(2)(i) If the Contracting Officer determines that the validity of
the restrictive marking is not justified, the Contracting Officer shall
issue a final decision to the Contractor or subcontractor in accordance
with the Disputes clause of this contract. Notwithstanding paragraph (e)
of the Disputes clause, the final decision shall be issued within sixty
(60) days after receipt of the Contractor's or subcontractor's response
to the challenge notice, or within such longer period that the
Contracting Officer has notified the Contractor or subcontractor of the
longer period that the Government will require. The notification of a
longer period for issuance of a final decision will be made within sixty
(60) days after receipt of the response to the challenge notice.
(ii) The Government agrees that it will continue to be bound by the
restrictive marking of a period of ninety (90) days from the issuance of
the Contracting Officer's final decision under paragraph (g)(2)(i) of
this clause. The Contractor or subcontractor agrees that, if it intends
to file suit in the United States Claims Court it will provide a notice
of intent to file suit to the Contracting Officer within ninety (90)
days from the issuance of the Contracting Officer's final decision under
paragraph (g)(2)(i) of this clause. If the Contractor or subcontractor
fails to appeal, file suit, or provide a notice of intent to file suit
to the Contracting Officer within the ninety (90)-day period, the
Government may cancel or ignore the restrictive markings, and the
failure of the Contractor or subcontractor to take the required action
constitutes agreement with such Government action.
(iii) The Government agrees that it will continue to be bound by the
restrictive marking where a notice of intent to file suit in the United
States Claims Court is provided to the Contracting Officer within ninety
(90) days from the issuance of the final decision under paragraph
(g)(2)(i) of this clause. The Government will no longer be
[[Page 102]]
bound, and the Contractor or subcontractor agrees that the Government
may strike or ignore the restrictive markings, if the Contractor or
subcontractor fails to file its suit within one (1) year after issuance
of the final decision. Notwithstanding the foregoing, where the head of
an agency determines, on a nondelegable basis, that urgent or compelling
circumstances will not permit waiting for the filing of a suit in the
United States Claims Court, the Contractor or subcontractor agrees that
the agency may, following notice to the Contractor or subcontractor,
authorize release or disclosure of the technical data. Such agency
determination may be made at any time after issuance of the final
decision and will not affect the Contractor's or subcontractor's right
to damages against the United States where its restrictive markings are
ultimately upheld or to pursue other relief, if any, as may be provided
by law.
(iv) The Government agrees that it will be bound by the restrictive
marking where an appeal or suit is filed pursuant to the Contract
Disputes Act until final disposition by an agency Board of Contract
Appeals or the United States Claims Court. Notwithstanding the
foregoing, where the head of an agency determines, on a nondelegable
basis, following notice to the Contractor that urgent or compelling
circumstances will not permit awaiting the decision by such Board of
Contract Appeals or the United States Claims Court, the Contractor or
subcontractor agrees that the agency may authorize release or disclosure
of the technical data. Such agency determination may be made at any time
after issuance of the final decision and will not affect the
Contractor's or subcontractor's right to damages against the United
States where its restrictive markings are ultimately upheld or to pursue
other relief, if any, as may be provided by law.
(h) Final disposition of appeal or suit. (1) If the Contractor or
subcontractor appeals or files suit and if, upon final disposition of
the appeal or suit, the Contracting Officer's decision is sustained--
(i) The restrictive marking on the technical data shall be
cancelled, corrected or ignored; and
(ii) If the restrictive marking is found not to be substantially
justified, the Contractor or subcontractor, as appropriate, shall be
liable to the Government for payment of the cost to the Government of
reviewing the restrictive marking and the fees and other expenses (as
defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in
challenging the marking, unless special circumstances would make such
payment unjust.
(2) If the Contractor or subcontractor appeals or files suit and if,
upon final disposition of the appeal or suit, the Contracting Officer's
decision is not sustained--
(i) The Government shall continue to be bound by the restrictive
marking; and
(ii) The Government shall be liable to the Contractor or
subcontractor for payment of fees and other expenses (as defined in 28
U.S.C. 2412(d)(2)(A)) incurred by the Contractor or subcontractor in
defending the marking, if the challenge by the Government is found not
to have been made in good faith.
(i) Duration of right to challenge. The Government may review the
validity of any restriction on technical data, delivered or to be
delivered under a contract, asserted by the Contractor or subcontractor.
During the period within three (3) years of final payment on a contract
or within three (3) years of delivery of the technical data to the
Government, whichever is later, the Contracting Officer may review and
make a written determination to challenge the restriction. The
Government may, however, challenge a restriction on the release,
disclosure or use of technical data at any time if such technical data--
(1) Is publicly available;
(2) Has been furnished to the United States without restriction; or
(3) Has been otherwise made available without restriction. Only the
Contracting Officer's final decision resolving a formal challenge by
sustaining the validity of a restrictive marking constitutes
``validation'' as addressed in 10 U.S.C. 2321.
(j) Decision not to challenge. A decision by the Government, or a
determination by the Contracting Officer, to not challenge the
restrictive marking or asserted restriction shall not constitute
``validation.''
(k) Privity of contract. The Contractor or subcontractor agrees that
the Contracting Officer may transact matters under this clause directly
with subcontractors at any tier that assert restrictive markings.
However, this clause neither creates nor implies privity of contract
between the Government and subcontractors.
(l) Flowdown. The Contractor or subcontractor agrees to insert this
clause in contractual instruments with its subcontractors or suppliers
at any tier requiring the delivery of technical data, except contractual
instruments for commercial items or commercial components.
(End of clause)
[60 FR 33505, June 28, 1995, as amended at 60 FR 61602, Nov. 30, 1995]
252.227-7038 [Reserved]
Sec. 252.227-7039 Patents--reporting of subject inventions.
As prescribed at 227.303(a), insert the following clause:
[[Page 103]]
Patents--Reporting of Subject Inventions (Apr. 1990)
The Contractor shall furnish the Contracting Officer the following:
(a) Interim reports every twelve (12) months (or such longer period
as may be specified by the Contracting Officer) from the date of the
contract, listing subject inventions during that period and stating that
all subject inventions have been disclosed or that there are no such
inventions.
(b) A final report, within three (3) months after completion of the
contracted work, listing all subject inventions or stating that there
were no such inventions.
(c) Upon request, the filing date, serial number and title, a copy
of the patent application and patent number, and issue data for any
subject invention for which the Contractor has retained title.
(d) Upon request, the Contractor shall furnish the Government an
irrevocable power to inspect and make copies of the patent application
file.
(End of clause)
Sec. 252.228-7000 Reimbursement for war-hazard losses.
As prescribed in 228.370(a), use the following clause:
Reimbursement for War-Hazard Losses (Dec. 1991)
(a) Costs for providing employee war-hazard benefits in accordance
with paragraph (b) of the Workers' Compensation and War-Hazard Insurance
clause of this contract are allowable if the Contractor--
(1) Submits proof of loss files to support payment or denial of each
claim;
(2) Subject to Contracting Officer approval, makes lump sum final
settlement of any open claims and obtains necessary release documents
within one year of the expiration or termination of this contract,
unless otherwise extended by the Contracting Officer; and
(3) Provides the Contracting Officer at the time of final settlement
of this contract--
(i) An investigation report and evaluation of any potential claim;
and
(ii) An estimate of the dollar amount involved should the potential
claim mature.
(b) The cost of insurance for liabilities reimbursable under this
clause is not allowable.
(c) The Contracting Officer may require the Contractor to assign to
the Government all right, title, and interest to any refund, rebate, or
recapture arising out of any claim settlements.
(d) The Contractor agrees to--
(1) Investigate and promptly notify the Contracting Officer in
writing of any occurrence which may give rise to a claim or potential
claim, including the estimated amount of the claim;
(2) Give the Contracting Officer immediate written notice of any
suit or action filed which may result in a payment under this clause;
and
(3) Provide assistance to the Government in connection with any
third party suit or claim relating to this clause which the Government
elects to prosecute or defend in its own behalf.
(End of clause)
Sec. 252.228-7001 Ground and flight risk.
As prescribed in 228.370(b), use the following clause:
Ground and Flight Risk (SEP 1996)
(a) Definitions. As used in this clause--
(1) Aircraft, unless otherwise provided in the Schedule, means--
(i) Aircraft to be delivered to the Government under this contract
(either before or after Government acceptance), including complete
aircraft and aircraft in the process of being manufactured,
disassembled, or reassembled; provided that an engine, portion of a wing
or a wing is attached to a fuselage of the aircraft; and
(ii) Aircraft, whether in a state of disassembly or reassembly,
furnished by the Government to the Contractor under this contract,
including all property installed, in the process of installation, or
temporarily removed; provided that the aircraft and property are not
covered by a separate bailment agreement.
(2) Contractor's premises means those premises designated in the
Schedule or in writing by the Contracting Officer, and any other place
the aircraft is moved for safeguarding.
(3) Flight means any flight demonstration, flight test, taxi test,
or other flight made in the performance of this contract, or for the
purpose of safeguarding the aircraft, or previously approved in writing
by the Contracting Officer.
(i) For land based aircraft, flight begins with the taxi roll from a
flight line on the Contractor's premises and continues until the
aircraft has completed the taxi roll in returning to a flight line on
the Contractor's premises;
(ii) For seaplanes, flight begins with the launching from a ramp on
the Contractor's premises and continues until the aircraft has completed
its landing run and is beached at a ramp on the Contractor's premises;
(iii) For helicopters, flight begins upon engagement of the rotors
for the purpose of take-off from the Contractor's premises and continues
until the aircraft has returned to the ground on the Contractor's
premises and the rotors are disengaged; and
[[Page 104]]
(iv) For vertical take-off aircraft, flight begins upon
disengagement from any launching platform or device on the Contractor's
premises and continues until the aircraft has been engaged to any
launching platform or device on the Contractor's premises;
(v) 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 this
contract, or landings approved in writing by the Contracting Officer.
(4) Flight crew member means the pilot, the co-pilot, and, unless
otherwise provided in the Schedule, the flight engineer, navigator, and
bombardier-navigator when assigned to their respective crew positions
for the purpose of conducting any flight on behalf of the Contractor. If
required, a defense systems operator may also be assigned as a flight
crew member.
(5) In the open means located wholly outside of buildings on the
Contractor's premises or other places described in the Schedule as being
in the open. Government furnished aircraft shall be considered to be
located in the open at all times while in the Contractor's possession,
care, custody, or control.
(6) Operation means operations and tests of the aircraft and its
installed equipment, accessories, and power plants, while the aircraft
is in the open or in motion. The term does not apply to aircraft on any
production line or in flight.
(b) Except as may be specifically provided in the Schedule as an
exception to this clause, the Government assumes the risk of damage to,
or loss or destruction of aircraft in the open, during operation, and in
flight. The Contractor shall not be liable to the Government for such
damage, loss, or destruction.
(c) The Government's assumption of risk for aircraft in the open
shall continue unless the Contracting Officer finds that the aircraft is
in the open under unreasonable conditions, and the Contractor fails to
take prompt corrective action.
(1) The Contracting Officer, when finding aircraft in the open under
unreasonable conditions, shall notify the Contractor in writing of the
unreasonable conditions and require the Contractor to make corrections
within a reasonable time.
(2) Upon receipt of the notice, the Contractor shall promptly
correct the cited conditions, regardless of whether there is agreement
that the conditions are unreasonable. If the Contracting Officer later
determines that the cited conditions were not unreasonable, an equitable
adjustment shall be made in the contract price for any additional costs
incurred in correcting the conditions. Any dispute as to the
unreasonableness of the conditions or the equitable adjustment shall be
considered a dispute under the Disputes clause of this contract.
(3) If the Contracting Officer finds that the Contractor failed to
act promptly to correct the cited conditions or failed to correct the
conditions within a reasonable time, the Contracting Officer may
terminate the Government's assumption of risk for any aircraft in the
open under the cited conditions. The termination will be effective at
12:01 am on the fifteenth day following the day the written notice is
received by the Contractor. If the Contracting Officer later determines
that the Contractor acted promptly to correct the cited conditions or
that the time taken by the Contractor was not unreasonable, an equitable
adjustment shall be made in the contract price for any additional costs
incurred as a result of termination of the Government's assumption of
risk. Any dispute as to the timeliness of the Contractor's action or the
equitable adjustment shall be considered a dispute under the Disputes
clause of this contract.
(4) If the Government terminates its assumption of risk, the risk of
loss for Government-furnished property shall be determined in accordance
with the Government Property clause of this contract.
(5) The Contractor shall promptly notify the Contracting Officer
when unreasonable conditions have been corrected. If the Government
elects to again assume the risk of loss and relieve the Contractor of
liabilities, the Contracting Officer will notify the Contractor. The
Contractor shall be entitled to an equitable adjustment in the contract
price for any insurance costs extending from the end of the third
working day after the Contractor notice of correction until the
Contractor is notified that the Government will assume the risk of loss.
If the Government does not again assume the risk of loss and conditions
have been corrected, the Contractor shall be entitled to an equitable
adjustment for insurance costs, if any, extending after the third
working day.
(d) The Government's assumption of risk shall not extend to damage,
loss, or destruction of aircraft which--
(1) Results from failure of the Contractor, due to willful
misconduct or lack of good faith of any of the Contractor's managerial
personnel, to maintain and administer a program for the protection and
preservation of aircraft in the open and during operation in accordance
with sound industrial practice. The term Contractor's managerial
personnel means the Contractor's directors, officers, and any of the
Contractor's managers, superintendents, or other equivalent
representatives who supervise or direct all or substantially all of the
Contractor's business; or all or substantially all of the Contractor's
operations at any one plant or separate location
[[Page 105]]
at which this contract is performed; or a separate and complete major
industrial operation in connection with the performance of this
contract;
(2) Is sustained during flight if the flight crew members have not
been approved in writing by the Government Flight Representative, who
has been authorized in accordance with the combined regulation entitled
``Contractor's Flight and Ground Operations'' (Air Force Regulation 55-
22, Army Regulation 95-20, NAVAIR Instruction 3710.1C, and Defense
Logistics Agency Manual 8210.1);
(3) Occurs in the course of transportation by rail, or by conveyance
on public streets, highways, or waterways, except for Government-
furnished property;
(4) Is covered by insurance;
(5) Consists of wear and tear; deterioration (including rust and
corrosion); freezing; or mechanical, structural, or electrical breakdown
or failure, unless these are the result of other loss, damage or
destruction covered by this clause. (This exclusion does not apply to
Government-furnished property if damage consists of reasonable wear and
tear or deterioration, or results from inherent vice in the property.);
or
(6) Is sustained while the aircraft is being worked on and is a
direct result of the work unless such damage, loss, or destruction would
be covered by insurance which would have been maintained by the
Contractor, but for the Government's assumption of risk.
(e) With the exception of damage, loss, or destruction in flight,
the Contractor assumes the risk and shall be responsible for the first
$25,000 of loss or damage to aircraft in the open or during operation
resulting from each separate event, except for reasonable wear and tear
and to the extent the loss or damage is caused by negligence of
Government personnel. If the Government elects to require that the
aircraft be replaced or restored by the Contractor to its condition
immediately prior to the damage, the equitable adjustment in the price
authorized by paragraph (i) of this clause shall not include the dollar
amount of the risk assumed by the Contractor. In the event the
Government does not elect repair or replacement, the Contractor agrees
to credit the contract price or pay the Government $25,000 (or the
amount of the loss, if less) as directed by the Contracting Officer.
(f) A subcontractor shall not be relieved from liability for damage,
loss, or destruction of aircraft while in its possession or control,
except to the extent that the subcontract, with the written approval of
the Contracting Officer, provides for relief from each liability. In the
absence of approval, the subcontract shall contain provisions requiring
the return of aircraft in as good condition as when received, except for
reasonable wear and tear or for the utilization of the property in
accordance with the provisions of this contract. Where a subcontractor
has not been relieved from liability, and damage, loss, or destruction
occurs, the Contractor shall enforce liability against the subcontractor
for the benefit of the Government.
(g) 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 covering damage, loss, or
destruction of aircraft while in the open, during operation, or in
flight when the risk has been assumed by the Government, even if the
assumption may be terminated for aircraft in the open.
(h) In the event of damage, loss, or destruction of aircraft in the
open, during operation, or in flight, the Contractor shall take all
reasonable steps to protect the aircraft from further damage, to
separate damaged and undamaged aircraft, to put all aircraft in the best
possible order and further, except in cases covered by paragraph (e) of
this clause, the Contractor shall furnish to the Contracting Officer a
statement of--
(1) The damaged, lost, or destroyed aircraft;
(2) The time and origin of the damage, loss, or destruction;
(3) All known interests in commingled property of which aircraft are
a part; and
(4) The insurance, if any, covering the interest in commingled
property.
Except in cases covered by paragraph (e) of this clause, the
Contracting Officer will make an equitable adjustment in the contract
price for expenditures made by the Contractor in performing the
obligations under this paragraph.
(i) If prior to delivery and acceptance by the Government, aircraft
is damaged, lost, or destroyed and the Government assumed the risk, the
Government shall either--
(1) Require that the aircraft be replaced or restored by the
Contractor to the condition immediately prior to the damage, in which
event the Contracting Officer will make an equitable adjustment in the
contract price and the time for contract performance; or
(2) Terminate this contract with respect to the aircraft, in which
event the Contractor shall be paid the contract price for the aircraft
(or, if applicable, any work to be performed on the aircraft) less any
amount the Contracting Officer determines--
(i) It would have cost the Contractor to complete the aircraft (or
any work to be performed on the aircraft) together with anticipated
profit on uncompleted work; and
(ii) Would be the value of the damaged aircraft or any salvage
retained by the Contractor.
The Contracting Officer shall prescribe the manner of disposition of
the damaged, lost,
[[Page 106]]
or destroyed aircraft, or any parts of the aircraft. If any additional
costs of such disposition are incurred by the Contractor, a further
equitable adjustment will be made in the amount due the Contractor.
Failure of the parties to agree upon termination costs or an equitable
adjustment with respect to any aircraft shall be considered a dispute
under the Disputes clause.
(j) In the event the Contractor is reimbursed or compensated by a
third person for damage, loss, or destruction of 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 of subrogation) in obtaining recovery.
(k) The Contractor agrees to be bound by the operating procedures
contained in the combined regulation entitled ``Contractor's Flight and
Ground Operations'' in effect on the date of contract award.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 56 FR 67221, Dec. 30, 1991;
61 FR 50456, Sept. 26, 1996]
Sec. 252.228-7002 Aircraft flight risk.
As prescribed in 228.370(c), use the following clause:
Aircraft Flight Risk (SEP 1996)
(a) Definitions. As used in this clause--
(1) Aircraft, unless otherwise provided in the Schedule, means--
(i) Aircraft furnished by the Contractor under this contract (either
before or after Government acceptance); or
(ii) Aircraft furnished by the Government to the Contractor,
including all Government property placed on, installed or attached to
the aircraft; provided that the aircraft and property are not covered by
a separate bailment agreement.
(2) Flight means any flight demonstration, flight test, taxi test,
or other flight made in the performance of this contract, or for the
purpose of safeguarding the aircraft, or previously approved in writing
by the Contracting Officer.
(i) For land-based aircraft, flight begins with the taxi roll from a
flight line and continues until the aircraft has completed the taxi roll
to a flight line.
(ii) For seaplanes, flight begins with the launching from a ramp and
continues until the aircraft has completed its landing run and is
beached at a ramp.
(iii) For helicopters, flight begins upon engagement of the rotors
for the purpose of take-off and continues until the aircraft has
returned to the ground and rotors are disengaged.
(iv) For vertical take-off aircraft, flight begins upon
disengagement from any launching platform or device and continues until
the aircraft has been reengaged to any launching platform or device.
(3) Flight crew members means the pilot, co-pilot, and unless
otherwise provided in the Schedule, the flight engineer, navigator,
bombardier-navigator, and defense systems operator as required, when
assigned to their respective crew positions to conduct any flight on
behalf of the Contractor.
(b) This clause takes precedence over any other provision of this
contract (particularly paragraph (g) of the Government Property (Cost-
Reimbursement, Time-and-Materials, or Labor-Hour Contracts) clause and
paragraph (c) of the Insurance--Liability to Third Persons clause).
(c) Unless the flight crew members previously have been approved in
writing by the Government Flight Representative, who has been authorized
in accordance with the combined regulation entitled ``Contractor's
Flight and Ground Operations'' (Air Force Regulation 55-22, Army
Regulation 95-20, NAVAIR Instruction 3710.1C, and Defense Logistics
Agency Manual 8210.1), the Contractor shall not be--
(1) Relieved of liability for damage, loss, or destruction of
aircraft sustained during flight; or
(2) Reimbursed for liabilities to third persons for loss or damage
to property or for death or bodily injury caused by aircraft during
flight.
(d)(1) The loss, damage, or destruction of aircraft during flight in
an amount exceeding $100,000 or 20 percent of the estimated cost of this
contract, whichever is less, is subject to an equitable adjustment when
the Contractor is not liable under--
(i) The Government Property (Cost-Reimbursement, Time-and-Materials,
or Labor-Hour Contracts) clause, and
(ii) Paragraph (c) of this clause.
(2) The equitable adjustment under this contract for the resulting
repair, restoration, or replacement of aircraft shall be made--
(i) In the estimated cost, the delivery schedule, or both; and
(ii) In the amount of any fee to be paid to the Contractor.
(3) In determining the amount of equitable adjustment in the fee,
the Contracting Officer will consider any fault of the Contractor,
[[Page 107]]
its employees, or any subcontractor that materially contributed to the
damage, loss, or destruction.
(4) Failure to agree on any adjustment shall be a dispute concerning
a question of fact within the meaning of the Disputes clause of this
contract.
(e) The Contractor agrees to be bound by the operating procedures
contained in the combined regulation entitled ``Contractor's Flight and
Found Operations'' in effect on the date of contract award.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 61 FR 50456, Sept. 26, 1996]
Sec. 252.228-7003 Capture and detention.
As prescribed in 228.370(d), use the following clause:
Capture and Detention (Dec. 1991)
(a) As used in this clause--
(1) Captured person means any employee of the Contractor who is--
(i) Assigned to duty outside the United States for the performance
of this contract; and
(ii) Found to be missing from his or her place of employment under
circumstances that make it appear probable that the absence is due to
the action of the force of any power not allied with the United States
in a common military effort; or
(iii) Known to have been taken prisoner, hostage, or otherwise
detained by the force of such power, whether or not actually engaged in
employment at the time of capture; provided, that at the time of capture
or detention, the person was either--
(A) Engaged in activity directly arising out of and in the course of
employment under this contract; or
(B) Captured in an area where required to be only in order to
perform this contract.
(2) A period of detention begins with the day of capture and
continues until the captured person is returned to the place of
employment, the United States, or is able to be returned to the
jurisdiction of the United States, or until the person's death is
established or legally presumed to have occurred by evidence
satisfactory to the Contracting Officer, whichever occurs first.
(3) United States comprises geographically the 50 states and the
District of Columbia.
(4) War Hazards Compensation Act refers to the statute compiled in
chapter 12 of title 42, U.S. Code (sections 1701-1717), as amended.
(b) If pursuant to an agreement entered into prior to capture, the
Contractor is obligated to pay and has paid detention benefits to a
captured person, or the person's dependents, the Government will
reimburse the Contractor up to an amount equal to the lesser of--
(1) Total wage or salary being paid at the time of capture due from
the Contractor to the captured person for the period of detention; or
(2) That amount which would have been payable if the detention had
occurred under circumstances covered by the War Hazards Compensation
Act.
(c) The period of detention shall not be considered as time spent in
contract performance, and the Government shall not be obligated to make
payment for that time except as provided in this clause.
(d) The obligation of the Government shall apply to the entire
period of detention, except that it is subject to the availability of
funds from which payment can be made. The rights and obligations of the
parties under this clause shall survive prior expiration, completion, or
termination of this contract.
(e) The Contractor shall not be reimbursed under this clause for
payments made if the employees were entitled to compensation for capture
and detention under the War Hazards Compensation Act, as amended.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992
Sec. 252.228-7004 Bonds or other security.
As prescribed in 228.170, use the following provision:
Bonds or Other Security (Dec. 1991)
(a) Offerors shall furnish a bid guarantee in the amount of
$________ with their bids. The offeror receiving notice of award shall
furnish--
(1) A performance bond in the penal amount of $________; and
(2) Payment in full of any sum due the Government.
(b) The Contractor shall furnish the performance bond to the
Contracting Officer within ____ days after receipt of the notice of
award. The Contracting Officer will not issue the notice to proceed
until receipt of an acceptable performance bond and payment of any sum
due the Government.
(c) Bonds supported by sureties whose names appear on the list
contained in Treasury Department Circular 570 are acceptable.
Performance bonds from individual sureties are acceptable if each person
acting as a surety provides a SF 28, Affidavit of Individual Surety, and
a pledge of assets acceptable to the Contracting Officer.
[[Page 108]]
(End of provision)
Sec. 252.228-7005 Accident reporting and investigation involving aircraft, missiles, and space launch vehicles.
As prescribed in 228.370(e), use the following clause:
Accident Reporting and Investigation Involving Aircraft, Missiles, and
Space Launch Vehicles (Dec. 1991)
(a) The Contractor shall report promptly to the Administrative
Contracting Officer all pertinent facts relating to each accident
involving an aircraft, missile, or space launch vehicle being
manufactured, modified, repaired, or overhauled in connection with this
contract.
(b) If the Government conducts an investigation of the accident, the
Contractor will cooperate and assist the Government's personnel until
the investigation is complete.
(c) The Contractor will include a clause in subcontracts under this
contract to require subcontractor cooperation and assistance in accident
investigations.
(End of clause)
Sec. 252.231-7000 Supplemental cost principles.
As prescribed in 231.100-70, use the following clause:
Supplemental Cost Principles (Dec. 1991)
When the allowability of costs under this contract is determined in
accordance with part 31 of the Federal Acquisition Regulation (FAR),
allowability shall also be determined in accordance with part 231 of the
Defense FAR Supplement, in effect on the date of this contract.
(End of clause)
Sec. 252.232-7000 Advance payment pool.
As prescribed in 232.412-70(a), use the following clause:
Advance Payment Pool (Dec. 1991)
(a) Notwithstanding any other provision of this contract, advance
payments will be made for contract performance in accordance with the
Determinations, Findings, and Authorization for Advance payment dated
______________.
(b) Payments made in accordance with this clause shall be governed
by the terms and conditions of the Advance Payment Pool Agreement
between the United States of America and (insert the name of the
contractor). The Agreement is incorporated in the contract by reference.
(End of clause)
Sec. 252.232-7001 Disposition of payments.
As prescribed in 232.412-70(b), use the following clause:
Disposition of Payments (Dec. 1991)
Payment will be by a dual payee Treasury check made payable to the
contractor or the (insert the name of the disbursing office in the
advance payment pool agreement), and will be forwarded to that
disbursing office for appropriate disposition.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 57 FR 42633, Sept. 15, 1992]
Sec. 252.232-7002 Progress payments for foreign military sales acquisitions.
As prescribed in 232.502-4-70(a), use the following clause:
Progress Payments for Foreign Military Sales Acquisitions (Dec. 1991)
If this contract includes foreign military sales (FMS) requirements,
the Contractor shall--
(a) Submit a separate progress payment request for each progress
payment rate; and
(b) Submit a supporting schedule showing--
(1) The amount of each request distributed to each country's
requirements; and
(2) Total price per contract line item applicable to each separate
progress payment rate.
(c) Identify in each progress payment request the contract
requirements to which it applies (i.e., FMS or U.S.);
(d) Calculate each request on the basis of the prices, costs
(including costs to complete), subcontractor progress payments, and
progress payment liquidations of the contract requirements to which it
applies; and
(e) Distribute costs among contract line items and countries in a
manner acceptable to the Administrative Contracting Officer.
(End of clause)
Sec. 252.232-7003 Flexible progress payments.
As prescribed in 232.502-4-70(b), use the following clause:
Flexible Progress Payments (Dec. 1991)
(a) This contract is subject to flexible progress payment procedures
as set forth in this clause and Defense FAR Supplement 232.502-1-71.
[[Page 109]]
(1) The progress payment rate of this contract is ________ percent.
This percentage applies instead of the customary uniform progress
payment rate and liquidation rate of the Progress Payments clause.
(2) The progress payment rate of this contract was determined by the
DoD Cash Flow Computer Model (name) dated ____________, using percent as
the minimum rate for the Contractor's investment (as a weighted average
of costs) in its work in process inventory over the life of the
contract.
(b) If actual and projected cash flow data generated during contract
performance reveal that the customary flexible progress payment rate
will result in a Contractor investment in work in process inventory more
than two percentage points higher or lower than the minimum rate of
Contractor investment specified in paragraph (a)(2) of this clause, the
progress payment rate shall be redetermined by using the DoD Cash Flow
Computer Model. Unless it contained an error, the version of the DoD
Cash Flow Computer Model identified in paragraph (a)(2) of this clause
shall be used for any redetermination. The customary flexible progress
payment rate shall not be less than the customary uniform progress
payment rate that would have applied to this contract absent flexible
progress payment procedures, and the progress payment rate shall not be
greater than 100 percent.
(c) Notwithstanding paragraph (b) of this clause, if at any time the
flexible progress payment rate is determined to be overstated because
any factual data submitted by the Contractor in support of the rate
computation was not current, accurate, and complete at the time the
flexible progress payment rate was established, the progress payment
rate shall be reduced to the rate that should have been calculated using
the model specified in paragraph (a)(2) of this clause. The Contractor
shall pay interest in accordance with paragraph (d) of this clause on
all resulting overpayments, computed from the date of the Government's
overpayment, to the date of liquidation of the overpayment. Payment of
any unliquidated overpayment and interest shall be due 30 days after the
date of the first written demand for payment.
(d) Interest shall be simple interest at the rate established by the
Secretary of the Treasury as provided in section 12 of the Contract
Disputes Act of 1978 (Pub. L. 95-563), which is applicable at the time
the Government made the overpayment, and then at the rate applicable for
each six month period as fixed by the Secretary, until the overpayment
is liquidated.
(e) Flexible progress payment terms will be made available to
subcontractors in accordance with paragraph (j) of the Progress Payments
clause and Defense FAR Supplement 232.502-1-71(b)(4).
(End of clause)
Sec. 252.232-7004 DoD progress payment rates.
As prescribed in 232.502-4-70 (b) and (c), use the following clause:
DOD Progress Payment Rates (FEB 1996)
(a) If the contractor is a large business, the Progress Payments
clause of this contract is modified to change each mention of the
progress payment rate and liquidation rate (including paragraph (k),
Limitations on Undefinitized Contract Actions) to 75 percent.
(b) If the contractor is a small business, the Progress Payments
clause of this contract is modified to change each mention of the
progress payment rate and liquidation rate (excepting paragraph (k),
Limitations on Undefinitized Contract Actions) to 90 percent.
(c) If the contractor is a small disadvantaged business, the
Progress Payments clause of this contract is modified to change each
mention of the progress payment rate and liquidation rate (excepting
paragraph (k), Limitations on Undefinitized Contract Actions) to 95
percent.
(d) The above rates are the customary uniform progress payment rates
for DoD contracts.
(End of clause)
[56 FR 67221, Dec. 30, 1991, as amended at 58 FR 62046, Nov. 24, 1993;
61 FR 7750, Feb. 29, 1996]
Sec. 252.232-7005 Reimbursement of subcontractor advance payments--DoD pilot mentor-protege program.
As prescribed in 232.412-70(c), use the following clause:
Reimbursement of Subcontractor Advance Payments--DoD Pilot Mentor-
Protege Program (Dec. 1991)
(a) The Government will reimburse the Contractor for any advance
payments made by the Contractor, as a mentor firm, to a small
disadvantaged business, as a protege firm, pursuant to an approved
mentor-protege agreement, provided--
(1) The Contractor's subcontract with the protege firm includes a
provision substantially the same as FAR 52.232-12, Advance Payments;
(2) The Contractor has administered the advance payments in
accordance with the policies of FAR subpart 32.4; and
(3) The Contractor agrees that any financial loss resulting from the
failure or inability of the protege firm to repay any unliquidated
advance payments is the sole financial responsibility of the Contractor.
[[Page 110]]
(b) For a fixed price type contract, advance payments made to a
protege firm shall be paid and administered as if there were 100 percent
progress payments. The Contractor shall include as a separate attachment
with each Standard Form (SF) 1443, Contractor's Request for Progress
Payment, a request for reimbursement of advance payments made to a
protege firm. The attachment shall provide a separate calculation of
lines 14a through 14e of SF 1443 for each protege, reflecting the status
of advance payments made to that protege.
(c) For cost reimbursable, contracts, reimbursement of advance
payments shall be made via public voucher. The Contractor shall show the
amounts of advance payments made to each protege on the public voucher,
in the form and detail directed by the cognizant contracting officer or
contract auditor.
(End of clause)
[56 FR 67221, Dec. 30, 1991, as amended at 57 FR 53602, Nov. 12, 1992]
Sec. 252.232-7006 Reduction or suspension of contract payments upon finding of fraud.
As prescribed in 232.111-70, use the following clause:
Reduction or Suspension of Contract Payments Upon Finding of Fraud (Aug.
1992)
(a) 10 U.S.C. 2307(e) permits the head of the agency to reduce or
suspend further payments to the Contractor upon a written determination
by the agency head that substantial evidence exists that the Contractors
request for advance, partial, or progress payments is based on fraud.
The provisions of 10 U.S.C. 2307(e) are in addition to any other rights
or remedies provided the Government by law or under contract.
(b) Actions taken by the Government in accordance with 10 U.S.C.
2307(e) shall not constitute an excusable delay under the Default clause
of this contract or otherwise relieve the Contractor of its obligations
to perform under this contract.
(End of clause)
[57 FR 42633, Sept. 15, 1992]
Sec. 252.232-7007 Limitation of Government's obligation.
As prescribed in 232.705-70, use the following clause:
Limitation of Government's Obligation (Aug. 1993)
(a) Contract line item(s) ______* through ______* are incrementally
funded. For these item(s), the sum of $______* of the total price is
presently available for payment and allotted to this contract. An
allotment schedule is set forth in paragraph (i) of this clause.
(b) For item(s) identified in paragraph (a) of this clause, the
Contractor agrees to perform up to the point at which the total amount
payable by the Government, including reimbursement in the event of
termination of those item(s) for the Government's convenience,
approximates the total amount currently allotted to the contract. The
Contractor will not be obligated to continue work on those item(s)
beyond that point. The Government will not be obligated in any event to
reimburse the Contractor in excess of the amount allotted to the
contract for those item(s) regardless of anything to the contrary in the
clause entitled ``Termination for Convenience of the Government.'' As
used in this clause, the total amount payable by the Government in the
event of termination of applicable contract line item(s) for convenience
includes costs, profit, and estimated termination settlement costs for
those items(s).
(c) Notwithstanding the dates specified in the allotment schedule in
paragraph (i) of this clause, the Contractor will notify the Contracting
Officer in writing at least ninety days prior to the date when, in the
Contractor's best judgment, the work will reach the point at which the
total amount payable by the Government, including any cost for
termination for convenience, will approximate 85 percent of the total
amount then allotted to the contract for performance of the applicable
item(s). The notification will state (1) the estimated date when that
point will be reached and (2) an estimate of additional funding, if any,
needed to continue performance of applicable line items up to the next
scheduled date for allotment of funds identified in paragraph (i) of
this clause, or to a mutually agreed upon substitute date. The
notification will also advise the Contracting Officer of the estimated
amount of additional funds that will be required for the timely
performance of the item(s) funded pursuant to this clause, for a
subsequent period as may be specified in the allotment schedule in
paragraph (i) of this clause, or otherwise agreed to by the parties. If
after such notification additional funds are not allotted by the date
identified in the Contractor's notification, or by an agreed substitute
date, the Contracting Officer will terminate any item(s) for which
additional funds have not been allotted, pursuant to the clause of this
contract entitled ``Termination for Convenience of the Government.''
[[Page 111]]
(d) When additional funds are allotted for continued performance of
the contract line item(s) identified in paragraph (a) of this clause,
the parties will agree as to the period of contract performance which
will be covered by the funds. The provisions of paragraph (b) through
(d) of this clause will apply in like manner to the additional allotted
funds and agreed substitute date, and the contract will be modified
accordingly.
(e) If, solely by reason of failure of the Government to allot
additional funds, by the dates indicated below, in amounts sufficient
for timely performance of the contract line item(s) identified in
paragraph (a) of this clause, the Contractor incurs additional costs or
is delayed in the performance of the work under this contract and if
additional funds are allotted, an equitable adjustment will be made in
the price or prices (including appropriate target, billing, and ceiling
prices where applicable) of the item(s), or in the time of delivery, or
both. Failure to agree to any such equitable adjustment hereunder will
be a dispute concerning a question of fact within the meaning of the
clause entitled ``Disputes.''
(f) The Government may at any time prior to termination allot
additional funds for the performance of the contract line item(s)
identified in paragraph (a) of this clause.
(g) The termination provisions of this clause do not limit the
rights of the Government under the clause entitled ``Default.'' The
provisions of this clause are limited to the work and allotment of funds
for the contract line item(s) set forth in paragraph (a) of this clause.
This clause no longer applies once the contract is fully funded except
with regard to the rights or obligations of the parties concerning
equitable adjustments negotiated under paragraphs (d) or (e) of this
clause.
(h) Nothing in this clause affects the right of the Government to
terminate this contract pursuant to the clause of this contract entitled
``Termination for Convenience of the Government.''
(i) The parties contemplate that the Government will allot funds to
this contract in accordance with the following schedule:
On execution of contract.............................................$
(month) (day), 199x..................................................$
(month) (day), 199y..................................................$
(month) (day), 199z..................................................$
(End of clause)
Alternate I (Aug. 1993)
If only one line item will be incrementally funded, substitute the
following paragraph (a) for paragraph (a) of the basic clause.
(a) Contract line item ______is incrementally funded. The sum of
$______* is presently available for payment and allotted to this
contract. An allotment schedule is contained in paragraph (i) of this
clause.
*To be inserted after negotiation.
[58 FR 46093, Sept. 1, 1993]
Sec. 252.233-7000 Certification of claims and requests for adjustment or relief.
As prescribed in 233.7001, use the following clause:
Certification of Claims and Requests for Adjustment or Relief (May 1994)
(a) Any contract claim, request for equitable adjustment to contract
terms, request for relief under Pub. L. 85-804, or other similar request
exceeding $100,000 shall bear, at the time of submission, the following
certificate given by an individual who has knowledge of the basis of the
claim or request, knowledge of the accuracy and completeness of the
supporting data, and knowledge of the claim or request:
I certify that the claim is made in good faith, that the supporting
data are accurate and complete to the best of my knowledge and belief;
that the amount requested accurately reflects the contract adjustment
for which the Contracting believes the Government is liable; and that I
am duly authorized to certify the claim on behalf of the Contractor.
_______________________________________________________________________
(Official's Name)
_______________________________________________________________________
(Title)
(b) The certification in paragraph (a) of this clause requires full
disclosure of all relevant facts, including cost and pricing data.
(c) The certification requirement in paragraph (a) of this clause
does not apply to:
(1) Requests for routine contract payments; for example, those for
payment for accepted supplies and services, routine vouchers under cost-
reimbursement type contracts, and progress payment invoices; or
(2) Final adjustments under incentive provisions of contracts.
(d) In those situations where no claim certification for the
purposes of 10 U.S.C. 2410e has been submitted prior to the inception of
a contract dispute, a single certification, using the language
prescribed by the Contract Disputes Act (41 U.S.C. 601 et seq.) but
signed by an individual who is authorized to bind the contractor and who
has knowledge of the basis of the claim or request, knowledge of the
accuracy and completeness of the supporting data, and knowledge of the
claim or request, will satisfy the certification requirements of both
statutes.
[[Page 112]]
(e) If this is a request for equitable adjustment under a
substantially completed contract or a completed contract, the
certification will be expanded to include the following:
This claim includes only costs for performing the alleged change,
and does not include any costs which have already been reimbursed or
which have been separately claimed. All indirect costs claimed are
properly allocable to the alleged change in accordance with applicable
acquisition regulations. I am aware that the submission of a false claim
to the Government can result in the assessment of significant criminal
and civil penalties and fines.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 58 FR 28475, May 13, 1993; 59
FR 27676, May 27, 1994]
Sec. 252.234-7000 Notice of cost/schedule control systems.
As prescribed by 234.005-70, use the following provision:
Notice of Cost/Schedule Control Systems (Dec. 1991)
(a) The Offeror shall submit a comprehensive plan for compliance
with the cost/schedule control systems criteria of DoDI 5000.2, Defense
Acquisition Management Policies and Procedures. The plan shall--
(1) Describe the cost/schedule control systems (C/SCS) the Offeror
intends to use in performance of the contract.
(2) Distinguish between the Offeror's existing management systems
and modifications proposed to meet the criteria.
(3) Describe the management systems and their application in all
major functional cost areas in terms of:
(i) The work breakdown structure,
(ii) Planning,
(iii) Budgeting,
(iv) Scheduling,
(v) Work authorization,
(vi) Cost accumulation,
(vii) Measurement and reporting of cost and schedule performance,
(viii) Variance analysis, and
(ix) Baseline control.
(4) Describe compliance with each of the criteria. (Preferably,
cross-reference appropriate elements in the description of systems with
the items in the checklist for the C/SCS criteria in AFMCP 173-5, AMC-P
715-5, NAVSO P3627, DLAH 8400.2, DCAA P7641.47, Cost/Schedule Control
Systems Criteria Joint Implementation Guide.)
(5) Identify the major subcontractors, or major subcontracted effort
if major subcontractors have not been selected, planned for application
of the criteria.
(6) Describe the proposed procedure for administration of the
criteria as applied to subcontractors.
(b) If the Offeror is using C/SCS which have been accepted by the
Government, or is operating C/SCS under a current Memorandum of
Understanding, the Offeror may submit either instead of the
comprehensive plan.
(c) The Offeror shall provide information and assistance as
requested by the Contracting Officer for evaluation of compliance with
the cited criteria.
(d) The Government will evaluate the Offeror's plan for C/SCS before
contract award.
(e) The prime contractor and the Government shall agree to
subcontractors selected for application of the C/SCS criteria. The
Contractor will contractually require the selected subcontractors to
comply with the criteria. If either the prime or subcontractor requests,
the Government, at its option, may conduct demonstrations and reviews of
these selected subcontractors' management systems.
(End of provision)
[56 FR 36479, July 31, 1991, as amended at 56 FR 67222, Dec. 30, 1991;
59 FR 27676, May 27, 1994]
Sec. 252.234-7001 Cost/schedule control systems.
As prescribed in 234.005-70, use the following clause:
Cost/Schedule Control Systems (Dec. 1991)
(a) The Contractor shall establish, maintain, and use in the
performance of this contract cost/schedule control systems (C/SCS)
meeting the criteria of DoDI 5000.2, Defense Acquisition Management
Policies and Procedures.
(b) Within 90 calendar days of contract award, or a longer period if
the Contracting Officer agrees, the Contractor shall--
(1) Furnish the Contracting Officer a description of the C/SCS
applicable to this contract. The description shall--
(i) Be in the form and detail as indicated by the AFMCP 173-5, AMC-P
715-5, NAVSO P3627, DLAH 8400.2, DCAA P7641.47 Cost Schedule Control
Systems Criteria Joint Implementation Guide (the Guide); or
(ii) Be in the form and detail required by the Contracting Officer.
(2) Be prepared to demonstrate the operation of the Contractor's C/
SCS to the Government for compliance with the criteria of DoDI 5000.2.
(c) The Contracting Officer shall reference the description of the
accepted C/SCS in the contract. The Contractor shall maintain and
[[Page 113]]
use the accepted C/SCS in the performance of this contract.
(d) The Contractor shall submit proposed changes to the accepted C/
SCS to the Contracting Officer for review and approval. The Contracting
Officer shall advise the Contractor of the acceptability of such changes
within 60 days after receipt.
(e) When systems existing at time of contract award do not comply
with the criteria, the Contractor shall make adjustments necessary to
ensure compliance at no change in contract price or fee.
(f) The Contractor agrees to provide access to all pertinent records
and data requested by the Contracting Officer or duly authorized
representative. Access is for the purpose of reviewing the demonstration
in paragraph (b) of this clause and also to permit Government
surveillance to ensure continuing application of the accepted systems to
this contract.
(g) The Contractor shall correct deviations from accepted systems
discovered during contract performance, as directed by the Contracting
Officer.
(h) The Contractor shall require that each selected subcontractor,
as agreed to by the Contracting Officer, shall meet the C/SCS criteria
as set forth in the Guide. All such subcontracts shall have provisions
for demonstration, review, acceptance, and surveillance of systems, to
be conducted by the Government, at its option, when requested by the
Contractor or subcontractor.
(i) If the Contractor or subcontractor is utilizing C/SCS which have
been previously accepted, or is operating such systems under a current
Memorandum of Understanding, the Contracting Officer may waive all or
part of the provisions concerning demonstration and review.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 59 FR 27677, May 27, 1994]
Sec. 252.235-7000 Indemnification under 10 U.S.C. 2354--fixed price.
As prescribed in 235.070-3, use the following clause:
Indemnification Under 10 U.S.C. 2354--Fixed Price (Dec. 1991)
(a) This clause provides for indemnification under 10 U.S.C. 2354 if
the Contractor meets all the terms and conditions of this clause.
(b) Claims, losses, and damages covered--
(1) Claims by third persons for death, bodily injury, sickness, or
disease, or the loss, damage, or lost use of property. Claims include
those for reasonable expenses of litigation or settlement. The term
third persons includes employees of the contractor;
(2) The loss, damage, and lost use of the Contractor's property, but
excluding lost profit; and
(3) Loss, damage, or lost use of the Government's property.
(c) The claim, loss, or damage--
(1) Must arise from the direct performance of this contract;
(2) Must not be compensated by insurance or other means, or be
within deductible amounts of the Contractor's insurance;
(3) Must result from an unusually hazardous risk as specifically
defined in the contract;
(4) Must not result from willful misconduct or lack of good faith on
the part of any of the Contractor's directors or officers, managers,
superintendents, or other equivalent representatives who have
supervision or direction of--
(i) All or substantially all of the Contractor's business;
(ii) All or substantially all of the Contractor's operations at any
one plant or separate location where this contract is being performed;
or
(iii) A separate and complete major industrial operation connected
with the performance of this contract;
(5) Must not be a liability assumed under any contract or agreement
(except for subcontracts covered by paragraph (h) of this clause),
unless the Contracting Officer (or in contracts with the Department of
the Navy, the Department) specifically approved the assumption of
liability; and
(6) Must be certified as just and reasonable by the Secretary of the
department or designated representative.
(d) The Contractor shall buy and maintain, to the extent available,
insurance against unusually hazardous risks in the form, amount,
period(s) of time, at the rate(s), and with such insurers, as the
Contracting Officer (or, for Navy contracts, the Department) may from
time to time require and approve. If the cost of this insurance is
higher than the cost of the insurance the Contractor had as of the date
of the contract, the Government shall reimburse the Contractor for the
difference in cost, as long as it is properly allocable to this contract
and is not included in the contract price. The Government shall not be
liable for claims, loss, or damage if insurance was available and is
either required or approved under this paragraph.
(e) A reduction of the insurance coverage maintained by the
Contractor on the date of the execution of this contract shall not
increase the Government's liability under this clause unless the
Contracting Officer consents, and the contract price is equitably
adjusted, if appropriate, to reflect the Contractor's consideration for
the Government's assumption of increased liability.
[[Page 114]]
(f) Notice. The Contractor shall--
(1) Promptly notify the Contracting Officer of any occurrence,
action, or claim that might trigger the Government's liability under
this clause;
(2) Furnish the proof or evidence of any claim, loss, or damage in
the form and manner that the Government requires; and
(3) Immediately provide copies of all pertinent papers that the
Contractor receives or has received.
(g) The Government may direct, participate in, and supervise the
settlement or defense of the claim or action. The Contractor shall
comply with the Government's directions and execute any authorizations
required.
(h) Flowdown. The Government shall indemnify the Contractor if the
Contractor has an obligation to indemnify a subcontractor under any
subcontract at any tier under this contract for the unusually hazardous
risk identified in this contract only if--
(1) The Contracting Officer gave prior written approval for the
Contractor to provide in a subcontract for the Contractor to indemnify
the subcontractor for unusually hazardous risks defined in this
contract;
(2) The Contracting Officer approved those indemnification
provisions;
(3) The subcontract indemnification provisions entitle the
Contractor, or the Government, or both, to direct, participate in, and
supervise the settlement or defense of relevant actions and claims; and
(4) The subcontract provides the same rights and duties, the same
provisions for notice, furnishing of papers and the like, between the
Contractor and the subcontractor, as exist between the Government and
the Contractor under this clause.
(i) The Government may discharge its obligations under paragraph (h)
of this clause by making payments directly to subcontractors or to
persons to whom the subcontractors may be liable.
(j) The rights and obligations of the parties under this clause
shall survive the termination, expiration, or completion of this
contract.
(End of clause)
Sec. 252.235-7001 Indemnification under 10 U.S.C. 2354--cost reimbursement.
As prescribed in 235.070-3, use the following clause:
Indemnification Under 10 U.S.C. 2354--Cost Reimbursement (Dec. 1991)
(a) This clause provides for indemnification under 10 U.S.C. 2354 if
the Contractor meets all the terms and conditions of this clause.
(b) Claims, losses, and damages covered--
(1) Claims by third persons for death, bodily injury, sickness, or
disease, or the loss, damage, or lost use of property. Claims include
those for reasonable expenses of litigation or settlement. The term
``third persons'' includes employees of the Contractor;
(2) The loss, damage, and lost use of the Contractor's property, but
excluding lost profit; and
(3) Loss, damage, or lost use of the Government's property.
(c) The claim, loss, or damage--
(1) Must arise from the direct performance of this contract;
(2) Must not be compensated by insurance or other means, or be
within deductible amounts of the Contractor's insurance;
(3) Must result from an unusually hazardous risk as specifically
defined in the contract;
(4) Must not result from willful misconduct or lack of good faith on
the part of any of the Contractor's directors or officers, managers,
superintendents, or other equivalent representatives who have
supervision or direction of--
(i) All or substantially all of the Contractor's business;
(ii) All or substantially all of the Contractor's operations at any
one plant or separate location where this contract is being performed;
or
(iii) A separate and complete major industrial operation connected
with the performance of this contract;
(5) Must not be a liability assumed under any contract or agreement
(except for subcontracts covered by paragraph (i) of this clause),
unless the Contracting Officer (or in contracts with the Department of
the Navy, the Department) specifically approved the assumption of
liability; and
(6) Must be certified as just and reasonable by the Secretary of the
department or designated representative.
(d) A reduction of the insurance coverage maintained by the
Contractor on the date of the execution of this contract shall not
increase the Government's liability under this clause unless the
Contracting Officer consents, and the contract price is equitably
adjusted, if appropriate, to reflect the Contractor's consideration for
the Government's assumption of increased liability.
(e) Notice. The Insurance--Liability to Third Persons clause of this
contract applies also to claims under this clause. In addition, the
Contractor shall--
(1) Promptly notify the Contracting Officer of any occurrence,
action, or claim that might trigger the Government's liability under
this clause;
(2) Furnish the proof or evidence of any claim, loss, or damage in
the form and manner that the Government requires; and
[[Page 115]]
(3) Immediately provide copies of all pertinent papers that the
contractor receives or has received.
(f) The Government may direct, participate in, and supervise the
settlement or defense of the claim or action. The Contractor shall
comply with the Government's directions, and execute any authorizations
required.
(g) The Limitation of Cost clause of this contract does not apply to
the Government's obligations under this clause. The obligations under
this clause are excepted from the release required by the Allowable
Cost, Fee, and Payment clause of this contract.
(h) Under this clause, a claim, loss, or damage arises from the
direct performance of this contract if the cause of the claim, loss, or
damage occurred during the period of performance of this contract or as
a result of the performance of this contract.
(i) Flowdown. The Government shall indemnify the Contractor if the
Contractor has an obligation to indemnify a subcontractor under any
subcontract at any tier under this contract for the unusually hazardous
risk identified in this contract only if--
(1) The Contracting Officer gave prior written approval for the
Contractor to provide in a subcontract for the Contractor to indemnify
the subcontractor for unusually hazardous risks defined in this
contract;
(2) The Contracting Officer approved those indemnification
provisions;
(3) The subcontract indemnification provisions entitle the
Contractor, or the Government, or both, to direct, participate in, and
supervise the settlement or defense of relevant actions and claims; and
(4) The subcontract provides the same rights and duties, the same
provisions for notice, furnishing of paper and the like, between the
Contractor and the subcontractor, as exist between the Government and
the Contractor under this clause.
(j) The Government may discharge its obligations under paragraph (i)
of this clause by making payments directly to subcontractors or to
persons to whom the subcontractors may be liable.
(k) The rights and obligations of the parties under this clause
shall survive the termination, expiration, or completion of this
contract.
(End of clause)
Sec. 252.235-7002 Animal welfare.
As prescribed in 235.071(a), use the following clause:
Animal Welfare (Dec. 1991)
(a) The Contractor shall register its research facility with the
Secretary of Agriculture in accordance with 7 U.S.C. 2316 and 9 CFR
subpart C, and Sec. 2.30, and furnish evidence of such registration to
the Contracting Officer before beginning work under this contract.
(b) The Contractor shall acquire animals only from dealers licensed
by the Secretary of Agriculture under 7 U.S.C. 2133 and 9 CFR subpart A,
Secs. 2.1 through 2.11, or from sources that are exempt from licensing
under those sections.
(c) The Contractor agrees that the care and use of animals will
conform with the pertinent laws of the United States and regulations of
the Department of Agriculture (see 7 U.S.C. 2131 et seq. and 9 CFR
subchapter A, parts 1 through 4).
(d) The Contracting Officer may immediately suspend, in whole or in
part, work and further payments under this contract for failure to
comply with the requirements of paragraphs (a) through (c) of this
clause.
(1) The suspension will stay in effect until the Contractor complies
with the requirements.
(2) Failure to complete corrective action within the time specified
by the Contracting Officer may result in termination of this contract
and removal of the Contractor's name from the list of contractors with
approved Public Health Service Welfare Assurances.
(e) The Contractor may request registration of its facility and a
current listing of licensed dealers from the Regional Office of the
Animal and Plant Health Inspection Service (APHIS), United States
Department of Agriculture (USDA), for the region in which its research
facility is located. The location of the appropriate APHIS regional
office, as well as information concerning this program may be obtained
by contacting the Senior Staff Officer, Animal Care Staff, USDA/APHIS,
Federal Center Building, Hyattsville, MD 20782.
(f) The Contractor shall include this clause, including this
paragraph (f), in all subcontracts involving research of live vertebrate
animals.
(End of clause)
Sec. 252.235-7003 Frequency authorization.
As prescribed in 235.071(b), use the following clause:
Frequency Authorization (Dec. 1991)
(a) The Contractor shall obtain authorization for radio frequencies
required in support of this contract.
(b) For any experimental, developmental, or operational equipment
for which the appropriate frequency allocation has not been made, the
Contractor shall provide the technical operating characteristics of the
proposed electromagnetic radiating device to the Contracting Officer
during the initial
[[Page 116]]
planning, experimental, or developmental phase of contract performance.
(c) The Contracting Officer shall furnish the procedures for
obtaining radio frequency authorization.
(d) The Contractor shall include this clause, including this
paragraph (d), in all subcontracts requiring the development,
production, construction, testing, or operation of a device for which a
radio frequency authorization is required.
(End of clause)
Alternate I (Dec. 1991)
Substitute the following paragraph (c) for paragraph (c) of the
basic clause if agency procedures authorize use of DD Form 1494,
Application for Frequency Authorization:
(c) The Contractor shall use DD Form 1494, Application for Frequency
Authorization, to obtain radio frequency authorization.
Sec. 252.235-7004 Option to extend the term of the contract.
As prescribed in 235.015-71(i)(2), use the following clause:
Option to Extend the Term of the Contract (Dec. 1991)
If the Contractor's proposal covers an additional period(s) which
could be treated as an optional period(s), the Contracting Officer may--
(a) Add the additional period(s) to the contract as an option(s);
and
(b) Exercise such option(s) by written notice of exercise at any
time during the performance period or any extensions thereof.
(End of clause)
Sec. 252.235-7005 Contractor-acquired property.
As prescribed in 235.015-71(i)(2), use the following clause:
Contractor-Acquired Property (Dec. 1991)
(a) Definition. Property, as used in this clause, means all
nonexpendable tangible personal property (except material)--
(1) Described in FAR 45.101, including automatic data processing
equipment as defined in FAR 31.001, and facilities as defined in FAR
45.301;
(2) Which is acquired with funds provided under this contract for
the conduct of research;
(3) Which the Contractor has specifically identified in its
proposal; and
(4) Which the Contracting Officer has authorized the Contractor to
acquire.
(b) The Contracting Officer may accept the identification and
description in the Contractor's proposal of property to be Contractor-
acquired property as advance notification required by subparagraphs (a)
and (b) of the clause of this contract entitled ``Subcontracts Under
Cost-Reimbursement and Letter Contracts.''
(c) Except for those items specifically identified in the contract
as required by Block 27a of the DD Form 2222 (Research Contract (SFRC)/
Modification, Short Form), award of this contract constitutes the
Contracting Officer's written consent to acquire property in the
Contractor's proposal.
(d) The Contracting Officer will approve or disapprove subcontracts
to acquire the items listed in Block 27a of the DD Form 2222 after the
award of any contract resulting from this solicitation.
(End of clause)
Sec. 252.235-7006 Title to contractor-acquired property.
As prescribed in 235.015-71(i)(2), use the following clause:
Title to Contractor-Acquired Property (Dec. 1991)
(a) Definition. Property, as used in this clause, has the meaning
given in the Contractor-Acquired Property clause of this contract.
(b) Title shall vest in the Contractor without further obligation
when the property--
(1) Has an acquisition cost of $1,000 or more;
(2) Was specifically identified in the Contractor's proposal; and
(3) Is property other than that property for which a determination
of title is deferred. Property for which the determination of title is
deferred shall be identified in Block 27b of the DD Form 2222, Research
Contract (SFRC)/Modification, Short Form.
(c) Title in all property which--
(1) Has an acquisition cost of $1,000 or more; and
(2) Was not specifically identified in the Contractor's proposal; or
(3) Is property for which a determination of title is deferred, may
vest--
(i) In the Government;
(ii) In the Contractor; or
(iii) In the Contractor, subject to the right of the Government to
direct transfer of the title back to the Government or third parties.
The Government may exercise this right at any time up to and including
the twelfth month after completion or termination of the contract. The
Government at any time may remove an item of property
[[Page 117]]
from this category, give up the right to direct transfer of the title
back to the Government or third parties, and transfer title to the
Contractor.
(d) Transfer of title back to the Government or third parties shall
not be the basis for any claim by the Contractor. The Government
Property (Cost-Reimbursement, Time and Material, or Labor Hour
Contracts) clause and its Alternate I of this contract apply to any
changes in property.
(e) Property acquired with funds made available under this contract
shall be considered Government property subject to the Government
Property clause until title to such property vests in the Contractor
without right of the Government to direct transfer of the title back to
the Government or third parties.
(f) Within 45 days following the end of the calendar year or the
Contractor's fiscal year, the Contractor shall furnish the Contracting
Officer a list of all property with an acquisition cost of $1,000 or
more which the Contractor acquired under this contract during that year
and to which title has not vested in the Contractor.
(End of clause)
Sec. 252.235-7007 Advance payments.
As prescribed in 235.015-71(i)(2), use the following clause:
Advance Payments (Dec. 1991)
The advance payment pool agreement between the Contractor and one or
more military departments which is in effect as of the date of, and
applies to, this contract shall govern advance payments made under this
contract. If such an agreement is not in effect as of the date of this
contract, the Allowable Cost and Payment clause of this contract shall
govern payments to the Contractor.
(End of clause)
Sec. 252.235-7008 Inspection and acceptance.
As prescribed in 235.015-71(i)(2), use the following clause:
Inspection and Acceptance (Dec. 1991)
The Scientific Program Officer designated in Block 11 on the DD Form
2222 (Research Contract (SFRC)/Modification, Short Form) of this
contract shall conduct inspection and acceptance of the final delivery.
The Scientific Program Officer shall have at least 30 days after
contractual delivery for acceptance.
(End of clause)
Sec. 252.235-7009 Restriction on printing.
As prescribed in 235.015-71(i)(2), use the following clause:
Restriction on Printing (Dec. 1991)
The Contractor is authorized to reproduce reports, data, or other
written materials, if required, provided the material produced does not
exceed 5,000 production units of any page, and items consisting of
multiple pages do not exceed 25,000 production units in the aggregate.
The Contractor shall obtain the express prior written authorization of
the Contracting Officer to reproduce material in excess of these
quantities.
(End of clause)
Sec. 252.235-7010 Acknowledgment of support and disclaimer.
As prescribed in 235.071(c), use the following clause:
Acknowledgment of Support and Disclaimer (May 1995)
(a) The Contractor shall include an acknowledgment of the
Government's support in the publication of any material based on or
developed under this contract, stated in the following terms: This
material is based upon work supported by the (name of contracting
agency(ies)) under Contract No. (Contracting agency(ies) contract
number(s)).
(b) All material, except scientific articles or papers published in
scientific journals, must, in addition to any notices or disclaimers by
the Contractor, also contain the following disclaimer: Any opinions,
findings and conclusions or recommendations expressed in this material
are those of the author(s) and do not necessarily reflect the views of
the (name of contracting agency(ies)).
(End of clause)
[60 FR 29503, June 5, 1995]
Sec. 252.235-7011 Final scientific or technical report.
As prescribed in 235.071(d), use the following clause:
Final Scientific or Technical Report (May 1995)
The Contractor shall submit two copies of the approved scientific or
technical report delivered under this contract to the Defense Technical
Information Center (DTIC), Attn: DTIC-OC, Cameron Station, Alexandria,
VA
[[Page 118]]
22304-6145. The Contractor shall include a completed Standard Form 298,
Report Documentation Page, with each copy of the report. For submission
of reports in other than paper copy, contact the Defense Technical
Information Center, Attn: DTIC-OC, Cameron Station, Alexandria, VA
22304-6145.
(End of clause)
[60 FR 29503, June 5, 1995]
Sec. 252.236-7000 Modification proposals--price breakdown.
As prescribed in 236.570(a), use the following clause:
Modification Proposals--Price Breakdown (Dec. 1991)
(a) The Contractor shall furnish a price breakdown, itemized as
required and within the time specified by the Contracting Officer, with
any proposal for a contract modification.
(b) The price breakdown--
(1) Must include sufficient detail to permit an analysis of profit,
and of all costs for--
(i) Material;
(ii) Labor;
(iii) Equipment;
(iv) Subcontracts; and
(v) Overhead; and
(2) Must cover all work involved in the modification, whether the
work was deleted, added, or changed.
(c) The Contractor shall provide similar price breakdowns to support
any amounts claimed for subcontracts.
(d) The Contractor's proposal shall include a justification for any
time extension proposed.
(End of clause)
Sec. 252.236-7001 Contract drawings, maps, and specifications.
As prescribed in 236.570(a), use the following clause:
Contract Drawings, Maps, and Specifications (Dec. 1991)
(a) The Government--
(1) Will provide the Contractor, without charge, ________ sets (five
unless otherwise specified) of large-scale contract drawings and
specifications except publications incorporated into the technical
provisions by reference;
(2) Will furnish additional sets on request, for the cost of
reproduction; and
(3) May, at its option, furnish the Contractor one set of
reproducibles, or half-size drawings, in lieu of the drawings in
paragraph (a)(1) of this clause.
(b) The Contractor shall--
(1) Check all drawings furnished immediately upon receipt;
(2) Compare all drawings and verify the figures before laying out
the work;
(3) Promptly notify the Contracting Officer of any discrepancies;
and
(4) Be responsible for any errors which might have been avoided by
complying with this paragraph (b).
(c) Large scale drawings shall, in general, govern small scale
drawings. Figures marked on drawings shall, in general, be followed in
preference to scale measurements.
(d) Omissions from the drawings or specifications or the
misdescription of details of work which are manifestly necessary to
carry out the intent of the drawings and specifications, or which are
customarily performed, shall not relieve the contractor from performing
such omitted or misdescribed details of the work, but shall be performed
as if fully and correctly set forth and described in the drawings and
specifications.
(e) The work shall conform to the specifications and the contract
drawings identified on the following index of drawings:
Title File and Drawing No.
(End of clause)
Sec. 252.236-7002 Obstruction of navigable waterways.
As prescribed in 236.570(b)(1), use the following clause:
Obstruction of Navigable Waterways (Dec. 1991)
(a) The Contractor shall--
(1) Promptly recover and remove any material, plant, machinery, or
appliance which the contractor loses, dumps, throws overboard, sinks, or
misplaces, and which, in the opinion of the Contracting Officer, may be
dangerous to or obstruct navigation;
(2) Give immediate notice, with description and locations of any
such obstructions, to the Contracting Officer; and
(3) When required by the Contracting Officer, mark or buoy such
obstructions until the same are removed.
(b) The Contracting Officer may--
(1) Remove the obstructions by contract or otherwise should the
Contractor refuse, neglect, or delay compliance with paragraph (a) of
this clause; and
(2) Deduct the cost of removal from any monies due or to become due
to the Contractor; or
(3) Recover the cost of removal under the Contractor's bond.
(c) The Contractor's liability for the removal of a vessel wrecked
or sunk without
[[Page 119]]
fault or negligence is limited to that provided in sections 15, 19, and
20 of the River and Harbor Act of March 3, 1899 (33 U.S.C. 410 et seq.).
(End of clause)
Sec. 252.236-7003 Payment for mobilization and preparatory work.
As prescribed in 236.570(b)(2), use the following clause:
Payment for Mobilization and Preparatory Work (Dec. 1991)
(a) The Government will make payment to the Contractor under the
procedures in this clause for mobilization and preparatory work under
item no. __________.
(b) Payments will be made for actual payments by the Contractor on
work preparatory to commencing actual work on the construction items for
which payment is provided under the terms of this contract, as follows--
(1) For construction plant and equipment exceeding $25,000 in value
per unit (as appraised by the Contracting Officer at the work site)
acquired for the execution of the work;
(2) Transportation of all plant and equipment to the site;
(3) Material purchased for the prosecution of the contract, but not
to be incorporated in the work;
(4) Construction of access roads or railroads, camps, trailer
courts, mess halls, dormitories or living quarters, field headquarters
facilities, and construction yards;
(5) Personal services; and
(6) Hire of plant.
(c) Requests for payment must include--
(1) A certified account of the Contractor's actual expenditures;
(2) Supporting documentation, including receipted bills or certified
copies of payrolls and freight bills; and
(3) The Contractor's certificate--
(i) Showing that it has acquired the construction plant, equipment,
and material free from all encumbrances;
(ii) Agreeing that the construction plant, equipment, and material
will not be removed from the site without the written permission of the
Contracting Officer; and
(iii) Agreeing that structures and facilities prepared or erected
for the prosecution of the contract work will be maintained and not
dismantled prior to the completion and acceptance of the entire work,
without the written permission of the Contracting Officer.
(d) Upon receiving a request for payment, the Government will make
payment, less any prescribed retained percentage, if--
(1) The Contracting Officer finds the--
(i) Construction plant, material, equipment, and the mobilization
and preparatory work performed are suitable and necessary to the
efficient prosecution of the contract; and
(ii) Preparatory work has been done with proper economy and
efficiency.
(2) Payments for construction plant, equipment, material, and
structures and facilities prepared or erected for prosecution of the
contract work do not exceed--
(i) The Contractor's cost for the work performed less the estimated
value upon completion of the contract; and
(ii) 100 percent of the cost to the contractor of any items having
no appreciable salvage value; and
(iii) 75 percent of the cost to the contractor of items which do
have an appreciable salvage value.
(e) (1) Payments will continue to be made for item no. ________, and
all payments will be deducted from the contract price for this item,
until the total deductions reduce this item to zero, after which no
further payments will be made under this item.
(2) If the total of payments so made does not reduce this item to
zero, the balance will be paid to the Contractor in the final payment
under the contract.
(3) The retained percentage will be paid in accordance with the
Payments to Contractor clause of this contract.
(f) The Contracting Officer shall determine the value and
suitability of the construction plant, equipment, materials, structures
and facilities. The Contracting Officer's determinations are not subject
to appeal.
(End of clause)
Sec. 252.236-7004 Payment for mobilization and demobilization.
As prescribed in 236.570(b)(2), use the following clause:
Payment for Mobilization and Demobilization (Dec. 1991)
(a) The Government will pay all costs for the mobilization and
demobilization of all of the Contractor's plant and equipment at the
contract lump sum price for this item.
(1) ________ percent of the lump sum price upon completion of the
contractor's mobilization at the work site.
(2) The remaining ________ percent upon completion of
demobilization.
(b) The Contracting Officer may require the Contractor to furnish
cost data to justify this portion of the bid if the Contracting Officer
believes that the percentages in paragraphs (a) (1) and (2) of this
clause do not bear a reasonable relation to the cost of the work in this
contract.
[[Page 120]]
(1) Failure to justify such price to the satisfaction of the
Contracting Officer will result in payment, as determined by the
Contracting Officer, of--
(i) Actual mobilization costs at completion of mobilization;
(ii) Actual demobilization costs at completion of demobilization;
and
(iii) The remainder of this item in the final payment under this
contract.
(2) The Contracting Officer's determination of the actual costs in
paragraph (b)(1) of this clause is not subject to appeal.
(End of clause)
Sec. 252.236-7005 Airfield safety precautions.
As prescribed in 236.570(b)(3), use the following clause. At some
airfields, the width of the primary surface is 1,500 feet (750 feet on
each side of the runway centerline). In such instances, substitute the
proper width in the clause.
Airfield Safety Precautions (Dec. 1991)
(a) Definitions. As used in this clause--
(1) Landing areas means--
(i) The primary surfaces, comprising the surface of the runway,
runway shoulders, and lateral safety zones. The length of each primary
surface is the same as the runway length. The width of each primary
surface is 2,000 feet (1,000 feet on each side of the runway
centerline);
(ii) The clear zone beyond the ends of each runway, i.e., the
extension of the primary surface for a distance of 1,000 feet beyond
each end of each runway;
(iii) All taxiways, plus the lateral clearance zones along each side
for the length of the taxiways (the outer edge of each lateral clearance
zone is laterally 250 feet from the far or opposite edge of the taxiway,
e.g., a 75-foot-wide taxiway would have a combined width of taxiway and
lateral clearance zones of 425 feet); and
(iv) All aircraft parking aprons, plus the area 125 feet in width
extending beyond each edge all around the aprons.
(2) Safety precaution areas means those portions of approach-
departure clearance zones and transitional zones where placement of
objects incident to contract performance might result in vertical
projections at or above the approach-departure clearance, or the
transitional surface.
(i) The approach-departure clearance surface is an extension of the
primary surface and the clear zone at each end of each runway, for a
distance of 50,000 feet, first along an inclined (glide angle) and then
along a horizontal plane, both flaring symmetrically about the runway
centerline extended.
(A) The inclined plane (glide angle) begins in the clear zone 200
feet past the end of the runway (and primary surface) at the same
elevation as the end of the runway. It continues upward at a slope of
50:1 (1 foot vertically for each 50 feet horizontally) to an elevation
of 500 feet above the established airfield elevation. At that point the
plane becomes horizontal, continuing at that same uniform elevation to a
point 50,000 feet longitudinally from the beginning of the inclined
plane (glide angle) and ending there.
(B) The width of the surface at the beginning of the inclined plane
(glide angle) is the same as the width of the clear zone. It then flares
uniformly, reaching the maximum width of 16,000 feet at the end.
(ii) The approach-departure clearance zone is the ground area under
the approach-departure clearance surface.
(iii) The transitional surface is a sideways extension of all
primary surfaces, clear zones, and approach-departure clearance surfaces
along inclined planes.
(A) The inclined plane in each case begins at the edge of the
surface.
(B) The slope of the incline plane is 7:1 (1 foot vertically for
each 7 feet horizontally). It continues to the point of intersection
with the--
(1) Inner horizontal surface (which is the horizontal plane 150 feet
above the established airfield elevation); or
(2) Outer horizontal surface (which is the horizontal plane 500 feet
above the established airfield elevation), whichever is applicable.
(iv) The ``transitional zone'' is the ground area under the
transitional surface. (It adjoins the primary surface, clear zone, and
approach-departure clearance zone.)
(b) General. (1) The Contractor shall comply with the requirements
of this clause while--
(i) Operating all ground equipment (mobile or stationary);
(ii) Placing all materials; and
(iii) Performing all work, upon and around all airfields.
(2) The requirements of this clause are in addition to any other
safety requirements of this contract.
(c) The Contractor shall--
(1) Report to the Contracting Officer before initiating any work;
(2) Notify the Contracting Officer of proposed changes to locations
and operations;
(3) Not permit either its equipment or personnel to use any runway
for purposes other than aircraft operation without permission of the
Contracting Officer, unless the runway is--
(i) Closed by order of the Contracting Officer; and
(ii) Marked as provided in paragraph (d)(2) of this clause;
[[Page 121]]
(4) Keep all paved surfaces, such as runways, taxiways, and
hardstands, clean at all times and, specifically, free from small stones
which might damage aircraft propellers or jet aircraft;
(5) Operate mobile equipment according to the safety provisions of
this clause, while actually performing work on the airfield. At all
other times, the Contractor shall remove all mobile equipment to
locations--
(i) Approved by the Contracting Officer;
(ii) At a distance of at least 750 feet from the runway centerline,
plus any additional distance; and
(iii) Necessary to ensure compliance with the other provisions of
this clause; and
(6) Not open a trench unless material is on hand and ready for
placing in the trench. As soon as practicable after material has been
placed and work approved, the Contractor shall backfill and compact
trenches as required by the contract. Meanwhile, all hazardous
conditions shall be marked and lighted in accordance with the other
provisions of this clause.
(d) Landing areas. The Contractor shall--
(1) Place nothing upon the landing areas without the authorization
of the Contracting Officer;
(2) Outline those landing areas hazardous to aircraft, using (unless
otherwise authorized by the Contracting Officer) red flags by day, and
electric, battery-operated low-intensity red flasher lights by night;
(3) Obtain, at an airfield where flying is controlled, additional
permission from the control tower operator every time before entering
any landing area, unless the landing area is marked as hazardous in
accordance with paragraph (d)(2) of this clause;
(4) Identify all vehicles it operates in landing areas by means of a
flag on a staff attached to, and flying above, the vehicle. The flag
shall be three feet square, and consist of a checkered pattern of
international orange and white squares of 1 foot on each side (except
that the flag may vary up to ten percent from each of these dimensions);
(5) Mark all other equipment and materials in the landing areas,
using the same marking devices as in paragraph (d)(2) of this clause;
and
(6) Perform work so as to leave that portion of the landing area
which is available to aircraft free from hazards, holes, piles of
material, and projecting shoulders that might damage an airplane tire.
(e) Safety precaution areas. The Contractor shall--
(1) Place nothing upon the safety precaution areas without
authorization of the Contracting Officer;
(2) Mark all equipment and materials in safety precaution areas,
using (unless otherwise authorized by the Contracting Officer) red flags
by day, and electric, battery-operated, low-intensity red flasher lights
by night; and
(3) Provide all objects placed in safety precaution areas with a red
light or red lantern at night, if the objects project above the
approach-departure clearance surface or above the transitional surface.
(End of clause)
Sec. 252.236-7006 Cost limitation.
As prescribed in 236.570(b)(4), use the following provision:
Cost Limitation (Dec. 1991)
(a) Certain items in this solicitation are subject to statutory cost
limitations. The limitations are stated in the Schedule.
(b) An offer which does not state separate prices for the items
identified in the Schedule as subject to a cost limitation may be
considered nonresponsive.
(c) By signing its offer, the Offeror certifies that each price
stated on items identified as subject to a cost limitation includes an
appropriate apportionment of all costs, direct and indirect, overhead,
and profit.
(d) Offers may be rejected which--
(1) Are materially unbalanced for the purpose of bringing items
within cost limitations; or
(2) Exceed the cost limitations, unless the limitations have been
waived by the Government prior to award.
(End of provision)
Sec. 252.236-7007 Additive or deductive items.
As prescribed in 236.570(b)(5), use the following provision:
Additive or Deductive Items (Dec. 1991)
(a) The low offeror and the items to be awarded shall be determined
as follows--
(1) Prior to the opening of bids, the Government will determine the
amount of funds available for the project.
(2) The low offeror shall be the Offeror that--
(i) Is otherwise eligible for award; and
(ii) Offers the lowest aggregate amount for the first or base bid
item, plus or minus (in the order stated in the list of priorities in
the bid schedule) those additive or deductive items that provide the
most features within the funds determined available.
(3) The Contracting Officer shall evaluate all bids on the basis of
the same additive or deductive items.
(i) If adding another item from the bid schedule list of priorities
would make the award exceed the available funds for all offerors, the
Contracting Officer will skip
[[Page 122]]
that item and go to the next item from the bid schedule of priorities;
and
(ii) Add that next item if an award may be made that includes that
item and is within the available funds.
(b) The Contracting Officer will use the list of priorities in the
bid schedule only to determine the low offeror. After determining the
low offeror, an award may be made on any combination of items if--
(1) It is in the best interest of the Government;
(2) Funds are available at the time of award; and
(3) The low offeror's price for the combination to be awarded is
less than the price offered by any other responsive, responsible
offeror.
(c) Example. The amount available is $100,000. Offeror A's base bid
and four additives (in the order stated in the list of priorities in the
bid Schedule) are $85,000, $10,000, $8,000, $6,000, and $4,000. Offeror
B's base bid and four additives are $80,000, $16,000, $9,000, $7,000,
and $4,000. Offeror A is the low offeror. The aggregate amount of
offeror A's bid for purposes of award would be $99,000, which includes a
base bid plus the first and fourth additives. The second and third
additives were skipped because each of them would cause the aggregate
bid to exceed $100,000.
(End of provision)
Sec. 252.236-7008 Contract prices--bidding schedules.
As prescribed in 236.570(b)(6), use the following provision:
Contract Prices--Bidding Schedules (Dec. 1991)
(a) The Government's payment for the items listed in the Bidding
Schedule shall constitute full compensation to the Contractor for--
(1) Furnishing all plant, labor, equipment, appliances, and
materials; and
(2) Performing all operations required to complete the work in
conformity with the drawings and specifications.
(b) The Contractor shall include in the prices for the items listed
in the Bidding Schedule all costs for work in the specifications,
whether or not specifically listed in the Bidding Schedule.
(End of provision)
Sec. 252.236-7009 Option for supervision and inspection services.
As prescribed in 236.609-70, use the following clause:
Option for Supervision and Inspection Services (Dec. 1991)
(a) The Government may--
(1) At its option, direct the Contractor to perform any part or all
of the supervision and inspection services for the construction contract
as provided under appendix A of this contract; and
(2) Exercise its option, by written order, at any time prior to six
months after satisfactory completion and acceptance of the work under
this contract.
(b) Upon receipt of the Contracting Officer's written order, the
Contractor shall proceed with the supervision and inspection services.
(End of clause)
Sec. 252.237-7000 Notice of special standards of responsibility.
As prescribed in 237.203-70(d)(1), use the following provision:
Notice of Special Standards of Responsibility (Dec. 1991)
(a) To be determined responsible, the Offeror must meet the general
standards of responsibility set forth at FAR 9.104-1 and the following
criteria, as described in Chapter 3, General Standards, of ``Government
Auditing Standards.''
(1) Qualifications;
(2) Independence; and
(3) Quality Control.
(b) ``Government Auditing Standards'' is issued by the Comptroller
General of the United States and is available for sale from the:
Superintendent of Documents, U.S. Government Printing Office.
Washington, DC 20401, Stock number 020-000-00243-3.
(c) The apparently successful Offeror, before award, shall give the
Contracting Officer evidence that it is licensed by the cognizant
licensing authority in the state or other political jurisdiction where
the Offeror operates its professional practice.
(End of provision)
Sec. 252.237-7001 Compliance with audit standards.
As prescribed in 237.203-70(d)(2), use the following clause:
Compliance With Audit Standards (Dec. 1991)
The Contractor, in performance of all audit services under this
contract, shall comply with--
(a) Government Auditing Standards set forth in ``Government Auditing
Standards'' issued by the Comptroller General of the United States.
[[Page 123]]
(b) Office of Management and Budget Circular No. A-73, Audit of
Federal Operations and Programs.
(End of clause)
Sec. 252.237-7002 Award to single offeror.
As prescribed in 237.7004(a), use the following provision:
Award to Single Offeror (Dec. 1991)
(a) Award shall be made to a single offeror.
(b) Offerors shall include unit prices for each item. Failure to
include unit prices for each item will be cause for rejection of the
entire offer.
(c) The Government will evaluate offers on the basis of the
estimated quantities shown.
(d) Award will be made to that responsive, responsible offeror whose
total aggregate offer is the lowest price to the Government.
(End of provision)
Alternate I (Dec. 1991)
As prescribed in 237.7004(a), substitute the following paragraph (d)
for paragraph (d) of the basic provision:
(d) Award will be made to that responsive, responsible offeror whose
total aggregate offer is in the best interest of the Government.
Sec. 252.237-7003 Requirements.
As prescribed in 237.7004(b), use the following clause:
Requirements (Dec. 1991)
(a) Except as provided in paragraphs (c) and (d) of this clause, the
Government will order from the Contractor all of its requirements in the
area of performance for the supplies and services listed in the schedule
of this contract.
(b) Each order will be issued as a delivery order and will list--
(1) The supplies or services being ordered;
(2) The quantities to be furnished;
(3) Delivery or performance dates;
(4) Place of delivery or performance;
(5) Packing and shipping instructions;
(6) The address to send invoices; and
(7) The funds from which payment will be made.
(c) The Government may elect not to order supplies and services
under this contract in instances where the body is removed from the area
for medical, scientific, or other reason.
(d) In an epidemic or other emergency, the contracting activity may
obtain services beyond the capacity of the Contractor's facilities from
other sources.
(e) Contracting Officers of the following activities may order
services and supplies under this contract--
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(End of clause)
Sec. 252.237-7004 Area of performance.
As prescribed in 237.7004(b), use the following clause:
Area of Performance (Dec. 1991)
(a) The area of performance is as specified in the contract.
(b) The Contractor shall take possession of the remains at the place
where they are located, transport them to the Contractor's place of
preparation, and later transport them to a place designated by the
Contracting Officer.
(c) The Contractor will not be reimbursed for transportation when
both the place where the remains were located and the delivery point are
within the area of performance.
(d) If remains are located outside the area of performance, the
Contracting Officer may place an order with the Contractor under this
contract or may obtain the services elsewhere. If the Contracting
Officer requires the Contractor to transport the remains into the area
of performance, the Contractor shall be paid the amount per mile in the
schedule for the number of miles required to transport the remains by a
reasonable route from the point where located to the boundary of the
area of performance.
(e) The Contracting Officer may require the Contractor to deliver
remains to any point within 100 miles of the area of performance. In
this case, the Contractor shall be paid the amount per mile in the
schedule for the number of miles required to transport the remains by a
reasonable route from the boundary of the area of performance to the
delivery point.
(End of clause)
Sec. 252.237-7005 Performance and delivery.
As prescribed in 237.7004(b), use the following clause:
Performance and Delivery (Dec. 1991)
(a) The Contractor shall furnish the material ordered and perform
the services specified as promptly as possible but not later than 36
hours after receiving notification to remove the remains, excluding the
time necessary for the Government to inspect and check results of
preparation.
[[Page 124]]
(b) The Government may, at no additional charge, require the
Contractor to hold the remains for an additional period not to exceed 72
hours from the time the remains are casketed and final inspection
completed.
(End of clause)
Sec. 252.237-7006 Subcontracting.
As prescribed in 237.7004(b), use the following clause:
Subcontracting (Dec. 1991)
The Contractor shall not subcontract any work under this contract
without the Contracting Officer's written approval. This clause does not
apply to contracts of employment between the Contractor and its
personnel.
(End of clause)
Sec. 252.237-7007 Termination for default.
As prescribed in 237.7004(b), use the following clause:
Termination for Default (Dec. 1991)
(a) This clause supplements and is in addition to the Default clause
of this contract.
(b) The Contracting Officer may terminate this contract for default
by written notice without the ten day notice required by paragraph
(a)(2) of the Default clause if--
(1) The Contractor, through circumstances reasonably within its
control or that of its employees, performs any act under or in
connection with this contract, or fails in the performance of any
service under this contract and the act or failures may reasonably be
considered to reflect discredit upon the Department of Defense in
fulfilling its responsibility for proper care of remains;
(2) The Contractor, or its employees, solicits relatives or friends
of the deceased to purchase supplies or services not under this
contract. (The Contractor may furnish supplies or arrange for services
not under this contract, only if representatives of the deceased
voluntarily request, select, and pay for them.);
(3) The services or any part of the services are performed by anyone
other than the Contractor or the Contractor's employees without the
written authorization of the Contracting Officer;
(4) The Contractor refuses to perform the services required for any
particular remains; or
(5) The Contractor mentions or otherwise uses this contract in its
advertising in any way.
(End of clause)
Sec. 252.237-7008 Group interment.
As prescribed in 237.7004(b), use the following clause:
Group Interment (Dec. 1991)
The Government will pay the Contractor for supplies and services
provided for remains interred as a group on the basis of the number of
caskets furnished, rather than on the basis of the number of persons in
the group.
(End of clause)
Sec. 252.237-7009 Permits.
As prescribed in 237.7004(b), use the following clause:
Permits (Dec. 1991)
The Contractor shall meet all State and local licensing requirements
and obtain and furnish all necessary health department and shipping
permits at no additional cost to the Government. The Contractor shall
ensure that all necessary health department permits are in order for
disposition of the remains.
(End of clause)
Sec. 252.237-7010 Facility requirements.
As prescribed in 237.7004(b), use the following clause:
Facility Requirements (Dec. 1991)
(a) The Contractor's building shall have complete facilities for
maintaining the highest standards of solemnity, reverence, assistance to
the family, and prescribed ceremonial services.
(b) The Contractor's preparation room shall be clean, sanitary, and
adequately equipped.
(c) The Contractor shall have, or be able to get, catafalques,
church trucks, and equipment for Protestant, Catholic, and Jewish
services.
(d) The Contractor's funeral home, furnishings, grounds, and
surrounding area shall present a clean and well-kept appearance.
(End of clause)
Sec. 252.237-7011 Preparation history.
As prescribed in 237.7004(b), use the following clause:
[[Page 125]]
Preparation History (Dec. 1991)
For each body prepared, or for each casket handled in a group
interment, the Contractor shall state briefly the results of the
embalming process on a certificate furnished by the Contracting Officer.
(End of clause)
Sec. 252.237-7012 Instruction to offerors (count-of-articles).
As prescribed in 237.7102(a), use the following provision:
Instruction to Offerors (Count-of-Articles) (Dec. 1991)
(a) The Offeror shall include unit prices for each item in a lot.
Unit prices shall include all costs to the Government of providing the
services, including pickup and delivery charges.
(b) Failure to offer on any item in a lot shall be cause for
rejection of the offer on that lot. The Contracting Officer will
evaluate offers based on the estimated quantities in the solicitation.
(c) Award generally will be made to a single offeror for all lots.
However, the Contracting Officer may award by individual lot when it is
more advantageous to the Government.
(d) Prospective offerors may inspect the types of articles to be
serviced. Contact the Contracting Officer to make inspection
arrangements.
(End of provision)
Sec. 252.237-7013 Instruction to offerors (bulk weight).
As prescribed in 237.7102(b), use the following provision:
Instruction to Offerors (Bulk Weight) (Dec. 1991)
(a) Offers shall be submitted on a unit price per pound of serviced
laundry. Unit prices shall include all costs to the Government of
providing the service, including pickup and delivery charges.
(b) The Contracting Officer will evaluate bids based on the
estimated pounds of serviced laundry stated in the solicitation.
(c) Award generally will be made to a single offeror for all lots.
However, the Contracting Officer may award by individual lot when it is
more advantageous to the Government.
(d) Prospective offerors may inspect the types of articles to be
serviced. Contact the Contracting Officer to make inspection
arrangements.
(End of provision)
Sec. 252.237-7014 Loss or damage (count-of-articles).
As prescribed in 237.7102(c), use the following clause:
Loss or Damage (Count-of-Articles) (Dec. 1991)
(a) The count-of-articles will be--
(1) The count of the Contracting Officer; or
(2) The count agreed upon as a result of a joint count by the
Contractor and the Contracting Officer at the time of delivery to the
Contractor.
(b) The Contractor shall--
(1) Be liable for return of the number and kind of articles
furnished for service under this contract; and
(2) Shall indemnify the Government for any loss or damage to such
articles.
(c) The Contractor shall pay to the Government the value of any lost
or damaged property using Federal supply schedule price lists. If the
property is not on these price lists, the Contracting Officer shall
determine a fair and reasonable price.
(d) The Contracting Officer will allow credit for any depreciation
in the value of the property at the time of loss or damage. The
Contracting Officer and the Contractor shall mutually determine the
amount of the allowable credit.
(e) Failure to agree upon the value of the property or on the amount
of credit due will be treated as a dispute under the Disputes clause of
this contract.
(f) In case of damage to any property that the Contracting Officer
and the Contractor agree can be satisfactorily repaired, the Contractor
may repair the property at its expense in a manner satisfactory to the
Contracting Officer, rather than make payment under paragraph (c) of
this clause.
(End of clause)
Sec. 252.237-7015 Loss or damage (weight of articles).
As prescribed in 237.7102(d), use the following clause:
Loss or Damage (Weight of Articles) (Dec. 1991)
(a) The Contractor shall--
(1) Be liable for return of the articles furnished for service under
this contract; and
(2) Indemnify the Government for any articles delivered to the
Contractor for servicing under this contract that are lost or damaged,
and in the opinion of the Contracting Officer, cannot be repaired
satisfactorily.
(b) The Contractor shall pay to the Government ________ per pound
for lost or damaged articles. The Contractor shall pay the
[[Page 126]]
Government only for losses which exceed the maximum weight loss in
paragraph (e) of this clause.
(c) Failure to agree on the amount of credit due will be treated as
a dispute under the Disputes clause of this contract.
(d) In the case of damage to any articles that the Contracting
Officer and the Contractor agree can be satisfactorily repaired, the
Contractor shall repair the articles at its expense in a manner
satisfactory to the Contracting Officer.
(e) The maximum weight loss allowable in servicing the laundry is
________ percent of the weight recorded on delivery tickets when the
laundry is picked up. Any weight loss in excess of this amount shall be
subject to the loss provisions of this clause.
(End of clause)
Sec. 252.237-7016 Delivery tickets.
As prescribed in 237.7102(e), use the following clause:
Delivery Tickets (Dec. 1991)
(a) The Contractor shall complete delivery tickets in the number of
copies required and in the form approved by the Contracting Officer,
when it receives the articles to be serviced.
(b) The Contractor shall include one copy of each delivery ticket
with its invoice for payment.
(End of clause)
Alternate I (Dec. 1991)
As prescribed in 237.7102(e)(1), add the following paragraphs (c),
(d), and (e) to the basic clause:
(c) Before the Contractor picks up articles for service under this
contract, the Contracting Officer will ensure that--
(1) Each bag contains only articles within a single bag type as
specified in the schedule; and
(2) Each bag is weighed and the weight and bag type are identified
on the bag.
(d) The Contractor shall, at time of pickup--
(1) Verify the weight and bag type and record them on the delivery
ticket; and
(2) Provide the Contracting Officer, or representative, a copy of
the delivery ticket.
(e) At the time of delivery, the Contractor shall record the weight
and bag type of serviced laundry on the delivery ticket. The Contracting
Officer will ensure that this weight and bag type are verified at time
of delivery.
Alternate II (Dec. 1991)
As prescribed in 237.7102(e)(2), add the following paragraphs (c),
(d), and (e) to the basic clause--
(c) Before the Contractor picks up articles for service under this
contract, the Contracting Officer will ensure that each bag is weighed
and that the weight is identified on the bag.
(d) The Contractor, at time of pickup, shall verify and record the
weight on the delivery ticket and shall provide the Contracting Officer,
or representative, a copy of the delivery ticket.
(e) At the time of delivery, the Contractor shall record the weight
of serviced laundry on the delivery ticket. The Contracting Officer will
ensure that this weight is verified at time of delivery.
Sec. 252.237-7017 Individual laundry.
As prescribed in 237.7102(f), use the following clause:
Individual Laundry (Dec. 1991)
(a) The Contractor shall provide laundry service under this contract
on both a unit bundle and on a piece-rate bundle basis for individual
personnel.
(b) The total number of pieces listed in the ``Estimated Quantity''
column in the schedule is the estimated amount of individual laundry for
this contract. The estimate is for information only and is not a
representation of the amount of individual laundry to be ordered.
Individuals may elect whether or not to use the laundry services.
(c) Charges for individual laundry will be on a per unit bundle or a
piece-rate basis. The Contractor shall provide individual laundry bundle
delivery tickets for use by the individuals in designating whether the
laundry is a unit bundle or a piece-rate bundle. An individual laundry
bundle will be accompanied by a delivery ticket listing the contents of
the bundle.
(d) The maximum number of pieces to be allowed per bundle is as
specified in the schedule and as follows--
(1) Bundle consisting of 26 pieces, including laundry bag. This
bundle will contain approximately ________ pieces of outer garments
which shall be starched and pressed. Outer garments include, but are not
limited to, shirts, trousers, jackets, dresses, and coats.
(2) Bundle consisting of 13 pieces, including laundry bag. This
bundle will contain approximately ________ pieces of outer garments
which shall be starched and pressed. Outer garments include, but are not
limited to, shirts, trousers, jackets, dresses, and coats.
[[Page 127]]
(End of clause)
Sec. 252.237-7018 Special definitions of government property.
As prescribed in 237.7102(g), use the following clause:
Special Definitions of Government Property (Dec. 1991)
Articles delivered to the Contractor to be laundered or dry-cleaned,
including any articles which are actually owned by individual Government
personnel, are Government-owned property, not Government-furnished
property. Government-owned property does not fall under the requirements
of any Government-furnished property clause of this contract.
(End of clause)
Sec. 252.237-7019 Identification of uncompensated overtime.
As prescribed in 237.170-3, use the following provision:
Identification of Uncompensated Overtime (Apr. 1992)
(a) Definitions. As used in this provision--
(1) Uncompensated overtime means the hours worked in excess of an
average of 40 hours per week by direct charge employees who are exempt
from the Fair Labor Standards Act (FLSA), without additional
compensation. Compensated personal absences, such as holidays,
vacations, and sick leave, shall be included in the normal work week for
purposes of computing uncompensated overtime hours.
(2) Uncompensated overtime rate is the rate which results from
multiplying the hourly rate for a 40 hour work week by 40, and then
dividing by the proposed hours per week. For example, 45 hours proposed
on a 40 hour work week basis at $20.00 would be converted to an
uncompensated overtime rate of $17.78 per hour. ($20 x 40) divided by
45=$17.78.
(b) For any hours proposed against which an uncompensated overtime
rate is applied, the Offeror shall identify in its proposal the hours in
excess of an average of 40 hours per week, at the same level of detail
as compensated hours, and the uncompensated overtime rate per hour,
whether at the prime or subcontract level. This includes uncompensated
overtime hours that are in indirect cost pools for personnel whose
regular hours are normally charged direct.
(c) The Offeror's accounting practices used to estimate
uncompensated overtime must be consistent with its cost accounting
practices used to accumulate and report uncompensated overtime hours.
(d) Proposals which include unrealistically low labor rates, or
which do not otherwise demonstrate cost realism, will be considered in a
risk assessment and evaluated for award in accordance with that
assessment.
(e) The Offeror shall include a copy of its policy addressing
uncompensated overtime with its proposal.
(End of provision)
[56 FR 67222, Dec. 30, 1991, as amended at 57 FR 14996, Apr. 23, 1992;
57 FR 42633, Sept. 15, 1992]
252.237-7020--252.237-7021 [Reserved]
Sec. 252.237-7022 Services at installations being closed.
As prescribed in 237.7402, use the following clause:
Services at Installations Being Closed (May 1995)
Professional employees shall be used by the local government to
provide services under this contract to the extent that professionals
are available in the area under the jurisdiction of such government.
(End of clause)
[59 FR 36090, July 15, 1994, as amended at 60 FR 29503, June 5, 1995]
Sec. 252.239-7000 Protection against compromising emanations.
As prescribed in 239.7102-3(a), use the following clause:
Protection Against Compromising Emanations (Dec. 1991)
(a) The Contractor shall provide or use only computer equipment, as
specified by the Government, that has been accredited to meet the
appropriate security requirements of--
(1) The National Security Agency National TEMPEST Standards (NACSEM
No. 5100 or NACSEM No. 5100A, Compromising Emanations Laboratory Test
Standard, Electromagnetics (U)); or
(2) Other standard specified by this contract.
(b) Upon request of the Contracting Officer, the Contractor shall
provide documentation supporting the accreditation.
(c) The Government may, as part of its inspection and acceptance,
conduct additional tests to ensure that equipment or systems delivered
under this contract satisfy the security standards specified. The
Government may conduct additional tests--
(1) At the installation site or contractor's facility.
[[Page 128]]
(2) Notwithstanding the existence of valid accreditations of
equipment prior to the award of this contract.
(d) Unless otherwise provided in this contract under the Warranty of
Supplies or Warranty of Systems and Equipment clauses, the Contractor
shall correct or replace accepted equipment or systems found to be
deficient within one year after proper installations.
(1) The correction or replacement shall be at no cost to the
Government.
(2) Should a modification to the delivered equipment be made by the
Contractor, the one year period applies to the modification upon its
proper installation.
(3) This paragraph (d) applies regardless of f.o.b. point or the
point of acceptance of the deficient equipment/systems.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 56 FR 67222, Dec. 30, 1991]
52.239-7001 [Reserved]
Sec. 252.239-7002 Access.
As prescribed in 239.7411(a), use the following clause:
Access (Dec. 1991)
(a) Subject to military security regulations, the Government shall
permit the Contractor access at all reasonable times to Contractor
furnished facilities. However, if the Government is unable to permit
access, the Government at its own risk and expense shall maintain these
facilities and the Contractor shall not be responsible for the service
involving any of these facilities during the period of nonaccess, unless
the service failure results from the Contractor's fault or negligence.
(b) During periods when the Government does not permit Contractor
access, the Government will reimburse the Contractor at mutually
acceptable rates for the loss of or damage to the equipment due to the
fault or negligence of the Government. Failure to agree shall be a
dispute concerning a question of fact within the meaning of the Disputes
clause of this contract.
(End of clause)
Sec. 252.239-7003 Facilities and services to be furnished--common carriers.
As prescribed in 239.7411(a), use the following clause:
Facilities and Services To Be Furnished--Common Carriers (Dec. 1991)
(a) The Contractor shall furnish any classes of services or
facilities that the Contractor offers or furnishes under published
tariffs.
(b) When it is mutually agreed that the Contractor shall furnish
nontariffed services, the Government shall order them under the Ordering
of Facilities and Services clause of this agreement/contract. These
nontariffed services may include the engineering, installation,
alteration, or maintenance of facilities owned either by the Contractor
or the Government, wherever located.
(c) Upon request of the Contracting Officer, the Contractor agrees
to interconnect its facilities with any Government-owned or furnished
telecommunications equipment, facilities, or transmission media. The
Contractor shall use established technical criteria for ensuring
continuity of service and traffic without damage to or degradation of
commercial facilities.
(End of clause)
Sec. 252.239-7004 Orders for facilities and services--common carriers.
As prescribed in 239.7411(a), use the following clause:
Orders for Facilities and Services--Common Carriers (Dec. 1991)
The Contractor shall acknowledge a communication service
authorization or other type order for supplies and facilities by--
(a) Commencing performance; or
(b) Written acceptance by a duly authorized representative.
(End of clause)
Sec. 252.239-7005 Rates, charges, and services--common carriers.
As prescribed in 239.7411(a), use the following clause:
Rates, Charges, and Services--Common Carriers (Dec. 1991)
(a) Definition--Governmental regulatory body means the Federal
Communications Commission, any statewide regulatory body, or any body
with less than statewide jurisdiction when operating under the state
authority. Regulatory bodies whose decisions are not subject to judicial
appeal and regulatory bodies which regulate a company owned by the same
entity which creates the regulatory body are not ``governmental
regulatory bodies.''
(b) The Contractor shall furnish the services and facilities under
this agreement/contract in accordance with--
(1) All applicable tariffs, rates, charges, rules, regulations, or
requirements;
(i) Lawfully established by a governmental regulatory body; and
[[Page 129]]
(ii) Applicable to service and facilities furnished or offered by
the Contractor to the general public or the Contractor's subscribers;
(2) Rates, terms, and conditions of service and facilities furnished
or offered by the Contractor to the general public or the Contractor's
subscribers; or
(3) Rates, terms, and conditions of service as may be agreed upon,
subject, when appropriate, to jurisdiction of a governmental regulatory
body.
(c) The Government shall not prepay for services.
(d) For nontariffed services, the Contractor shall charge the
Government at the lowest rate and under the most favorable terms and
conditions for similar service and facilities offered to any other
customer.
(e) Recurring charges for services and facilities shall, in each
case, start with the satisfactory beginning of service or provision of
facilities or equipment and are payable monthly in arrears.
(f) Subject to the Cancellation or Termination of Orders--Common
Carriers clause, of this agreement/contract, the Government may stop the
use of any service or facilities furnished under this agreement/contract
at any time. The Government shall pay the contractor all charges for
services and facilities adjusted to the effective date of
discontinuance.
(g) Expediting charges are costs necessary to get services earlier
than normal. Examples are overtime pay or special shipment. When
authorized, expediting charges shall be the additional costs incurred by
the Contractor and the subcontractor. The Government shall pay
expediting charges only when--
(1) They are provided for in the tariff established by a
governmental regulatory body; or
(2) They are authorized in a communication service authorization or
other contractual document.
(h) When services normally provided are technically unacceptable and
the development, fabrication, or manufacture of special equipment is
required, the Government may--
(1) Provide the equipment; or
(2) Direct the Contractor to acquire the equipment or facilities. If
the Contractor acquires the equipment or facilities, the acquisition
shall be competitive, if practicable.
(i) If at any time the Government defers or changes its orders for
any of the services but does not cancel or terminate them, the amount
paid or payable to the Contractor for the services deferred or modified
shall be equitably adjusted under applicable tariffs filed by the
Contractor with the regulatory commission in effect at the time of
deferral or change. If no tariffs are in effect, the Government and the
Contractor shall equitably adjust the rates by mutual agreement. Failure
to agree on any adjustment shall be a dispute concerning a question of
fact within the meaning of the Disputes clause of this contract.
(End of clause)
Sec. 252.239-7006 Tariff information.
As prescribed in 239.7411(a), use the following clause:
Tariff Information (Dec. 1991)
(a) The Contractor shall provide to the Contracting Officer--
(1) Upon request, a copy of the Contractor's current existing
tariffs (including changes);
(2) Before filing any application to a Federal, State, or any other
regulatory agency for new or changes to, rates, charges, services, or
regulations relating to any tariff or any of the facilities or services
to be furnished solely or primarily to the Government; and
(3) Upon request, a copy of all information, material, and data
developed or prepared in support of or in connection with an application
under paragraph (a)(2) of this clause.
(b) The Contractor shall notify the Contracting Officer of any
application that anyone other than the Contractor files with a
governmental regulatory body which affects or will affect the rate or
conditions of services under this agreement/contract. These requirements
also apply to applications pending on the effective date of this
agreement/contract.
(End of clause)
Sec. 252.239-7007 Cancellation or termination of orders--common carriers.
As prescribed in 239.7411(a), use the following clause:
Cancellation or Termination of Orders--Common Carriers (Dec. 1991)
(a) If the Government cancels any of the services ordered under this
agreement/contract, before the services are made available to the
Government, or terminates any of these services after they are made
available to the Government, the Government shall reimburse the
Contractor for the actual nonrecoverable costs the Contractor has
reasonably incurred in providing facilities and equipment for which the
Contractor has no foreseeable reuse.
(b) The amount of the Government's liability upon cancellation or
termination of any of the services ordered under this agreement/contract
will be determined under applicable tariffs governing cancellation and
termination charges which--
[[Page 130]]
(1) Are filed by the Contractor with a governmental regulatory body,
as defined in the Rates, Charges, and Services--Common Carriers clause
of this agreement/contract;
(2) Are in effect on the date of termination; and
(3) Provide specific cancellation or termination charges for the
facilities and equipment involved or show how to determine the charges.
(c) The amount of the Government's liability upon cancellation or
termination of any of the services ordered under this agreement/
contract, which are not subject to a governmental regulatory body, will
be determined under a mutually agreed schedule in the communication
services authorization (CSA) or other contractual document.
(d) If no applicable tariffs are in effect on the date of
cancellation or termination or set forth in the applicable CSA or other
contractual document, the Government's liability will be determined
under the following settlement procedures--
(1) The Contractor agrees to provide the Contracting Officer, in
such reasonable detail as the Contracting Officer may require, certified
inventory schedules covering all items of property or facilities in the
Contractor's possession, the cost of which is included in the Basic
Cancellation or Termination Liability for which the Contractor has no
foreseeable reuse.
(2) The Contractor shall use its best efforts to sell property or
facilities when the Contractor has no foreseeable reuse or when the
Government has not exercised its option to take title under the title to
Telecommunications Facilities and Equipment clause of this agreement/
contract. The Contractor shall apply any proceeds of the sale to reduce
any payments by the Government to the Contractor under a cancellation or
termination settlement.
(3) The Contractor shall record actual nonrecoverable costs under
established accounting procedures prescribed by the cognizant
governmental regulatory authority or, if no such procedures have been
prescribed, under generally accepted accounting procedures applicable to
the provision of telecommunication services for public use.
(4) The actual nonrecoverable costs are the installed costs of the
facilities and equipment, less cost of reusable materials, and less net
salvage value. Installed costs shall include the actual cost of
equipment and materials specifically provided or used, plus the actual
cost of installing (including engineering, labor, supervision,
transportation, rights-of-way, and any other items which are chargeable
to the capital accounts of the Contractor) less any costs the Government
may have directly reimbursed the Contractor under the Special
Construction and Equipment Charges clause of this agreement/contract.
Deduct from the Contractor's installed cost, the net salvage value
(salvage value less cost of removal). In determining net salvage value,
give consideration to foreseeable reuse of the facilities and equipment
by the Contractor. Make allowance for the cost of dismantling, removal,
reconditioning, and disposal of the facilities and equipment when
necessary either to the sale of facilities or their reuse by the
Contractor in another location.
(5) The Basic Cancellation Liability is defined as the actual
nonrecoverable cost which the Government shall reimburse the Contractor
at the time services are cancelled. The Basic Termination Liability is
defined as the nonrecoverable cost amortized in equal monthly increments
throughout the liability period. Upon termination of services, the
Government shall reimburse the Contractor for the nonrecoverable cost
less such costs amortized to the date services are terminated. Establish
the liability period as mutually agreed to but not to exceed ten years.
(6) When the Basic Cancellation or Termination Liability established
by the CSA or other contractual document is based on estimated costs,
the Contractor agrees to settle on the basis of actual cost at the time
of termination or cancellation.
(7) The Contractor agrees that, if after settlement but within the
termination liability period of the services, should the Contractor make
reuse of equipment or facilities which were treated as nonreusable or
nonsalvagable in the settlement, the Contractor shall reimburse the
Government for the value of the equipment or facilities.
(8) The Contractor agrees to exclude--
(i) Any costs which are not included in determining cancellation and
termination charges under the Contractor's standard practices or
procedures; and
(ii) Charges not ordinarily made by the Contractor for similar
facilities or equipment, furnished under similar circumstances.
(e) The Government may, under such terms and conditions as it may
prescribe, make partial payments and payments on account against costs
incurred by the Contractor in connection with the canceled or terminated
portion of this agreement/contract. The Government may make these
payments if in the opinion of the Contracting Officer the total of the
payments is within the amount the Contractor is entitled. If the total
of the payments is in excess of the amount finally agreed or determined
to be due under this clause, the Contractor shall pay the excess to the
Government upon demand.
(f) Failure to agree shall be a dispute concerning a question of
fact within the meaning of the Disputes clause.
[[Page 131]]
(End of clause)
Sec. 252.239-7008 Reuse arrangements.
As prescribed in 239.7411(a), use the following clause:
Reuse Arrangements (Dec. 1991)
(a) When feasible, the Contractor shall reuse canceled or terminated
facilities or equipment to minimize the charges to the Government.
(b) If at any time the Government requires that telecommunications
facilities or equipment be relocated within the Contractor's service
area, the Government shall have the option of paying the costs of
relocating the facilities or equipment in lieu of paying any termination
or cancellation charge under the Cancellation or Termination of Orders-
Common Carriers clause of this agreement/contract. The Basic Termination
Liability applicable to the facilities or equipment in their former
location shall continue to apply to the facilities and equipment in
their new location. Monthly rental charges shall continue to be paid
during the period.
(c) When there is another requirement or foreseeable reuse in place
of canceled or terminated facilities or equipment, no charge shall apply
and the Basic Cancellation or Termination Liability shall be
appropriately reduced. When feasible, the Contractor shall promptly
reuse discontinued channels or facilities, including equipment for which
the Government is obligated to pay a minimum service charge.
(End of clause)
Sec. 252.239-7009 Submission of cost or pricing data--common carriers.
As prescribed in 239.7411(a), use the following clause:
Submission of Cost or Pricing Data--Common Carriers (Dec. 1991)
The Contractor agrees to provide certified cost or pricing data,
upon request by the Contracting Officer, whenever--
(a) The services are nontariffed services;
(b) A tariff, whether filed or to be filed, is for new services
installed or developed primarily for Government use;
(c) A tariff, whether filed or to be filed, does not include the
special rates and charges;
(d) More than one commercial source (one or more of which is a
common carrier) can offer the service but price competition is not
adequate;
(e) Required to support the reasonableness of special assembly rates
and charges;
(f) Required to support the reasonableness of special construction
and equipment charges;
(g) Required to support the reasonableness of those contingent
liabilities which are fixed at the outset of the service;
(h) Required to support proposed cancellation and termination
charges (under the Cancellation or Termination Orders clause) and reuse
arrangements (under the Reuse Arrangements clause); or
(i) Required to support rates contained in voluntary tariffs filed
by nondominant common carriers.
(End of clause)
Sec. 252.239-7010 Audit and records--common carriers.
As prescribed in 239.7411(a), use the following clause:
Audit and Records--Common Carriers (NOV 1995)
(a) For the purpose of verifying the accuracy of the cost or pricing
data submitted under the Submission of Cost or Pricing Data--Common
Carriers clause of this agreement/contract, the Contracting Officer or
authorized representative shall have the right to examine the
Contractor's records, the computations and projections used, and other
supporting data, as defined in 4.703(a) of the Federal Acquisition
Regulation, which will permit adequate evaluation of the cost or pricing
data. This right applies to cost and pricing data which were available
to the Contractor as of the date of the certification and shall last--
(1) Until the expiration of three years from the date of the
submission of the data which forms the basis for a recurring or
nonrecurring charge; or
(2) Until the expiration of the period of contingent liability with
respect to that contingent liability.
(b) The Contractor shall maintain records and other evidence, and
accounting procedures and practices, sufficient to show the direct and
indirect costs which were the basis for pricing the communication
service authorization.
(c) The Contractor shall insert the substance of this clause in
subcontracts which furnish the basis for charges referred to in
paragraph (a) of this clause unless the Contracting Officer authorizes
its omission.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 60 FR 61602, Nov. 30, 1995]
Sec. 252.239-7011 Special construction and equipment charges.
As prescribed in 239.7411(b), use the following clause:
[[Page 132]]
Special Construction and Equipment Charges (Dec. 1991)
(a) The Government will not directly reimburse the Contractor for
the cost of constructing any facilities or providing any equipment,
unless the Contracting Officer authorizes direct reimbursement.
(b) If the Contractor stops using facilities or equipment which the
Government has, in whole or part, directly reimbursed, the Contractor
shall allow the Government credit for the value of the facilities or
equipment attributable to the Government's contribution. Determine the
value of the facilities and equipment on the basis of their foreseeable
reuse by the Contractor at the time their use is discontinued or on the
basis of the net salvage value, whichever is greater. The Contractor
shall promptly pay the Government the amount of any credit.
(c) The amount of the direct special construction charge shall not
exceed--
(1) The actual costs to the Contractor; and
(2) An amount properly allocable to the services to be provided to
the Government.
(d) The amount of the direct special construction charge shall not
include costs incurred by the Contractor which are covered by--
(1) A cancellation or termination liability; or
(2) The Contractor's recurring or other nonrecurring charges.
(e) The Contractor represents that--
(1) Recurring charges for the services, facilities, and equipment do
not include in the rate base any costs that have been reimbursed by the
Government to the Contractor; and
(2) Depreciation charges are based only on the cost of facilities
and equipment paid by the Contractor and not reimbursed by the
Government.
(f) If it becomes necessary for the Contractor to incur costs to
replace any facilities or equipment, the Government shall assume those
costs or reimburse the Contractor for replacement costs at mutually
acceptable rates under the following circumstances--
(1) The Government paid direct special construction charges; or
(2) The Government reimbursed the Contractor for those facilities or
equipment as a part of the recurring charges; and
(3) The need for replacement was due to circumstances beyond the
control and without the fault of the Contractor.
(g) Before incurring any costs under paragraph (f) of this clause,
the Government shall have the right to terminate the service under the
Cancellation or Termination of Orders clause of this contract.
(End of clause)
Sec. 252.239-7012 Title to telecommunication facilities and equipment.
As prescribed in 239.7411(b), use the following clause:
Title to Telecommunication Facilities and Equipment (Dec. 1991)
(a) Title to all Contractor furnished facilities and equipment used
under this agreement/contract shall remain with the Contractor even if
the Government paid the costs of constructing the facilities or
equipment. A mutually accepted communications service authorization may
provide for exceptions.
(b) The Contractor shall operate and maintain all telecommunication
facilities and equipment used under this agreement/contract whether the
Government or the Contractor has title.
(End of clause)
Sec. 252.239-7013 Obligation of the Government.
As prescribed in 239.7411(c), use the following clause:
Obligation of the Government (Dec. 1991)
(a) This basic agreement is not a contract. The Government incurs no
monetary liability under this agreement.
(b) The Government incurs liability only upon issuance of a
communications service authorization under the terms of this agreement.
(End of clause)
Sec. 252.239-7014 Term of agreement.
As prescribed in 239.7411(c), use the following clause:
Term of Agreement (Dec. 1991)
(a) This agreement shall continue in force from year to year, unless
terminated by either party by 60 days written notice.
(b) Termination of this agreement does not cancel any communication
service authorizations previously issued.
(End of clause)
Sec. 252.239-7015 Continuation of communication service authorizations.
As prescribed in 239.7411(c), use the following clause:
[[Page 133]]
Continuaton of Communication Service Authorizations (Dec. 1991)
(a) All communication service authorizations (CSAs) issued by
______under Basic Agreement Number ____, dated ____ , are transferred
to this basic agreement. The CSAs shall continue in full force and
effect as though placed under this agreement.
(b) Communication service authorizations currently in effect which
were issued by the activity in paragraph (a) of this clause under other
agreements with the Contractor may also be transferred to this
agreement.
(End of clause)
Sec. 252.239-7016 Telecommunications security equipment, devices, techniques, and services.
As prescribed in 239.7411(d), use the following clause:
Telecommunications Security Equipment, Devices, Techniques, and Services
(Dec. 1991)
(a) Definitions. As used in this clause--
(1) Securing means the application of Government-approved
telecommunications security equipment, devices, techniques, or services
to contractor telecommunications systems.
(2) Sensitive information means any information the loss, misuse, or
modification of which, or unauthorized access to, could adversely affect
the national interest or the conduct of Federal programs, or the privacy
to which individuals are entitled under 5 U.S.C. 552a (the Privacy Act),
but which has not been specifically authorized under criteria
established by an Executive Order or Act of Congress to be kept secret
in the interest of national defense or foreign policy.
(3) Telecommunications systems means voice, record, and data
communications, including management information systems and local data
networks that connect to external transmission media, when employed by
Government agencies, contractors, and subcontractors to transmit--
(i) Classified or sensitive information;
(ii) Matters involving intelligence activities, cryptologic
activities related to national security, the command and control of
military forces, or equipment that is an integral part of a weapon or
weapons system; or
(iii) Matters critical to the direct fulfillment of military or
intelligence missions.
(b) This solicitation/contract identifies classified or sensitive
information that requires securing during telecommunications and
requires the Contractor to secure telecommunications systems. The
Contractor agrees to secure information and systems at the following
location: (Identify the location.)
(c) To provide the security, the Contractor shall use Government-
approved telecommunications equipment, devices, techniques, or services.
A list of the approved equipment, etc. may be obtained from (identify
where list can be obtained). Equipment, devices, techniques, or services
used by the Contractor must be compatible or interoperable with (list
and identify the location of any telecommunications security equipment,
device, technique, or service currently being used by the technical or
requirements organization or other offices with which the Contractor
must communicate).
(d) Except as may be provided elsewhere in this contract, the
Contractor shall furnish all telecommunications security equipment,
devices, techniques, or services necessary to perform this contract. The
Contractor must meet ownership eligibility conditions for communications
security equipment designated as controlled cryptographic items.
(e) The Contractor agrees to include this clause, including this
paragraph (e), in all subcontracts which require securing
telecommunications.
(End of clause)
Sec. 252.241-7000 Superseding contract.
As prescribed in 241.007-70(a), use the following clause:
Superseding Contract (Dec. 1991)
This contract supersedes contract No. ______, dated ____ which
provided similar services. Any capital credits accrued to the
Government, any remaining credits due to the Government under the
connection charge, or any termination liability are transferred to this
contract, as follows:
Capital Credits
(List years and accrued credits by year and separate delivery
points.)
Outstanding Connection Charge Credits
(List by month and year the amount credited and show the remaining
amount of outstanding credits due the Government.)
Termination Liability Charges
(List by month and year the amount of monthly facility cost
recovered and show the remaining amount of facility cost to be
recovered.)
(End of clause)
Sec. 252.241-7001 Government access.
As prescribed in 241.007-70(b), use the following clause:
[[Page 134]]
Government Access (Dec. 1991)
Authorized representatives of the Government may have access to the
Contractor's on-base facilities upon reasonable notice or in case of
emergency.
(End of clause)
Sec. 252.242-7000 Postaward conference.
As prescribed in 242.570, use the following clause:
Postaward Conference (Dec. 1991)
The Contractor agrees to attend any postaward conference convened by
the contracting activity or contract administration office in accordance
with Federal Acquisition Regulation subpart 42.5.
(End of clause)
252.242-7001 [Reserved]
Sec. 252.242-7002 Submission of commercial freight bills for audit.
As prescribed in 242.1404-2-70(a), use the following clause:
Submission of Commercial Freight Bills for Audit (Dec. 1991)
When the Government reimburses the Contractor's transportation
costs, the Contractor shall furnish individual freight bills (or
equivalent shipment data and evidence of payments) for transportation
charges in excess of $500 to the following address:
General Services Administration--BWQAA
GSA Building
18th and F Streets, NW.
Washington, DC 20405
(End of clause)
Sec. 252.242-7003 Application for U.S. government shipping documentation/instructions.
As prescribed in 242.1404-2-70(b), use the following clause:
Application for U.S. Government Shipping Documentation/Instructions
(Dec. 1991)
The Contractor shall request Government bills of lading by
submitting a DD Form 1659, Application for U.S. Government Shipping
Documentation/Instructions, to the--
(a) Transportation Officer, if named in the contract schedule; or
(b) Contract administration office.
(End of clause)
Sec. 252.242-7004 Material management and accounting system.
As prescribed in 242.7206, use the following clause:
Material Management and Accounting System (SEP 1996)
(a) Definitions. As used in this clause--
(1) Material management and accounting system means the Contractor's
system or systems for planning, controlling, and accounting for the
acquisition, use, issuing, and disposition of material. Material
management and accounting systems may be manual or automated. They may
be stand-alone systems or they may be integrated with planning,
engineering, estimating, purchasing, inventory, accounting, or other
systems.
(2) Valid time-phased requirements means material which is--
(i) Needed to fulfill the production plan, including reasonable
quantities for scrap, shrinkage, yield, etc.; and
(ii) Charged/billed to contracts or other cost objectives in a
manner consistent with the need to fulfill the production plan.
(3) Contractor means a business unit as defined in section 31.001 of
the Federal Acquisition Regulation (FAR).
(b) General. The Contractor agrees to--
(1) Maintain a material management and accounting system (MMAS)
that--
(i) Reasonably forecasts material requirements;
(ii) Ensures that costs of purchased and fabricated material charged
or allocated to a contract are based on valid time-phased requirements;
and
(iii) Maintains a consistent, equitable, and unbiased logic for
costing of material transactions.
(2) Assess its MMAS and take reasonable action to comply with the
MMAS standards in paragraph (f) of this clause.
(c) Applicability. Paragraphs (d) and (e) of this clause apply only
if the Contractor--
(1) Is a large business; and
(2) Received, in its fiscal year preceding award of this contract,
Department of Defense prime contracts or subcontracts, and their
modifications totaling--
(i) $70 million or more; or
(ii) $30 million or more (but less than $70 million), and is
notified in writing by the Contracting Officer that paragraphs (d) and
(e) apply.
(d) Disclosure, demonstration, and maintenance requirements. (1) The
Contractor shall--
(i) Disclose its MMAS to the Administrative Contracting Officer in
writing; and
(ii) If requested by the Administrative Contracting Officer,
demonstrate that the MMAS conforms to the standards in paragraph (f) of
this clause.
[[Page 135]]
(2) An MMAS disclosure is adequate when the Contractor has provided
the Administrative Contracting Officer with documentation which--
(i) Accurately describes those policies, procedures, and practices
that the Contractor currently uses in its MMAS; and
(ii) Provides sufficient detail for the Government to reasonably
make an informed judgment regarding the adequacy of the MMAS.
(3) An MMAS demonstration is adequate when the Contractor has
provided the Administrative Contracting Officer--
(i) Sufficient evidence to demonstrate the degree of compliance of
its MMAS with the standards at paragraph (f) of this clause; and
(ii) Identification of any significant deficiencies, the estimated
cost impact of the deficiency, and a comprehensive corrective action
plan.
(4) The Contractor shall disclose significant changes in its MMAS to
the Administrative Contracting Officer within 30 days of implementation.
(5) If the contractor desires the Government to protect such
information as privileged or confidential, the Contractor shall--
(i) Notify the Government representative to whom the information is
submitted, i.e., the ACO, or the auditor; and
(ii) Ensure an appropriate legend is on the face of the document(s)
at the time of submission.
(e) Deficiencies. (1) If the Contractor receives a report which
identifies deficiencies in its MMAS, the Contractor agrees to respond as
follows--
(i) If the Contractor agrees with the report findings and
recommendations, the Contractor shall--
(A) Within 30 days, state its agreement in writing; and
(B) Within 60 days, correct the deficiencies or submit a corrective
action plan.
(ii) If the Contractor disagrees with the report findings and
recommendations, the Contractor shall, within 30 days, state its
rationale for each area of disagreement.
(2) The Administrative Contracting Officer shall evaluate the
Contractor's response and notify the Contractor of the--
(i) Determination concerning remaining deficiencies;
(ii) Adequacy of any proposed or completed corrective action plan;
and
(iii) Need for any new or revised corrective action plan.
(f) MMAS standards. MMAS systems shall have adequate internal
accounting and administrative controls to ensure system and data
integrity, and comply with the following:
(1) Have an adequate system description including policies,
procedures, and operating instructions which comply with the Federal
Acquisition Regulation and Defense FAR Supplement;
(2) Ensure that costs of purchased and fabricated material charged
or allocated to a contract are based on valid time-phased requirements
as impacted by minimum/economic order quantity restrictions--
(i) A 98 percent bill of material accuracy and a 95 percent master
production schedule accuracy are desirable as a goal in order to ensure
that requirements are both valid and appropriately time-phased.
(ii) If systems have accuracy levels below these, the Contractor
shall demonstrate that--
(A) There is no material harm to the Government due to lower
accuracy levels; and
(B) The cost to meet the accuracy goals is excessive in relation to
the impact on the Government;
(3) Provide a mechanism to identify, report, and resolve system
control weaknesses and manual override. Systems should identify
operational exceptions such as excess/residual inventory as soon as
known;
(4) Provide audit trails and maintain records (manual and those in
machine readable form) necessary to evaluate system logic and to verify
through transaction testing that the system is operating as desired;
(5) Establish and maintain adequate levels of record accuracy, and
include reconciliation of recorded inventory quantities to physical
inventory by part number on a periodic basis. A 95 percent accuracy
level is desirable. If systems have an accuracy level below 95 percent,
the Contractor shall demonstrate that--
(i) There is no material harm to the Government due to lower
accuracy levels; and
(ii) The cost to meet the accuracy goal is excessive in relation to
the impact on the Government;
(6) Provide detailed descriptions of circumstances which will result
in manual or system generated transfers of parts;
(7) Maintain a consistent, equitable, and unbiased logic for costing
of material transactions--
(i) The Contractor shall maintain and disclose written policies
describing the transfer methodology and the loan/pay-back technique.
(ii) The costing methodology may be standard or actual cost, or any
of the inventory costing methods in 48 CFR 9904.411-50(b). Consistency
shall be maintained across all contract and customer types, and from
accounting period to accounting period for initial charging and transfer
charging.
(iii) The system should transfer parts and associated costs within
the same billing period. In the few instances where this may not be
appropriate, the Contractor may accomplish the material transaction
using a loan/pay-back technique. The ``loan/pay-back technique'' means
that the physical part is
[[Page 136]]
moved temporarily from the contract, but the cost of the part remains on
the contract. The procedures for the loan/pay-back technique must be
approved by the Administrative Contracting Officer. When the technique
is used, the Contractor shall have controls to ensure--
(A) Parts are paid back expeditiously;
(B) Procedures and controls are in place to correct any overbilling
that might occur;
(C) Monthly, at a minimum, identification of the borrowing contract
and the date the part was borrowed; and
(D) The cost of the replacement part is charged to the borrowing
contract;
(8) Where allocations from common inventory accounts are used, have
controls (in addition to those in paragraphs (b)(2) and (7) of this
clause) to ensure that--
(i) Reallocations and any credit due are processed no less
frequently than the routine billing cycle;
(ii) Inventories retained for requirements which are not under
contract are not allocated to contracts; and
(iii) Algorithms are maintained based on valid and current data;
(9) Notwithstanding FAR 45.505-3(f)(1)(ii), have adequate controls
to ensure that physically commingled inventories that may include
material for which costs are charged or allocated to fixed-price, cost-
reimbursement, and commercial contracts do not compromise requirements
of any of the standards in paragraphs (f)(1) through (8) of this clause.
Government furnished material shall not be--
(i) Physically commingled with other material; or
(ii) Used on commercial work; and
(10) Be subjected to periodic internal audits to ensure compliance
with established policies and procedures.
(End of clause)
[56 FR 36479, July 31, 1991, as amended at 61 FR 50456, Sept. 26, 1996]