SUBCHAPTER H—CLAUSES AND FORMS
PART 252—SOLICITATION PROVI- 252.211–7004 Alternate preservation, pack- aging, and packing. SIONS AND CONTRACT CLAUSES 252.211–7005 Substitutions for military or Federal specifications and standards. Subpart 252.1—Instructions for Using 252.212–7000 Offeror representations and cer- Provisions and Clauses tifications—Commercial items. 252.212–7001 Contract terms and conditions Sec. required to implement statutes or Execu- 252.101 Using part 252. tive Orders applicable to Defense acquisi- tions of commercial items. Subpart 252.2—Text of Provisions and 252.215–7000 Pricing adjustments. Clauses 252.215–7001 [Reserved] 252.201–7000 Contracting officer’s represent- 252.215–7002 Cost estimating system require- ative. ments. 252.203–7000 [Reserved] 252.216–7000 Economic price adjustment— 252.203–7001 Prohibition on persons con- basic steel, aluminum, brass, bronze, or victed of fraud or other defense-contract- copper mill products. related felonies. 252.216–7001 Economic price adjustment— 252.203–7002 Display of DoD hotline poster. nonstandard steel items. 252.204–7000 Disclosure of Information. 252.216–7002 [Reserved] 252.204–7001 Commercial and Government 252.216–7003 Economic price adjustment— Entity (CAGE) code reporting. wage rates or material prices controlled 252.204–7002 Payment for subline items not by a foreign government. separately priced. 252.217–7000 Exercise of option to fulfill for- 252.204–7003 Control of government per- eign military sales commitments. sonnel work product. 252.217–7001 Surge option. 252.204–7004 Required central contractor 252.217–7002 Offering property for exchange. registration. 252.217–7003 Changes. 252.204–7005 Oral attestation of security re- 252.217–7004 Job orders and compensation. sponsibilities. 252.217–7005 Inspection and manner of doing 252.205–7000 Provision of information to co- work. operative agreement holders. 252.217–7006 Title. 252.206–7000 Domestic source restriction. 252.217–7007 Payments. 252.208–7000 Intent to furnish precious met- 252.217–7008 Bonds. als as Government-furnished material. 252.217–7009 Default. 252.209–7000 Acquisition from subcontrac- 252.217–7010 Performance. tors subject to on-site inspection under 252.217–7011 Access to vessel. the Intermediate-Range Nuclear Forces 252.217–7012 Liability and insurance. (INF) Treaty. 252.217–7013 Guarantees. 252.209–7001 Disclosure of ownership or con- 252.217–7014 Discharge of liens. trol by the government of a terrorist 252.217–7015 Safety and health. country. 252.217–7016 Plant protection. 252.209–7002 Disclosure of ownership or con- 252.217–7017 Time of delivery. trol by a foreign government. 252.217–7018 Change in plant location—bak- 252.209–7003 Compliance with veterans’ em- ery and dairy products. ployment reporting requirements. 252.209–7004 Subcontracting with firms that 252.217–7019 Sanitary conditions. are owned or controlled by the govern- 252.217–7020 Examination and testing. ment of a terrorist country. 252.217–7021 Deficiency adjustment. 252.209–7005 Reserve Officer Training Corps 252.217–7022 Code dating. and military recruiting on campus. 252.217–7023 Marking. 252.211–7000 Acquisition streamlining. 252.217–7024 Responsibility for containers 252.211–7001 Availability of specifications and equipment. and standards Not listed in DODISS, data 252.217–7025 Containers and equipment. item descriptions Not listed in DoD 252.217–7026 Identification of sources of sup- 5010.12–L, and plans, drawings, and other ply. pertinent documents. 252.217–7027 Contract definitization. 252.211–7002 Availability for examination of 252.217–7028 Over and above work. specifications, standards, plans, draw- 252.219–7000—252.219–7002 [Reserved] ings, data item descriptions, and 252.219–7003 Small, small disadvantaged and otherpertinent documents. women-owned small business subcon- 252.211–7003 [Reserved] tracting plan (DoD contracts).
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252.219–7004 Small, small disadvantaged and 252.225–7017 Prohibition on award to compa- women-owned small business subcon- nies owned by the People’s Republic of tracting plan (test program). China. 252.219–7005—252.219–7008 [Reserved] 252.225–7018 Notice of prohibition of certain 252.219–7009 Section 8(a) direct award. contracts with foreign entities for the 252.219–7010 Alternate A. conduct of Ballistic Missile Defense 252.219–7011 Notification to delay perform- RDT&E. ance. 252.225–7019 Restriction on acquisition of 252.222–7000 Restrictions on employment of foreign anchor and mooring chain. personnel. 252.225–7020 Trade agreements certificate. 252.222–7001 Right of first refusal of employ- 252.225–7021 Trade agreements. ment—Closure of military installations. 252.225–7022 Restriction on acquisition of 252.222–7002 Compliance with local labor polyacrylonitrile (PAN) carbon fiber. laws (overseas). 252.225–7023 Restriction on acquisition of 252.222–7003 Permit from Italian vessel propellers. Inspectorate of Labor. 252.225–7024 Restriction on acquisition of 252.222–7004 Compliance with Spanish social night vision image intensifier tubes and security laws and regulations. devices. 252.222–7005 Prohibition on use of non- 252.225–7025 Restriction on acquisition of immigrant aliens—Guam. forgings. 252.223–7000 [Reserved] 252.225–7026 Reporting of contract perform- 252.223–7001 Hazard warning labels. ance outside the United States. 252.223–7002 Safety precautions for ammuni- 252.225–7027 Restriction on contingent fees tion and explosives. for foreign military sales. 252.223–7003 Change in place of perform- 252.225–7028 Exclusionary policies and prac- ance—ammunition and explosives. tices of foreign governments. 252.223–7004 Drug-free work force. 252.225–7029 Preference for United States or 252.223–7005 [Reserved] Canadian air circuit breakers. 252.223–7006 Prohibition on storage and dis- 252.225–7030 Restriction on acquisition of posal of toxic and hazardous materials. carbon, alloy, and armor steel plate. 252.223–7007 Safeguarding sensitive conven- 252.225–7031 Secondary Arab boycott of tional arms, ammunition, and explosives. Israel. 252.225–7000 Buy American Act—Balance of 252.225–7032 Waiver of United Kingdom lev- Payments Program Certificate. ies. 252.225–7001 Buy American Act and Balance 252.225–7033 Restriction on acquisition of of Payments Program. four ton dolly jacks. 252.225–7002 Qualifying country sources as 252.225–7034 [Reserved] subcontractors. 252.225–7035 Buy American Act—North 252.225–7003 Information for duty-free entry American Free Trade Agreement Imple- evaluation. mentation Act—Balance of Payments 252.225–7004 [Reserved] Program Certificate. 252.225–7005 Identification of expenditures in 252.225–7036 Buy American Act—North the United States. American Free Trade Agreement Imple- 252.225–7006 Buy American Act—trade mentation Act—Balance of Payments agreements—Balance of Payments Pro- Program gram certificate. 252.225–7037 Duty-free entry—Eligible end 252.225–7007 Buy American Act—trade products. agreements—Balance of Payments Pro- 252.225–7038 Restriction on acquisition of gram. aircraft fuel cells. 252.225–7008 Supplies to be accorded duty- 252.225–7039 Restriction on acquisition of to- free entry. tally enclosed lifeboat survival systems. 252.225–7009 Duty-free entry—Qualifying 252.225–7040 [Reserved] country supplies (end products and com- 252.225–7041 Correspondence in English. ponents). 252.225–7042 Authorization to perform. 252.225–7010 Duty-free entry—additional 252.225–7043 Antiterrorism/force protection provisions. policy for defense contractors outside the 252.225–7011 Restriction on acquisition of United States. supercomputers. 252.226–7000 Notice of historically black col- 252.225–7012 Preference for certain domestic lege or university and minority institu- commodities. tion set-aside. 252.225–7013 [Reserved] 252.226–7001 Utilization of Indian Organiza- 252.225–7014 Preference for domestic spe- tions and Indian-Owned Economic Enter- cialty metals. prises-DoD Contracts. 252.225–7015 Preference for domestic hand or 252.227–7000 Non-estoppel. measuring tools. 252.227–7001 Release of past infringement. 252.225–7016 Restriction on acquisition of 252.227–7002 Readjustment of payments. ball and roller bearings. 252.227–7003 Termination.
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252.227–7004 License grant. 252.228–7004 Bonds or other security. 252.227–7005 License term. 252.228–7005 Accident reporting and inves- 252.227–7006 License grant—running royalty. tigation involving aircraft, missiles, and 252.227–7007 License term—running royalty. space launch vehicles. 252.227–7008 Computation of royalties. 252.228–7006 Compliance with Spanish laws 252.227–7009 Reporting and payment of roy- and insurance. alties. 252.229–7000 Invoices exclusive of taxes or 252.227–7010 License to other Government duties. agencies. 252.229–7001 Tax relief. 252.227–7011 Assignments. 252.229–7002 Customs exemptions (Ger- 252.227–7012 Patent license and release con- many). tract. 252.229–7003 Tax exemptions (Italy). 252.227–7013 Rights in technical data—Non- 252.229–7004 Status of contractors as a direct commercial items. contractor (Spain). 252.227–7014 Rights in noncommercial com- 252.229–7005 Tax exemptions (Spain). puter software and noncommercial com- 252.229–7006 Value added tax exclusion puter software documentation. (United Kingdom). 252.227–7015 Technical data—Commercial 252.229–7007 Verification of United States items. receipt of goods. 252.227–7016 Rights in bid or proposal infor- 252.229–7008 Relief from import duty (United mation. Kingdom). 252.227–7017 Identification and assertion of 252.229–7009 Relief from customs duty and use, release, or disclosure restrictions. value added tax on fuel (passenger vehi- 252.227–7018 Rights in noncommercial tech- cles) (United Kingdom). nical data and computer software—Small 252.229–7010 Relief from customs duty on Business Innovation Research (SBIR) fuel (United Kingdom). Program. 252.231–7000 Supplemental cost principles. 252.227–7019 Validation of asserted restric- 252.232–7000 Advance payment pool. tions—Computer software. 252.232–7001 Disposition of payments. 252.227–7020 Rights in special works. 252.227–7021 Rights in data—existing works. 252.232–7002 Progress payments for foreign 252.227–7022 Government rights (unlimited). military sales acquisitions. 252.227–7023 Drawings and other data to be- 252.232–7003 [Reserved] come property of Government. 252.232–7004 DoD progress payment rates. 252.227–7024 Notice and approval of re- 252.232–7005 Reimbursement of subcon- stricted designs. tractor advance payments—DoD pilot 252.227–7025 Limitations on the use or dis- mentor-protege program. closure of government-furnished infor- 252.232–7006 [Reserved] mation marked with restrictive legends. 252.232–7007 Limitation of Government’s ob- 252.227–7026 Deferred delivery of technical ligation. data or computer software. 252.232–7008 Assignment of claims (over- 252.227–7027 Deferred ordering of technical seas). data or computer software. 252.232–7009 Mandatory payment by Govern- 252.227–7028 Technical data or computer mentwide commercial purchase card. software previously delivered to the gov- 252.233–7000 [Reserved] ernment. 252.233–7001 Choice of law (overseas). 252.227–7029 [Reserved] 252.234–7000 Notice of earned value manage- 252.227–7030 Technical data—withholding of ment system. payment. 252.234–7001 Earned value management sys- 252.227–7031 [Reserved] tem. 252.227–7032 Rights in technical data and 252.235–7000 Indemnification under 10 U.S.C. computer software (foreign). 2354—fixed price. 252.227–7033 Rights in shop drawings. 252.235–7001 Indemnification under 10 U.S.C. 252.227–7034 Patents—subcontracts. 2354—cost reimbursement. 252.227–7035 [Reserved] 252.235–7002 Animal welfare. 252.227–7036 Declaration of Technical Data 252.235–7003 Frequency authorization. Conformity. 252.235–7004—252.235–7009 [Reserved] 252.227–7037 Validation of restrictive mark- 252.235–7010 Acknowledgement of support ings on technical data. and disclaimer. 252.227–7038 [Reserved] 252.235–7011 Final scientific or technical re- 252.227–7039 Patents—reporting of subject port. inventions. 252.236–7000 Modification proposals—price 252.228–7000 Reimbursement for war-hazard breakdown. losses. 252.236–7001 Contract drawings and speci- 252.228–7001 Ground and flight risk. fications. 252.228–7002 Aircraft flight risk. 252.236–7002 Obstruction of navigable water- 252.228–7003 Capture and detention. ways.
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252.236–7003 Payment for mobilization and 252.239–7014 Term of agreement. preparatory work. 252.239–7015 Continuation of communication 252.236–7004 Payment for mobilization and service authorizations. demobilization. 252.239–7016 Telecommunications security 252.236–7005 Airfield safety precautions. equipment, devices, techniques, and serv- 252.236–7006 Cost limitation. ices. 252.236–7007 Additive or deductive items. 252.241–7000 Superseding contract. 252.236–7008 Contract prices—bidding sched- 252.241–7001 Government access. ules. 252.242–7000 Postaward conference. 252.236–7009 Option for supervision and in- 252.242–7001—252.242–7002 [Reserved] spection services. 252.242–7003 Application for U.S. Govern- 252.236–7010 Overseas military construc- ment shipping documentation/instruc- tion—Preference for United States firms. tions. 252.236–7011 Overseas architect-engineer 252.242–7004 Material management and ac- services—Restriction to United States counting system. firms. 252.242–7005 Cost/Schedule Status Report. 252.236–7012 Military construction on Kwaj- 252.242–7006 Cost/Schedule Status Report alein Atoll—evaluation preference. Plans. 252.237–7000 Notice of special standards of 252.243–7000 [Reserved] responsibility. 252.243–7001 Pricing of contract modifica- 252.237–7001 Compliance with audit stand- tions. ards. 252.243–7002 Requests for equitable adjust- 252.237–7002 Award to single offeror. ment. 252.237–7003 Requirements. 252.244–7000 Subcontracts for commercial 252.237–7004 Area of performance. items and commercial components (DoD 252.237–7005 Performance and delivery. contracts). 252.237–7006 Subcontracting. 252.245–7000 Government-furnished mapping, 252.237–7007 Termination for default. charting, and geodesy property. 252.237–7008 Group interment. 252.245–7001 Reports of Government prop- 252.237–7009 Permits. erty. 252.237–7010 Facility requirements. 252.237–7011 Preparation history. 252.246–7000 Material inspection and receiv- 252.237–7012 Instruction to offerors (count- ing report. of-articles). 252.246–7001 Warranty of data. 252.237–7013 Instruction to offerors (bulk 252.246–7002 Warranty of construction (Ger- weight). many). 252.237–7014 Loss or damage (count-of-arti- 252.247–7000 Hardship conditions. cles). 252.247–7001 Price adjustment. 252.237–7015 Loss or damage (weight of arti- 252.247–7002 Revision of prices. cles). 252.247–7003 [Reserved] 252.237–7016 Delivery tickets. 252.247–7004 Indefinite quantities—fixed 252.237–7017 Individual laundry. charges. 252.237–7018 Special definitions of Govern- 252.247–7005 Indefinite quantities—no fixed ment property. charges. 252.237–7019—252.237–7021 [Reserved] 252.247–7006 Removal of contractor’s em- 252.237–7022 Services at installations being ployees. closed. 252.247–7007 Liability and insurance. 252.239–7000 Protection against compro- 252.247–7008 Evaluation of bids. mising emanations. 252.247–7009 Award. 252.239–7001 [Reserved] 252.247–7010 Scope of contract. 252.239–7002 Access. 252.247–7011 Period of contract. 252.239–7003 Facilities and services to be fur- 252.247–7012 Ordering limitation. nished—common carriers. 252.247–7013 Contract areas of performance. 252.239–7004 Orders for facilities and serv- 252.247–7014 Demurrage. ices—common carriers. 252.247–7015 Requirements. 252.239–7005 Rates, charges, and services— 252.247–7016 Contractor liability for loss or common carriers. damage. 252.239–7006 Tariff information. 252.247–7017 Erroneous shipments. 252.239–7007 Cancellation or termination of 252.247–7018 Subcontracting. orders—common carriers. 252.247–7019 Drayage. 252.239–7008 Reuse arrangements. 252.247–7020 Additional services. 252.239–7009—252.239–7010 [Reserved] 252.247–7021 Returnable containers other 252.239–7011 Special construction and equip- than cylinders. ment charges. 252.247–7022 Representation of extent of 252.239–7012 Title to telecommunication fa- transportation by sea. cilities and equipment. 252.247–7023 Transportation of supplies by 252.239–7013 Obligation of the Government. sea.
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252.247–7024 Notification of transportation (End of clause) of supplies by sea. 252.247–7025 Reflagging or repair work. [56 FR 36479, July 31, 1991, as amended at 57 252.249–7000 Special termination costs. FR 42633, Sept. 15, 1992] 252.249–7001 [Reserved] 252.249–7002 Notification of anticipated con- 252.203–7000 [Reserved] tract termination or reduction. 252.251–7000 Ordering from Government sup- 252.203–7001 Prohibition on persons ply sources. convicted of fraud or other defense- 252.251–7001 Use of Interagency Fleet Man- contract-related felonies. agement System (IFMS) vehicles and re- As prescribed in 203.570–5, use the fol- lated services. lowing clause: UTHORITY A : 41 U.S.C. 421 and 48 CFR chap- PROHIBITION ON PERSONS CONVICTED OF ter 1. FRAUD OR OTHER DEFENSE-CONTRACT-RE- SOURCE: 56 FR 36479, July 31, 1991, unless LATED FELONIES (MAR 1999) otherwise noted. (a) Definitions. As used in this clause— Subpart 252.1—Instructions for (1) Arising out of a contract with the DoD means any act in connection with— Using Provisions and Clauses (i) Attempting to obtain; (ii) Obtaining; or 252.101 Using part 252. (iii) Performing a contract or first-tier (b) Numbering. subcontract of any agency, department, or component of the Department of Defense (2) Provisions or clauses that supple- (DoD). ment the FAR. (2) Conviction of fraud or any other felony (ii)(B) DFARS provisions or clauses means any conviction for fraud or a felony in use a four digit sequential number in violation of state or Federal criminal stat- the 7000 series, e.g., –7000, –7001, –7002. utes, whether entered on a verdict or plea, Department or agency supplemental including a plea of nolo contendere, for which sentence has been imposed. provisions or clauses use four digit se- (3) Date of conviction means the date judg- quential numbers in the 9000 series. ment was entered against the individual. (b) Any individual who is convicted after September 29, 1988, of fraud or any other fel- Subpart 252.2—Text of Provisions ony arising out of a contract with the DoD is And Clauses prohibited from serving— (1) In a management or supervisory capac- 252.201–7000 Contracting officer’s rep- ity on any DoD contract or first-tier sub- resentative. contract; As prescribed in 201.602–70, use the (2) On the board of directors of any DoD contractor or first-tier subcontractor; following clause: (3) As a consultant, agent, or representa- tive for any DoD contractor or first-tier sub- CONTRACTING OFFICER’S REPRESENTATIVE contractor; or (DEC 1991) (4) In any other capacity with the author- (a) Definition. Contracting officer’s represent- ity to influence, advise, or control the deci- ative means an individual designated in ac- sions of any DoD contractor or subcon- cordance with subsection 201.602–2 of the De- tractor with regard to any DoD contract or fense Federal Acquisition Regulation Sup- first-tier subcontract. plement and authorized in writing by the (c) Unless waived, the prohibition in para- graph (b) of this clause applies for not less contracting officer to perform specific tech- than 5 years from the date of conviction. nical or administrative functions. (d) 10 U.S.C. 2408 provides that a defense (b) If the Contracting Officer designates a contractor or first-tier subcontractor shall contracting officer’s representative (COR), be subject to a criminal penalty of not more the Contractor will receive a copy of the than $500,000 if convicted of knowingly— written designation. It will specify the ex- (1) Employing a person under a prohibition tent of the COR’s authority to act on behalf specified in paragraph (b) of this clause; or of the contracting officer. The COR is not (2) Allowing such a person to serve on the authorized to make any commitments or board of directors of the contractor or first- changes that will affect price, quality, quan- tier subcontractor. tity, delivery, or any other term or condition (e) In addition to the criminal penalties of the contract. contained in 10 U.S.C. 2408, the Government
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may consider other available remedies, such (End of clause) as— (1) Suspension or debarment; 252.204–7000 Disclosure of informa- (2) Cancellation of the contract at no cost tion. to the Government; or (3) Termination of the contract for default. As prescribed in 204.404–70(a), use the (f) The Contractor may submit written re- following clause: quests for waiver of the prohibition in para- DISCLOSURE OF INFORMATION (DEC 1991) graph (b) of this clause to the Contracting Officer. Requests shall clearly identify— (a) The Contractor shall not release to (1) The person involved; anyone outside the Contractor’s organiza- (2) The nature of the conviction and result- tion any unclassified information, regardless ant sentence or punishment imposed; of medium (e.g., film, tape, document), per- (3) The reasons for the requested waiver; taining to any part of this contract or any and program related to this contract, unless— (4) An explanation of why a waiver is in (1) The Contracting Officer has given prior the interest of national security. written approval; or (g) The Contractor agrees to include the (2) The information is otherwise in the substance of this clause, appropriately modi- public domain before the date of release. fied to reflect the identity and relationship (b) Requests for approval shall identify the of the parties, in all first-tier subcontracts specific information to be released, the me- exceeding the simplified acquisition thresh- dium to be used, and the purpose for the re- old in part 2 of the Federal Acquisition Reg- lease. The Contractor shall submit its re- ulation, except those for commercial items quest to the Contracting Officer at least 45 or components. days before the proposed date for release. (h) Pursuant to 10 U.S.C. 2408(c), defense (c) The Contractor agrees to include a contractors and subcontractors may obtain similar requirement in each subcontract information as to whether a particular per- under this contract. Subcontractors shall son has been convicted of fraud or any other submit requests for authorization to release felony arising out of a contract with the DoD through the prime contractor to the Con- by contacting The Office of Justice Pro- tracting Officer. grams, The Denial of Federal Benefits Office, U.S. Department of Justice, telephone (202) (End of clause) 616–3507. [56 FR 36479, July 31, 1991, as amended at 57 (End of clause) FR 14996, Apr. 23, 1992]
[56 FR 36479, July 31, 1991, as amended at 58 § 252.204–7001 Commercial and Gov- FR 28471, May 13, 1993; 59 FR 27675, May 27, ernment Entity (CAGE) code report- 1994; 60 FR 61600, Nov. 30, 1995; 62 FR 34128, ing. June 24, 1997; 64 FR 14398, Mar. 25, 1999] As prescribed in 204.7207, use the fol- 252.203–7002 Display of DoD hotline lowing provision: poster. COMMERCIAL AND GOVERNMENT ENTITY As prescribed in 203.7002, use the fol- (CAGE) CODE REPORTING (AUG 1999) lowing clause: (a) The offeror is requested to enter its CAGE code on its offer in the block with its DISPLAY OF DOD HOTLINE POSTER (DEC 1991) name and address. The CAGE code entered (a) The Contractor shall display promi- must be for that name and address. Enter nently in common work areas within busi- ‘‘CAGE’’ before the number. ness segments performing work under De- (b) If the offeror does not have a CAGE partment of Defense (DoD) contracts, DoD code, it may ask the Contracting Officer to Hotline Posters prepared by the DoD Office request one from the Defense Logistics Infor- of the Inspector General. mation Service (DLIS). The Contracting Of- (b) DoD Hotline Posters may be obtained ficer will— from the DoD Inspector General, Attn: De- (1) Ask the Contractor to complete section fense Hotline, 400 Army Navy Drive, Wash- B of a DD Form 2051, Request for Assignment ington, DC 22202–2884. of a Commercial and Government Entity (c) The Contractor need not comply with (CAGE) Code; paragraph (a) of this clause if it has estab- (2) Complete section A and forward the lished a mechanism, such as a hotline, by form to DLIS; and which employees may report suspected in- (3) Notify the Contractor of its assigned stances of improper conduct, and instruc- CAGE code. tions that encourage employees to make (c) Do not delay submission of the offer such reports. pending receipt of a CAGE code.
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(End of provision) Dun and Bradstreet Information Services to identify unique business entities. [64 FR 43101, Aug. 9, 1999, as amended at 66 (3) Data Universal Numbering System +4 FR 47097, Sept. 11, 2001] (DUNS+4) number means the DUNS number assigned by Dun and Bradstreet plus a 4-digit 252.204–7002 Payment for subline suffix that may be assigned by a parent (con- items not separately priced. trolling) business concern. This 4-digit suffix may be assigned at the discretion of the par- As prescribed in 204.7104–1(b)(3)(iv), ent business concern for such purposes as use the following clause: identifying subunits or affiliates of the par- ent business concern. PAYMENT FOR SUBLINE ITEMS NOT (4) Registered in the CCR database means SEPARATELY PRICED (DEC 1991) that all mandatory information, including (a) If the schedule in this contract contains the DUNS number or the DUNS+4 number, if any contract subline items or exhibit subline applicable, and the corresponding Commer- items identified as not separately priced cial and Government Entity (CAGE) code, is (NSP), it means that the unit price for that in the CCR database; the DUNS number and subline item is included in the unit price of the CAGE code have been validated; and all another, related line or subline item. edits have been successfully completed. (b) The Contractor shall not invoice the (b)(1) By submission of an offer, the offeror Government for any portion of a contract acknowledges the requirement that a pro- line item or exhibit line item which contains spective awardee must be registered in the an NSP until— CCR database prior to award, during per- (1) The Contractor has delivered the total formance, and through final payment of any quantity of all related contract subline contract resulting from this solicitation, ex- items or exhibit subline items; and cept for awards to foreign vendors for work (2) The Government has accepted them. to be performed outside the United States. (c) This clause does not apply to technical (2) The offeror shall provide its DUNS or, if data. applicable, its DUNS+4 number with its offer, which will be used by the Contracting (End of clause) Officer to verify that the offeror is registered in the CCR database. 252.204–7003 Control of government (3) Lack of registration in the CCR data- personnel work product. base will make an offeror ineligible for award. As prescribed in 204.404–70(b), use the (4) DoD has established a goal of reg- following clause: istering an applicant in the CCR database within 48 hours after receipt of a complete CONTROL OF GOVERNMENT PERSONNEL WORK and accurate application via the Internet. PRODUCT (APR 1992) However, registration of an applicant sub- The Contractor’s procedures for protecting mitting an application through a method against unauthorized disclosure of informa- other than the Internet may take up to 30 tion shall not require Department of Defense days. Therefore, offerors that are not reg- employees or members of the Armed Forces istered should consider applying for registra- to relinquish control of their work products, tion immediately upon receipt of this solici- whether classified or not, to the contractor. tation. (c) The Contractor is responsible for the (End of clause) accuracy and completeness of the data with- in the CCR, and for any liability resulting [57 FR 14996, Apr. 23, 1992] from the Government’s reliance on inac- curate or incomplete data. To remain reg- 252.204–7004 Required central con- istered in the CCR database after the initial tractor registration. registration, the Contractor is required to confirm on an annual basis that its informa- As prescribed in 204.7304, use the fol- tion in the CCR database is accurate and lowing clause: complete. (d) Offerors and contractors may obtain in- REQUIRED CENTRAL CONTRACTOR formation on registration and annual con- REGISTRATION (MAR 2000) firmation requirements by calling 1–888–227– (a) Definitions. As used in this clause— 2423, or via the Internet at http:// (1) Central Contractor Registration (CCR www.ccr2000.com. database means the primary DoD repository for contractor information required for the (End of clause) conduct of business with DoD. (2) Data Universal Numbering System (DUNS) [63 FR 15317, Mar. 31, 1998, as amended at 65 number means the 9-digit number assigned by FR 14398, Mar. 16, 2000]
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252.204–7005 Oral attestation of secu- number, and area of responsibility of each rity responsibilities. employee or office. (c) The Contractor need not provide the As prescribed in 204.404–70(c), use the listing to a particular cooperative agreement following clause: holder more frequently than once a year.
ORAL ATTESTATION OF SECURITY (End of clause) RESPONSIBILITIES (AUG 1999) (a) Contractor employees cleared for access 252.206–7000 Domestic source restric- to Top Secret (TS), Special Access Program tion. (SAP), or Special Compartmented Informa- As prescribed at 206.302–3–70, use the tion (SCI) shall attest orally that they will conform to the conditions and responsibil- following provision: ities imposed by law or regulation on those DOMESTIC SOURCE RESTRICTION (DEC 1991) granted access. Reading aloud the first para- graph of Standard Form 312, Classified Infor- This solicitation is restricted to domestic mation Nondisclosure Agreement, in the sources under the authority of 10 U.S.C. presence of a person designated by the Con- 2304(c)(3). Foreign sources, except Canadian tractor for this purpose, and a witness, will sources, are not eligible for award. satisfy this requirement. Contractor employ- ees currently cleared for access to TS, SAP, (End of provision) or SCI may attest orally to their security re- sponsibilities when being briefed into a new 252.208–7000 Intent to furnish pre- program or during their annual refresher cious metals as Government-fur- briefing. There is no requirement to retain a nished material. separate record of the oral attestation. (b) If an employee refuses to attest orally As prescribed in 208.7305(a), use the to security responsibilities, the Contractor following clause: shall deny the employee access to classified INTENT TO FURNISH PRECIOUS METALS AS information and shall submit a report to the GOVERNMENT-FURNISHED MATERIAL (DEC Contractor’s security activity. 1991)
(End of clause) (a) The Government intends to furnish pre- cious metals required in the manufacture of items to be delivered under the contract if [64 FR 45197, Aug. 19, 1999] the Contracting Officer determines it to be in the Government’s best interest. The use of 252.205–7000 Provision of information Government-furnished silver is mandatory to cooperative agreement holders. when the quantity required is one hundred As prescribed in 205.470–2, use the fol- troy ounces or more. The precious metal(s) lowing clause: will be furnished pursuant to the Govern- ment Furnished Property clause of the con- PROVISION OF INFORMATION TO COOPERATIVE tract. AGREEMENT HOLDERS (DEC 1991) (b) The Offeror shall cite the type (silver, gold, platinum, palladium, iridium, rhodium, (a) Definition. and ruthenium) and quantity in whole troy Cooperative agreement holder means a State ounces of precious metals required in the or local government; a private, nonprofit or- performance of this contract (including pre- ganization; a tribal organization (as defined cious metals required for any first article or in section 4(c) of the Indian Self-Determina- production sample), and shall specify the na- tion and Education Assistance Act (Pub. L. tional stock number (NSN) and nomen- 93–268; 25 U.S.C. 450(c))); or an economic en- clature, if known, of the deliverable item re- terprise (as defined in section 3(e) of the In- quiring precious metals. dian Financing Act of 1974 (Pub. L. 93–362; 25 U.S.C. 1452(e))) whether such economic enter- Deliverable item prise is organized for profit or nonprofit pur- Precious metal* Quantity (NSN and nomen- poses; which has an agreement with the De- clature)!!rs fense Logistics Agency to furnish procure- ment technical assistance to business enti- ties. *If platinum or palladium, specify whether sponge or gran- ules are required. (b) The Contractor shall provide coopera- tive agreement holders, upon their request, (c) Offerors shall submit two prices for with a list of those appropriate employees or each deliverable item which contains pre- offices responsible for entering into sub- cious metals—one based on the Government contracts under defense contracts. The list furnishing precious metals, and one based on shall include the business address, telephone the Contractor furnishing precious metals.
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Award will be made on the basis which is in Iran, Iraq, Libya, North Korea, Sudan, and the best interest of the Government. Syria. (d) The Contractor agrees to insert this (3) Significant interest means— clause, including this paragraph (d), in so- (i) Ownership of or beneficial interest in 5 licitations for subcontracts and purchase or- percent or more of the firm’s or subsidiary’s ders issued in performance of this contract, securities. Beneficial interest includes hold- unless the Contractor knows that the item ing 5 percent or more of any class of the being purchased contains no precious metals. firm’s securities in ‘‘nominee shares,’’ ‘‘street names,’’ or some other method of (End of clause) holding securities that does not disclose the beneficial owner; 252.209–7000 Acquisition from sub- (ii) Holding a management position in the contractors subject to on-site in- firm, such as a director or officer; spection under the Intermediate- (iii) Ability to control or influence the Range Nuclear Forces (INF) Treaty. election, appointment, or tenure of directors As prescribed in 209.103–70, use the or officers in the firm; following clause: (iv) Ownership of 10 percent or more of the assets of a firm such as equipment, build- ACQUISITION FROM SUBCONTRACTORS SUBJECT ings, real estate, or other tangible assets of TO ON-SITE INSPECTION UNDER THE INTER- the firm; or MEDIATE-RANGE NUCLEAR FORCES (INF) (v) Holding 50 percent or more of the in- TREATY (NOV 1995) debtedness of a firm. (a) The Contractor shall not deny consider- (b) Prohibition on award. In accordance ation for a subcontract award under this with 10 U.S.C. 2327, no contract may be contract to a potential subcontractor subject awarded to a firm or a subsidiary of a firm if to on-site inspection under the INF Treaty, the government of a terrorist country has a or a similar treaty, solely or in part because significant interest in the firm or subsidiary of the actual or potential presence of Soviet or, in the case of a subsidiary, the firm that inspectors at the subcontractor’s facility, owns the subsidiary, unless a waiver is unless the decision is approved by the Con- granted by the Secretary of Defense. tracting Officer. (c) Disclosure. If the government of a ter- (b) The Contractor shall incorporate this rorist country has a significant interest in clause, including this paragraph (b), in all the Offeror or a subsidiary of the Offeror, the solicitations and contracts exceeding the Offeror shall disclose such interest in an at- simplified acquisition threshold in part 13 of tachment to its offer. If the Offeror is a sub- the Federal Acquisition Regulation, except sidiary, it shall also disclose any significant those for commercial items. interest the government of a terrorist coun- try has in any firm that owns or controls the (End of clause) subsidiary. The disclosure shall include— (1) Identification of each government hold- ing a significant interest; and [56 FR 36479, July 31, 1991, as amended at 60 (2) A description of the significant interest FR 61600, Nov. 30, 1995] held by each government.
252.209–7001 Disclosure of ownership (End of provision) or control by the government of a terrorist country. [59 FR 51131, Oct. 7, 1994, as amended at 63 FR As prescribed in 209.104–70(a), use the 14837, Mar. 27, 1998] following provision: 252.209–7002 Disclosure of ownership DISCLOSURE OF OWNERSHIP OR CONTROL BY or control by a foreign government. THE GOVERNMENT OF A TERRORIST COUNTRY (MAR 1998) As prescribed in 209.104–70(b), use the (a) Definitions. As used in this provision— following provision: (1) Government of a terrorist country includes DISCLOSURE OF OWNERSHIP OR CONTROL BY A the state and the government of a terrorist FOREIGN GOVERNMENT (SEP 1994) country, as well as any political subdivision, agency, or instrumentality thereof. (a) Definitions. As used in this provision— (2) Terrorist country means a country deter- (1) Effectively owned or controlled means mined by the Secretary of State, under sec- that a foreign government or any entity con- tion 6(j)(1)(A) of the Export Administration trolled by a foreign government has the Act of 1979 (50 U.S.C. App. 2405(j)(i)(A)), to be power, either directly or indirectly, whether a country the government of which has re- exercised or exercisable, to control the elec- peatedly provided support for acts of inter- tion, appointment, or tenure of the Offeror’s national terrorism. As of the date of this officers or a majority of the Offeror’s board provision, terrorist countries include: Cuba, of directors by any means, e.g., ownership,
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contract, or operation of law (or equivalent (End of provision) power for unincorporated organizations). (2) Entity controlled by a foreign govern- [58 FR 28471, May 13, 1993, as amended at 59 ment— FR 51133, Oct. 7, 1994] (i) Means— (A) Any domestic or foreign organization or corporation that is effectively owned or § 252.209–7003 Compliance with vet- controlled by a foreign government; or erans’ employment reporting re- (B) Any individual acting on behalf of a quirements. foreign government. As prescribed in 209.104–70(c) use the (ii) Does not include an organization or following provision: corporation that is owned, but is not con- trolled, either directly or indirectly, by a COMPLIANCE WITH VETERANS’ EMPLOYMENT foreign government if the ownership of that REPORTING REQUIREMENTS (MAR 1998) organization or corporation by that foreign government was effective before October 23, By submission of its offer, the offeror rep- 1992. resents that, if it is subject to the reporting (3) Foreign government includes the state requirements of 37 U.S.C. 4212(d) (i.e., the and the government of any country (other VETS–100 report required by Federal Acqui- than the United States and its possessions sition Regulation clause 52.222–37, Employ- and trust territories) as well as any political ment Reports on Disabled Veterans and Vet- subdivision, agency, or instrumentality erans of the Vietnam Era), it has submitted thereof. the most recent report required by 38 U.S.C. (4) Proscribed information means— 4212(d). (i) Top Secret information; (ii) Communications Security (COMSEC) (End of provision) information, except classified keys used to operate secure telephone units (STU IIIs); [63 FR 11852, Mar. 11, 1998; 63 FR 16871, Apr. (iii) Restricted Data as defined in the U.S. 6, 1998; 63 FR 17124, Apr. 8, 1998] Atomic Energy Act of 1954, as amended; (iv) Special Access Program (SAP) infor- mation; or 252.209–7004 Subcontracting with (v) Sensitive Compartmented Information firms that are owned or controlled (SCI). by the government of a terrorist (b) Prohibition on award. No contract under country. a national security program may be awarded As prescribed in 209.409, use the fol- to an entity controlled by a foreign govern- lowing clause: ment if that entity requires access to pro- scribed information to perform the contract, SUBCONTRACTING WITH FIRMS THAT ARE unless the Secretary of Defense or a designee OWNED OR CONTROLLED BY THE GOVERNMENT has waived application of 10 U.S.C. 2536(a). OF A TERRORIST COUNTY (MAR 1998) (c) Disclosure. The Offeror shall disclose any interest a foreign government has in the (a) Unless the Government determines that Offeror when that interest constitutes con- there is a compelling reason to do so, the trol by a foreign government as defined in Contractor shall not enter into any sub- this provision. If the Offeror is a subsidiary, contract in excess of $25,000 with a firm, or a it shall also disclose any reportable interest subsidiary of a firm, that is identified, on the a foreign government has in any entity that List of Parties Excluded from Federal Pro- owns or controls the subsidiary, including curement and Nonprocurement Programs, as reportable interest concerning the Offeror’s being ineligible for the award of Defense con- immediate parent, intermediate parents, and tracts or subcontracts because it is owned or the ultimate parent. Use separate paper as controlled by the government of a terrorist needed, and provide the information in the country. following format: Offeror’s Point of Contact (b) A corporate officer or a designee of the for Questions about Disclosure (Name and Contractor shall notify the Contracting Offi- Phone Number with Country Code, City Code cer, in writing, before entering into a sub- and Area Code, as applicable) contract with a party that is identified, on the List of Parties Excluded from Federal Procurement and Nonprocurement Pro- grams, as being ineligible for the award of Name and Address of Defense contracts or subcontracts because it Offeror. is owned or controlled by the government of Name and Address of Description of Inter- a terrorist country. The notice must include Entity Controlled est, Ownership Per- the name of the proposed subcontractor and by a Foreign Gov- centage, and Iden- the compelling reason(s) for doing business ernment. tification of For- with the subcontractor notwithstanding its eign Government inclusion on the List of Parties Excluded
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From Federal Procurement and Nonprocure- (2) The institution has a long-standing pol- ment Programs. icy of pacifism based on historical religious affiliation. (End of clause) (d) Agreement. The Contractor represents that it does not now have, and agrees that [63 FR 14837, Mar. 27, 1998] during performance of this contract it will not adopt, any policy or practice described in 252.209–7005 Reserve Officer Training paragraph (b) of this clause, unless the Sec- Corps and military recruiting on retary of Defense has granted an exception campus. in accordance with paragraph (c)(2) of this As prescribed in 209.470–4, use the fol- clause. lowing clause: (e) Notwithstanding any other clause of this contract, if the Secretary of Defense de- RESERVE OFFICER TRAINING CORPS AND termines that the Contractor misrepresented MILITARY RECRUITING ON CAMPUS (JAN 2000) its policies and practices at the time of con- tract award or has violated the agreement in (a) Definition. ‘‘Institution of higher edu- paragraph (d) of this clause— cation,’’ as used in this clause, means an in- (1) The Contractor will be ineligible for stitution that meets the requirements of 20 further payments under this and other con- U.S.C. 1001 and includes all subelements of such an institution. tracts with the Department of Defense; and (b) Limitation on contract award. Except as (2) The Government will terminate this provided in paragraph (c) of this clause, an contract for default for the Contractor’s ma- institution of higher education is ineligible terial failure to comply with the terms and for contract award if the Secretary of De- conditions of award. fense determines that the institution has a policy or practice (regardless of when imple- (End of clause) mented) that prohibits or in effect pre- vents— [65 FR 2057, Jan. 13, 2000] (1) The Secretary of a military department from maintaining, establishing, or operating 252.211–7000 Acquisition streamlining. a unit of the Senior Reserve Officer Training Corps (ROTC) (in accordance with 10 U.S.C. As prescribed in 211.002–70, use the 654 and other applicable Federal laws) at following clause: that institution; (2) A student at that institution from en- ACQUISITION STREAMLINING (DEC 1991) rolling in a unit of the Senior ROTC at an- (a) The Government’s acquisition stream- other institution of higher education; lining objectives are to— (3) The Secretary of a military department (1) Acquire systems that meet stated per- or the Secretary of Transportation from gaining entry to campuses, or access to stu- formance requirements; dents (who are 17 years of age or older) on (2) Avoid over-specification; and campuses, for purposes of military recruit- (3) Ensure that cost effective requirements ing; or are included in future acquisitions. Military recruiters from accessing, for pur- (b) The Contractor shall— poses of military recruiting, the following (1) Prepare and submit acquisition stream- information pertaining to students (who are lining recommendations in accordance with 17 years of age or older) enrolled at that in- the statement of work of this contract; and stitution: (2) Format and submit the recommenda- (i) Name. tions as prescribed by data requirements on (ii) Address. the contract data requirements list of this (iii) Telephone number. contract. (iv) Date and place of birth. (c) The Government has the right to ac- (v) Educational level. cept, modify, or reject the Contractor’s rec- (vi) Academic major. ommendations. (vii) Degrees received. (d) The Contractor shall insert this clause, (viii) Most recent educational institution including this paragraph (d), in all sub- enrollment. contracts over $1 million, awarded in the (c) Exception. The limitation in paragraph performance of this contract. (b) of this clause does not apply to an insti- tution of higher education if the Secretary of (End of clause) Defense determines that— (1) The institution has ceased the policy or practice described in paragraph (b) of this [56 FR 36479, July 31, 1991. Redesignated and clause; or amended at 60 FR 61600, Nov. 30, 1995]
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252.211–7001 Availability of specifica- ALTERNATE PRESERVATION, PACKAGING, AND tions and standards Not listed in PACKING (DEC 1991) DODISS, data item descriptions Not (a) The Offeror may submit two unit prices listed in DoD 5010.12–L, and plans, for each item—one based on use of the mili- drawings, and other pertinent doc- tary preservation, packaging, or packing re- uments. quirements of the solicitation; and an alter- As prescribed in 211.204(c), use the nate based on use of commercial or indus- following provision: trial preservation, packaging, or packing of equal or better protection than the military. AVAILABILITY OF SPECIFICATIONS AND STAND- (b) If the Offeror submits two unit prices, ARDS NOT LISTED IN DODISS, DATA ITEM the following information, as a minimum, DESCRIPTIONS NOT LISTED IN DOD 5010.12–L, shall be submitted with the offer to allow AND PLANS, DRAWINGS, AND OTHER PERTI- evaluation of the alternate— NENT DOCUMENTS (DEC 1991) (1) The per unit/item cost of commercial or industrial preservation, packaging, and Offerors may obtain the specifications, packing; standards, plans, drawings, data item de- (2) The per unit/item cost of military pres- scriptions, and other pertinent documents ervation, packaging, and packing; cited in this solicitation by submitting a re- (3) The description of commercial or indus- quest to: trial preservation, packaging, and packing (Activity) llllllllllllllllll procedures, including material specifica- (Complete Address) lllllllllllll tions, when applicable, to include— (i) Method of preservation; Include the number of the solicitation and (ii) Quantity per unit package; the title and number of the specification, (iii) Cleaning/drying treatment; standard, plan, drawing, or other pertinent (iv) Preservation treatment; document. (v) Wrapping materials; (End of provision) (vi) Cushioning/dunnage material; (vii) Thickness of cushioning; (viii) Unit container; [56 FR 36479, July 31, 1991. Redesignated and (ix) Unit package gross weight and dimen- amended at 60 FR 61600, Nov. 30, 1995] sions; (x) Packing; and 252.211–7002 Availability for examina- (xi) Packing gross weight and dimensions; tion of specifications, standards, and plans, drawings, data item descrip- (4) Item characteristics, to include— tions, and other pertinent docu- (i) Material and finish; ments. (ii) Net weight; As prescribed in 211.204(c), use the (iii) Net dimensions; and following provision: (iv) Fragility. (c) If the Contracting Officer does not AVAILABILITY FOR EXAMINATION OF SPECIFICA- evaluate or accept the Offeror’s proposed al- TIONS, STANDARDS, PLANS, DRAWINGS, DATA ternate commercial or industrial preserva- ITEM DESCRIPTIONS, AND OTHER PERTINENT tion, packaging, or packing, the Offeror DOCUMENTS (DEC 1991) agrees to preserve, package, or pack in ac- cordance with the specified military require- The specifications, standards, plans, draw- ments. ings, data item descriptions, and other perti- nent documents cited in this solicitation are (End of provision) not available for distribution but may be ex- amined at the following location: [56 FR 36479, July 31, 1991. Redesignated and llllllllllllllllllllll amended at 60 FR 61600, Nov. 30, 1995] (Insert complete address) 252.211–7005 Substitutions for military (End of provision) or Federal specifications and stand- ards. [56 FR 36479, July 31, 1991. Redesignated and As prescribed in 211.273–4, use the fol- amended at 60 FR 61600, Nov. 30, 1995] lowing clause:
252.211–7003 [Reserved] SUBSTITUTIONS FOR MILITARY OR FEDERAL SPECIFICATIONS AND STANDARDS (OCT 2001) 252.211–7004 Alternate preservation, packaging, and packing. (a) Definition. ‘‘SPI process,’’ as used in this clause, means a management or manu- As prescribed in 211.272, use the fol- facturing process that has been accepted pre- lowing provision: viously by the Department of Defense under
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the Single Process Initiative (SPI) for use in (End of clause) lieu of a specific military or Federal speci- fication or standard at specific facilities. [64 FR 14399, Mar. 25, 1999; 64 FR 28875, May Under SPI, these processes are reviewed and 27, 1999, as amended at 65 FR 52953, Aug. 31, accepted by a Management Council, which 2000; 66 FR 49861, Oct. 1, 2001] includes representatives of the Contractor, the Defense Contract Management Agency, 252.212–7000 Offeror representations the Defense Contract Audit Agency, and the and certifications—Commercial military departments. items. (b) Offerors are encouraged to propose SPI As prescribed in 212.301(f)(ii), use the processes in lieu of military or Federal speci- fications and standards cited in the solicita- following provision: tion. A listing of SPI processes accepted at OFFEROR REPRESENTATIONS AND CERTIFI- specific facilities is available via the Inter- CATIONS—COMMERCIAL ITEMS (NOV 1995) net in Excel format at http://www.dcma.mil/ onebook/0.0/0.2/reports/modified/xls. (a) Definitions. (c) An offeror proposing to use an SPI proc- As used in this clause— ess in lieu of military or Federal specifica- (1) Foreign person means any person other tions or standards cited in the solicitation than a United States person as defined in shall— Section 16(2) of the Export Administration Act of 1979 (50 U.S.C. App. Sec. 2415). (1) Identify the specific military or Federal (2) United States person is defined in Section specification or standard for which the SPI 16(2) of the Export Administration Act of process has been accepted; 1979 and means any United States resident or (2) Identify each facility at which the of- national (other than an individual resident feror proposes to use the specific SPI process outside the United States and employed by in lieu of military or Federal specifications other than a United States person), any do- or standards cited in the solicitation; mestic concern (including any permanent do- (3) Identify the contract line items, subline mestic establishment of any foreign con- items, components, or elements affected by cern), and any foreign subsidiary or affiliate the SPI process; and (including any permanent foreign establish- (4) If the proposed SPI process has been ac- ment) of any domestic concern which is con- cepted at the facility at which it is proposed trolled in fact by such domestic concern, as for use, but is not yet listed at the Internet determined under regulations of the Presi- site specified in paragraph (b) of this clause, dent. submit documentation of Department of De- (b) Certification. fense acceptance of the SPI process. By submitting this offer, the Offeror, if a (d) Absent a determination that an SPI foreign person, company or entity, certifies process is not acceptable for this procure- that it— ment, the Contractor shall use the following (1) Does not comply with the Secondary SPI processes in lieu of military or Federal Arab Boycott of Israel; and specifications or standards: (2) Is not taking or knowingly agreeing to take any action, with respect to the Sec- (Offeror insert information for each SPI process) ondary Boycott of Israel by Arab countries, SPI Process: lllllllllllllllll which 50 U.S.C. App. Sec. 2407(a) prohibits a United States person from taking. Facility: lllllllllllllllllll (c) Representation of Extent of Transpor- Military or Federal Specification or Stand- tation by Sea. (This representation does not ard: llllllllllllllllllll apply to solicitations for the direct purchase Affected Contract Line Item Number, of ocean transportation services). Subline Item Number, Component, or Ele- (1) The Offeror shall indicate by checking ment: lllllllllllllllllll the appropriate blank in paragraph (c)(2) of this provision whether transportation of sup- (e) If a prospective offeror wishes to ob- plies by sea is anticipated under the result- tain, prior to the time specified for receipt of ant contract. The term ‘‘supplies’’ is defined offers, verification that an SPI process is an in the Transportation of Supplies by Sea acceptable replacement for military or Fed- clause of this solicitation. eral specifications or standards required by (2) Representation. the solicitation, the prospective offeror— The Offeror represents that it— (1) May submit the information required lll Does anticipate that supplies will be by paragraph (d) of this clause to the Con- transported by sea in the performance of any tracting Officer prior to submission of an contract or subcontract resulting from this offer; but solicitation. (2) Must submit the information to the lll Does not anticipate that supplies Contracting Officer at least 10 working days will be transported by sea in the perform- prior to the date specified for receipt of of- ance of any contract or subcontract result- fers. ing from this solicitation.
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(3) Any contract resulting from this solici- lll 252.225–7027 Restriction on Contin- tation will include the Transportation of gent Fees for Foreign Military Sales (22 Supplies by Sea clause. If the Offeror rep- U.S.C. 2779). resents that it will not use ocean transpor- lll 252.225–7028 Exclusionary Policies and tation, the resulting contract will also in- Practices of Foreign Governments (22 clude the Defense Federal Acquisition Regu- U.S.C. 2755). lation Supplement clause at 252.247–7024, No- lll 252.225–7029 Preference for United tification of Transportation of Supplies by States or Canadian Air Circuit Breakers Sea. (10 U.S.C. 2534(a)(3)). lll 252.225–7036 North American Free (End of provision) Trade Agreement Implementation Act. lll 252.225–7036 Buy American Act— North American Free Trade Agreement [60 FR 61600, Nov. 30, 1995, as amended at 61 Implementation Act—Balance of Pay- FR 50455, Sept. 26, 1996] ment Program (l Alternate I) (41 U.S.C. 10a–10d and 19 U.S.C. 3301 note). 252.212–7001 Contract terms and con- lll 252.227–7015 Technical Data—Com- ditions required to implement stat- mercial Items (10 U.S.C. 2320). utes or Executive Orders applicable lll 252.227–7037 Validation of Restrictive to Defense acquisitions of commer- Markings on Technical Data (10 U.S.C. cial items. 2321). As prescribed in 212.301(f)(iii), use the lll 252.243–7002 Requests for Equitable Adjustment (10 U.S.C. 2410). following clause: lll252.247–7023 Transportation of Sup- plies by Sea (lllAlternate I) CONTRACT TERMS AND CONDITIONS REQUIRED (lllAlternate II) (10 U.S.C. 2631). TO IMPLEMENT STATUTES OR EXECUTIVE OR- lll 252.247–7024 Notification of Transpor- DERS APPLICABLE TO DEFENSE ACQUISITIONS tation of Supplies by Sea (10 U.S.C. 2631). OF COMMERCIAL ITEMS (DEC 2000) (b) In addition to the clauses listed in para- (a) The Contractor agrees to comply with graph (e) of the Contract Terms and Condi- any clause that is checked on the following tions Required to Implement Statutes or Ex- list of DFARS clauses which, if checked, is ecutive Orders—Commercial Items clause of included in this contract by reference to im- this contract (Federal Acquisition Regula- plement provisions of law or Executive or- tion 52.212–5), the Contractor shall include ders applicable to acquisitions of commercial the terms of the following clauses, if applica- items or components. ble, in subcontracts for commercial items or commercial components, awarded at any tier lll 252.205–7000 Provision of Information under this contract: to Cooperative Agreement Holders (10 U.S.C. 2416). 252.225–7014 Preference for Domestic Spe- lll 252.206–7000 Domestic Source Restric- cialty Metals, Alternate I (10 U.S.C. 2241 tion (10 U.S.C. 2304). note). lll 252.219–7003 Small, Small Disadvan- 252.247–7023 Transportation of Supplies by taged and Women–Owned Small Business Sea (10 U.S.C. 2631). Subcontracting Plan (DoD Contracts) (15 252.247–7024 Notification of Transpor- U.S.C. 637). tation of Supplies by Sea (10 U.S.C. 2631). lll 252.225–7001 Buy American Act and Balance of Payments Program (41 U.S.C. (End of clause) 10a–10d, E.O. 10582). lll 252.225–7007 Buy American Act— [60 FR 61601, Nov. 30, 1995, as amended at 61 Trade Agreements—Balance of Payments FR 50455, Sept. 26, 1996; 61 FR 58489, Nov. 15, Program (41 U.S.C. 10a–10d, 19 U.S.C. 1996; 62 FR 2614, 2617, Jan. 17, 1997; 62 FR 5780, 2501–2518, and 19 U.S.C. 3301 note). Feb. 7, 1997; 62 FR 37147, July 11, 1997; 63 FR 11541, Mar. 9, 1998; 63 FR 41975, Aug. 6, 1998; 63 lll 252.225–7012 Preference for Certain Domestic Commodities. FR 64430, Nov. 20, 1998; 64 FR 51077, Sept. 21, 1999; 65 FR 14401, Mar. 16, 2000; 65 FR 77828, lll 252.225–7014 Preference for Domestic Dec. 13, 2000] Speciality Metals (10 U.S.C. 2241 note). lll 252.225–7015 Preference for Domestic 252.215–7000 Pricing adjustments. Hand or Measuring Tools (10 U.S.C. 2241 note). As prescribed in 215.408(1), use the lll252.225–7016 Restriction on Acquisition following clause: of Ball and Roller Bearings (lllAlternate I) (Section 8064 of Pub. PRICING ADJUSTMENTS (DEC 1991) L. 106–259). The term ‘‘pricing adjustment,’’ as used in lll 252.225–7021 Trade Agreements (19 paragraph (a) of the clauses entitled ‘‘Price U.S.C. 2501–2518 and 19 U.S.C. 3301 note). Reduction for Defective Cost or Pricing
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Data—Modifications,’’ ‘‘Subcontractor Cost (ii) Was notified in writing by the Con- or Pricing Data,’’ and ‘‘Subcontractor Cost tracting Officer that paragraphs (d) and (e) or Pricing Data—Modifications,’’ means the of this clause apply. aggregate increases and/or decreases in cost (d) System requirements. (1) The Contractor plus applicable profits. shall disclose its estimating system to the Administrative Contracting Officer (ACO) in (End of clause) writing. If the Contractor wishes the Govern- ment to protect the information as privi- [56 FR 36479, July 31, 1991, as amended at 62 leged or confidential, the Contractor must FR 40473, July 29, 1997; 63 FR 55052, Oct. 14, mark the documents with the appropriate 1998] legends before submission. (2) An estimating system disclosure is ac- 252.215–7001 [Reserved] ceptable when the Contractor has provided the ACO with documentation that— 252.215–7002 Cost estimating system requirements. (i) Accurately describes those policies, pro- cedures, and practices that the Contractor As prescribed in 215.408(2), use the currently uses in preparing cost proposals; following clause: and (ii) Provides sufficient detail for the Gov- COST ESTIMATING SYSTEM REQUIREMENTS ernment to reasonably make an informed (OCT 1998) judgment regarding the acceptability of the (a) Definition. Contractor’s estimating practices. Estimating system means the Contractor’s (3) The Contractor shall— policies, procedures, and practices for gener- (i) Comply with its disclosed estimating ating estimates of costs and other data in- system; and cluded in proposals submitted to customers (ii) Disclose significant changes to the cost in the expectation of receiving contract estimating system to the ACO on a timely awards. Estimating system includes the Con- basis. tractor’s— (1) Organizational structure; (e) Estimating system deficiencies. (1) The (2) Established lines of authority, duties, Contractor shall respond to a written report and responsibilities; from the Government that identifies defi- (3) Internal controls and managerial re- ciencies in the Contractor’s estimating sys- views; tem as follows: (4) Flow of work, coordination, and com- (i) If the Contractor agrees with the report munication; and findings and recommendations, the Con- (5) Estimating methods, techniques, accu- tractor shall— mulation of historical costs, and other anal- (A) Within 30 days, state its agreement in yses used to generate cost estimates. writing; and (b) General. (1) The Contractor shall estab- (B) Within 60 days, correct the deficiencies lish, maintain, and comply with an esti- or submit a corrective action plan showing mating system that is consistently applied proposed milestones and actions leading to and produces reliable, verifiable, support- elimination of the deficiencies. able, and documented cost estimates that (ii) If the Contractor disagrees with the re- are an acceptable basis for negotiation of port, the Contractor shall, within 30 days, fair and reasonable prices. state its rationale for disagreeing. (2) The system should be— (2) The ACO will evaluate the Contractor’s (i) Consistent and integrated with the Con- response and notify the Contractor of the de- tractor’s related management systems; and termination concerning remaining defi- (ii) Subject to applicable financial control ciencies and/or the adequacy of any proposed systems. or completed corrective action. (c) Applicability. Paragraphs (d) and (e) of this clause apply if the Contractor is a large business and either— (End of clause) (1) In its fiscal year preceding award of this contract, received Department of Defense [56 FR 36479, July 31, 1991, as amended at 62 (DoD) prime contracts or subcontracts, to- FR 40473, July 29, 1997; 63 FR 55052, Oct. 14, taling $50 million or more for which cost or 1998] pricing data were required; or (2) In its fiscal year preceding award of this 252.216–7000 Economic price adjust- contract— ment—basic steel, aluminum, brass, (i) Received DoD prime contracts or sub- bronze, or copper mill products. contracts totaling $10 million or more (but less than $50 million) for which cost or pric- As prescribed in 216.203–4–70(a), use ing data were required; and the following clause:
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ECONOMIC PRICE ADJUSTMENT—BASIC STEEL, within the meaning of the Default clause of ALUMINUM, BRASS, BRONZE, OR COPPER this contract. MILL PRODUCTS (JUL 1997) (4) The Contracting Officer shall not exe- cute a modification incorporating an in- (a) Definitions. crease in a contract unit price under this As used in this clause— clause until the increase is verified. Established price means a price which is an (e) Within 30 days after receipt of the Con- established catalog or market price for a tractor’s written request, the Contracting commercial item sold in substantial quan- Officer may cancel, without liability to ei- tities to the general public. ther party, any portion of the contract af- Unit price excludes any part of the price fected by the requested increase and not de- which reflects requirements for preservation, livered at the time of such cancellation, ex- packaging, and packing beyond standard cept as follows— commercial practice. (1) The Contractor may, after that time, (b) The Contractor warrants that the unit deliver any items that were completed or in price stated for (Identify the item) is not in the process of manufacture at the time of re- excess of the Contractor’s established price ceipt of the cancellation notice, provided the in effect on the date set for opening of bids Contractor notifies the Contracting Officer (or the contract date if this is a negotiated of such items within 10 days after the Con- contract) for like quantities of the same tractor receives the cancellation notice. item. This price is the net price after apply- (2) The Government shall pay for those ing any applicable standard trade discounts items at the contract unit price increased to offered by the Contractor from its catalog, the extent provided by paragraph (d) of this list, or schedule price. clause. (c) The Contractor shall promptly notify (3) Any standard steel supply item shall be the Contracting Officer of the amount and deemed to be in the process of manufacture effective date of each decrease in any estab- when the steel for that item is in the state lished price. of processing after the beginning of the fur- (1) Each corresponding contract unit price nace melt. shall be decreased by the same percentage (f) Pending any cancellation of this con- that the established price is decreased. tract under paragraph (e) of this clause, or if (2) This decrease shall apply to items deliv- there is no cancellation, the Contractor shall ered on or after the effective date of the de- continue deliveries according to the delivery crease in the Contractor’s established price. schedule of the contract. The Contractor (3) This contract shall be modified accord- shall be paid for those deliveries at the con- ingly. tract unit price increased to the extent pro- (d) If the Contractor’s established price is vided by paragraph (d) of this clause. increased after the date set for opening of bids (or the contract date if this is a nego- (End of clause) tiated contract), upon the Contractor’s writ- ten request to the Contracting Officer, the corresponding contract unit price shall be in- [56 FR 36479, July 31, 1991, as amended at 62 creased by the same percentage that the es- FR 2614, Jan. 17, 1997; 62 FR 40473, July 29, tablished price is increased, and this con- 1997] tract shall be modified accordingly, pro- vided— 252.216–7001 Economic price adjust- (1) The aggregate of the increases in any ment—nonstandard steel items. contract unit price under this contract shall As prescribed in 216.203–4–70(b), use not exceed 10 percent of the original contract the following clause: unit price; (2) The increased contract unit price shall ECONOMIC PRICE ADJUSTMENT—NONSTANDARD be effective on the effective date of the in- STEEL ITEMS (JUL 1997) crease in the applicable established price if the Contractor’s written request is received (a) Definitions. by the Contracting Officer within ten days of As used in this clause— the change. If it is not, the effective date of Base labor index means the average of the the increased unit price shall be the date of labor indices for the three months which receipt of the request by the Contracting Of- consist of the month of bid opening (or offer ficer; and submission) and the months immediately (3) The increased contract unit price shall preceding and following that month. not apply to quantities scheduled for deliv- Base steel index means the Contractor’s es- ery before the effective date of the increased tablished price (see note 6) including all ap- contract unit price unless the Contractor’s plicable extras of $llll per lllll (see failure to deliver before that date results note 1) for lllll (see note 2) on the date from causes beyond the control and without set for bid opening (or the date of submission the fault or negligence of the Contractor, of the offer).
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Current labor index means the average of (i) The adjusted cost of labor (obtained by the labor indices for the month in which de- multiplying lll percent of the contract livery of supplies is required to be made and unit price by a fraction, of which the numer- the month preceding. ator shall be the current labor index and the Current steel index means the Contractor’s denominator shall be the base labor index); established price (see note 6) for that item, (ii) The adjusted cost of steel (obtained by including all applicable extras in effect multiplying lll percent of the contract llll days (see note 3) prior to the first unit price by a fraction, of which the numer- day of the month in which delivery is re- ator shall be the current steel index and the quired. denominator shall be the base steel index); Established price is— and (1) A price which is an established catalog (iii) The amount equal to lll percent of or market price of a commercial item sold in the original contract unit price (representing substantial quantities to the general public; that portion of the unit price which relates and neither to the cost of labor nor the cost of (2) The net price after applying any appli- steel, and which is therefore not subject to cable standard trade discounts offered by the revision (see note 5)). Contractor from its catalog, list, or schedule (4) The aggregate of the increases in any price. (But see Note 6.) contract unit price under this contract shall Labor index means the average straight not exceed ten percent of the original con- time hourly earnings of the Contractor’s em- tract unit price. ployees in the llll shop of the Contrac- (5) Computations shall be made to the tor’s lllll plant (see note 4) for any par- nearest one-hundredth of one cent. ticular month. (f)(1) Pending any revisions of the contract Month means calendar month. However, if unit prices, the Contractor shall be paid the the Contractor’s accounting period does not contract unit price for deliveries made. coincide with the calendar month, then that (2) Within 30 days after final delivery (or accounting period shall be used in lieu of such other period as may be authorized by month. the Contracting Officer), the Contractor (b) Each contract unit price shall be sub- shall furnish a statement identifying the ject to revision, under the terms of this correctness of— clause, to reflect changes in the cost of labor (i) The average straight time hourly earn- and steel. For purpose of this price revision, ings of the Contractor’s employees in the the proportion of the contract unit price at- shop identified in paragraph (a) that are rel- tributable to costs of labor not otherwise in- evant to the computations of the base labor cluded in the price of the steel item identi- index and the current labor index; and fied under the base steel index definition in (ii) The Contractor’s established prices (see paragraph (a) shall be lll percent, and the note 6), including all applicable extras for proportion of the contract unit price attrib- like quantities of the item that are relevant utable to the cost of steel shall be lll per- to the computation of the base steel index and cent. (See note 5.) the current steel index. (c)(1) Unless otherwise specified in this (3) Upon request of the Contracting Officer, contract, the labor index shall be computed the Contractor shall make available all by dividing the total straight time earnings records used in the computation of the labor of the Contractor’s employees in the shop indices. identified in paragraph (a) for any given (4) Upon receipt of the statement, the Con- month by the total number of straight time tracting Officer will compute the revised hours worked by those employees in that contract unit prices and modify the contract month. accordingly. No modification to this con- (2) Any revision in a contract unit price to tract will be made pursuant to this clause reflect changes in the cost of labor shall be until the Contracting Officer has verified the computed solely by reference to the ‘‘base revised established price (see note 6). labor index’’ and the ‘‘current labor index.’’ (g)(1) In the event any item of this con- (d) Any revision in a contract unit price to tract is subject to a total or partial termi- reflect changes in the cost of steel shall be nation for convenience, the month in which computed solely by reference to the ‘‘base the Contractor receives notice of the termi- steel index’’ and the ‘‘current steel index.’’ nation, if prior to the month in which deliv- (e)(1) Each contract unit price shall be re- ery is required, shall be considered the vised for each month in which delivery of month in which delivery of the terminated supplies is required to be made. item is required for the purposes of deter- (2) The revised contract unit price shall mining the current labor and steel indices apply to the deliveries of those quantities re- under paragraphs (c) and (d). quired to be made in that month regardless (2) For any item which is not terminated of when actual delivery is made. for convenience, the month in which delivery (3) Each revised contract unit price shall is required under the contract shall continue be computed by adding— to apply for determining those indices with
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respect to the quantity of the non-termi- ECONOMIC PRICE ADJUSTMENT—WAGE RATES nated item. OR MATERIAL PRICES CONTROLLED BY A FOR- (3) If this contract is terminated for de- EIGN GOVERNMENT (JUN 1997) fault, any price revision shall be limited to (a) The Contractor represents that the the quantity of the item which has been de- prices set forth in this contract— livered by the Contractor and accepted by (1) Are based on the wage rate(s) or mate- the Government prior to receipt by the Con- rial price(s) established and controlled by tractor of the notice of termination. the Government ofllll(Offeror insert name (h) If the Contractor’s failure to make de- of host country); and livery of any required quantity arises out of (2) Do not include contingency allowances causes beyond the control and without the to pay for possible increases in wage rates or fault or negligence of the Contractor, within material prices. the meaning of the clause of this contract (b) If wage rates or material prices are re- entitled ‘‘Default,’’ the quantity not deliv- vised by the government named in paragraph ered shall be delivered as promptly as pos- (a) of this clause, the Contracting Officer sible after the cessation of the cause of the shall make an equitable adjustment in the failure, and the delivery schedule set forth in contract price and shall modify the contract this contract shall be amended accordingly. to the extent that the Contractor’s actual Notes: costs of performing this contract are in- 1 Offeror insert the unit price and unit creased or decreased, as a direct result of the measure of the standard steel mill item to be revision, subject to the following: used in the manufacture of the contract (1) For increases in established wage rates item. or material prices, the increase in contract unit price(s) shall be effective on the same 2 Offeror identify the standard steel mill date that the government named in para- item to be used in the manufacture of the graph (a) of this clause increased the appli- contract item. cable wage rate(s) or material price(s), but 3 Offeror insert best estimate of the num- only if the Contracting Officer receives the ber of days required for processing the stand- Contractor’s written request for contract ad- ard steel mill item in the shop identified justment within 10 days of the change. If the under the labor index definition. Contractor’s request is received later, the ef- 4 Offeror identify the shop and plant in fective date shall be the date that the Con- which the standard steel mill item identified tracting Officer received the Contractor’s re- under the base steel index definition will be fi- quest. nally fabricated or processed into the con- (2) For decreases in established wage rates tract item. or material prices, the decrease in contract 5 Offeror insert the same percentage fig- unit price(s) shall be effective on the same ures for the corresponding blanks in para- date that the government named in para- graphs (b), (e)(3)(i), and (e)(3)(ii). In para- graph (a) of this clause decreased the appli- graph (e)(3)(iii), insert the percentage rep- cable wage rate(s) or material price(s). The resenting the difference between the sum of decrease in contract unit price(s) shall apply the percentages inserted in paragraph (b) and to all items delivered on and after the effec- 100 percent. tive date of the government’s rate or price 6 In negotiated acquisitions of nonstandard decrease. steel items, when there is no established price (c) No modification changing the contract or when it is not desirable to use this price, unit price(s) shall be executed until the Con- this paragraph may refer to another appro- tracting Officer has verified the applicable priate price basis, e.g., an established change in the rates or prices set by the gov- interplant price. ernment named in paragraph (a) of this clause. The Contractor shall make available (End of clause) its books and records that support a re- quested change in contract price. (d) Failure to agree to any adjustment [56 FR 36479, July 31, 1991, as amended at 62 shall be a dispute under the Disputes clause FR 2614, Jan. 17, 1997; 62 FR 40473, July 29, of this contract. 1997] (End of clause) 252.216–7002 [Reserved] [62 FR 34128, June 24, 1997] 252.216–7003 Economic price adjust- ment—wage rates or material 252.217–7000 Exercise of option to ful- prices controlled by a foreign gov- fill foreign military sales commit- ernment. ments. As prescribed in 216.203–4–70(c), use As prescribed in 217.208–70(a), use the the following clause: following clause:
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EXERCISE OF OPTION TO FULFILL FOREIGN before acceptance by the Government of the MILITARY SALES COMMITMENTS (DEC 1991) final scheduled delivery. (a) The Government may exercise the op- (2) The Contracting Officer will provide a tion(s) of this contract to fulfill foreign mili- preliminary oral or written notice to the tary sales commitments. Contractor stating the quantities to be (b) The foreign military sales commit- added or accelerated under the terms of this ments are for: clause, followed by a contract modification llllllllllllllllllllllll incorporating the transmitted information (Insert name of country, or To Be Deter- and instructions. The notice and modifica- mined) tion will establish a not-to-exceed price llllllllllllllllllllllll equal to the highest contract unit price or (Insert applicable CLIN) cost of the added or accelerated items as of the date of the notice. (End of clause) (3) The Contractor will not be required to deliver at a rate greater than the maximum Alternate I (DEC 1991). As prescribed in sustainable delivery rate under paragraph 217.208–70(a)(1), substitute the following para- (b)(2) of this clause, nor will the exercise of graph (b) for paragraph (b) of the basic this option extend delivery more than 24 clause: months beyond the scheduled final delivery. (b) On the date the option is exercised, the (d) Price negotiation. (1) Unless the option Government shall identify the foreign coun- cost or price was previously agreed upon, the try for the purpose of negotiating any equi- Contractor shall, within 30 days from the table adjustment attributable to foreign date of option exercise, submit to the Con- military sales. Failure to agree on an equi- tracting Officer a cost or price proposal (in- table adjustment shall be treated as a dis- cluding a cost breakdown) for the added or pute under the Disputes clause of this con- accelerated items. tract. (2) Failure to agree on a cost or price in ne- gotiations resulting from the exercise of this 252.217–7001 Surge option. option shall constitute a dispute concerning As prescribed in 217.208–70(b), use the a question of fact within the meaning of the following clause: Disputes clause of this contract. However, nothing in this clause shall excuse the Con- SURGE OPTION (AUG 1992) tractor from proceeding with the perform- (a) General. The Government has the op- ance of the contract, as modified, while any tion to— resulting claim is being settled. (1) Increase the quantity of supplies or services called for under this contract by no (End of clause) more than lll percent; and/or (2) Accelerate the rate of delivery called [56 FR 36479, July 31, 1991, as amended at 57 for under this contract, at a price or cost es- FR 42633, Sept. 15, 1992] tablished before contract award or to be es- tablished by negotiation as provided in this 252.217–7002 Offering property for ex- clause. change. (b) Schedule. (1) When the Production Surge Plan (DI–MGMT–80969) is included in As prescribed in 217.7005, use the fol- the contract, the option delivery schedule lowing provision: shall be the production rate provided with the Plan. If the Plan was negotiated before OFFERING PROPERTY FOR EXCHANGE (DEC contract award, then the negotiated schedule 1991) shall be used. (a) The property described in item number (2) If there is no Production Surge Plan in llll, is being offered in accordance with the contract, the Contractor shall, within 30 the exchange provisions of section 201(c) of days from the date of award, furnish the the Federal Property and Administrative Contracting Officer a delivery schedule Services Act of 1949, 63 Stat. 384 (40 U.S.C. showing the maximum sustainable rate of 481(c)). delivery for items in this contract. This de- (b) The property is located at (insert ad- livery schedule shall provide acceleration by dress). Offerors may inspect the property month up to the maximum sustainable rate during the period (insert beginning and end- of delivery achievable within the Contrac- ing dates and insert hours during day). tor’s existing facilities, equipment, and sub- contracting structure. (End of provision) (3) The Contractor shall not revise the op- tion delivery schedule without approval from 252.217–7003 Changes. the Contracting Officer. (c) Exercise of option. (1) The Contracting As prescribed in 217.7104(a), use the Officer may exercise this option at any time following clause:
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CHANGES (DEC 1991) would be endangered by delay, or whenever (a) The Contracting Officer may, at any the Contracting Officer determines that time and without notice to the sureties, by military necessity requires that immediate written change order, make changes within work on a vessel is necessary, the Con- the general scope of any job order issued tracting Officer may issue a written order to under the Master Agreement in— perform that work and the Contractor here- (1) Drawings, designs, plans, and specifica- by agrees to comply with that order and to tions; perform work on such vessel within its capa- (2) Work itemized; bilities. (3) Place of performance of the work; (1) As soon as practicable after the (4) Time of commencement or completion issuance of the order, the Contracting Officer of the work; and and the Contractor shall negotiate a price (5) Any other requirement of the job order. for the work and the Contracting Officer (b) If a change causes an increase or de- shall issue a job order covering the work. crease in the cost of, or time required for, (2) The Contractor shall, upon request, fur- performance of the job order, whether or not nish the Contracting Officer with a break- changed by the order, the Contracting Offi- down of costs incurred by the Contractor and cer shall make an equitable adjustment in the price or date of completion, or both, and an estimate of costs expected to be incurred shall modify the job order in writing. in the performance of the work. The Con- (1) Within ten days after the Contractor re- tractor shall maintain, and make available ceives notification of the change, the Con- for inspection by the Contracting Officer or tractor shall submit to the Contracting Offi- the Contracting Officer’s representative, cer a request for price adjustment, together records supporting the cost of performing with a written estimate of the increased the work. cost. (3) Failure of the parties to agree upon the (2) The Contracting Officer may grant an price of the work shall constitute a dispute extension of this period if the Contractor re- within the meaning of the Disputes clause of quests it within the ten day period. the Master Agreement. In the meantime, the (3) If the circumstances justify it, the Con- Contractor shall diligently proceed to per- tracting Officer may accept and grant a re- form the work ordered. quest for equitable adjustment at any later (c)(1) If the nature of any repairs is such time prior to final payment under the job that their extent and probable cost cannot order, except that the Contractor may not be ascertained readily, the Contracting Offi- receive profit on a payment under a late re- cer may issue a job order (on a sealed bid or quest. negotiated basis) to determine the nature (c) If the Contractor includes in its claim and extent of required repairs. the cost of property made obsolete or excess as a result of a change, the Contracting Offi- (2) Upon determination by the Contracting cer shall have the right to prescribe the Officer of what work is necessary, the Con- manner of disposition of that property. tractor, if requested by the Contracting Offi- (d) Failure to agree to any adjustment cer, shall negotiate prices for performance of shall be a dispute within the meaning of the that work. The prices agreed upon shall be Disputes clause. set forth in a modification of the job order. (e) Nothing in this clause shall excuse the (3) Failure of the parties to agree upon the Contractor from proceeding with the job price shall constitute a dispute under the order as changed. Disputes clause. In the meantime, the Con- tractor shall diligently proceed to perform (End of clause) the work ordered.
252.217–7004 Job orders and com- (End of clause) pensation. As prescribed in 217.7104(a), use the 252.217–7005 Inspection and manner following clause: of doing work.
JOB ORDERS AND COMPENSATION (DEC 1991) As prescribed in 217.7104(a), use the following clause: (a) The Contracting Officer shall solicit bids or proposals and make award of job or- INSPECTION AND MANNER OF DOING WORK ders in accordance with FAR part 14 or 15, as (JAN 1997) applicable. The issuance of a job order signed by the Contracting Officer constitutes (a) The Contractor shall perform work in award. The job order shall incorporate the accordance with the job order, any drawings terms and conditions of the Master Agree- and specifications made a part of the job ment. order, and any change or modification issued (b) Whenever the Contracting Officer de- under the Changes clause of the Master termines that a vessel, its cargo or stores, Agreement.
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(b)(1) Except as provided in paragraph (b) alongside the Contractor’s pier or in dry (2) of this clause, and unless otherwise spe- dock or on a marine railway; cifically provided in the job order, all oper- (4) Unless otherwise provided in a job ational practices of the Contractor and all order, provide sufficient security patrols to workmanship, material, equipment, and arti- reasonably maintain a fire watch for protec- cles used in the performance of work under tion of the vessel when it is in the Contrac- the Master Agreement shall be in accordance tor’s custody; with the best commercial marine practices (5) To the extent necessary, clean, wash, and the rules and requirements of the Amer- and steam out or otherwise make safe, all ican Bureau of Shipping, the U.S. Coast tanks under alteration or repair; Guard, and the Institute of Electrical and (6) Furnish the Contracting Officer or des- Electronic Engineers, in effect at the time of ignated representative with a copy of the Contractor’s submission of bid (or accept- ‘‘gas-free’’ or ‘‘safe-for-hotwork’’ certificate, ance of the job order, if negotiated). provided by a Marine Chemist or Coast (2) When Navy specifications are specified Guard authorized person in accordance with in the job order, the Contractor shall follow Occupational Safety and Health Administra- Navy standards of material and workman- tion regulations (29 CFR 1915.14) before any ship. The solicitation shall prescribe the hot work is done on a tank; Navy standard whenever applicable. (7) Treat the contents of any tank as Gov- (c) The Government may inspect and test ernment property in accordance with the all material and workmanship at any time Government Property (Fixed-Price Con- during the Contractor’s performance of the tracts) clause; and work. (8) Dispose of the contents of any tank (1) If, prior to delivery, the Government only at the direction, or with the concur- finds any material or workmanship is defec- rence, of the Contracting Officer. tive or not in accordance with the job order, (f) Except as otherwise provided in the job in addition to its rights under the Guaran- order, when the vessel is in the custody of tees clause of the Master Agreement, the the Contractor or in dry dock or on a marine Government may reject the defective or non- railway and the temperature is expected to conforming material or workmanship and re- ° quire the Contractor to correct or replace it go as low as 35 F, the Contractor shall take at the Contractor’s expense. all necessary steps to— (2) If the Contractor fails to proceed (1) Keep all hose pipe lines, fixtures, traps, promptly with the replacement or correction tanks, and other receptacles on the vessel of the material or workmanship, the Govern- from freezing; and ment may replace or correct the defective or (2) Protect the stern tube and propeller nonconforming material or workmanship hubs from frost damage. and charge the Contractor the excess costs (g) The Contractor shall, whenever prac- incurred. ticable— (3) As specified in the job order, the Con- (1) Perform the required work in a manner tractor shall provide and maintain an inspec- that will not interfere with the berthing and tion system acceptable to the Government. messing of Government personnel attached (4) The Contractor shall maintain com- to the vessel; and plete records of all inspection work and shall (2) Provide Government personnel attached make them available to the Government to the vessel access to the vessel at all during performance of the job order and for times. 90 days after the completion of all work re- (h) Government personnel attached to the quired. vessel shall not interfere with the Contrac- (d) The Contractor shall not permit any tor’s work or workers. welder to work on a vessel unless the welder (i)(1) The Government does not guarantee is, at the time of the work, qualified to the the correctness of the dimensions, sizes, and standards established by the U.S. Coast shapes set forth in any job order, sketches, Guard, American Bureau of Shipping, or De- drawings, plans, or specifications prepared or partment of the Navy for the type of welding furnished by the Government, unless the job being performed. Qualifications of a welder order requires that the Contractor perform shall be as specified in the job order. the work prior to any opportunity to inspect. (e) The Contractor shall— (2) Except as stated in paragraph (i)(1) of (1) Exercise reasonable care to protect the this clause, and other than those parts fur- vessel from fire; nished by the Government, the Contractor (2) Maintain a reasonable system of inspec- shall be responsible for the correctness of the tion over activities taking place in the vicin- dimensions, sizes, and shapes of parts fur- ity of the vessel’s magazines, fuel oil tanks, nished under this agreement. or storerooms containing flammable mate- (j) The Contractor shall at all times keep rials; the site of the work on the vessel free from (3) Maintain a reasonable number of hose accumulation of waste material or rubbish lines ready for immediate use on the vessel caused by its employees or the work. At the at all times while the vessel is berthed completion of the work, unless the job order
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specifies otherwise, the Contractor shall re- (4) Upon request, the Contractor will fur- move all rubbish from the site of the work nish the Contracting Officer any reports con- and leave the immediate vicinity of the work cerning expenditures on the work to date area ‘‘broom clean.’’ that the Contracting Officer may require. (c) The Government will retain until final (End of clause) completion and acceptance of all work cov- ered by the job order, an amount estimated [56 FR 36479, July 31, 1991, as amended at 62 or approved by the Contracting Officer under FR 2614, Jan. 17, 1997] paragraph (b) of this clause. The amount re- tained will be in accordance with the rate 252.217–7006 Title. authorized by Congress for Naval vessel re- pair contracts at the time of job order As prescribed in 217.7104(a), use the award. following clause: (d) The Contracting Officer may direct TITLE (DEC 1991) that progress payments be based on the price of the job order as adjusted as a result of (a) Unless otherwise provided, title to all change orders under the Changes clause of materials and equipment to be incorporated the Master Agreement. If the Contracting in a vessel in the performance of a job order Officer does not so direct— shall vest in the Government upon delivery (1) Payments of any increases shall be at the location specified for the performance made from time to time after the amount of of the work. the increase is determined under the (b) Upon completion of the job order, or Changes clause of the Master Agreement; with the approval of the Contracting Officer and during performance of the job order, all Con- (2) Reductions resulting from decreases tractor-furnished materials and equipment shall be made for the purposes of subsequent not incorporated in, or placed on, any vessel, progress payments as soon as the amounts shall become the property of the Contractor, are determined under the Changes clause of unless the Government has reimbursed the the Master Agreement. Contractor for the cost of the materials and (e) Upon completion of the work under a equipment. job order and final inspection and accept- (c) The vessel, its equipment, movable ance, and upon submission of invoices in stores, cargo, or other ship’s materials shall such form and with such copies as the Con- not be considered Government-furnished tracting Officer may prescribe, the Con- property. tractor shall be paid for the price of the job (End of clause) order, as adjusted pursuant to the Changes clause of the Master Agreement, less any 252.217–7007 Payments. performance reserves deemed necessary by the Contracting Officer, and less the amount As prescribed in 217.7104(a), use the of any previous payments. following clause: (f) All materials, equipment, or any other property or work in process covered by the PAYMENTS (DEC 1991) progress payments made by the Government, (a) Progress payments, as used in this upon the making of those progress pay- clause, means payments made before comple- ments, shall become the sole property of the tion of work in progress under a job order. Government, and are subject to the provi- (b) Upon submission by the Contractor of sions of the Title clause of the Master Agree- invoices in the form and number of copies di- ment. rected by the Contracting Officer, and as ap- proved by the Contracting Officer, the Gov- (End of clause) ernment will make progress payments as work progresses under the job order. 252.217–7008 Bonds. (1) Generally, the Contractor may submit As prescribed in 217.7104(a), use the invoices on a semi-monthly basis, unless ex- penditures justify a more frequent submis- following clause: sion. BONDS (DEC 1991) (2) The Government need not make progress payments for invoices aggregating (a) If the solicitation requires an offeror to less than $5,000. submit a bid bond, the Offeror may furnish, (3) The Contracting Officer shall approve instead, an annual bid bond (or evidence progress payments based on the value, com- thereof) or an annual performance and pay- puted on the price of the job order, of labor ment bond (or evidence thereof). and materials incorporated in the work, ma- (b) If the solicitation does not require a bid terials suitably stored at the site of the bond, the Offeror shall not include in the work, and preparatory work completed, less price any contingency to cover the premium the aggregate of any previous payments. of such a bond.
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(c) Even if the solicitation does not require (d) If the Government terminates the job bonds, the Contracting Officer may neverthe- order in whole or in part as provided in para- less require a performance and payment graph (a) of this clause— bond, in form, amount, and with a surety ac- (1) The Government may, upon such terms ceptable to the Contracting Officer. Where and in such manner as the Contracting Offi- performance and payment bond is required, cer may deem appropriate, arrange for the the offer price shall be increased upon the completion of the work so terminated, at award of the job order in an amount not to such plant or plants, including that of the exceed the premium of a corporate surety Contractor, as may be designated by the bond. Contracting Officer. (d) If any surety upon any bond furnished (i) The Contractor shall continue the per- in connection with a job order under this formance of the job order to the extent not agreement fails to submit requested reports terminated under the provisions of this as to its financial condition or otherwise be- clause. comes unacceptable to the Government, the (ii) If the work is to be completed at the Contracting Officer may require the Con- plant, the Government may use all tools, tractor to furnish whatever additional secu- machinery, facilities, and equipment of the rity the Contracting Officer determines nec- Contractor determined by the Contracting essary to protect the interests of the Govern- Office to be necessary for that purpose. ment and of persons supplying labor or mate- (iii) If the cost to the Government of the rials in the performance of the work con- work procured or completed (after adjusting templated under the Master Agreement. such cost to exclude the effect of changes in the plans and specifications made subsequent (End of clause) to the date of termination) exceeds the price fixed for work under the job order (after ad- 252.217–7009 Default. justing such price on account of changes in the plans and specifications made before the As prescribed in 217.7104(a), use the date of termination), the Contractor, or the following clause: Contractor’s surety, if any, shall be liable for such excess. DEFAULT (DEC 1991) (2) The Government, in addition to any (a) The Government may, subject to the other rights provided in this clause, may re- provisions of paragraph (b) of this clause, by quire the Contractor to transfer title and de- written notice of default to the Contractor, livery to the Government, in the manner and terminate the whole or any part of a job to the extent directed by the Contracting Of- order if the Contractor fails to— ficer, any completed supplies and such par- (1) Make delivery of the supplies or to per- tially completed supplies and materials, form the services within the time specified parts, tools, dies, jigs, fixtures, plans, draw- in a job order or any extension; ings, information and contract rights (here- (2) Make progress, so as to endanger per- inafter called ‘‘manufacturing materials’’) as formance of the job order; or the Contractor has specifically produced or (3) Perform any of the other provisions of specifically acquired for the performance of this agreement or a job order. the terminated part of the job order. (b) Except for defaults of subcontractors, (i) The Contractor shall, upon direction of the Contractor shall not be liable for any ex- the Contracting Officer, protect and preserve cess costs if failure to perform the job order property in possession of the Contractor in arises from causes beyond the control and which the Government has an interest. without the fault or negligence of the Con- (ii) The Government shall pay to the Con- tractor. Examples of such causes include tractor the job order price for completed acts of God or of the public enemy, acts of items of work delivered to and accepted by the Government in either its sovereign or the Government, and the amount agreed contractual capacity, fires, floods, upon by the Contractor and the Contracting epidemics, quarantine restrictions, strikes, Officer for manufacturing materials deliv- freight embargoes, and unusually severe ered to and accepted by the Government, and weather. for the protection and preservation of prop- (c) If the Contractor’s failure to perform is erty. Failure to agree shall be a dispute con- caused by the default of a subcontractor, and cerning a question of fact within the mean- if such default arises out of causes beyond ing of the Disputes clause. the control of both the Contractor and sub- (e) If, after notice of termination of the job contractor, and without the fault or neg- order, it is determined that the Contractor ligence of either, the Contractor shall not be was not in default, or that the default was liable for any excess costs for failure to per- excusable, the rights and obligations of the form, unless the supplies or services to be parties shall be the same as if the notice of furnished by the subcontractor were obtain- termination had been issued for the conven- able from other sources in sufficient time to ience of the Government. permit the Contractor to perform the job (f) If the Contractor fails to complete the order within the time specified. performance of a job order within the time
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specified, or any extension, the actual dam- (3) Treat salvage, scrap or other ship’s ma- age to the Government for the delay will be terial of the Government resulting from per- difficult or impossible to determine. formance of the work as items of Govern- (1) In lieu of actual damage, the Contractor ment-furnished property, in accordance with shall pay to the Government as fixed, agreed, the Government Property (Fixed Price Con- and liquidated damages for each calendar tracts) clause; day of delay the amount, if any, set forth in (4) Perform, or pay the cost of, any repair, the job order (prorated to the nearest hour reconditioning or replacement made nec- for fractional days). essary as the result of the use by the Con- (2) If the Government terminates the job tractor of any of the vessel’s machinery, order, the Contractor shall be liable, in addi- equipment or fittings, including, but not tion to the excess costs provided in para- limited to, winches, pumps, rigging, or pipe graph (d) of this clause, for liquidated dam- lines; and ages accruing until such time as the Govern- (5) Furnish suitable offices, office equip- ment may reasonably obtain completion of ment and telephones at or near the site of the work. the work for the Government’s use. (3) The Contractor shall not be charged (d) The job order will state whether dock with liquidated damages when the delay and sea trials are required to determine arises out of causes beyond the control and whether or not the Contractor has satisfac- without the fault or negligence of the Con- torily performed the work. tractor. Subject to the provisions of the Dis- (1) If dock and sea trials are required, the putes clause of the Master Agreement, the vessel shall be under the control of the ves- Contracting Officer shall ascertain the facts sel’s commander and crew. and the extent of the delay and shall extend (2) The Contractor shall not conduct dock the time for performance when in the judg- and sea trials not specified in the job order ment of the Contracting Officer, the findings without advance approval of the Contracting of fact justify an extension. Officer. Dock and sea trials not specified in (g) The rights and remedies of the Govern- the job order shall be at the Contractor’s ex- ment provided in this clause shall not be ex- pense and risk. clusive and are in addition to any other rights and remedies provided by law under (3) The Contractor shall provide and install this agreement. all fittings and appliances necessary for dock and sea trials. The Contractor shall be re- (End of clause) sponsible for care, installation, and removal of instruments and apparatus furnished by 252.217–7010 Performance. the Government for use in the trials. As prescribed in 217.7104(a), use the (End of clause) following clause: 252.217–7011 Access to vessel. PERFORMANCE (DEC 1991) As prescribed at 217.7104(a), use the (a) Upon the award of a job order, the Con- tractor shall promptly start the work speci- following clause: fied and shall diligently prosecute the work ACCESS TO VESSEL (DEC 1991) to completion. The Contractor shall not start work until the job order has been (a) Upon the request of the Contracting Of- awarded except in the case of emergency ficer, the Contractor shall grant admission work ordered by the Contracting Officer to the Contractor’s facilities and access to under the Job Orders and Compensation vessel, on a non-interference basis, as nec- clause of the Master Agreement. essary to perform their respective respon- (b) The Government shall deliver the vessel sibilities, to a reasonable number of: described in the job order at the time and lo- (1) Government and other Government con- cation specified in the job order. Upon com- tractor employees (in addition to those Gov- pletion of the work, the Government shall ernment employees attached to the vessel); accept delivery of the vessel at the time and and location specified in the job order. (2) Representatives of offerors on other (c) The Contractor shall, without charge contemplated Government work. and without specific requirement in a job (b) All personnel granted access shall com- order,— ply with Contractor rules governing per- (1) Make available at the plant to per- sonnel at its shipyard. sonnel of the vessel while in dry dock or on a marine railway, sanitary lavatory and (End of clause) similar facilities acceptable to the Con- tracting Officer; 252.217–7012 Liability and insurance. (2) Supply and maintain suitable brows and gangways from the pier, dry dock, or marine As prescribed in 217.7104(a), use the railway to the vessel; following clause:
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LIABILITY AND INSURANCE (DEC 1991) have assumed under the provisions of this paragraph (b). (a) The Contractor shall exercise its best (c) Indemnification. The Contractor indem- efforts to prevent accidents, injury, or dam- nifies the Government and the vessel and its age to all employees, persons, and property, owners against all claims, demands, or in and about the work, and to the vessel or causes of action to which the Government, part of the vessel upon which work is done. the vessel or its owner(s) might be subject as (b) Loss or damage to the vessel, materials, or a result of damage or injury (including equipment. (1) Unless otherwise directed or death) to the property or person of anyone approved in writing by the Contracting Offi- other than the Government or its employees, cer, the Contractor shall not carry insurance or the vessel or its owner, arising in whole or against any form of loss or damage to the in part from the negligence or other wrong- vessel(s) or to the materials or equipment to ful act of the Contractor or its agents or em- which the Government has title or which ployees, or any subcontractor, or its agents have been furnished by the Government for or employees. installation by the Contractor. The Govern- (1) The Contractor’s obligation to indem- ment assumes the risks of loss of and dam- nify under this paragraph shall not exceed age to that property. the sum of $300,000 as a consequence of any (2) The Government does not assume any single occurrence with respect to any one risk with respect to loss or damage com- vessel. pensated for by insurance or otherwise or re- (2) The indemnity includes, without limi- sulting from risks with respect to which the tation, suits, actions, claims, costs, or de- Contractor has failed to maintain insurance, mands of any kind, resulting from death, if available, as required or approved by the personal injury, or property damage occur- Contracting Officer. ring during the period of performance of (3) The Government does not assume risk work on the vessel or within 90 days after re- of and will not pay for any costs of the fol- delivery of the vessel. For any claim, etc., lowing: made after 90 days, the rights of the parties (i) Inspection, repair, replacement, or re- shall be as determined by other provisions of newal of any defects in the vessel(s) or mate- this agreement and by law. The indemnity rial and equipment due to— does apply to death occurring after 90 days (A) Defective workmanship performed by where the injury was received during the pe- the Contractor or its subcontractors; riod covered by the indemnity. (B) Defective materials or equipment fur- (d) Insurance. (1) The Contractor shall, at nished by the Contractor or its subcontracts; its own expense, obtain and maintain the fol- or lowing insurance— (C) Workmanship, materials, or equipment (i) Casualty, accident, and liability insur- which do not conform to the requirements of ance, as approved by the Contracting Officer, the contract, whether or not the defect is la- insuring the performance of its obligations tent or whether or not the nonconformance under paragraph (c) of this clause. is the result of negligence. (ii) Workers Compensation Insurance (or (ii) Loss, damage, liability, or expense its equivalent) covering the employees en- caused by, resulting from, or incurred as a gaged on the work. consequence of any delay or disruption, will- (2) The Contractor shall ensure that all ful misconduct or lack of good faith by the subcontractors engaged on the work obtain Contractor or any of its representatives that and maintain the insurance required in para- have supervision or direction of— graph (d)(1) of this clause. (A) All or substantially all of the Contrac- (3) Upon request of the Contracting Officer, tor’s business; or the Contractor shall provide evidence of the (B) All or substantially all of the Contrac- insurance required by paragraph (d) of this tor’s operation at any one plant. clause. (4) As to any risk that is assumed by the (e) The Contractor shall not make any al- Government, the Government shall be sub- lowance in the job order price for the inclu- rogated to any claim, demand or cause of ac- sion of any premium expense or charge for tion against third parties that exists in favor any reserve made on account of self-insur- of the Contractor. If required by the Con- ance for coverage against any risk assumed tracting Officer, the Contractor shall exe- by the Government under this clause. cute a formal assignment or transfer of the (f) The Contractor shall give the Con- claim, demand, or cause of action. tracting Officer written notice as soon as (5) No party other than the Contractor practicable after the occurrence of a loss or shall have any right to proceed directly damage for which the Government has as- against the Government or join the Govern- sumed the risk. ment as a co-defendant in any action. (1) The notice shall contain full details of (6) Notwithstanding the foregoing, the the loss or damage. Contractor shall bear the first $5,000 of loss (2) If a claim or suit is later filed against or damage from each occurrence or incident, the Contractor as a result of the event, the the risk of which the Government would Contractor shall immediately deliver to the
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Government every demand, notice, sum- (End of clause) mons, or other process received by the Con- tractor or its employees or representatives. 252.217–7013 Guarantees. (3) The Contractor shall cooperate with the Government and, upon request, shall assist As prescribed in 217.7104(a), use the in effecting settlements, securing and giving following clause: evidence, obtaining the attendance of wit- GUARANTEES (DEC 1991) nesses, and in the conduct of suits. The Gov- ernment shall reimburse the Contractor for (a) In the event any work performed or ma- expenses incurred in this effort, other than terials furnished by the contractor under the the cost of maintaining the Contractor’s Master Agreement prove defective or defi- usual organization. cient within 90 days from the date of redeliv- (4) The Contractor shall not, except at its ery of the vessel(s), the Contractor, as di- own expense, voluntarily make any pay- rected by the Contracting Officer and at its ment, assume any obligation, or incur any own expense, shall correct and repair the de- expense other than what would be impera- ficiency to the satisfaction of the Con- tive for the protection of the vessel(s) at the tracting Officer. time of the event. (b) If the Contractor or any subcontractor (g) In the event or loss of or damage to any has a guarantee for work performed or mate- vessel(s), material, or equipment which may rials furnished that exceeds the 90 day pe- result in a claim against the Government riod, the Government shall be entitled to under the insurance provisions of this con- rely upon the longer guarantee until its expi- tract, the Contractor shall promptly notify ration. the Contracting Officer of the loss or dam- (c) With respect to any individual work age. The Contracting Officer may, without item identified as incomplete at the time of prejudice to any other right of the Govern- redelivery of the vessel(s), the guarantee pe- ment, either— riod shall run from the date the item is com- (1) Order the Contractor to proceed with pleted. replacement or repair, in which event the (d) If practicable, the Government shall Contractor shall effect the replacement or give the Contractor an opportunity to cor- repair; rect the deficiency. (i) The Contractor shall submit to the Con- (1) If the Contracting Officer determines it tracting Officer a request for reimbursement is not practicable or is otherwise not advis- of the cost of the replacement or repair to- able to return the vessel(s) to the Con- gether with whatever supporting documenta- tractor, or the Contractor fails to proceed tion the Contracting Officer may reasonably with the repairs promptly, the Contracting require, and shall identify the request as Officer may direct that the repairs be per- being submitted under the Insurance clause formed elsewhere, at the Contractor’s ex- of the agreement. pense. (ii) If the Government determines that the (2) If correction and repairs are performed risk of the loss or damage is within the scope by other than the Contractor, the Con- of the risks assumed by the Government tracting Officer may discharge the Contrac- under this clause, the Government will reim- tor’s liability by making an equitable deduc- burse the Contractor for the reasonable, al- tion in the price of the job order. lowable cost of the replacement or repair, (e) The Contractor’s liability shall extend plus a reasonable profit (if the work or re- for an additional 90 day guarantee period on placement or repair was performed by the those defects or deficiencies that the Con- Contractor) less the deductible amount spec- tractor corrected. ified in paragraph (b) of this clause. (f) At the option of the Contracting Officer, (iii) Payments by the Government to the defects and deficiencies may be left uncor- Contractor under this clause are outside the rected. In that event, the Contractor and scope of and shall not affect the pricing Contracting Officer shall negotiate an equi- structure of the contract, and are additional table reduction in the job price. Failure to to the compensation otherwise payable to agree upon an equitable reduction shall con- the Contractor under this contract; or stitute a dispute under the Disputes clause (2) In the event the Contracting Officer de- of this agreement. cides that the loss or damage shall not be re- placed or repaired, the Contracting Officer (End of clause) shall— (i) Modify the contract appropriately, con- 252.217–7014 Discharge of liens. sistent with the reduced requirements re- flected by the unreplaced or unrepaired loss As prescribed in 217.7104(a), use the or damage; or following clause: (ii) Terminate the repair of any part or all DISCHARGE OF LIENS (DEC 1991) of the vessel(s) under the Termination for Convenience of the Government clause of (a) The Contractor shall immediately dis- this agreement. charge, or cause to be discharged, any lien or
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right in rem of any kind, other than in favor (2) No such device or equipment shall be- of the Government, that exists or arises in come a fixture as a result of its being affixed connection with work done or material fur- to realty not owned by the Government. nished under any job order under this agree- ment. (End of clause) (b) If any lien or right in rem is not imme- diately discharged, the Government, at the 252.217–7017 Time of delivery. expense of the Contractor, may discharge, or cause to be discharged, the lien or right. As prescribed in 217.7203(a)(1), use the following clause: (End of clause) TIME OF DELIVERY (DEC 1991) 252.217–7015 Safety and health. (a) Ordering offices shall specify delivery As prescribed in 217.7104(a), use the locations and quantities in all oral or writ- following clause: ten delivery orders under this contract. (b) The Contractor shall complete deliv- SAFETY AND HEALTH (DEC 1991) eries within the hours prescribed in the schedule of this contract and on the days Nothing contained in the Master Agree- specified by the order. ment or any job order shall relieve the Con- (c) Orders requiring delivery within 24 tractor of any obligations it may have to hours from Contractor receipt are governed comply with— by paragraph (e) of the Requirements clause (a) The Occupational Safety and Health of this contract. Act of 1970 (29 U.S.C. 651, et seq.); (b) The Safety and Health Regulations for (End of clause) Ship Repairing (29 CFR part 1915); or (c) Any other applicable Federal, State, Alternate I (DEC 1991). As prescribed in and local laws, codes, ordinances, and regula- 217.7203(a)(1), substitute the following para- tions. graph (c) for paragraph (c) of the basic clause: (End of clause) (c) The Contractor shall not be required to deliver within less than lll hours from 252.217–7016 Plant protection. the time the Contractor receives a delivery order. As prescribed in 217.7104(a), use the following clause: 252.217–7018 Change in plant loca- PLANT PROTECTION (DEC 1991) tion—bakery and dairy products. (a) The Contractor shall provide, for the As prescribed in 217.7203(a)(2), use the plant and work in process, reasonable safe- following clause: guards against all hazards, including unau- CHANGE IN PLANT LOCATION—BAKERY AND thorized entry, malicious mischief, theft, vandalism, and fire. DAIRY PRODUCTS (DEC 1991) (b) The Contractor shall also provide what- (a) The Offeror shall identify in the clause ever additional safeguards are necessary to in this solicitation entitled Place of Per- protect the plant and work in process from formance, all plants to be used for manufac- espionage, sabotage, and enemy action. turing, processing, and shipment. Failure to (1) The Government shall reimburse the furnish this information with the offer may Contractor for that portion of the costs of result in rejection of the offer. the additional safeguards that is allocable to (b) The Offeror shall not change any place the contract in the same manner as if the of performance between the date set for re- Contracting Officer had issued a change ceipt of offers and the award, except where order for the additional safeguards. time permits and then only after receipt of (2) The costs reimbursed shall not include the Contracting Officer’s written approval. any overhead allowance, unless the overhead (c) The Contractor shall not change any is incident to the construction or installa- place of performance after contract award tion of necessary security devices or equip- without advance approval by the Con- ment. tracting Officer. (c) Upon payment by the Government of the cost of any device or equipment required (End of clause) or approved under paragraph (b) of this clause, title shall vest in the Government. 252.217–7019 Sanitary conditions. (1) The Contractor shall comply with the instructions of the Contracting Officer con- As prescribed in 217.7203(a)(3), use the cerning its identification and disposition. following clause:
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SANITARY CONDITIONS (DEC 1991) 252.217–7020 Examination and testing. (a) The Contractor shall ensure that all As prescribed in 217.7203(b)(1), use the supplies delivered under this contract, and following clause: all plant facilities, machinery, equipment, and apparatus used in the production, proc- EXAMINATION AND TESTING (DEC 1991) essing, handling, storage, or delivery of these (a) The Government reserves the right to supplies, meet the sanitary standards (in- examine and test all products to be delivered cluding bacteriological requirements) pre- under the contract. Examination and testing scribed by the specifications cited in this of dairy products shall be in accordance with contract. the Veterinary/Medical Wholesomeness As- (b) The Government reserves the right to surance Program for Fresh and Cultured inspect and test at any reasonable times all Dairy Products and Frozen Desserts (AR 40– plant facilities, machinery, equipment, and 70; NAVSUPINST 4355.6; AFR 161–46; and parts used in the production, processing, MCO 10110.44). handling, storage, transportation, or deliv- (b) Samples. (1) The Government shall se- ery of supplies under this contract. lect the samples. For purposes of this clause, (c) The Contracting Officer or representa- the Contractor agrees that a lot consists of a tive shall notify the Contractor in writing of day’s production of the type of product deliv- any failure to meet the sanitary standards ered, or intended to be delivered, under this (including bacteriological requirements) pre- contract. scribed by this contract. If the Contractor (2) Samples selected at origin shall be fur- does not correct the failure within three nished at the Contractor’s expense, and shall be considered representative of all the prod- days from receipt of notice, the Contracting ucts delivered to the Government from the Officer may— lot sampled. (1) Terminate for default all or part of this (3) Samples selected at destination shall be contract; or furnished at Government expense, and shall (2) Suspend work (wholly or partially) be considered representative of all of that under the contract for ten days or any longer type product delivered to the Government on period considered necessary to allow correc- the date sampled. tion of the failure. (4) When samples are selected from con- (d) The suspension does not extend the life tainers of 1/2 gallon size or smaller, the en- of this contract and shall not be considered tire contents of the container shall con- sufficient reason for extending the delivery stitute the sample. When samples are se- time. lected from containers larger than 1/2 gallon, (e) During the suspension period, the Gov- a 1/2 pint sample shall be taken for labora- ernment reserves the right to acquire similar tory analysis. supplies from other sources, on whatever (c) Deficiencies in amounts. The Contractor terms and in whatever manner the Con- shall reimburse the Government for defi- tracting Officer considers appropriate. The ciencies (i.e., amounts less than required in this contract) in the amount of butterfat, Contractor shall be liable to the Government milk solids non-fat, or total solids of any for any excess costs for those similar sup- type of product as determined by chemical plies. analysis. The amount of the reimbursement (f) If the Contractor does not correct the shall be determined in accordance with the failure within the suspension period, the Deficiency Adjustment clause of this con- Contracting Officer may terminate for de- tract. The Government shall not reimburse fault the unexpired portion of this contract the Contractor for butterfat, milk solids without allowing additional time for correc- non-fat, and total solids content in excess of tion, notwithstanding paragraph (a)(2) of the the amount required by this contract. Default (Fixed-Price Supply and Service) (d) Deficiencies in products. (1) The Con- clause of this contract. tracting Officer or representative shall no- tify the Contractor orally (with written con- (End of clause) firmation) or in writing when two of the last four consecutive lots tested are noncon- Alternate I (DEC 1991). As prescribed in forming for the same specification require- 217.7203(a)(3), add the following to paragraph ments. The notice shall be in effect as long (d) of the basic clause: as two of the last four consecutive lots test- In a suspension, the quantity of supplies des- ed exceed the same limit of the specification. ignated in the schedule as a minimum shall The Government will take additional sam- be reduced by an amount proportionate to ples between 3 and 14 days after the date of the ratio between (1) the number of days the the notice. work is suspended; and (2) the number of (2) The Contracting Officer may suspend days in the contract period. The quantity of work under this contract for up to ten days supplies designated as maximum shall not be when three out of the last five consecutive reduced. lots tested are nonconforming for the same
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specification requirement, or when any defi- is computed, as reported in the Dairy Market ciency causes the production of a product News, published by the Department of Agri- which is considered to be a health hazard. culture, Agricultural Marketing Service, (e) Suspension. (1) During the suspension Madison, Wisconsin. period, the Government reserves the right to (2) Milk solids nonfat. Subtract the total acquire similar supplies from other sources, pounds of milk solids non-fat delivered from on whatever terms and in whatever manner the total pounds of milk solids non-fat re- the Contracting Officer considers appro- quired to be delivered, and multiply the re- priate. The Contractor shall be liable to the mainder by the milk solids non-fat value. Government for any excess costs for those The milk solids non-fat value is 1.45 multi- similar supplies. plied by the average Central States top price (2) The Contractor shall use the suspension for ‘‘Extra Grade, Non-fat Dry Milk, Spray period to correct the deficiencies. The Con- (bags)’’ during the monthly period for which tractor shall notify the Government when the deficiency is computed, as reported in corrective action is complete. the Dairy Market News. (3) The Contracting Officer shall lift the (3) Total solids. Add to the total solids de- suspension only after the Government has livered the total amount of any shortages for verified the corrective action and notified butterfat and milk solids non-fat that the the Contractor in writing. Contractor has already reimbursed. Subtract (4) The suspension does not extend the life this amount from the total solids required to of this contract and shall not be considered be delivered. Multiply the remainder by the sufficient reason for extending the delivery milk solids non-fat value. time. (b) The Government will not assess (5) If the Contractor does not correct the amounts totaling $25 or less during a month- failure within the suspension period, the ly accounting period. Monthly periods begin Contracting Officer may terminate for de- on the first day of the contract period and on fault the unexpired portion of this contract the same day of each succeeding month. without allowing additional time for correc- (c) The butterfat, milk solids non-fat, and tion, notwithstanding paragraph (a)(2) of the total solids content of one type of product Default (Fixed-Price Supply and Service) shall not be averaged with or offset against clause of this contract. the content of another type of product, and the content of products delivered in any one (End of clause) monthly period will not be averaged with or offset against the content of products deliv- Alternate I (DEC 1991). As prescribed in ered in any other monthly period. 217.7203(b)(1), add the following to paragraph (d) The Contractor shall identify the tare (d)(2) of the basic clause: weights of all containers on the shipping In a suspension, the quantity of supplies documents, and furnish a copy to the Gov- designated in the schedule as minimum shall ernment inspector at destination. The tare be reduced by an amount proportionate to weight of dispenser containers shall include the ratio between (i) the number of days the all parts of the container delivered as a unit, work is suspended; and (ii) the number of including lids, tubes, and seals. If different days in the contract period. The quantity of types of containers with different tares are supplies designated as maximum shall not be included in a single delivery, the Contractor reduced. shall furnish the tare weight and identifying 252.217–7021 Deficiency adjustment. characteristics of each type of container. (e) The Government shall inspect a rep- As prescribed in 217.7203(b)(2), use the resentative sample of the line item. If vol- following clause: ume and net weight shortages are found, the Government will adjust the entire quantity DEFICIENCY ADJUSTMENT (DEC 1991) of the line item delivered on the day the (a) When the Contractor is required under shortage is discovered. For the purpose of de- the Examination and Testing clause of the termining net weight, the following weight contract to reimburse the Government for factors apply: deficiencies in the amount of butterfat, milk solids non-fat, or total solids, reimbursement Product Weight factor shall be determined by the following for- Chocolate flavored milk or 8.8 pounds/gallon. mula— drink. (1) Butterfat. Subtract the total pounds of Milk whole fresh, buttermilk 8.6 pounds/gallon. butterfat delivered from the total pounds of fluid, milk whole fresh. cul- butterfat required to be delivered, and mul- tured, and milk skim fresh. tiply the remainder by the butterfat value. Fresh cream (18 percent but- 8.5 pounds/gallon. terfat or less), half-and-half The butterfat value is 1.30 multiplied by the fresh, and cream sour cul- average Central States top ‘‘Wholesale Sell- tured. ing Price’’ of Grade A, 92 score butter during Fresh cream (more than 18 8.4 pounds/gallon. the monthly period for which the deficiency percent butterfat).
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Product Weight factor (b) The Government shall not be liable for any damage to, or loss or destruction of, con- Cottage cheese, butter, and Weight on container. tainers and equipment furnished by the Con- other non-frozen products. tractor. Ice cream and frozen des- Applicable commodity speci- serts. fication. (End of clause) (f) Contractor reimbursement for deficient supplies does not prejudice the Government’s 252.217–7025 Containers and equip- right to terminate for default or to pursue ment. any other remedy under this contract or as As prescribed in 217.7203(b)(3), use the provided by law. following clause:
(End of clause) CONTAINERS AND EQUIPMENT (DEC 1991) (a) The Contractor shall ensure that dis- 252.217–7022 Code dating. penser containers and filling equipment used As prescribed in 217.7203(a)(4), use the in the performance of this contract, and any following clause: Contractor-furnished refrigerated bulk milk dispenser cabinets, comply with MIL–STD– CODE DATING (DEC 1991) 175, Minimum Sanitary Standards for the (a) The Contractor may use a code to com- Equipment and Methods for Handling of Milk ply with the requirement stated in the and Milk Products in Bulk Milk Dispensing schedule or specifications of this contract Operations. for showing a date on the labels of delivered (b) The Contractor shall install, service, items. and maintain any Contractor-furnished bulk (b) Before using a code, the Contractor milk dispenser cabinets to the Contracting shall— Officer’s satisfaction. The Contractor has (1) Provide a written explanation to the sole responsibility for the supply, installa- Contracting Officer; and tion, maintenance, and removal of the cabi- (2) Obtain the Contracting Officer’s ap- nets, including labor and material costs, and proval in writing. for any damage to, or loss or destruction of, (c) The Contractor shall also obtain the such cabinets. Contracting Officer’s written approval before (c) When the Contractor fails to furnish making any changes in the code symbols, milk dispenser cabinets or milk dispenser system, or explanation. containers as required in the schedule, or does not properly service, maintain, and re- (End of clause) pair such dispenser cabinets, so that milk cannot be dispensed as needed by the Gov- 252.217–7023 Marking. ernment, the Contractor shall, for as long as such conditions exist, deliver a sufficient As prescribed in 217.7203(a)(5), use the quantity of milk in half-pint containers to following clause: satisfy orders for milk dispenser containers. The price per gallon for milk dispenser con- MARKING (DEC 1991) tainers shall apply. Commercial markings are acceptable, not- (d) When any loss of contents of a dis- withstanding any specification references to penser container occurs (including loss due MIL–STD–129. to contamination, spoilage, or leakage) as a result of functional failure of the dispenser (End of clause) cabinet or dispenser containers, the Con- tractor shall immediately replace the lost 252.217–7024 Responsibility for con- contents without cost to the Government, tainers and equipment. unless such functional failure was due to a As prescribed in 217.7203(a)(6), use the general power failure at the Government in- stallation. following clause:
RESPONSIBILITY FOR CONTAINERS AND (End of clause) EQUIPMENT (DEC 1991) 252.217–7026 Identification of sources (a) The Contractor shall— of supply. (1) Maintain all reusable containers and equipment in a sanitary condition and in a As prescribed in 217.7303, use the fol- good state of repair and working order; and lowing provision: (2) Remove all empty, reusable containers IDENTIFICATION OF SOURCES OF SUPPLY (NOV from Government premises at the time of 1995) each delivery, unless the Contracting Officer grants permission in writing for less fre- (a) The Government is required under 10 quent removal. U.S.C. 2384 to obtain certain information on
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the actual manufacturer or sources of sup- (b) The apparently successful Offeror plies it acquires. agrees to complete and submit the following table before award:
TABLE
Source of supply Line items National stock Commercial Actual mfg? No. item (Y or N) Company Address Part No.
(1) (2) (3) (4) (4) (5) (6)
lll ...... lll ...... lll ...... lll ...... lll ...... lll ...... lll (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.
(End of provision) contracting activity, determine a reasonable price or fee in accordance with subpart 15.4 [56 FR 36479, July 31, 1991, as amended at 59 and part 31 of the FAR, subject to Contractor FR 27675, May 27, 1994; 60 FR 61601, Nov. 30, appeal as provided in the Disputes clause. In 1995] any event, the Contractor shall proceed with completion of the contract, subject only to 252.217–7027 Contract definitization. the Limitation of Government Liability clause. As prescribed in 217.7406(b), use the fol- (1) After the Contracting Officer’s deter- lowing clause: mination of price or fee, the contract shall be governed by— CONTRACT DEFINITIZATION (OCT 1998) (i) All clauses required by the FAR on the (a) A lll(insert specific type of contract date of execution of this underfinitized con- action) is contemplated. The Contractor tract action for either fixed-price or cost-re- agrees to begin promptly negotiating with imbursement contracts, as determined by the Contracting Officer the terms of a defini- the Contracting Officer under this paragraph tive contract that will include (1) all clauses (c); required by the Federal Acquisition Regula- (ii) All clauses required by law as of the date of the Contracting Officer’s determina- tion (FAR) on the date of execution of the tion; and underfinitized contract action, (2) all clauses (iii) Any other clauses, terms, and condi- required by law on the date of execution of tions mutually agreed upon. the definitive contract action, and (3) any (2) To the extent consistent with para- other mutually agreeable clauses, terms, and graph (c)(1) of this clause, all clauses, terms, conditions. The Contractor agrees to submit and conditions included in this undefinitized a lll(insert type of proposal; e.g., fixed-price contract action shall continue in effect, ex- or cost-and-fee) proposal and cost or pricing cept those that by their nature apply only to data supporting its proposal. an undefinitized contract action. (b) The schedule for definitizing this con- (d) The definitive contract resulting from tract is as follows (insert target date for this undefinitized contract action will in- definitization of the contract action and dates clude a negotiated llllllllll (insert for submission of proposal, beginning of nego- ‘‘cost/price ceiling’’ or ‘‘firm-fixed price’’) in no tiations, and, if appropriate, submission of the event to exceed llllllllll (insert the make-or-buy and subcontracting plans and cost not-to-exceed amount). or pricing data). llllllllllllllllllllllll (End of clause) llllllllllllllllllllllll llllllllllllllllllllllll [61 FR 7750, Feb. 29, 1996; 61 FR 18195, Apr. 24, llllllllllllllllllllllll 1996, as amended at 63 FR 55052, Oct. 14, 1998] (c) If agreement on a definitive contract 252.217–7028 Over and above work. action to supersede this undefinitized con- tract action is not reached by the target As prescribed in 217.7702, use a clause date in paragraph (b) of this clause, or with- substantially as follows: in any extension of it granted by the Con- OVER AND ABOVE WORK (DEC 1991) tracting Officer, the Contracting Officer may, with the approval of the head of the (a) Definitions.
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As used in this clause— (End of clause) (1) Over and above work means work discov- ered during the course of performing over- 252.219–7000—252.219–7002 [Reserved] haul, maintenance, and repair efforts that is— 252.219–7003 Small, small disadvan- (i) Within the general scope of the con- taged and women-owned small busi- tract; ness subcontracting plan (DoD con- (ii) Not covered by the line item(s) for the tracts). basic work under the contract; and As prescribed in 219.708(b)(1)(A), use (iii) Necessary in order to satisfactorily the following clause: complete the contract. (2) Work request means a document pre- SMALL, SMALL DISADVANTAGED AND WOMEN- pared by the Contractor which describes over OWNED SMALL BUSINESS SUBCONTRACTING and above work being proposed. PLAN (DOD CONTRACTS) (APR 1996) (b) The Contractor and Administrative This clause supplements the Federal Ac- Contracting Officer shall mutually agree to quisition Regulation 52.219–9, Small, Small procedures for Government administration Disadvantaged and Women-Owned Small and Contractor performance of over and Business Subcontracting Plan, clause of this above work requests. If the parties cannot contract. agree upon the procedures, the Administra- (a) Definitions. Historically black colleges and tive Contracting Officer has the unilateral universities, as used in this clause, means in- right to direct the over and above work pro- stitutions determined by the Secretary of cedures to be followed. These procedures Education to meet the requirements of 34 shall, as a minimum, cover— CFR 608.2. The term also means any non- (1) The format, content, and submission of profit research institution that was an inte- work requests by the Contractor. Work re- gral part of such a college or university be- fore November 14, 1986. quests shall contain data on the type of dis- Minority institutions, as used in this clause, crepancy disclosed, the specific location of means institutions meeting the require- the discrepancy, and the estimated labor ments of section 1046(3) of the Higher Edu- hours and material required to correct the cation Act of 1965 (20 U.S.C. 1135d–5(3)). The discrepancy. Data shall be sufficient to sat- term also includes Hispanic-serving institu- isfy contract requirements and obtain the tions as defined in section 316(b)(1) of such authorization of the Contracting Officer to Act (20 U.S.C. 1059c (b)(1)). perform the proposed work; (b) Except for company or division-wide (2) Government review, verification, and commercial items subcontracting plans, the authorization of the work; and term small disadvantaged business, when used (3) Proposal pricing, submission, negotia- in the FAR 52.219–9 clause, includes histori- tion, and definitization. cally black colleges and universities and mi- (c) Upon discovery of the need for over and nority institutions, in addition to small dis- above work, the Contractor shall prepare and advantaged business concerns. furnish to the Government a work request in (c) Work under the contract or its sub- accordance with the agreed-to procedures. contracts shall be credited toward meeting (d) The Government shall— the small disadvantaged business concern goal required by paragraph (d) of the FAR (1) Promptly review the work request; 52.219–9 clause when: (2) Verify that the proposed work is re- (1) It is performed on Indian lands or in quired and not covered under the basic con- joint venture with an Indian tribe or a trib- tract line item(s); ally-owned corporation, and (3) Verify that the proposed corrective ac- (2) It meets the requirements of 10 U.S.C. tion is appropriate; and 2323a. (4) Authorize over and above work as nec- (d) Subcontracts awarded to workshops ap- essary. proved by the Committee for Purchase from (e) The Contractor shall promptly submit People Who Are Blind or Severely Disabled to the Contracting Officer, a proposal for the (41 U.S.C. 46–48), may be counted toward the over and above work. The Government and Contractor’s small business subcontracting Contractor will then negotiate a settlement goal. for the over and above work. Contract modi- (e) A mentor firm, under the Pilot Mentor- fications will be executed to definitize all Protege Program established under Section over and above work. 831 of Pub. L. 101–510, as amended, may count (f) Failure to agree on the price of over and toward its small disadvantaged business goal, subcontracts awarded— above work shall be a dispute within the (1) Protege firms which are qualified orga- meaning of the Disputes clause of this con- nizations employing the severely handi- tract. capped; and
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(2) Former protege firms that meet the cri- (2) Item 14, Remarks, shall be completed to teria in Section 831(g)(4) of Pub. L. 101–510. include semi-annual cumulative— (f) The master plan approval referred to in (i) Small business, small disadvantaged paragraph (f) of the FAR 52.219–9 clause is business, and women-owned small business approval by the Contractor’s cognizant con- goals; and tract administration activity. (ii) Small business and small disadvan- (g) In those subcontracting plans which taged business goals, actual accomplish- specifically identify small, small disadvan- ments, and percentages for each of the two taged, and women-owned small businesses, designated industry categories. the Contractor shall notify the Administra- (d) The failure of the Contractor or subcon- tive Contracting Officer of any substitutions tractor to comply in good faith with (1) the of firms that are not small, small disadvan- clause of this contract entitled ‘‘Utilization taged, or women-owned small businesses for of Small, Small Disadvantaged and Women- the firms listed in the subcontracting plan. Owned Small Business Concerns,’’ or (2) an Notifications shall be in writing and shall approved plan required by this clause, shall occur within a reasonable period of time be a material breach of the contract. after award of the subcontract. Contractor- specified formats shall be acceptable. (End of clause)
(End of clause) [56 FR 36479, July 31, 1991, as amended at 60 FR 35668, July 10, 1995; 61 FR 39901, July 31, [56 FR 36479, July 31, 1991, as amended at 59 1996; 62 FR 34129, June 24, 1997] FR 22131, Apr. 29, 1994; 59 FR 27675, May 27, 1994; 60 FR 61601, Nov. 30, 1995; 61 FR 18688, 252.219–7005—252.219–7008 [Reserved] Apr. 29, 1996] 252.219–7009 Section 8(a) direct 252.219–7004 Small, small disadvan- award. taged and women-owned small busi- As prescribed in 219.811–3(1), use the ness subcontracting plan (test pro- following clause: gram). SECTION 8(A) DIRECT AWARD (JUN 1998) As prescribed in 219.708(b)(1)(B), use the following clause: (a) This contract is issued as a direct award between the contracting office and the SMALL, SMALL DISADVANTAGED AND WOMEN- 8(a) Contractor pursuant to the Memo- OWNED SMALL BUSINESS SUBCONTRACTING randum of Understanding dated May 6, 1998, PLAN (TEST PROGRAM) (JUN 1997) between the Small Business Administration (SBA) and the Department of Defense. Ac- (a) Definition. Subcontract, as used in this cordingly, the SBA is not a party to this con- clause, means any agreement (other than tract. SBA does retain responsibility for 8(a) one involving an employer-employee rela- certification, for 8(a) eligibility determina- tionship) entered into by a Federal Govern- tions and related issues, and for providing ment prime Contractor or subcontractor counseling and assistance to the 8(a) Con- calling for supplies or services required for tractor under the 8(a) Program. The cog- performance of the contract or subcontract. nizant SBA district office is: (b) The Offeror’s comprehensive small busi- ness subcontracting plan and its successors, llllllllllllllllllllllll which are authorized by and approved under llllllllllllllllllllllll the test program of Section 834 of Pub. L. llllllllllllllllllllllll 101–189, as amended, shall be included in and llllllllllllllllllllllll made a part of the resultant contract. Upon expulsion from the test program or expira- [To be completed by the Contracting Officer at tion of the test program, the Contractor the time of award] shall negotiate an individual subcontracting (b) The contracting office is responsible for plan for all future contracts that meet the administering the contract and for taking requirements of Section 211 of Pub. L. 95–507. any action on behalf of the Government (c) The Contractor shall submit Standard under the terms and conditions of the con- Form (SF) 295, Summary Subcontract Re- tract; provided that the contracting office port, in accordance with the instructions on shall give advance notice to the SBA before the form, except— it issues a final notice terminating perform- (1) One copy of the SF 295 and attachments ance, either in whole or in part, under the shall be submitted to Director, Small and contract. The contracting office also shall Disadvantaged Business Utilization, Office of coordinate with the SBA prior to processing the Deputy Under Secretary of Defense any novation agreement. The contracting of- (International and Commercial Programs), fice may assign contract administration 3061 Defense Pentagon, Room 2A338, Wash- functions to a contract administration of- ington, DC 20301–3061; and fice.
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(c) The Contractor agrees that— 252.222–7000 Restrictions on employ- (1) It will notify the Contracting Officer, ment of personnel. simultaneous with its notification to the SBA (as required by SBA’s 8(a) regulations As prescribed in 222.7004, use the fol- at 13 CFR 124.308), when the owner or owners lowing clause: upon whom 8(a) eligibility is based plan to RESTRICTIONS ON EMPLOYMENT OF PERSONNEL relinquish ownership or control of the con- (MAR 2000) cern. Consistent with Section 407 of Pub. L. 100–656, transfer of ownership or control shall (a) The Contractor shall employ, for the result in termination of the contract for con- purpose of performing that portion of the venience, unless the SBA waives the require- contract work in llll, individuals who ment for termination prior to the actual re- are residents thereof and who, in the case of linquishing of ownership and control; and any craft or trade, possess or would be able (2) It will not subcontract the performance to acquire promptly the necessary skills to perform the contract. of any of the requirements of this contract (b) The Contractor shall insert the sub- without the prior written approval of the stance of this clause, including this para- SBA and the Contracting Officer. graph (b), in each subcontract awarded under this contract. (End of clause) (End of clause) [63 FR 33588, June 19, 1998] [65 FR 14403, Mar. 16, 2000] 252.219–7010 Alternate A. 252.222–7001 Right of first refusal of ALTERNATE A (JUN 1998) employment—Closure of military installations. As prescribed in 219.811–3(2), sub- stitute the following paragraph (c) for As prescribed in 222.7102, use the fol- paragraph (c) of the clause at FAR lowing clause:
52.219–18: RIGHT OF FIRST REFUSAL OF EMPLOYMENT— (c) Any award resulting from this solicita- CLOSURE OF MILITARY INSTALLATIONS (APR tion will be made directly by the Con- 1992) tracting Officer to the successful 8(a) offeror (a) The Contractor shall give Government selected through the evaluation criteria set employees, who have been or will be ad- forth in this solicitation. versely affected by the closure of the mili- [63 FR 33588, June 19, 1998] tary installation where this contract will be performed, the right of first refusal for em- 252.219–7011 Notification to delay per- ployment openings under the contract. This formance. right applies to positions for which the em- ployee is qualified, if consistent with post- As prescribed in 219.811-3 (3), use the Government employment conflict of interest following clause: standards. (b) Government personnel seeking pref- NOTIFICATION TO DELAY PERFORMANCE (JUN erence under this clause shall provide the 1998) Contractor with evidence from the Govern- ment personnel office. The Contractor shall not begin perform- ance under this purchase order until 2 work- (End of clause) ing days have passed from the date of its re- ceipt. Unless the Contractor receives notifi- cation from the Small Business Administra- [57 FR 52594, Nov. 4, 1992, as amended at 58 tion thatit is ineligible for this 8(a) award, or FR 28472, May 13, 1993] otherwise receives instructions from the Contracting Officer, performance under this 252.222–7002 Compliance with local purchase order may begin on the third work- labor laws (overseas). ing day following receipt of the purchase As prescribed in 222.7201(a), use the order. If a determination of ineligibility is following clause: issued within the 2-day period, the purchase order shall be considered canceled. COMPLIANCE WITH LOCAL LABOR LAWS (OVERSEAS) (JUNE 1997) (End of clause) (a) The Contractor shall comply with all— (1) Local laws, regulations, and labor union [63 FR 33588, June 19, 1998] agreements governing work hours; and
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(2) Labor regulations including collective COMPLIANCE WITH SPANISH SOCIAL SECURITY bargaining agreements, workers’ compensa- LAWS AND REGULATIONS (JUN 1997) tion, working conditions, fringe benefits, and (a) The Contractor shall comply with all labor standards or labor contract matters. Spanish Government social security laws (b) The Contractor indemnifies and holds and regulations. Within 30 calendar days harmless the United States Government after the start of contract performance, the from all claims arising out of the require- Contractor shall ensure that copies of the ments of this clause. This indemnity in- documents identified in paragraph (a)(1) cludes the Contractor’s obligation to handle through (a)(5) of this clause are available at and settle, without cost to the United States all reasonable times for inspection by the Government, any claims or litigation con- Contracting Officer or an authorized rep- cerning allegations that the Contractor or resentative. The Contractor shall retain the the United States Government, or both, have records in accordance with the Audit and not fully complied with local labor laws or Records clause of this contract. regulations relating to the performance of (1) TC1—Certificate of Social Security work required by this contract. Payments; (c) Notwithstanding paragraph (b) of this (2) TC2—List of Employees; clause, consistent with paragraphs 31.205– (3) TC2/1—Certificate of Social Security 15(a) and 31.205–47(d) of the Federal Acquisi- Payments for Trainees; tion Regulation, the Contractor will be reim- (4) Nominal (pay statements) signed by bursed for the costs of all fines, penalties, both the employee and the Contractor; and and reasonable litigation expenses incurred (5) Informa de Situacion de Empressa (Re- as a result of compliance with specific con- port of the Condition of the Enterprise) from tract terms and conditions or written in- the Ministerio de Trabajo y S.S., Tesoreria structions from the Contracting officer. General de la Seguridad Social (annotated with the pertinent contract number(s) next (End of clause) to the employee’s name). (b) All TC1’s, TC2’s, and TC2/1’s shall con- [62 FR 34129, June 24, 1997] tain a representation that they have been paid by either the Social Security Adminis- 252.222–7003 Permit from Italian tration office or the Contractor’s bank or Inspectorate of Labor. savings institution. Failure by the Con- tractor to comply with the requirements of As prescribed in 222.7201(b), use the this clause may result in termination of the following clause: contract under the clause of the contract en- titled ‘‘Default.’’ PERMIT FROM ITALIAN INSPECTORATE OF LABOR (JUN 1997) (End of clause) Prior to the date set for commencement of work and services under this contract, the [62 FR 34129, June 24, 1997] Contractor shall obtain the prescribed per- mit from the Inspectorate of Labor having 252.222–7005 Prohibition on use of jurisdiction over the work site, in accord- nonimmigrant aliens—Guam. ance with Article 5g of Italian Law Number As prescribed in 222.7303, use the fol- 1369, dated October 23, 1960. The Contractor lowing clause: shall ensure that a copy of the permit is available at all reasonable times for inspec- PROHIBITION ON USE OF NONIMMIGRANT tion by the Contracting Officer or an author- ALIENS—GUAM (SEP 1999) ized representative. Failure to obtain such permit may result in termination of the con- The work required by this contract shall tract for the convenience of the United not be performed by any alien who is issued States Government, at no cost to the United a visa or otherwise provided nonimmigrant States Government. status under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. (End of clause) 1101(a)(15)(H)(ii)). This prohibition does not apply to the performance of work by lawfully admitted citizens of the freely associated [62 FR 34129, June 24, 1997] states of the Republic of the Marshall Is- lands, the Federated States of Micronesia, or 252.222–7004 Compliance with Spanish the Republic of Palau. social security laws and regula- tions. (End of clause) As prescribed in 222.7201(c), use the following clause: [64 FR 52673, Sept. 30, 1999]
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252.223–7000 [Reserved] SAFETY PRECAUTIONS FOR AMMUNITION AND EXPLOSIVES (MAY 1994) 252.223–7001 Hazard warning labels. (a) Definition. Ammunition and explosives, as As prescribed in 223.303, use the fol- used in this clause— lowing clause: (1) Means liquid and solid propellants and explosives, pyrotechnics, incendiaries and HAZARD WARNING LABELS (DEC 1991) smokes in the following forms: (i) Bulk, (a) ‘‘Hazardous material,’’ as used in this (ii) Ammunition; clause, is defined in the Hazardous Material (iii) Rockets; Identification and Material Safety Data (iv) Missiles; clause of this contract. (v) Warheads; (b) The Contractor shall label the item (vi) Devices; and package (unit container) of any hazardous (vii) Components of (i) through (vi), except material to be delivered under this contract for wholly inert items. in accordance with the Hazard Communica- (2) This definition does not include the fol- tion Standard (29 CFR 1910.1200 et seq). The lowing, unless the Contractor is using or in- Standard requires that the hazard warning corporating these materials for initiation, label conform to the requirements of the propulsion, or detonation as an integral or standard unless the material is otherwise component part of an explosive, an ammuni- subject to the labelling requirements of one tion or explosive end item, or of a weapon of the following statutes: system— (1) Federal Insecticide, Fungicide and (i) Inert components containing no explo- Rodenticide Act; sives, propellants, or pyrotechnics; (2) Federal Food, Drug and Cosmetics Act; (ii) Flammable liquids; (3) Consumer Product Safety Act; (iii) Acids; (4) Federal Hazardous Substances Act; or (iv) Oxidizers; (5) Federal Alcohol Administration Act. (v) Powdered metals; or (c) The Offeror shall list which hazardous (vi) Other materials having fire or explo- material listed in the Hazardous Material sive characteristics. Identification and Material Safety Data (b) Safety requirements. (1) The Contractor clause of this contract will be labelled in ac- shall comply with the requirements of the cordance with one of the Acts in paragraphs DoD Contractors’ Safety Manual for Ammu- (b) (1) through (5) of this clause instead of nition and Explosives, DoD 4145.26–M, here- the Hazard Communication Standard. Any after referred to as ‘‘the manual,’’ in effect hazardous material not listed will be inter- on the date of the solicitation for this con- preted to mean that a label is required in ac- tract. The Contractor shall also comply with cordance with the Hazard Communication any other additional requirements included Standard. in the schedule of this contract. (2) The Contractor shall allow the Govern- Material (if none, insert ‘‘none.’’) Act ment access to the Contractor’s facilities, llll llll personnel, and safety program documenta- llll llll tion. The Contractor shall allow authorized Government representatives to evaluate (d) The apparently successful Offeror safety programs, implementation, and facili- agrees to submit, before award, a copy of the ties. hazard warning label for all hazardous mate- (c) Noncompliance with the manual. (1) If the rials not listed in paragraph (c) of this Contracting Officer notifies the Contractor clause. The Offeror shall submit the label of any noncompliance with the manual or with the Material Safety Data Sheet being schedule provisions, the Contractor shall furnished under the Hazardous Material take immediate steps to correct the non- Identification and Material Safety Data compliance. The Contractor is not entitled clause of this contract. to reimbursement of costs incurred to cor- (e) The Contractor shall also comply with rect noncompliances unless such reimburse- MIL–STD–129, Marking for Shipment and ment is specified elsewhere in the contract. Storage (including revisions adopted during (2) The Contractor has 30 days from the the term of this contract). date of notification by the Contracting Offi- cer to correct the noncompliance and inform (End of clause) the Contracting Officer of the actions taken. The Contracting Officer may direct a dif- 252.223–7002 Safety precautions for ferent time period for the correction of non- ammunition and explosives. compliances. (3) If the Contractor refuses or fails to cor- As prescribed in 223.370–5, use the fol- rect noncompliances within the time period lowing clause: specified by the Contracting Officer, the
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Government has the right to direct the Con- (i) The clause shall include a provision al- tractor to cease performance on all or part of lowing authorized Government safety rep- this contract. The Contractor shall not re- resentatives to evaluate subcontractor safe- sume performance until the Contracting Of- ty programs, implementation, and facilities ficer is satisfied that the corrective action as the Government determines necessary. was effective and the Contracting Officer so (ii) NOTE: The Government Contracting Of- informs the Contractor. ficer or authorized representative shall no- (4) The Contracting Officer may remove tify the prime Contractor of all findings con- Government personnel at any time the Con- tractor is in noncompliance with any safety cerning subcontractor safety and compliance requirement of this clause. with the manual. The Contracting Officer or (5) If the direction to cease work or the re- authorized representative may furnish copies moval of Government personnel results in in- to the subcontractor. The Contractor in turn creased costs to the Contractor, the Con- shall communicate directly with the subcon- tractor shall not be entitled to an adjust- tractor, substituting its name for references ment in the contract price or a change in the to ‘‘the Government’’. The Contractor and delivery or performance schedule unless the higher tier subcontractors shall also include Contracting Officer later determines that provisions to allow direction to cease per- the Contractor had in fact complied with the formance of the subcontract if a serious un- manual or schedule provisions. If the Con- corrected or recurring safety deficiency po- tractor is entitled to an equitable adjust- tentially causes an imminent hazard to DoD ment, it shall be made in accordance with personnel, property, or contract perform- the Changes clause of this contract. ance. (d) Mishaps. If a mishap involving ammuni- (2) The Contractor agrees to ensure that tion or explosives occurs, the Contractor shall— the subcontractor complies with all contract (1) Notify the Contracting Officer imme- safety requirements. The Contractor will de- diately; termine the best method for verifying the (2) Conduct an investigation in accordance adequacy of the subcontractor’s compliance. with other provisions of this contract or as (3) The Contractor shall ensure that the required by the Contracting Officer; and subcontractor understands and agrees to the (3) Submit a written report to the Con- Government’s right to access to the sub- tracting Officer. contractor’s facilities, personnel, and safety (e) Contractor responsibility for safety. (1) program documentation to perform safety Nothing in this clause, nor any Government surveys. The Government performs these action or failure to act in surveillance of this safety surveys of subcontractor facilities contract, shall relieve the Contractor of its solely to prevent the occurrence of any mis- responsibility for the safety of— hap which would endanger the safety of DoD (i) The Contractor’s personnel and prop- personnel or otherwise adversely impact erty; (ii) The Government’s personnel and prop- upon the Government’s contractual inter- erty; or ests. (iii) The general public. (4) The Contractor shall notify the Con- (2) Nothing in this clause shall relieve the tracting Officer or authorized representative Contractor of its responsibility for com- before issuing any subcontract when it in- plying with applicable Federal, State, and volves ammunition or explosives. If the pro- local laws, ordinances, codes, and regula- posed subcontract represents a change in the tions (including those requiring the obtain- place of performance, the Contractor shall ing of licenses and permits) in connection request approval for such change in accord- with the performance of this contract. ance with the clause of this contract entitled (f) Contractor responsibility for contract per- ‘‘Change in Place of Performance—Ammuni- formance. (1) Neither the number or fre- tion and Explosives’’. quency of inspections performed by the Gov- ernment, nor the degree of surveillance exer- (End of clause) cised by the Government, relieve the Con- tractor of its responsibility for contract per- formance. [56 FR 36479, July 31, 1991, as amended at 59 (2) If the Government acts or fails to act in FR 27675, May 27, 1994] surveillance or enforcement of the safety re- quirements of this contract, this does not 252.223–7003 Change in place of per- impose or add to any liability of the Govern- formance—ammunition and explo- ment. sives. (g) Subcontractors. (1) The Contractor shall insert this clause, including this paragraph As prescribed in 223.370–5, use the fol- (g), in every subcontract that involves am- lowing clause: munition or explosives.
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CHANGE IN PLACE OF PERFORMANCE— (2) Supervisory training to assist in identi- AMMUNITION AND EXPLOSIVES (DEC 1991) fying and addressing illegal drug use by Con- tractor employees; (a) The Offeror shall identify, in the ‘‘Place of Performance’’ provision of this solicita- (3) Provision for self-referrals as well as su- tion, the place of performance of all ammu- pervisory referrals to treatment with max- nition and explosives work covered by the imum respect for individual confidentiality Safety Precautions for Ammunition and Ex- consistent with safety and security issues; plosives clause of this solicitation. Failure (4) Provision for identifying illegal drug to furnish this information with the offer users, including testing on a controlled and may result in rejection of the offer. carefully monitored basis. Employee drug (b) The Offeror agrees not to change the testing programs shall be established taking place of performance of any portion of the account of the following: offer covered by the Safety Precautions for (i) The Contractor shall establish a pro- Ammunition and Explosives clause con- gram that provides for testing for the use of tained in this solicitation after the date set illegal drugs by employees in sensitive posi- for receipt of offers without the written ap- tions. The extent of and criteria for such proval of the Contracting Officer. The Con- testing shall be determined by the Con- tracting Officer shall grant approval only if tractor based on considerations that include there is enough time for the Government to the nature of the work being performed perform the necessary safety reviews on the under the contract, the employee’s duties, new proposed place of performance. the efficient use of Contractor resources, and (c) If a contract results from this offer, the the risks to health, safety, or national secu- Contractor agrees not to change any place of rity that could result from the failure of an performance previously cited without the ad- employee adequately to discharge his or her vance written approval of the Contracting position. Officer. (ii) In addition, the Contractor may estab- lish a program for employee drug testing— (End of clause) (A) When there is a reasonable suspicion that an employee uses illegal drugs; or 252.223–7004 Drug-free work force. (B) When an employee has been involved in As prescribed in 223.570–4, use the fol- an accident or unsafe practice; lowing clause: (C) As part of or as a follow-up to coun- seling or rehabilitation for illegal drug use; DRUG-FREE WORK FORCE (SEP 1988) (D) As part of a voluntary employee drug (a) Definitions. (1) Employee in a sensitive po- testing program. sition, as used in this clause, means an em- (iii) The Contractor may establish a pro- ployee who has been granted access to classi- gram to test applicants for employment for fied information; or employees in other posi- illegal drug use. tions that the Contractor determines involve (iv) For the purpose of administering this national security, health or safety, or func- clause, testing for illegal drugs may be lim- tions other than the foregoing requiring a ited to those substances for which testing is high degree of trust and confidence. prescribed by section 2.1 of subpart B of the (2) Illegal drugs, as used in this clause, ‘‘Mandatory Guidelines for Federal Work- means controlled substances included in place Drug Testing Programs’’ (53 FR 11980 Schedules I and II, as defined by section (April 11 1988)), issued by the Department of 802(6) of title 21 of the United States Code, Health and Human Services. the possession of which is unlawful under (d) Contractors shall adopt appropriate chapter 13 of that title. The term ‘‘illegal personnel procedures to deal with employees drugs’’ does not mean the use of a controlled who are found to be using drugs illegally. substance pursuant to a valid prescription or Contractors shall not allow any employee to other uses authorized by law. remain on duty or perform in a sensitive po- (b) The Contractor agrees to institute and sition who is found to use illegal drugs until maintain a program for achieving the objec- such times as the Contractor, in accordance tive of a drug-free work force. While this with procedures established by the Con- clause defines criteria for such a program, tractor, determines that the employee may contractors are encouraged to implement al- perform in such a position. ternative approaches comparable to the cri- (e) The provisions of this clause pertaining teria in paragraph (c) that are designed to to drug testing program shall not apply to achieve the objectives of this clause. the extent they are inconsistent with state (c) Contractor programs shall include the or local law, or with an existing collective following, or appropriate alternatives: bargaining agreement; provided that with re- (1) Employee assistance programs empha- spect to the latter, the Contractor agrees sizing high level direction, education, coun- that those issues that are in conflict will be seling, rehabilitation, and coordination with a subject of negotiation at the next collec- available community resources; tive bargaining session.
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(End of clause) of non-DoD-owned toxic or hazardous mate- rials as defined in this clause. [57 FR 32737, July 23, 1992] [58 FR 28472, May 13, 1993, as amended at 60 FR 13076, Mar. 10, 1995; 60 FR 61601, Nov. 30, 252.223–7005 [Reserved] 1995]
252.223–7006 Prohibition on storage 252.223–7007 Safeguarding sensitive and disposal of toxic and hazardous conventional arms, ammunition, materials. and explosives. As prescribed in 223.7103(a), use the As prescribed in 223.7203, use the fol- following clause: lowing clause:
PROHIBITION ON STORAGE AND DISPOSAL OF SAFEGUARDING SENSITIVE CONVENTIONAL TOXIC AND HAZARDOUS MATERIALS (APR 1993) ARMS, AMMUNITION, AND EXPLOSIVES (SEP (a) Definitions. 1999) As used in this clause— (a) Definition. (1) Storage means a non-transitory, semi- ‘‘Arms, ammunition, and explosives permanent or permanent holding, placement, (AA&E),’’ as used in this clause, means those or leaving of material. It does not include a items within the scope (chapter 1, paragraph temporary accumulation of a limited quan- B) of DoD 5100.76–M, Physical Security of tity of a material used in or a waste gen- Sensitive Conventional Arms, Ammunition, erated or resulting from authorized activi- and Explosives. ties, such as servicing, maintenance, or re- (b) The requirements of DoD 5100.76–M pair of Department of Defense (DoD) items, apply to the following items of AA&E being equipment, or facilities. developed, produced, manufactured, or pur- (2) Toxic or hazardous materials means: chased for the Government, or provided to (i) Materials referred to in section 101(14) the Contractor as Government-furnished of the Comprehensive Environmental Re- property under this contract: sponse, Compensation, and Liability Act (CERCLA) of 1980 (42 U.S.C. 9601(14)) and ma- National Sensitivity terials designated under section 102 of Nomenclature stock category CERCLA (42 U.S.C. 9602) (40 CFR part 302); number (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 reg- (c) The Contractor shall comply with the ulations. requirements of DoD 5100.76–M, as specified (b) In accordance with 10 U.S.C. 2692, the in the statement of work. The edition of DoD Contractor is prohibited from storing or dis- 5100.76–M in effect on the date of issuance of posing of non-DoD-owned toxic or hazardous the solicitation for this contract shall apply. materials on a DoD installation, except to (d) The Contractor shall allow representa- the extent authorized by a statutory excep- tives of the Defense Security Service (DSS), tion to 10 U.S.C. 2692 or as authorized by the and representatives of other appropriate of- Secretary of Defense or his designee. fices of the Government, access at all reason- Alternate I (NOV 1995). As prescribed in able times into its facilities and those of its 223.7103(b), add the following paragraphs (c) subcontractors, for the purpose of per- and (d) to the basic clause: forming surveys, inspections, and investiga- (c) With respect to treatment or disposal tions necessary to review compliance with authorized pursuant to 10 U.S.C. 2692(b)(9), the physical security standards applicable to and notwithstanding any other provision of this contract. the contract, the Contractor assumes all fi- (e) The Contractor shall notify the cog- nancial and environmental responsibility nizant DSS field office of any subcontract in- and liability resulting from any treatment volving AA&E within 10 days after award of or disposal of non-DoD-owned toxic or haz- the subcontract. ardous materials on a military installation. (f) The Contractor shall ensure that the re- The Contractor shall indemnify, defend, and quirements of this clause are included in all hold the Government harmless for all costs, subcontracts, at every tier— liability, or penalties resulting from the (1) For the development, production, man- Contractor’s treatment or disposal of non- ufacture, or purchase of AA&E; or DoD-owned toxic or hazardous materials on (2) When AA&E will be provided to the sub- a military installation. contractor as Government-furnished prop- (d) The Contractor shall include this erty. clause, including this paragraph (d), in each (g) Nothing in this clause shall relieve the subcontract which requires, may require, or Contractor of its responsibility for com- permits a subcontractor to treat or dispose plying with applicable Federal, state, and
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local laws, ordinances, codes, and regula- 252.225–7001 Buy American Act and tions (including requirements for obtaining Balance of Payments Program. licenses and permits) in connection with the performance of this contract. As prescribed in 225.1101(2), use the following clause: (End of clause) BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (MAR 1998) [61 FR 7750, Feb. 29, 1996, as amended at 64 FR 51077, Sept. 21, 1999] (a) Definitions. As used in this clause— 252.225–7000 Buy American Act—Bal- (1) Components means those articles, mate- ance of Payments Program Certifi- rials, and supplies directly incorporated into cate. end products. (2) Domestic end product means— As prescribed in 225.1101(1), use the (i) An unmanufactured end product that following provision: has been mined or produced in the United States; or BUY AMERICAN ACT—BALANCE OF PAYMENTS (ii) An end product manufactured in the PROGRAM CERTIFICATE (SEP 1999) United States if the cost of its qualifying (a) Definitions. Domestic end product, quali- country components and its components fying country, qualifying country end product, that are mined, produced, or manufactured and qualifying country end product have the in the United States exceeds 50 percent of meanings given in the Buy American Act the cost of all its components. The cost of and Balance of Payments Program clause of components shall include transportation this solicitation. costs to the place of incorporation into the (b) Evaluation. Offers will be evaluated by end product and U.S. duty (whether or not a giving preference to domestic end products duty-free entry certificate may be issued). A and qualifying country end products over component shall be considered to have been nonqualifying country end products. mined, produced, or manufactured in the (c) Certifications. (1) The Offeror certifies United States (regardless of its source in that— fact) if the end product in which it is incor- (i) Each end product, except those listed in porated is manufactured in the United paragraphs (c) (2) or (3) of this provision, is States and the component is of a class or a domestic end product; and kind— (ii) Components of unknown origin are con- (A) Determined to be not mined, produced, sidered to have been mined, produced, or or manufactured in the United States in suf- manufactured outside the United States or a ficient and reasonably available commercial qualifying country. quantities and of a satisfactory quality; or (B) That the Secretary concerned deter- (2) The Offeror certifies that the following mines would be inconsistent with the public end products are qualifying country end interest to apply the restrictions of the Buy products: American Act. (3) End product means those articles, mate- QUALIFYING COUNTRY END PRODUCTS rials, and supplies to be acquired for public Line item No. Country of origin use under the contract. For this contract, the end products are the line items to be de- llll llll livered to the Government (including sup- plies to be acquired by the Government for (List only qualifying country end products.) public use in connection with service con- tracts, but excluding installation and other (3) The Offeror certifies that the following services to be performed after delivery). end products are nonqualifying country end (4) Nonqualifying country end product means products: an end product that is neither a domestic end product nor a qualifying country end NONQUALIFYING COUNTRY END PRODUCTS product. (5) Qualifying country means any country Line item No. Country of origin (If known) set forth in subsection 225.872–1 of the De- llll llll fense Federal Acquisition Regulation Sup- plement. (6) Qualifying country component means an (End of provision) item mined, produced, or manufactured in a qualifying country. [56 FR 36479, July 31, 1991, as amended at 64 (7) Qualifying country end product means— FR 51077, Sept. 21, 1999; 65 FR 19857, Apr. 13, (i) An unmanufactured end product mined 2000] or produced in a qualifying country; or
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(ii) An end product manufactured in a 252.225–7003 Information for duty-free qualifying country if the cost of the compo- entry evaluation. nents mined, produced, or manufactured in the qualifying country and its components As prescribed in 225.1101(4), use the mined, produced, or manufactured in the following provision: United States exceeds 50 percent of the cost of all its components. INFORMATION FOR DUTY-FREE ENTRY (b) This clause implements the Buy Amer- EVALUATION (MAR 1998) ican Act (41 U.S.C. Section 10a–d) in a man- (a) Does the offeror propose to furnish— ner that will encourage a favorable inter- (1) A domestic end product with nonquali- national balance of payments by providing a fying country components for which the of- preference to domestic end products over feror requests duty-free entry; or other end products, except for end products (2) A foreign end product consisting of end which are qualifying country end products. items, components, or material of foreign or- (c) The Contractor agrees that it will de- igin other than those for which duty-free liver only domestic end products unless, in entry is to be accorded pursuant to the Duty- its offer, it specified delivery of other end Free Entry—Qualifying Country Supplies products in the Buy American Act—Balance (End Products and Components) clause or, if of Payments Program Certificate provision applicable, the Duty-Free Entry—Eligible of the solicitation. An offer certifying that a End Products clause of this solicitation? qualifying country end product will be sup- Yes ( ) No ( ) plied requires the Contractor to deliver a (b) If the answer in paragraph (a) is yes, qualifying country end product or a domestic answer the following questions: end product. (1) Are such foreign supplies now in the (d) The offered price of qualifying country United States? end products should not include custom fees Yes ( ) No ( ) or duty. The offered price of nonqualifying (2) Has the duty on such foreign supplies country end products, and products manufac- been paid? tured in the United States that contain non- Yes ( ) No ( ) qualifying country components, must in- (3) If the answer to paragraph (b)(2) is no, clude all applicable duty. The award price what amount is included in the offer to cover will not include duty for end products or such duty? $llll components that are to be accorded duty- (c) If the duty has not been paid, the Gov- free entry. Generally, when the Buy Amer- ernment may elect to make award on a duty- ican Act is applicable, each nonqualifying free basis. If so, the offered price will be re- country offer is adjusted for the purpose of duced in the contract award by the amount evaluation by adding 50 percent of the offer, specified in paragraph (b)(3). The Offeror inclusive of duty. agrees to identify, at the request of the Con- (End of clause) tracting Officer, the foreign supplies which are subject to duty-free entry.
[63 FR 11541, Mar. 9 1998, as amended at 65 FR (End of provision) 19857, Apr. 13, 2000] Alternate I (MAR 1998). As prescribed in 252.225–7002 Qualifying country 225.1101(4), substitute the following para- sources as subcontractors. graph (a) for paragraph (a) of the basic As prescribed in 225.1101(3), use the clause: following clause: (a) Does the offeror propose to furnish a U.S. made end product with nonqualifying QUALIFYING COUNTRY SOURCES AS country components for which the offeror re- SUBCONTRACTORS (DEC 1991) quests duty-free entry? Yes ( ) No ( ) Subject to the restrictions in section 225.872 of the Defense FAR Supplement, the [63 FR 11542, Mar. 9, 1998, as amended at 65 Contractor shall not preclude qualifying FR 19857, Apr. 13, 2000] country sources and U.S. sources from com- peting for subcontracts under this contract. 252.225–7004 [Reserved]
(End of clause) 252.225–7005 Identification of expendi- tures in the United States. [56 FR 36479, July 31, 1991, as amended at 65 As prescribed in 225.1103(1), use the FR 19857, Apr. 13, 2000] following clause:
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IDENTIFICATION OF EXPENDITURES IN THE BUY AMERICAN ACT—TRADE AGREEMENTS— UNITED STATES (DEC 1991) BALANCE OF PAYMENTS PROGRAM CERTIFI- CATE (MAR 1998) (a) On each invoice, voucher, or other re- quest for payment under this contract, the (a) Definitions. Caribbean Basin country end Contractor shall identify that part of the re- product, designated country end product, do- quested payment which represents estimated mestic end product NAFTA country end prod- expenditures in the United States. The iden- uct, nondesignated country end product, quali- fying country end product, and U.S. made end tification— product have the meanings given in the Buy (1) May be expressed either as dollar American Act—Trade Agreements—Balance amounts or as percentages of the total of Payments Program clause of this solicita- amount of the request for payment. tion. (2) Should be based on reasonable esti- (b) Evaluation. Offers will be evaluated in mates. accordance with the policies and procedures (3) Shall consist of stating the full amount of Part 225 of the Defense Federal Acquisi- of the payment requested, subdivided into tion Regulation Supplement. Offers of for- the following categories: eign end products that are not U.S. made, (i) U.S. products—expenditures for mate- qualifying country, designated country, Car- rial and equipment manufactured or pro- ibbean Basin country, or NAFTA country duced in the United States, excluding trans- end products will not be considered for award, unless the Contracting Officer deter- portation; mines that there are no offers of such end (ii) U.S. services—expenditures for services products; or the offers of such end products performed in the United States, including are insufficient to fulfill the requirements; charges for overhead, other indirect costs, or a national interest exception to the Trade and profit; Agreements Act is granted. (iii) Transportation on U.S. carriers—ex- (c) Certifications. (1) The Offeror certifies penditures for transportation furnished by that— U.S. flag, ocean, surface, and air carriers; (i) Each end product, except the end prod- and ucts listed in paragraph (c)(2) of this provi- (iv) Expenditures not identified under sion, is a domestic end product; and paragraphs (a) (1), (2), and (3). (ii) Components of unknown origin are con- (b) If this contract is principally for sup- sidered to have been mined, produced, or plies or if the Contractor is not an incor- manufactured outside the United States or a qualifying country. porated concern incorporated in the United (2) The Offeror must identify all end prod- States, or an unincorporated concern having ucts that are not domestic end products. its principal place of business in the United (i) The Offeror certifies that the following States, the amounts identified under para- supplies qualify as ‘‘U.S. made end products’’ graphs (a)(3) (i), (ii), and (iii) will be limited but do not meet the definition of ‘‘domestic to payments made pursuant to the require- end product’’: ments either of the United States Products (insert line item number) and Services clause, if any, or of any other llllllllllllllllllllllll specific provision of this contract that obli- gates the Contractor to acquire certain ma- (ii) The Offeror certifies that the following terials, equipment, transportation, or serv- supplies are qualifying country end products: ices from U.S. sources. (insert line item number) (c) Nothing in this clause requires the es- llllllllllllllllllllllll tablishment or maintenance of detailed ac- (insert country of origin) counting records or gives the U.S. Govern- llllllllllllllllllllllll ment any right to audit the Contractor’s (iii) The Offeror certifies that the fol- books or records. lowing supplies qualify as designated coun- try end products: (End of clause) (insert line item number) llllllllllllllllllllllll [56 FR 36479, July 31, 1991, as amended at 65 (insert country of origin) FR 19857, Apr. 13, 2000] llllllllllllllllllllllll (iv) The Offeror certifies that the following 252.225–7006 Buy American Act—trade supplies qualify as Caribbean Basin country agreements—Balance of Payments end products: Program certificate. (insert line item number) As prescribed in 225.1101(5), use the llllllllllllllllllllllll following provision: (insert country of origin)
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llllllllllllllllllllllll from which it was so transformed. The term (v) The Offeror certifies that the following refers to a product offered for purchase under supplies qualify as NAFTA country end prod- a supply contract, but for purposes of calcu- ucts: lating the value of the end product includes services (except transportation services) in- (insert line item number) cidental to its supply, provided that the llllllllllllllllllllllll value of those incidental services does not (insert country of origin) exceed the value of the product itself; and llllllllllllllllllllllll (ii) Excludes products, other than petro- (vi) The following supplies are other non- leum and any product derived from petro- designated country end products. leum, that are not granted duty-free treat- (insert line item number) ment under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These exclu- llllllllllllllllllllllll sions presently consist of— (insert country of origin) (A) Textiles, apparel articles, footwear, llllllllllllllllllllllll handbags, luggage, flat goods, work gloves, leather wearing apparel, and handloomed, (End of provision) handmade, or folklore articles that are not granted duty-free status in the Harmonized [62 FR 34129, June 24, 1997, as amended at 63 Tariff Schedule of the United States FR 11542, Mar. 9, 1998; 65 FR 19857, Apr. 13, (HTSUS); 2000] (B) Tuna, prepared or preserved in any manner in airtight containers; and 252.225–7007 Buy American Act—trade (C) Watches and watch parts (including agreements—Balance of Payments cases, bracelets, and straps) of whatever type Program. including, but not limited to, mechanical, quartz digital, or quartz analog, if such As prescribed in 225.1101(6), use the watches or watch parts contain any material following clause: that is the product of any country to which the HTSUS column 2 rates of duty (HTSUS BUY AMERICAN ACT—TRADE AGREEMENTS— General Note 3(b)) apply. BALANCE OF PAYMENTS PROGRAM (SEP 2001) (3) Components means those articles, mate- (a) Definitions. As used in this clause— rials, and supplies directly incorporated into (1) Caribbean Basin country means— end products. Antigua and Barbuda (4) Designated country means— Aruba Aruba Bahamas Austria Barbados Bangladesh Belize Belgium British Virgin Islands Benin Costa Rica Bhutan Dominica Botswana El Salvador Burkina Faso Grenada Burundi Guatemala Canada Guyana Cape Verde Haiti Central; African Republic Jamaica Chad Montserrat Comoros Netherlands Antilles Denmark Nicaragua Djibouti Equatorial Guinea St. Kitts-Nevis Finland St. Lucia France St. Vincent and the Grenadines Gambia Trinidad and Tobago Germany (2) Caribbean Basin country end product— Greece (i) Means an article that— Guinea (A) Is wholly the growth, product, or man- Guinea-Bissau ufacture of a Caribbean Basin country; or Haiti (B) In the case of an article that consists Hong Kong in whole or in part of materials from another Iceland country or instrumentality, has been sub- Ireland stantially transformed in a Caribbean Basin Israel country into a new and different article of Italy commerce with a name, character, or use Japan distinct from that of the article or articles Kiribati
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Lesotho States and the component is of a class or Liechtenstein kind— Luxembourg (A) Determined to be not mined, produced, Malawi or manufactured in the United States in suf- Maldives ficient and reasonably available commercial Mali quantities and of a satisfactory quality; or Mozambique (B) That the Secretary concerned deter- Nepal mines would be inconsistent with the public Netherlands interest to apply the restrictions of the Buy Niger American Act. Norway (7) End product means those articles, mate- Portugal rials, and supplies to be acquired for public Republic of Korea use under the contract. For this contract, Rwanda the end products are the line items to be de- Sao Tome and Principe livered to the Government (including sup- Sierra Leone plies to be acquired by the Government for Singapore public use in connection with service con- Somalia tracts, but excluding installation and other Spain services to be performed after delivery). Sweden Switzerland (8) NAFTA country end product means an ar- Tanzania U.R. ticle that— Togo (i) Is wholly the growth, product, or manu- Tuvalu facture of the NAFTA country; or Uganda (ii) In the case of an article that consists United Kingdom in whole or in part of materials from another Vanuatu country or instrumentality, has been sub- Western Samoa stantially transformed in a NAFTA country Yemen into a new and different article of commerce (5) Designated country end product means an with a name, character, or use distinct from article that— that of the article or articles from which it (i) Is wholly the growth, product, or manu- was so transformed. The term refers to a facture of the designated country; or product offered for purchase under a supply (ii) In the case of an article that consists contract, but for purposes of calculating the in whole or in part of materials from another value of the end product includes services country or instrumentality, has been sub- (except transportation services) incidental stantially transformed in a designated coun- to its supply, provided that the value of try into a new and different article of com- those incidental services does not exceed the merce with a name, character, or use dis- value of the product itself. tinct from that of the article or articles from (9) Nondesignated country end product means which it was so transformed. The term refers any end product that is not a U.S. made end to a product offered for purchase under a product or a designated country end product. supply contract, but for purposes of calcu- (10) North American Free Trade Agreement lating the value of the end product includes (NAFTA) country means Canada or Mexico. services (except transportation services) in- (11) Qualifying country means any country cidental to its supply, provided that the set forth in subsection 225.872–1 of the De- value of those incidental services does not fense Federal Acquisition Regulation Sup- exceed the value of the product itself. plement. (6) Domestic end product means— (12) Qualifying country component means an (i) An unmanufactured end product that item mined, produced, or manufactured in a has been mined or produced in the United qualifying country. States; or (13) Qualifying country end product means— (ii) An end product manufactured in the (i) An unmanufactured end product mined United States if the cost of its qualifying or produced in a qualifying country; or country components and its components (ii) An end product manufactured in a that are mined, produced, or manufactured qualifying country if the cost of the compo- in the United States exceeds 50 percent of nents mined, produced, or manufactured in the cost of all its components. The cost of the qualifying country and its components components shall include transportation mined, produced or manufactured in the costs to the place of incorporation into the United States exceeds 50 percent of the cost end product and U.S. duty (whether or not a of all its components. duty-free entry certification may be issued). (14) United States means the United States, A component shall be considered to have its possessions, Puerto Rico, and any other been mined, produced, or manufactured in place subject to its jurisdiction, but does not the United States (regardless of its source in include leased bases or trust territories. fact) if the end product in which it is incor- (15) U.S. made end product means an article porated is manufactured in the United that—
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(i) Is wholly the growth, product, or manu- free status of articles specified in paragraph facture of the United States; or (a)(2)(ii)(A) of this clause. (ii) In the case of an article that consists (1) General Note 3(c), Products Eligible for in whole or in part of materials from another Special Tariff Treatment. country or instrumentality, has been sub- (2) General Note 17, Products of Countries stantially transformed in the United States Designated as Beneficiary Countries Under into a new and different article of commerce the United States-Caribbean Basin Trade with a name, character, or use distinct from Partnership Act of 2000. that of the article or articles from which it (3) Section XXII, Chapter 98, Subchapter II, was so transformed. (b) Unless otherwise specified, the Trade Articles Exported and Returned, Advanced Agreements Act of 1979 (19 U.S.C. 2501 et seq.), or Improved Abroad, U.S. Note 7(b). the North American Free Trade Agreement (4) Section XXII, Chapter 98, Subchapter Implementation Act of 1993 (19 U.S.C. 3301 XX, Goods Eligible for Special Tariff Bene- note), and the Caribbean Basin Initiative fits Under the United States-Caribbean Basin apply to all items in the Schedule. Trade Partnership Act. (c)(1) The Contractor agrees to deliver under this contract only domestic end prod- (End of clause) ucts unless, in its offer, it specified delivery of U.S. made, qualifying country, designated [63 FR 11542, Mar. 9, 1998, as amended at 64 country, Caribbean Basin country, NAFTA FR 8730, Feb. 23, 1999; 65 FR 19858, 19860, Apr. country, or other nondesignated country end 13, 2000; 66 FR 47112, 47113, Sept. 11, 2001; 66 products in the Buy American Act—Trade FR 50504, Oct. 3, 2001] Agreements—Balance of Payments Program Certificate provision of the solicitation. (2) The Contractor may not supply a non- 252.225–7008 Supplies to be accorded designated country end product unless— duty-free entry. (i) It is a qualifying country end product, a As prescribed in 225.1101(7), use the Caribbean Basin country end product, or a following clause: NAFTA country end product; (ii) The Contracting Officer has determined SUPPLIES TO BE ACCORDED DUTY-FREE ENTRY that offers of U.S. made end products or (MAR 1998) qualifying, designated, NAFTA, or Caribbean Basin country end products from responsive, In accordance with paragraph (b) of the responsible offerors are either not received Duty-Free Entry clause of this contract, in or are insufficient to fill the Government’s addition to duty-free entry for all qualifying requirements; or country supplies (end products and compo- (iii) A national interest waiver has been nents) and all eligible end products subject granted under section 302 of the Trade Agree- to applicable trade agreements (if this con- ments Act of 1979. tract contains the Buy American Act—Trade (d) The offered price of qualifying country Agreements—Balance of Payments Program end products and the offered price of des- clause or the Buy American Act—North ignated country end products, NAFTA coun- American Free Trade Agreement Implemen- try end products, and Caribbean Basin coun- tation Act—Balance of Payments Program try end products, for line items subject to clause), the following foreign end products the Trade Agreements Act or the North that are neither qualifying country end prod- American Free Trade Agreement Implemen- ucts nor eligible end products under a trade tation Act, should not include custom fees or agreement, and the following nonqualifying duty. The offered price of end products listed country components, are accorded duty-free in paragraph (c)(2)(vi) of the Buy American entry. Act—Trade Agreements—Balance of Pay- ments Program Certificate provision of the llllllllllllllllllllllll solicitation, or the offered price of U.S. made llllllllllllllllllllllll end products that contain nonqualifying llllllllllllllllllllllll country components, must include all appli- cable duty. The award price will not include duty for end products or components that (End of clause) are to be accorded duty-free entry. Gen- erally, each offer of a U.S. made end product [63 FR 11543, Mar. 9, 1998, as amended at 65 that does not meet the definition of ‘‘domes- FR 19858, Apr. 13, 2000] tic end product’’ is adjusted for the purpose of evaluation by adding 50 percent of the of- 252.225–7009 Duty-free entry—Quali- fered price, inclusive of duty. fying country supplies (end prod- (e) The HTSUS is available on the Internet ucts and components). at http://www.customs.ustreas.gov/impoexpo/ impoexpo.htm. The following sections of the As prescribed in 225.1101(8), use the HTSUS provide information regarding duty- following clause:
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DUTY-FREE ENTRY—QUALIFYING COUNTRY (i) Military department in care of the Con- SUPPLIES (END PRODUCTS AND COMPONENTS) tractor, including the Contractor’s delivery (AUG 2000) address; or (ii) Military installation; and (a) Definitions. Qualifying country and quali- (2) Include the following information— fying country end products have the meaning (i) Prime contract number, and delivery given in the Buy American Act and Balance order if applicable; of Payments Program clause, Buy American (ii) Number of the subcontract/purchase Act—Trade Agreements—Balance of Pay- order for foreign supplies if applicable; ments Program clause, Buy American Act— (iii) Identification of carrier; North American Free Trade Agreement Im- (iv)(A) For direct shipments to a U.S. mili- plementation Act—Balance of Payments tary installation, the notation: Program clause, or Trade Agreements clause UNITED STATES GOVERNMENT, DE- of this contract. PARTMENT OF DEFENSE Duty-Free Entry (b) The requirements of this clause apply to be claimed pursuant to Section XXII, to this contract and subcontracts, including Chapter 98, Subchapter VIII, Item 9808.00.30 purchase orders, that involve supplies to be of the Harmonized Tariff Schedule of the accorded duty-free entry whether placed— United States. Upon arrival of shipment at (1) Directly with a foreign concern as a the appropriate port of entry, District Direc- prime contract; or tor of Customs, please release shipment (2) As a subcontract or purchase order under 19 CFR part 142 and notify Com- under a contract with a domestic concern. mander, Defense Contract Management (c) Except as otherwise approved by the (DCM) New York, ATTN: Customs Team, Contracting Officer, or unless supplies were DCMDN–GNIC, 207 New York Avenue, Build- imported into the United States before the ing 120, Staten Island, New York, 10305–5013, date of this contract or, in the case of sup- for execution of Customs Forms 7501, 7501A, plies imported by a first or lower tier sub- or 7506 and any required duty-free entry cer- contractor, before the date of the sub- tificates. contract, no amount is or will be included in (B) In cases where the shipment will be the contract price for duty for— consigned to other than a military installa- (1) End items that are qualifying country tion, e.g., a domestic contractor’s plant, the end products; or shipping document notation shall be altered (2) Components (including, without limita- to insert the name and address of the con- tion, raw materials and intermediate assem- tractor, agent or broker who will notify blies) produced or made in qualifying coun- Commander, DCM New York, for execution tries, that are to be incorporated in the end of the duty-free certificate. items to be delivered under this contract, (v) Gross weight in pounds (if freight is provided that the end items are manufac- based on space tonnage, state cubic feet in tured in the United States or in a qualifying addition to gross shipping weight); country. (vi) Estimated value in U.S. dollars; and (d) The Contractor warrants that— (vii) Activity Address Number of the con- (1) All qualifying country supplies, for tract administration office actually admin- which duty-free entry is to be claimed, are istering the prime contract, e.g., for DCM intended to be delivered to the Government Dayton, S3605A. or incorporated in the end items to be deliv- (g) Preparation of customs forms. (1) Except ered under this contract; and for shipments consigned to a military instal- (2) The Contractor will pay duty to the ex- lation, the Contractor shall prepare, or au- tent that such supplies, or any portion there- thorize an agent to prepare, any customs of (if not scrap or salvage) are diverted to forms required for the entry of foreign sup- nongovernmental use, other than as a result plies in connection with DoD contracts into of a competitive sale made, directed, or au- the United States, its possessions, or Puerto thorized by the Contracting Officer. Rico. The completed customs forms shall be (e) The Government agrees to execute submitted to the District Director of Cus- duty-free entry certificates and to afford toms with a copy to DCM New York for exe- such assistance as appropriate to obtain the cution of any required duty-free entry cer- duty-free entry of qualifying country sup- tificates. Shipments consigned directly to a plies for which the shipping documents bear military installation will be released in ac- the notation specified in paragraph (f) of this cordance with 10.101 and 10.102 of the U.S. clause, except as the Contractor may other- Customs regulations. wise agree. (2) For shipments containing both supplies (f) All shipping documents submitted to that are to be accorded duty-free entry and Customs, covering foreign end products or supplies that are not, the Contractor shall supplies for which duty-free entry certifi- identify on the customs forms those items cates are to be issued under this clause, that are eligible for duty-free entry. shall— (h) The contractor agrees— (1) Consign the shipments to the appro- (1) To prepare (if this contract is placed di- priate— rectly with a foreign supplier), or to instruct
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the foreign supplier to prepare, a sufficient graph (k) in all subcontracts for supplies. number of copies of the bill of lading (or Each subcontract shall require the subcon- other shipping document) so that at least tractor to identify this contract by including two of the copies accompanying the ship- its contract number on any shipping docu- ment will be available for use by the District ments submitted to Customs covering sup- Director of Customs at the port of entry; plies for which duty-free entry is to be (2) To consign the shipment as specified in claimed pursuant to this clause. The Con- paragraph (f) of this clause; and tractor also agrees that the name and ad- (3) To mark the exterior of all packages as dress of the Contracting Officer admin- follows: istering the prime contract (name and ad- (i) ‘‘UNITED STATES GOVERNMENT, DE- dress of the contract administration office PARTMENT OF DEFENSE;’’ and cognizant of the prime contract), and its ac- (ii) The activity address number of the tivity address number (appendix G of the De- contract administration office actually ad- fense FAR Supplement), and the information ministering the prime contract. required by paragraphs (i) (1), (2), and (3) of (i) The Contractor agrees to notify the this clause will be included in applicable sub- Contracting Officer administering the prime contracts. contract in writing of any purchase under the contract of qualifying country supplies (End of clause) to be accorded duty-free entry that are to be imported into the United States for delivery [56 FR 36479, July 31, 1991, as amended at 56 to the Government or for incorporation in FR 67221, Dec. 30, 1991; 60 FR 29502, June 5, end items to be delivered to the Government. 1995; 62 FR 2614, Jan. 17, 1997; 63 FR 11544, The notice shall be furnished to the contract Mar. 9, 1998; 65 FR 19858, Apr. 13, 2000; 65 FR administration office immediately upon 52953, Aug. 31, 2000; 65 FR 58607, Sept. 29, 2000] award to the qualifying country supplier. The notice shall contain— 252.225–7010 Duty-free entry—addi- (1) Prime contractor’s name, address, and tional provisions. CAGE code; (2) Prime contract number, and delivery As prescribed in 225.1101(9), use the order number if applicable; following clause: (3) Total dollar value of the prime contract DUTY-FREE ENTRY—ADDITIONAL PROVISIONS or delivery order; (AUG 2000) (4) Expiration date of the prime contract or delivery order; (a) The requirements of this clause supple- (5) Foreign supplier’s name and address; ment the Duty-Free Entry clause of this con- (6) Number of the subcontract/purchase tract. order for foreign supplies; Both of these clauses apply to this con- (7) Total dollar value of the subcontract tract and subcontracts, including purchase for foreign supplies; orders, that involve supplies to be accorded (8) Expiration date of the subcontract for duty-free entry whether placed— foreign supplies; (1) Directly with a foreign concern as a (9) List of items purchased; prime contract; or (10) An agreement by the Contractor that (2) As a subcontractor purchase order duty shall be paid by the Contractor to the under a contract with a domestic concern. extent that such supplies, or any portion (if (b) The Contractor shall send the notifica- not scrap or salvage), are diverted to non- tion required by paragraph (b)(1) of the governmental use other than as a result of a Duty-Free Entry clause of this contract to competitive sale made, directed, or author- the Contracting Officer administering this ized by the Contracting Officer; contract. (11) The qualifying country; and (c) In addition to any data required by (12) The scheduled delivery date(s). paragraph (b)(1) of the Duty-Free Entry (j) This clause does not apply to purchases clause, the Contractor shall furnish the fol- of qualifying country supplies in connection lowing for all foreign supplies to be imported with this contract if— pursuant to paragraph (a) or (b) of the Duty- (1) The qualifying country supplies are Free Entry clause. The Contractor shall fur- identical in nature to supplies purchased by nish this information to the Contracting Of- the Contractor or any subcontractor in con- ficer administering the prime contract im- nection with its commercial business; and mediately upon award of any contract or (2) It is not economical or feasible to ac- subcontract involving supplies to be ac- count for such supplies so as to ensure that corded duty-free entry. the amount of the supplies for which duty- (1) Prime contractor’s name, address, and free entry is claimed does not exceed the CAGE code; amount purchased in connection with this (2) Prime contract number plus delivery contract. order number, if applicable; (k) The Contractor agrees to insert the (3) Total dollar value of the prime contract substance of this clause, including this para- or delivery order;
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(4) Expiration date of the prime contract into the United States, its possessions, or or delivery order; Puerto Rico of foreign supplies in connection (5) Foreign supplier’s name and address; with DoD contracts. The Contractor shall (6) Number of the subcontract/purchase submit the completed customs forms to the order for foreign supplies; District Director of Customs with a copy to (7) Total dollar value of the subcontract DCM New York for execution of any required for foreign supplies; duty-free entry certificates. For shipments (8) Expiration date of the subcontract for containing both supplies which are to be ac- foreign supplies; corded duty-free entry and supplies which (9) List of items purchased; and are not, the Contractor shall identify on the (10) An agreement by the Contractor that customs forms those items which are eligible duty shall be paid by the Contractor to the for duty-free entry under the provisions of extent that such supplies, or any portion (if the Duty-Free Entry clause. Shipments con- not scrap or salvage), are diverted to non- signed directly to a military installation governmental use other than as a result of a will be released in accordance with §§ 10.101 competitive sale made, directed, or author- and 10.102 of the U.S. Customs regulations. ized by the Contracting Officer. (g) The Contractor shall ensure that all ex- (d) The Contractor agrees to incorporate terior containers are marked in accordance the substance of this clause, including this with paragraph (g) of the Duty-Free Entry paragraph (d), in any subcontract (including clause, including the following additional purchase orders) in accordance with para- data— graph (i) of the Duty-Free Entry clause of (1) ‘‘UNITED STATES GOVERNMENT, this contract. The Contractor agrees that DEPARTMENT OF DEFENSE;’’ and the name and address of the Contracting Of- (2) The activity address number for the ficer administering the prime contract contract administration office actually ad- (name and address of the contract adminis- ministering the prime contract. tration office cognizant of the prime con- tract and its activity address number (appen- (End of clause) dix G of the Defense FAR Supplement)) and the information required by paragraphs [56 FR 36479, July 31, 1991, as amended at 59 (c)(1), (2), and (3) of this clause will be in- FR 1291, Jan. 10, 1994; 60 FR 29502, June 5, cluded in applicable subcontracts. 1995; 62 FR 2614, Jan. 17, 1997; 63 FR 11544, (e) To properly complete the shipping doc- Mar. 9, 1998; 65 FR 19858, Apr. 13, 2000; 65 FR ument instructions as required by paragraph 52953, Aug. 31, 2000] (f) of the Duty-Free Entry clause, the Con- tractor shall insert Defense Contract Man- 252.225–7011 Restriction on acquisi- agement (DCM) New York, ATTN: Customs tion of supercomputers. Team, DCMDN–GNIC, 207 New York Avenue, Building 120, Staten Island, New York 10305– As prescribed in 225.7023–3, use the 5013, as the cognizant contract administra- following clause: tion office (for paragraph (f) only) in those cases when the shipment is consigned di- RESTRICTION ON ACQUISITION OF rectly to a military installation. When the SUPERCOMPUTERS (JUL 1995) shipment will be consigned to a location The Contractor agrees that any supercom- other than a military installation, e.g., a do- puters furnished under this contract have mestic contractor’s plant, change the ship- been manufactured in the United States. ping document notation required by para- graph (f) of the clause to insert the name and (End of clause) address of the Contractor, agent or broker that will prepare the customs documentation [60 FR 34471, July 3, 1995] for execution of the Duty-Free Entry certifi- cates. In either case, the shipping documents 252.225–7012 Preference for certain will contain the following items in addition domestic commodities. to those required by paragraph (f) of the Duty-Free Entry clause: As prescribed in 225.7002–3(a), use the (1) Delivery order number on the Govern- following clause: ment prime contract, if applicable; PREFERENCE FOR CERTAIN DOMESTIC (2) Number of the subcontract/purchase COMMODITIES (AUG 2000) order for foreign supplies, if applicable; (3) Activity address number of the contract (a) The Contractor agrees to deliver under administration office actually administering this contract only such of the following arti- the prime contract, e.g., for DCM Dayton, cles that have been grown, reprocessed, re- S3605A. used, or produced in the United States, its (f) Except for shipments consigned to a possessions, or Puerto Rico— military installation, the Contractor shall (1) Food; prepare, or authorize an agent to prepare, (2) Clothing; any customs forms required for the entry (3) Tents, tarpaulins, or covers;
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(4) Cotton and other natural fiber products; PREFERENCE FOR DOMESTIC SPECIALTY (5) Woven silk or woven silk blends; METALS (MAR 1998) (6) Spun silk yarn for cartridge cloth; (7) Synthetic fabric, and coated synthetic (a) Definitions. As used in this clause— fabric, including all textile fibers and yarns (1) Qualifying country means any country that are for use in such fabrics; set forth in subsection 225.872–1 of the De- (8) Canvas products; fense Federal Acquisition Regulation Sup- (9) Wool (whether in the form of fiber or plement. yarn or contained in fabrics, materials, or (2) Specialty metals means— manufactured articles); or (i) Steel— (10) Any item of individual equipment (A) Where the maximum alloy content ex- (Federal Supply Class 8465) manufactured ceeds one or more of the following limits: from or containing such fibers, yarns, fab- manganese, 1.65 percent; silicon, 0.60 percent; rics, or materials. or copper, 0.60 percent; or (b) This clause does not apply— (B) That contains more than 0.25 percent of (1) To supplies listed in FAR 25.104(a), or any of the following elements: aluminum, other supplies for which the Government has chromium, cobalt, columbium, molybdenum, determined that a satisfactory quality and nickel, titanium, tungsten, or vanadium; sufficient quantity cannot be acquired as and (ii) Metal alloys consisting of nickel, iron- when needed at U.S. market prices; nickel, and cobalt base alloys containing a (2) To foods which have been manufactured total of other alloying metals (except iron) or processed in the United States, its posses- in excess of 10 percent; sions, or Puerto Rico; (iii) Titanium and titanium alloys; or (3) To chemical warfare protective clothing (iv) Zirconium and zirconium base alloys. produced in the countries listed in sub- (b) The Contractor agrees that any spe- section 225.872–1 of the Defense FAR Supple- cialty metals incorporated in articles deliv- ment; or ered under this contract will be melted in (4) To fibers and yarns that are for use in the United States, its possessions, or Puerto synthetic fabric or coated synthetic fabric Rico. (but does apply to the synthetic or coated (c) This clause does not apply to the extent synthetic fabric itself), if— that— (i) The fabric is to be used as a component (1) The Secretary or designee determines of an end item that is not a textile product. that a satisfactory quality and sufficient Examples of textile products, made in whole quantity of such articles cannot be acquired or in part of fabric, include— when needed at U.S. market prices; (a) Draperies, floor coverings, furnishings, (2) The specialty metal is melted in a and bedding (Federal Supply Group 72, qualifying country or is incorporated in an Household and Commercial Furnishings and article manufactured in a qualifying coun- Appliances); try; (B) Items made in whole or in part of fabric (3) The acquisition is necessary to comply in Federal Supply Group 83, Textile/leather/ with agreements with foreign governments furs/apparel/findings/tents/flags, or Federal requiring the United States to purchase sup- Supply Group 84, Clothing, Individual Equip- plies from foreign sources to offset sales ment and Insignia; made by the U.S. Government or U.S. firms (C) Upholstered seats (whether for house- under approved programs; or hold, office, or other use); and (4) The specialty metal is purchased by a (D) Parachutes (Federal Supply Class 1670); subcontractor at any tier. or (ii) The fibers and yarns are para-aramid (End of clause) fibers and yarns manufactured in the Nether- lands. Alternate I (MAR 1998). As prescribed in 225.7002–3(b), substitute the following para- (End of clause) graph (c) for paragraph (c) of the basic clause, and add the following paragraph (d) [56 FR 36479, July 31, 1991, as amended at 59 to the basic clause: FR 27675, May 27, 1994; 60 FR 61601, Nov. 30, (c) This clause does not apply to the extent 1995; 61 FR 50455, Sept. 26, 1996; 62 FR 5780, that— Feb. 7, 1997; 62 FR 47154, Sept. 8, 1997; 64 FR (1) The Secretary or designee determines 24529, May 7, 1999; 65 FR 52953, Aug. 31, 2000] that a satisfactory quality and sufficient quantity of such articles cannot be acquired 252.225–7013 [Reserved] when needed at U.S. market prices; (2) The specialty metal is melted in a 252.225–7014 Preference for domestic qualifying country or is incorporated in an specialty metals. article manufactured in a qualifying coun- try; or As prescribed in 225.7002–3(b), use the (3) The acquisition is necessary to comply following clause: with agreements with foreign governments
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requiring the United States to purchase sup- bearings that are acquired as components plies from foreign sources to offset sales if— made by the U.S. Government or U.S. firms (i) The end items or components con- under approved programs. taining ball or roller bearings are commer- (d) The Contractor agrees to include the cial items; or terms of this clause, including this para- (ii) The ball or roller bearings are commer- graph (d), in every subcontract or purchase cial components manufactured in the United order awarded under this contract unless the Kingdom. item being purchased contains no specialty (2) The commercial item exception in para- metals. graph (c)(1) of this clause does not include items designed or developed under a Govern- [56 FR 36479, July 31, 1991, as amended at 60 ment contract or contracts where the end FR 61602, Nov. 30, 1995; 61 FR 50455, Sept. 26, item is bearings and bearing components. 1996; 62 FR 5780, Feb. 7, 1997; 63 FR 11544, Mar. (d) The restriction in paragraph (b) of this 9, 1998] clause may be waived upon request from the Contractor in accordance with subsection 252.225–7015 Preference for domestic 225.7019–3 of the Defense Federal Acquisition hand or measuring tools. Regulation Supplement. If the restriction is As prescribed in 225.7002–3(c), use the waived for miniature and instrument ball following clause: bearings, the Contractor agrees to acquire a like quantity and type of domestic manufac- PREFERENCE FOR DOMESTIC HAND OR ture for nongovernmental use. MEASURING TOOLS (DEC 1991) (e) The Contractor agrees to retain records showing compliance with this restriction The Contractor agrees to deliver under this until 3 years after final payment and to contract only hand or measuring tools pro- make records available upon request of the duced in the United States or its possessions. Contracting Office. (f) The Contractor agrees to insert this (End of clause) clause, including this paragraph (f), in every subcontract and purchase order issued in [56 FR 36479, July 31, 1991, as amended at 59 performance of this contract, unless items FR 27675, May 27, 1994; 61 FR 50455, Sept. 26, acquired are— 1996] (1) Commercial items other than ball or roller bearings; or 252.225–7016 Restriction on acquisi- (2) Items that do not contain ball or roller tion of ball and roller bearings. bearings. As prescribed in 225.7019–4, use the (End of clause) following clause: Alternate I (Dec 2000). As prescribed in RESTRICTION ON ACQUISITION OF BALL AND 225.7019–4(b), substitute the following para- ROLLER BEARINGS (DEC 2000) graph (c)(1)(ii) for paragraph (c)(1)(ii) of the (a) Definitions. basic clause: As used in this clause— (c)(1)(ii) The ball or roller bearings are (1) ‘‘Bearing components’’ means the bear- commercial components. ing element, retainer, inner race, or outer [61 FR 50455, Sept. 26, 1996, as amended at 62 race. FR 34131, June 24, 1997; 63 FR 43888, Aug. 17, (2) ‘‘Miniature and instrument ball bear- 1998; 65 FR 77828, Dec. 13, 2000] ings’’ means all rolling contact ball bearings with a basic outside diameter (exclusive of 252.225–7017 Prohibition on award to flange diameters) of 30 millimeters or less, companies owned by the People’s regardless of material, tolerance, perform- Republic of China. ance, or quality characteristics. (b) The Contractor agrees that, except as As prescribed in 225.771–5, use the fol- provided in paragraph (c) of this clause, all lowing provision: ball and roller bearings and ball and roller PROHIBITION ON AWARD TO COMPANIES OWNED bearing components (including miniature BY THE PEOPLE’S REPUBLIC OF CHINA (FEB and instrument ball bearings) delivered 2000) under this contract, either as end items or components of end items, shall be wholly (a) Definition. ‘‘People’s Republic of manufactured in the United States or Can- China,’’ as used in this provision, means the ada. Unless otherwise specified, raw mate- government of the People’s Republic of rials, such as performed bar, tube, or rod China, including its political subdivisions, stock and lubricants, need not be mined or agencies, and instrumentalities. produced in the United States or Canada. (b) Prohibition on award. Section 8120 of the (c)(1) The restriction in paragraph (b) of Department of Defense Appropriations Act this clause does not apply to ball or roller for fiscal year 1999 (Pub. L. 105–262), as
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amended by Section 144 of Title I, Division C, and firms, however, are encouraged to sub- of the Omnibus Consolidated and Emergency mit offers since this provision is not in- Supplemental Appropriations Act, 1999 (Pub. tended to restrict BMD access to unique for- L. 105–277), prohibits the award of a contract eign expertise when contract performance under this solicitation to any company in requires a level of competency unavailable in which the Director of Defense Procurement the United States. (Office of the Under Secretary of Defense (d) The prohibition does not apply to a for- (Acquisition, Technology, and Logistics)) has eign government or firm if— determined that the People’s Republic of (1) The contract will be performed within China or the People’s Liberation Army of the the United States; People’s Republic of China owns more than (2) The contract is exclusively for RDT&E 50 percent interest. in connection with antitactical ballistic mis- (c) Representation. By submission of an sile systems; offer, the offeror represents that the People’s (3) The foreign government or firm agrees Republic of China or the People’s Liberation to share a substantial portion of the total Army of the People’s Republic of China does contract cost. The foreign share is consid- not own more than 50 percent interest in the ered substantial where it is equitable with offeror. respect to the relative benefits to be derived from the contract by the United States and (End of provision) the foreign parties. For example, if the con- tract is more beneficial to the foreign party, [65 FR 6554, Feb. 10, 2000] its share of the costs should be correspond- ingly higher; or 252.225–7018 Notice of prohibition of (4) The U.S. Government determines that certain contracts with foreign enti- the contract cannot be competently per- ties for the conduct of Ballistic Mis- formed by a U.S. firm at a price equal to or sile Defense RDT&E. less than the price at which the RDT&E can be performed by a foreign government or As prescribed in 225.7011–5, use the firm. following provision: (e) The offeror (llll) is (llll) is not a U.S. firm. NOTICE OF PROHIBITION OF CERTAIN CON- TRACTS WITH FOREIGN ENTITIES FOR THE (End of provision) CONDUCT OF BALLISTIC MISSILE DEFENSE RDT&E (JAN 1997) [56 FR 36479, July 31, 1991, as amended at 59 (a) Definitions. FR 27675, May 27, 1994; 62 FR 2614, Jan. 17, (1) Competent means the ability of an offer- 1997] or to satisfy the requirements of the solicita- tion. This determination is based on a com- 252.225–7019 Restriction on acquisi- prehensive assessment of each offeror’s pro- tion of foreign anchor and mooring posal including consideration of the specific chain. areas of evaluation criteria in the relative order of importance described in the solicita- As prescribed in 225.7012–3, use the tion. following clause: (2) Foreign firm means a business entity RESTRICTION ON ACQUISITION OF FOREIGN owned or controlled by one or more foreign ANCHOR AND MOORING CHAIN (DEC 1991) nationals or a business entity in which more than 50 percent of the stock is owned or con- (a) Welded shipboard anchor and mooring trolled by one or more foreign nationals. chain, four inches in diameter and under, de- (3) U.S. firm means a business entity other livered under this contract— than a foreign firm. (1) Shall be manufactured in the United (b) This provision implements section 222 States, including cutting, heat treating, of the Defense Authorization Act for FYs quality control, testing, and welding (both 1988 and 1989 (Pub. L. 100–180) prohibiting the forging and shot blasting process); and award of certain contracts, for the conduct (2) The cost of the components manufac- of Ballistic Missile Defense (BMD) Program tured in the United States shall exceed 50 research, development, test, or evaluation percent of the total cost of components. (RDT&E), to foreign governments or firms. (b) The Contractor may request a waiver of (c) Except as provided in paragraph (d) of this restriction if adequate domestic supplies this provision, any funds appropriated to, or meeting the above requirements are not for the use of, the DoD, may not be used to available to meet the contract delivery enter into or carry out any contract, includ- schedule. ing any contract awarded as a result of a (c) The Contractor shall include this broad agency announcement (BAA), with a clause, including this paragraph (c), in all foreign government or firm if the contract subcontracts, unless the items acquired con- provides for the conduct of RDT&E in con- tain none of the restricted welded shipboard nection with the BMD. Foreign governments anchor and mooring chain.
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(End of clause) British Virgin Islands Costa Rica [56 FR 36479, July 31, 1991, as amended at 61 Dominica FR 13108, Mar. 26, 1996] El Salvador Grenada 252.225–7020 Trade agreements certifi- Guatemala cate. Guyana Haiti As prescribed in 225.1101(10), use the Jamaica following provision: Montserrat Netherlands Antilles TRADE AGREEMENTS CERTIFICATE (MAR 1998) Nicaragua (a) Definitions. Caribbean Basin country end St. Kitts-Nevis product, designated country end product, St. Lucia NAFTA country end product, nondesignated St. Vincent and the Grenadines country end product, qualifying country end Trinidad and Tobago product, and U.S. made end product have the (2) Caribbean Basin country end product— meanings given in the Trade Agreements (i) Means an article that— clause of this solicitation. (A) Is wholly the growth, product, or man- (b) Evaluation. Offers will be evaluated in ufacture of a Caribbean Basin country; or accordance with the policies and procedures (B) In the case of an article that consists of part 225 of the Defense Federal Acquisi- in whole or in part of materials from another tion Regulation Supplement. Offers of for- country or instrumentality, has been sub- eign end products that are not U.S. made, stantially transformed in a Caribbean Basin qualifying country, designated country, Car- country into a new and different article of ibbean Basin country, or NAFTA country commerce with a name, character, or use end products will not be considered for distinct from that of the article or articles award, unless the Contracting Officer deter- from which it was so transformed. The term mines that there are not offers of such end refers to a product offered for purchase under products; or the offers of such end products a supply contract, but for purposes of calcu- are insufficient to fulfill the requirements; lating the value of the end product includes or a national interest exception to the Trade services (except transportation services) in- Agreements Act is granted. cidental to its supply, provided that the (c) Certifications. (1) The offeror certifies value of those incidental services does not that each end product to be delivered under exceed the value of the product itself; and this contract, except those listed in para- (ii) Excludes products, other than petro- graph (c)(2) of this provision, is a U.S. made, leum and any product derived from petro- qualifying country, designated country, Car- leum, that are not granted duty-free treat- ibbean Basin country, or NAFTA country ment under the Caribbean Basin Economic end product. Recovery Act (19 U.S.C. 2703(b)). These exclu- (2) The following supplies are other nondes- sions presently consist of— ignated country end products: (A) Textiles, apparel articles, footwear, (insert line item number) handbags, luggage, flat goods, work gloves, leather wearing apparel, and handloomed, llllllllllllllllllllllll handmade, or folklore articles that are not (insert country of origin) granted duty-free status in the Harmonized llllllllllllllllllllllll Tariff Schedule of the United States (HTSUS); (End of provision) (B) Tuna, prepared or preserved in any manner in airtight containers; and [63 FR 11545, Mar. 9, 1998, as amended at 65 (C) Watches and watch parts (including FR 19858, Apr. 13, 2000] cases, bracelets, and straps) of whatever type including, but not limited to, mechanical, 252.225–7021 Trade agreements. quartz digital, or quartz analog, if such watches or watch parts contain any material As prescribed in 225.1101(11), use the that is the product of any country to which following clause: the HTSUS column 2 rates of duty (HTSUS General Note 3(b)) apply. TRADE AGREEMENTS (SEP 2001) (3) Components means those articles, mate- (a) Definitions. As used in this clause— rials, and supplies directly incorporated into (1) Caribbean Basin country means— end products. Antigua and Barbuda (4) Designated country means— Aruba Aruba Bahamas Austria Barbados Bangladesh Belize Belgium
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Benin tinct from that of the article or articles from Bhutan which it was so transformed. The term refers Botswana to a product offered for purchase under a Burkina Faso supply contract, but for purposes of calcu- Burundi lating the value of the end product includes Canada services (except transportation services) in- Cape Verde cidental to its supply, provided that the Central African Republic value of those incidental services does not Chad exceed the value of the product itself. Comoros (6) End product means those articles, mate- Denmark rials, and supplies to be acquired for public Dijbouti use under the contract. For this contract, Equatorial Guinea the end products are the line items to be de- Finland livered to the Government (including sup- France plies to be acquired by the Government for Gambia pubic use in connection with service con- Germany tracts, but excluding installation and other Greece services to be performed after delivery). Guinea (7) NAFTA country end product means an ar- Guinea-Bissau ticle that— Haiti (i) Is wholly the growth, product, or manu- Hong Kong facture of the NAFTA country; or Iceland (ii) In the case of an article that consists Ireland Israel in whole or in part of materials from another Italy country or instrumentality, has been sub- Japan stantially transformed in a NAFTA country Kiribati into a new and different article of commerce Lesotho with a name, character, or use distinct from Liechtenstein that of the article or articles from which it Luxembourg was so transformed. The term refers to a Malawi product offered for purchase under a supply Maldives contract, but for purposes of calculating the Mali value of the end product includes services Mozambique (except transportation services) incidental Nepal to its supply, provided that the value of Netherlands those incidental services does not exceed the Niger value of the product itself. Norway (8) Nondesignated country end product means Portugal any end product that is not a U.S. made end Republic of Korea product or a designated country end product. Rwanda (9) North American Free Trade Agreement Sao Tome and Principe (NAFTA) country means Canada or Mexico. Sierra Leone (10) Qualifying country means any country Singapore set forth in subsection 225.872–1 of the De- Somalia fense Federal Acquisition Regulation Sup- Spain plement. Sweden (11) Qualifying country end product means— Switzerland (i) An unmanufactured end product mined Tanzania U.R. or produced in a qualifying country; or Togo (ii) An end product manufactured in a Tuvalu qualifying country if the cost of the compo- Uganda nents mined, produced, or manufactured in United Kingdom the qualifying country and its components Vanuatu mined, produced, or manufactured in the Western Samoa United States exceeds 50 percent of the cost Yemen of all its components. (5) Designated country end product means an (12) United States means the United States, article that— its possessions, Puerto Rico, and any other (i) Is wholly the growth, product, or manu- place subject to its jurisdiction, but does not facture of the designated country; or include leased bases or trust territories. (ii) In the case of an article that consists (13) U.S. made end product means an article in whole or in part of materials from another that— country or instrumentality, has been sub- (i) Is wholly the growth, product, or manu- stantially transformed in a designated coun- facture of the United States; or try into a new and different article of com- (ii) In the case of an article that consists merce with a name, character, or use dis- in whole or in part of materials from another
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country or instrumentality, has been sub- fits Under the United States-Caribbean Basin stantially transformed in the United States Trade Partnership Act. into a new and different article of commerce with a name, character, or use distinct from (End of clause) that of the article or articles from which it was so transformed. [63 FR 11545, Mar. 9, 1998; 63 FR 29061, May 27, (b) Unless otherwise specified, the Trade 1998, as amended at 64 FR 8730, Feb. 23, 1999; Agreements Act of 1979 (19 U.S.C. 2501, et 65 FR 19858, 19860, Apr. 13, 2000; 66 FR 47112, seq.), the North American Free Trade Agree- 47113, Sept. 11, 2001; 66 FR 50504, Oct. 3, 2001] ment Implementation Act of 1993 (19 U.S.C. 3301 note), and the Caribbean Basin Initia- 252.225–7022 Restriction on acquisi- tive apply to all items in the Schedule. tion of polyacrylonitrile (PAN) car- (c)(1) The Contractor agrees to deliver bon fiber. under this contract only U.S. made, quali- As prescribed in 225.7103–3, use the fying country, designated country, Carib- bean Basin country or NAFTA country end following clause: product unless, in its offer, it specified deliv- RESTRICTION ON ACQUISITION OF ery of other nondesignated country end prod- POLYACRYLONITRILE (PAN) CARBON FIBER ucts in the Trade Agreements Certificate (JUN 1997) provision of the solicitation. (2) The Contractor may not supply a non- (a) This clause applies only if the end prod- designated country end product other than a uct furnished under this contract contains qualifying country end product, a Caribbean polyacrylonitrile carbon fibers (alternatively Basin country end product, or a NAFTA referred to as PAN-based carbon fibers or country end product, unless— PAN-based graphite fibers). (i) The Contracting Officer has determined (b) PAN carbon fibers contained in the end that offers of U.S. made end products or product shall be manufactured in the United qualifying, designated, Caribbean Basin, or States or Canada using PAN precursor pro- NAFTA country end products from respon- duced in the United States or Canada. sive, responsible offerors are either not re- (c) The Contracting Officer may waive the requirement in paragraph (b) of this clause ceived or are insufficient to fill the Govern- in whole or in part. The Contractor may re- ment’s requirements; or quest a waiver from the Contracting Officer (ii) A national interest waiver has been by identifying the circumstances and includ- granted under section 302 of the Trade Agree- ing a plan to qualify U.S. or Canadian ments Act of 1979. sources expeditiously. (d) The offered price of end products listed in paragraph (c)(2) of the Trade Agreements (End of clause) Certificate provision of the solicitation must include all applicable duty, whether or not a duty-free entry certificate will be granted. [62 FR 34131, June 24, 1997] The offered price of qualifying country, des- ignated country, Caribbean Basin country, 252.225–7023 Restriction on acquisi- or NAFTA country end products, for line tion of vessel propellers. items subject to the Trade Agreements Act As prescribed in 225.7020–4, use the or the North American Free Trade Agree- following clause: ment Implementation Act, should not in- clude custom fees or duty. The offered price RESTRICTION ON ACQUISITION OF VESSEL of U.S. made end products should not include PROPELLERS (DEC 2000) duty for qualifying country components. (a) Except as provided in paragraph (b) of (e) The HTSUS is available on the Internet this clause, the Contractor shall deliver at http://www.customs.ustreas.gov.impoexpo/ under this contract, whether as end items or impoexpo.htm. The following sections of the components of end items, vessel propellers— HTSUS provide information regarding duty- (1) Manufactured in the United States or free status of articles specified in paragraph Canada; and (a)(2)(ii)(A) of this clause: (2) For which all component castings were (1) General Note 3(c), Products Eligible for poured and finished in the United States or Special Tariff Treatment. Canada. (2) General Note 17, Products of Countries (b) The restriction in paragraph (a) of this Designated as Beneficiary Countries Under clause— the United States-Caribbean Basin Trade (1) Does not apply to vessel propellers that Partnership Act of 2000. are commercial items; and (3) Section XXII, Chapter 98, Subchapter II, (2) For other than commercial items, may Articles Exported and Returned, Advanced be waived upon request from the Contractor or Improved Abroad, U.S. Note 7(b). in accordance with subsection 225.7020–3 of (4) Section XXII, Chapter 98, Subchapter the Defense Federal Acquisition Regulation XX, Goods Eligible for Special Tariff Bene- Supplement.
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(End of clause) contracts and purchase orders issued in per- formance of this contract, when products [65 FR 77829, Dec. 13, 2000] purchased contain restricted forging items.
252.225–7024 Restriction on acquisi- (End of clause) tion of night vision image intensi- fier tubes and devices. [62 FR 34131, June 24, 1997] As prescribed in 225.7015–3, use the 252.225–7026 Reporting of contract following clause: performance outside the United States. RESTRICTION ON ACQUISITION OF NIGHT VISION IMAGE INTENSIFIER TUBES AND DEVICES As prescribed in 225.7203, use the fol- (DEC 1991) lowing clause: All second and third generation night vi- REPORTING OF CONTRACT PERFORMANCE sion image intensifier tubes and devices pro- OUTSIDE THE UNITED STATES (JUN 2000) vided under this contract shall be manufac- tured in the United States or Canada. (a) Reporting criteria. Reporting under this clause is required for— (End of clause) (1) Offers exceeding $10 million, if the Of- feror is aware at the time the offer is sub- 252.225–7025 Restriction on acquisi- mitted that it or its first-tier subcontractor tion of forgings. intends to perform any part of the contract that exceeds $500,000 outside the United As prescribed in 225.7102–4, use the States and Canada, if that part could be per- following clause: formed inside the United States or Canada; (2) Contracts exceeding $10 million, when RESTRICTION ON ACQUISITION OF FORGINGS any part that exceeds $500,000 could be per- (JUN 1997) formed inside the United States or Canada, (a) Definitions. As used in this clause— but will be performed outside the United (1) ‘‘Domestic manufacture’’ means manu- States and Canada. If the information was factured in the United States or Canada if submitted with the offer, it need not be re- the Canadian firm— submitted unless it changes; and (i) Normally produces similar items or is (3) Contracts exceeding $500,000, when any currently producing the item in support of part that exceeds the simplified acquisition DoD contracts (as prime or subcontractor); threshold in Part 2 of the Federal Acquisi- and tion Regulation will be performed outside (ii) Agrees to become (upon receiving a the United States, unless a foreign place of contract/order) a planned producer under performance is— DoD’s Industrial Preparedness Production (i) The principal place of performance; and Planning Program, if it is not already a (ii) Indicated by the Offeror’s entry in the planned producer for the item. Place of Performance provision of the solici- (2) ‘‘Forging items’’ means— tation. (b) Submission of reports. (1) The Offeror Items Categories shall submit reports required by paragraph (a)(1) of this clause with its offer. Ship propulsion shafts ...... Excludes service and landing (2) The Contractor shall submit reports re- craft shafts. Periscope tubes ...... All. quired by paragraph (a)(2) of this clause to Ring forgings for bull gears ... All greater than 120 inches in the Contracting Officer as soon as the infor- diameter. mation is known, with a copy to the ad- dressee in paragraph (b)(3) of this clause. (b) The Contractor agrees that end items With respect to performance by a first-tier and their components delivered under this subcontractor, this information shall be re- contract shall contain forging items that are ported, to the maximum extent practicable, of domestic manufacture only. at least 30 days before award of the sub- (c) The restriction in paragraph (b) of this contract. clause may be waived upon request from the (3) The Contractor shall submit reports re- Contractor in accordance with subsection quired by paragraph (a)(3) of this clause 225.7102–3 of the Defense Federal Acquisition within 10 days of the end of each Govern- Regulation Supplement. ment quarter to—Deputy Director of Defense (d) The Contractor agrees to retain records Procurement (Foreign Contracting) showing compliance with this restriction OUSD(AT&L)DP(FC) Washington, DC 20301– until 3 years after final payment and to 3060 make records available upon request of the (4) The Offeror/Contractor shall submit re- Contracting Officer. ports on DD Form 2139, Report of Contract (e) The Contractor agrees to insert this Performance Outside the United States. clause, including this paragraph (e), in sub- Computer-generated reports are acceptable,
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provided the report contains all information fees exceeding $50,000 per foreign military required by DD Form 2139. Copies of DD sale case. Form 2139 may be obtained from the Con- tracting Officer. (End of clause) (c) Flowdown requirements. (1) The Con- tractor shall include a clause substantially [63 FR 11546, Mar. 9, 1998] the same as this one in all first-tier sub- contracts exceeding $500,000, except sub- 252.225–7028 Exclusionary policies contracts for commercial items, construc- and practices of foreign govern- tion, ores, natural gases, utilities, petroleum ments. products and crudes, timber (logs), or sub- sistence. As prescribed in 225.7308(b), use the (2) The Contractor shall provide the prime following clause: contract number to subcontractors for re- porting purposes. EXCLUSIONARY POLICIES AND PRACTICES OF (d) Information required. Information to be FOREIGN GOVERNMENTS (DEC 1991) reported on the part of this contract per- No person, partnership, corporation, or formed outside the United States (or outside other entity performing functions pursuant the United States and Canada for reports re- to this contract, shall, in employing or as- quired by paragraphs (a)(1) and (a)(2) of this signing personnel to participate in the per- clause) includes that for— formance of any such function, whether in (1) Subcontracts; the United States or abroad, take into ac- (2) Purchases; and count the exclusionary policies or practices (3) Intracompany transfers when transfers of any foreign government where such poli- originate in a foreign location. cies or practices are based on race, religion, national origin, or sex. (End of clause) (End of clause) [58 FR 28474, May 13, 1993, as amended at 60 FR 29502, June 5, 1995; 60 FR 61602, Nov. 30, 252.225–7029 Preference for United 1995; 63 FR 11546, Mar. 9, 1998; 65 FR 39707, States or Canadian air circuit June 27, 2000] breakers. 252.225–7027 Restriction on contingent As prescribed in 225.7016–4, use the fees for foreign military sales. following clause:
As prescribed in 225.7308(a), use the PREFERENCE FOR UNITED STATES OR following clause. Insert in paragraph CANADIAN AIR CIRCUIT BREAKERS (AUG 1998) (b)(1) of the clause the name(s) of any (a) Unless otherwise specified in its offer, foreign country customer(s) listed in the Contractor agrees that air circuit break- 225.7303–4(b). ers for naval vessels provided under this con- tract shall be manufactured in the United RESTRICTION ON CONTINGENT FEES FOR States, Canada, or the United Kingdom. FOREIGN MILITARY SALES (MAR 1998) (b) Unless an exception applies under De- (a) Except as provided in paragraph (b) of fense Federal Acquisition Regulation Sup- this clause, contingent fees, as defined in the plement (DFARS) 225.7016–2 or a waiver is Covenant Against Contingent Fees clause of granted under DFARS 225.7005(a) (1) or (2), this contract, are generally an allowable preference will be given to air circuit break- cost, provided the fees are paid to a bona fide ers manufactured in the United States or employee of the Contractor or to a bona fide Canada by adding 50 percent for evaluation established commercial or selling agency purposes to the offered price of all other air maintained by the Contractor for the pur- circuit breakers, except those manufactured pose of securing business. in the United Kingdom. (b) For foreign military sales, unless the contingent fees have been identified and pay- (End of clause) ment approved in writing by the foreign cus- tomer before contract award, the following [63 FR 43889, Aug. 17, 1998] contingent fees are unallowable under this contract: 252.225–7030 Restriction on acquisi- (1) For sales to the Government(s) of tion of carbon, alloy, and armor llllllllll, contingent fees in any steel plate. amount. (2) For sales to Governments not listed in As prescribed in 225.7017–4, use the paragraph (b)(1) of this clause, contingent following clause:
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RESTRICTION ON ACQUISITION OF CARBON, 252.225–7032 Waiver of United King- ALLOY, AND ARMOR STEEL PLATE (OCT 1992) dom levies. The Contractor agrees that all carbon, As prescribed in 225.873–3, use the fol- alloy, and armor steel plate in Federal sup- lowing clause: ply class 9515, or described by American So- ciety for Testing Materials (ASTM) or Amer- WAIVER OF UNITED KINGDOM LEVIES (OCT ican Iron and Steel Institute (AISI) speci- 1992) fications, furnished as a deliverable under (a) Offered prices for contracts and sub- this contract, or purchased by the contractor contracts with United Kingdom (U.K.) firms as a raw material, for use in a Government- may contain commercial exploitation levies owned facility or a facility under the control assessed by the Government of the U.K. The of the Department of Defense, shall be melt- Offeror shall identify to the Contracting Of- ed and rolled in the United States or Canada. ficer all levies included in the offered price by describing— (End of clause) (1) The name of the U.K. firm; (2) The item to which the levy applies and quantity; and [57 FR 53601, Nov. 12, 1992] (3) The amount of levy plus any associated indirect costs and profit or fee. 252.225–7031 Secondary Arab boycott (b) If, after award of the prime contract, of Israel. the Contractor contemplates award of a sub- As prescribed in 225.770–5, use the fol- contract over $1 million to a U.K. firm, the lowing clause: Contractor shall identify any levy before award of the subcontract and shall provide SECONDARY ARAB BOYCOTT OF ISRAEL (JUN the following information to the Contracting 1992) Officer— (1) Name of the U.K. firm; (a) Definitions. (2) Prime contract number; As used in this clause— (3) Description of item to which levy ap- Foreign person means any person other plies: than a United States person as defined in (4) Quantity being acquired; and section 16(2) of the Export Administration (5) Amount of levy plus any associated in- Act of 1979 (50 U.S.C. App. Sec 2415). direct costs and profit or fee. United States person is defined in section (c) The Offeror/Contractor should obtain 16(2) of the Export Administration Act of assistance in identifying the levy from the U.K. firm. In the event of difficulty, the Of- 1979 and means any United States resident or feror/Contractor may seek advice through national (other than an individual resident Director of Procurement, United Kingdom outside the United States and employed by Defence Procurement Office, British Em- other than a United States person), any do- bassy, 3100 Massachusetts Avenue, NW, mestic concern (including any permanent do- Washington, DC 20006. mestic establishment of any foreign con- (d) The U.S. Government may attempt to cern), and any foreign subsidiary or affiliate obtain a waiver of levies pursuant to the (including any permanent foreign establish- U.S./U.K. reciprocal waiver agreement of ment) of any domestic concern which is con- July 1987. trolled in fact by such domestic concern, as (1) Where levies are waived before contract determined under regulations of the Presi- award, the offer will be evaluated without dent. the levy. (b) Certification. By submitting this offer, (2) Where levies are identified but not the Offeror, if a foreign person, company or waived before contract award, the offer will entity, certifies that it— be evaluated inclusive of the levies. (1) Does not comply with the Secondary (3) Where a waiver of the levy is obtained Arab Boycott of Israel; and after award, the U.S. Government reserves the right to reduce the contract price by the (2) Is not taking or knowingly agreeing to amount of the levy waived plus associated take any action, with respect to the Sec- indirect costs, profit or fee. ondary Boycott of Israel by Arab countries, (e) The Contractor agrees to insert the sub- which 50 U.S.C. App. Sec. 2407(a) prohibits a stance of this clause, including this para- United States person from taking. graph (e), in any subcontract for supplies where a lower tier subcontract over $1 mil- (End of clause) lion with a U.K. firm is anticipated.
[57 FR 29041, June 30, 1992, as amended at 59 (End of clause) FR 27675, May 27, 1994] [57 FR 53602, Nov. 12, 1992]
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252.225–7033 Restriction on acquisi- llllllllllllllllllllllll tion of four ton dolly jacks. (insert country of origin) As prescribed in 225.7018–3, use the llllllllllllllllllllllll following clause: (ii) The Offeror certifies that the following supplies qualify as NAFTA country end prod- RESTRICTION ON ACQUISITION OF FOUR TON ucts: DOLLY JACKS (APR 1993) (insert line item number) Four ton dolly jacks delivered under this llllllllllllllllllllllll contract shall be manufactured in the United (insert country of origin) States unless a waiver is granted in accord- llllllllllllllllllllllll ance with subsection 225.7018–2 of the De- fense Federal Acquisition Regulation Sup- (iii) The following supplies are other for- plement. eign end products: (insert line item number) (End of clause) llllllllllllllllllllllll (insert country of origin) [58 FR 28474, May 13, 1993] llllllllllllllllllllllll 252.225–7034 [Reserved] (End of provision)
252.225–7035 Buy American Act— Alternate I (MAR 1998). As prescribed in North American Free Trade Agree- 225.1101(12)(ii), substitute the phrase ‘‘Cana- ment Implementation Act—Balance dian end product’’ for the phrase ‘‘NAFTA of Payments Program Certificate. country end product’’ in paragraph (a); and As prescribed in 225.1101(12), use the substitute the phrase ‘‘Canadian end prod- following provision: ucts’’ for the phrase ‘‘NAFTA country end products’’ in paragraphs (b) and (c)(2)(ii) of BUY AMERICAN ACT—NORTH AMERICAN FREE the basic clause. TRADE AGREEMENT IMPLEMENTATION ACT— BALANCE OF PAYMENTS PROGRAM CERTIFI- [63 FR 11546, Mar. 9, 1998, as amended at 65 CATE (MAR 1998) FR 19858, Apr. 13, 2000] (a) Definitions. Domestic end product, foreign 252.225–7036 Buy American Act— end product, NAFTA country end product, and North American Free Trade Agree- qualifying country end product have the mean- ment Implementation Act—Balance ings given in the Buy American Act—North of Payments Program. American Free Trade Agreement Implemen- tation Act—Balance of Payments Program As prescribed in 225.1101(13),use the clause of this solicitation. following clause: (b) Evaluation. Offers will be evaluated in accordance with the policies and procedures BUY AMERICAN ACT—NORTH AMERICAN FREE of Part 225 of the Defense Federal Acquisi- TRADE AGREEMENT IMPLEMENTATION ACT— tion Regulation Supplement. For line items BALANCE OF PAYMENTS PROGRAM (MAR subject to the North American Free Trade 1998) Agreement Implementation Act, offers of (a) Definitions. As used in this clause— qualifying country end products or NAFTA (1) Components means those articles, mate- country end products will be evaluated with- rials, and supplies directly incorporated into out regard to the restrictions of the Buy end products. American Act or the Balance of Payments (2) Domestic end product means— Program. (i) An unmanufactured end product that (c) Certifications. (1) The offeror certifies has been mined or produced in the United that— States; or (i) Each end product, except the end prod- (ii) An end product manufactured in the ucts listed in paragraph (c)(2) of this provi- United States if the cost of its qualifying sion, is a domestic end product; and country components and its components (ii) Components of unknown origin are con- that are mined, produced, or manufactured sidered to have been mined, produced, or in the United States exceeds 50 percent of manufactured outside the United States or a the cost of all its components. The cost of qualifying country. components shall include transportation (2) The Offeror must identify all end prod- costs to the place of incorporation into the ucts that are not domestic end products. end product and U.S. duty (whether or not a (i) The Offeror certifies that the following duty-free entry certificate may be issued). A supplies are qualifying country (except Can- component shall be considered to have been ada) end products: mined, produced, or manufactured in the (insert line item number) United States (regardless of its source in
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fact) if the end product in which it is incor- less, in its offer, it specified delivery of porated is manufactured in the United qualifying country, NAFTA country, or States and the component is of a class or other foreign end products in the Buy Amer- kind— ican Act—North American Free Trade Agree- (A) Determined to be not mined, produced, ment Implementation Act—Balance of Pay- or manufactured in the United States in suf- ments Program Certificate provision of the ficient and reasonably available commercial solicitation. An offer certifying that a quali- quantities and of a satisfactory quality; or fying country end product or a NAFTA coun- (B) That the Secretary concerned deter- try end product will be supplied requires the mines would be inconsistent with the public Contractor to supply a qualifying country interest to apply the restrictions of the Buy end product or a NAFTA country end prod- American Act. uct, whichever is certified, or, at the Con- (3) End product means those articles, mate- tractor’s option, a domestic end product. rials, and supplies to be acquired for public (d) The offered price of qualifying country use under the contract. For this contract, end products, or NAFTA country end prod- the end products are the line items to be de- ucts for line items subject to the North livered to the Government (including sup- American Free Trade Agreement Implemen- plies to be acquired by the Government for tation Act, should not include custom fees or public use in connection with service con- duty. The offered price of foreign end prod- tracts, but excluding installation and other ucts listed in paragraph (c)(2)(iii) of the Buy services to be performed after delivery). American Act—North American Free Trade (4) Foreign end product means an end prod- Agreement Implementation Act—Balance of uct other than a domestic end product. Payments Program Certificate provision of (5) North American Free Trade Agreement the solicitation, or the offered price of do- (NAFTA) country means Canada or Mexico. mestic end products that contain nonquali- (6) NAFTA country end product means an ar- fying country components, must include all ticle that— applicable duty. The award price will not in- (i) Is wholly the growth, product, or manu- clude duty for end products or components facture of a NAFTA country; or that are to be accorded duty-free entry. Gen- (ii) In the case of an article that consists erally, each foreign end product listed in in whole or in part of materials from another paragraph (c)(2)(iii) of the Buy American country or instrumentality, has been sub- Act—North American Free Trade Agreement stantially transformed in a NAFTA country Implementation Act—Balance of Payments into a new and different article of commerce Program Certificate provision of the solici- with a name, character, or use distinct from tation is adjusted for the purpose of evalua- that of the article or articles from which it tion by adding 50 percent of the offered price, was so transformed. The term refers to a inclusive of duty. product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (End of clause) (except transportation services) incidental Alternate I (SEP 1999). As prescribed in to its supply, provided that the value of 225.1101(13)(i)(B), substitute the following those incidental services does not exceed the paragraphs (a)(6), (c), and (d) for paragraphs value of the product itself. (a)(6), (c), and (d) of the basic clause: (7) Qualifying country means any country set forth in subsection 225.872–1 of the De- (a)(6) Canadian end product, means an arti- fense Federal Acquisition Regulation Sup- cle that— plement. (i) Is wholly the growth, product, or manu- (8) Qualifying country component means an facture of Canada; or item mined, produced, or manufactured in a (ii) In the case of an article that consists qualifying country. in whole or in part of materials from another (9) Qualifying country end product means— country or instrumentality, has been sub- (i) An unmanufactured end product mined stantially transformed in Canada into a new or produced in a qualifying country; or and different article of commerce with a (ii) An end product manufactured in a name, character, or use distinct from that of qualifying country if the cost of the compo- the article or articles from which it so was nents mined, produced, or manufactured in so transformed. The term refers to a product the qualifying country and its components offered for purchase under a supply contract, mined, produced, or manufactured in the but for purposes of calculating the value of United States exceeds 50 percent of the cost the end product includes services (except of all its components. transportation services) incidental to its (b) Unless otherwise specified, the North supply, provided that the value of those inci- American Free Trade Agreement Implemen- dental services does not exceed that of the tation Act of 1993 (19 U.S.C. 3301 note) applies product itself. to all items in the Schedule. (c) The Contractor agrees to deliver under (c) The Contractor agrees to deliver under this contract only domestic end products un- this contract only domestic end products un- less, in its offer, it specified delivery of
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qualifying country, Canadian, or other for- purchase orders, that involve delivery of eli- eign end products in the Buy American Act— gible end products to be accorded duty-free North American Free Trade Agreement Im- entry whether placed— plementation Act—Balance of Payments (1) Directly with a foreign concern as a Program Certificate provision of the solici- prime contract; or tation. An offer certifying that a qualifying (2) As a subcontract or purchase order country end product or a Canadian end prod- under a contract with a domestic concern. uct will be supplied requires the Contractor (c) Except as otherwise approved by the to supply a qualifying country end product Contracting Officer, no amount is or will be or a Canadian end product, whichever is cer- included in the contract price for duty for el- tified, or, at the Contractor’s option, a do- igible end products. mestic end product. (d) The Contractor warrants that— (d) The offered price of qualifying country (1) All eligible end products, for which end products, or Canadian end products for duty-free entry is to be claimed under this line items subject to the North American clause, are intended to be delivered to the Free Trade Agreement Implementation Act, Government; and should not include custom fees or duty. The (2) The Contractor will pay any applicable offered price of foreign end products listed in duty to the extent that such eligible end paragraph (c)(2)(iii) of the Buy American products, or any portion thereof (if not scrap Act—North American Free Trade Agreement or salvage) are diverted to nongovernmental Implementation Act—Balance of Payments use, other than as a result of a competitive Program Certificate provision of the solici- sale made, directed, or authorized by the tation, or the offered price of domestic end Contracting Officer. products that contain nonqualifying country (e) The Government agrees to execute components, must include all applicable duty-free certificates and to afford such as- duty. The award price will not include duty sistance as appropriate to obtain the duty- for end products or components that are to free entry of eligible end products for which be accorded duty-free entry. Generally, each the shipping documents bear the notation foreign end product listed in paragraph specified in paragraph (f) of this clause, ex- (c)(2)(iii) of the Buy American Act—North cept as the Contractor may otherwise agree. American Free Trade Agreement Implemen- (f) All shipping documents submitted to tation Act—Balance of Payments Program Customs, covering eligible end products for Certificate provision of the solicitation is which duty-free entry certificates are to be adjusted for the purpose of evaluation by issued under this clause, shall— adding 50 percent of the offered price, inclu- (1) Consign the shipments to the appro- sive of duty. priate— (i) Military department in care of the Con- [63 FR 11547, Mar. 9, 1998, as amended at 64 tractor, including the Contractor’s delivery FR 51077, Sept. 21, 1999; 65 FR 19858, Apr. 13, address; or 2000] (ii) Military installation; and (2) Include the following information— 252.225–7037 Duty-free entry—Eligible (i) Prime contract number, and delivery end products. order if applicable; As prescribed in 225.1101(14), use the (ii) Number of the subcontract/purchase order for foreign supplies if applicable; following clause: (iii) Identification of carrier; (iv)(A) For direct shipments to a U.S. mili- DUTY-FREE ENTRY—ELIGIBLE END PRODUCTS tary installation, the notation: (AUG 2000) UNITED STATES GOVERNMENT, DE- (a) Definition. Eligible end product, as used PARTMENT OF DEFENSE Duty-Free Entry in this clause, means— to be claimed pursuant to Section XXII, (1) Designated country end product, Carib- Chapter 98, Subchapter VIII, Item 9808.00.30 bean Basin country end product, or NAFTA of the Harmonized Tariff Schedule of the country end product, as defined in the Trade United States. Upon arrival of shipment at Agreements clause of this contract; the appropriate port of entry, District Direc- (2) NAFTA country end product, as defined tor of Customs, please release shipment in the Buy American Act—North American under 19 CFR part 142, and notify Com- Free Trade Agreement Implementation mander, Defense Contract Management Act—Balance of Payments Program clause of (DCM) New York, ATTN: Customs Team, this contract; or DCMDN–GNIC, 207 New York Avenue, Build- (3) Canadian end product, as defined in Al- ing 120, Staten Island, New York 10305–5013, ternate I of the Buy American Act—North for execution of Customs Forms 7501, 7501A, American Free Trade Agreement Implemen- or 7506 and any required duty-free entry cer- tation Act—Balance of Payments Program tificates. clause of this contract. (B) In cases where the shipment will be (b) The requirements of this clause apply consigned to other than a military installa- to this contract and subcontracts, including tion, e.g., a domestic contractor’s plant, the
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shipping document notation shall be altered The notice shall be furnished to the contract to insert the name and address of the con- administration office immediately upon tractor, agent or broker who will notify award to the supplier of the eligible end Commander, DCM New York, for execution products. The notice shall contain— of the duty-free certificate. (Note: In those (1) Prime contractor’s name, address, and instances where the shipment will be con- CAGE code; signed to a contractor’s plant and no duty- (2) Prime contract number, and delivery free entry certificate is required, the con- order number if applicable; tractor or its agent shall claim duty-free (3) Total dollar value of the prime contract entry under NAFTA or other trade agree- or delivery order; ment and shall comply with the U.S. Cus- (4) Expiration date of the prime contract toms Service requirements. No notification or delivery order; to Commander, DCM New York, is required.) (5) Foreign supplier’s name and address; (v) Gross weight in pounds (if freight is (6) Number of the subcontract/purchase based on space tonnage, state cubic feet in order for eligible end products; addition to gross shipping weight); (7) Total dollar value of the subcontract (vi) Estimated value in U.S. dollars; and for eligible end products; (vii) Activity Address Number of the con- (8) Expiration date of the subcontract for tract administration office actually admin- eligible end products; istering the prime contract, e.g., for DCM (9) List of items purchased; Dayton, S3605A. (10) An agreement by the Contractor that (g) Preparation of customs forms. (1) Ex- any applicable duty shall be paid by the Con- cept for shipments consigned to a military tractor to the extent that such eligible end installation, the Contractor shall prepare, or products are diverted to nongovernmental authorize an agent to prepare, any customs use other than as a result of a competitive forms required for the entry of eligible end sale made, directed, or authorized by the products in connection with DoD contracts Contracting Officer; and into the United States, its possessions, or (11) The scheduled delivery date(s). Puerto Rico. The completed customs forms shall be submitted to the District Director of (End of clause) Customs with a copy to DCM New York for execution of any required duty-free entry [63 FR 11548, Mar. 9, 1998, as amended at 65 certificates. Shipments consigned directly to FR 19858, Apr. 13, 2000; 65 FR 52953, Aug. 31, a military installation will be released in ac- 2000] cordance with 10.101 and 10.102 of the U.S. Customs regulations. 252.225–7038 Restriction on acquisi- (2) For shipments containing both supplies tion of aircraft fuel cells. that are to be accorded duty-free entry and supplies that are not, the Contractor shall As prescribed in 225.7021–3, use the identify on the customs forms those items following clause: that are eligible for duty-free entry. RESTRICTION ON ACQUISITION OF AIRCRAFT (h) The Contractor agrees— FUEL CELLS (FEB 1994) (1) To prepare (if this contract is placed di- rectly with a foreign supplier), or to instruct The Contractor agrees that all aircraft fuel the foreign supplier to prepare, a sufficient cells furnished under this contract have been number of copies, of the bill of lading (or manufactured in the United States by a do- other shipping document) so that at least mestic-operated entity. two of the copies accompanying the ship- ment will be available for use by the District (End of clause) Director of Customs at the port of entry; (2) To consign the shipment as specified in [59 FR 11729, Mar. 14, 1994; 59 FR 38931, Aug. paragraph (f) of this clause; and 1, 1994] (3) To mark the exterior of all packages as follows: 252.225–7039 Restriction on acquisi- (i) ‘‘UNITED STATES GOVERNMENT, DE- tion of totally enclosed lifeboat sur- PARTMENT OF DEFENSE;’’ and vival systems. (ii) The activity address number of the contract administration office actually ad- As prescribed in 225.7022–4, use the ministering the prime contract. following clause: (i) The Contractor agrees to notify the RESTRICTION ON ACQUISITION OF TOTALLY EN- Contracting Officer administering the prime CLOSED LIFEBOAT SURVIVAL SYSTEMS (APR contract in writing of any purchase under 1996) the contract of eligible end products to be accorded duty-free entry that are to be im- For totally enclosed lifeboat survival sys- ported into the United States for delivery to tems furnished under this contract, which the Government or for incorporation in end consist of lifeboat and associated davits and items to be delivered to the Government. winches, the Contractor agrees that—
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(a) 50 percent or more of the components side the United States under this contract, have been manufactured in the United shall— States, and (1) Affiliate with the Overseas Security Ad- (b) 50 percent or more of the labor in the visory Council, if the Contractor or subcon- manufacture and assembly of the entire sys- tractor is a U.S. entity; tem has been performed in the United (2) Ensure that Contractor and subcon- States. tractor personnel who are U.S. nationals and are in-country on a non-transitory basis, (End of clause) register with the U.S. Embassy, and that Contractor and subcontractor personnel who [59 FR 19146, Apr. 22, 1994, as amended at 61 are third country nationals comply with any FR 13108, Mar. 26, 1996] security related requirements of the Em- bassy of their nationality; 252.225–7040 [Reserved] (3) Provide, to Contractor and subcon- tractor personnel, antiterrorism/force pro- 252.225–7041 Correspondence in tection awareness information commensu- English. rate with that which the Department of De- fense (DoD) provides to its military and ci- As prescribed in 225.1103(2), use the vilian personnel and their families, to the following clause: extent such information can be made avail- able prior to travel outside the United CORRESPONDENCE IN ENGLISH (JUNE 1997) States; and The Contractor shall ensure that all con- (4) Obtain and comply with the most cur- tract correspondence that is addressed to the rent antiterrorism/force protection guidance United States Government is submitted in for Contractor and subcontractor personnel. English or with an English translation. (b) The requirements of this clause do not apply to any subcontractor that is— (End of clause) (1) A foreign government; (2) A representative of a foreign govern- [62 FR 34132, June 24, 1997, as amended at 65 ment; or FR 19858, Apr. 13, 2000] (3) A foreign corporation wholly owned by a foreign government. 252.225–7042 Authorization to per- (c) Information and guidance pertaining to form. DoD antiterrorism/force protection can be obtained from [Contracting Officer to insert As prescribed in 225.1103(3), use the applicable information cited in 225.7401]. following clause: (End of clause) AUTHORIZATION TO PERFORM (JUNE 1997) The Contractor represents that it has been [63 FR 31937, June 11, 1998] duly authorized to operate and to do busi- ness in the country or countries in which 252.226–7000 Notice of historically this contract is to be performed. The Con- black college or university and mi- tractor also represents that it will fully com- nority institution set-aside. ply with all laws, decrees, labor standards, and regulations of such country or countries, As prescribed in 226.7008(a), use the during the performance of this contract. following clause:
(End of clause) NOTICE OF HISTORICALLY BLACK COLLEGE OR UNIVERSITY AND MINORITY INSTITUTION SET- ASIDE (APR 1994) [62 FR 34132, June 24, 1997, as amended at 65 FR 19858, Apr. 13, 2000] (a) Definitions. Historically black colleges and universities, as used in this clause, means in- 252.225–7043 Antiterrorism/force pro- stitutions determined by the Secretary of tection policy for defense contrac- Education to meet the requirements of 34 tors outside the United States. CFR 608.2. The term also means any non- profit research institution that was an inte- As prescribed in 225.7402, use the fol- gral part of such a college or university be- lowing clause: fore November 14, 1986. Minority institutions, as used in this clause, ANTITERRORISM/FORCE PROTECTION POLICY means institutions meeting the require- FOR DEFENSE CONTRACTORS OUTSIDE THE ments of section 1046(3) of the Higher Edu- UNITED STATES (JUN 1998) cation Act of 1965 (20 U.S.C. 1135d–5(3)). The (a) Except as provided in paragraph (b) of term also includes Hispanic-serving institu- this clause, the Contractor and its sub- tions as defined in section 316(b)(1) of such contractors, if performing or traveling out- Act (20 U.S.C. 1059c(b)(1)).
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(b) General. (1) Offers are solicited only award of a subcontract or by the failure to from historically black colleges or univer- award a subcontract. sities and minority institutions. (b) The Contractor shall use its best efforts (2) Any award resulting from this solicita- to give Indian organizations and Indian- tion will be made only to an offeror which is owned economic enterprises the maximum a historically black college or university or practicable opportunity to participate in the a minority institution at the time of submis- subcontracts it awards, to the fullest extent sion of its initial offer including price. consistent with efficient performance of the (c) Agreements. The offeror will— contract. (1) Perform at least 50 percent of the cost (c) The Contracting Officer and the Con- of contract performance incurred for per- tractor, acting in good faith, may rely on the sonnel with its own employees; and representation of an Indian organization or (2) Upon request by the Contracting Offi- Indian-owned economic enterprise as to its cer, provide evidence prior to award that the eligibility, unless an interested party chal- Secretary of Education has determined the lenges its status or the Contracting Officer offeror to be a historically black college or has independent reason to question that sta- university or minority institution. tus. (d) In the event of a challenge to the rep- (End of clause) resentation of a subcontractor, the Con- tracting Officer will refer the matter to the [56 FR 36479, July 31, 1991, as amended at 59 U.S. Department of the Interior, Bureau of FR 22131, Apr. 29, 1994] Indian Affairs, Attn: Chief, Division of Con- tracting and Grants Administration, 1849 C 252.226–7001 Utilization of Indian Or- Street NW, MS–2626–MIB, Washington, DC ganizations and Indian-Owned Eco- 20240–4000. The BIA will determine the eligi- nomic Enterprises-DoD Contracts. bility and will notify the Contracting Offi- cer. No incentive payment will be made— As prescribed in 226.104, use the fol- (1) Within 50 working days of subcontract lowing clause: award; (2) While a challenge is pending; or UTILIZATION OF INDIAN ORGANIZATIONS AND (3) If a subcontractor is determined to be INDIAN-OWNED ECONOMIC ENTERPRISES-DOD an ineligible participant. CONTRACTS (SEP 2001) (e)(1) The Contractor, on its own behalf or (a) Definitions. As used in this clause— on behalf of a subcontractor at any tier, may ‘‘Indian’’ means any person who is a mem- request an adjustment under the Indian In- ber of any Indian tribe, band, group, pueblo, centive Program to the following: or community that is recognized by the Fed- (i) The estimated cost of a cost-type con- eral Government as eligible for services from tract. the Bureau of Indian Affairs (BIA) in accord- (ii) The target cost of a cost-plus-incen- ance with 25 U.S.C. 1452(c) and any ‘‘Native’’ tive-fee contract. as defined in the Alaska Native Claims Set- (iii) The target cost and ceiling price of a tlement Act (43 U.S.C. 1601). fixed-price incentive contract. ‘‘Indian organization’’ means the gov- (iv) The price of a firm-fixed-price con- erning body of any Indian tribe or entity es- tract. tablished or recognized by the governing (2) The amount of the adjustment that body of an Indian tribe for the purposes of 25 may be made to the contract is 5 percent of U.S.C. Chapter 17. the estimated cost, target cost, or firm-fixed ‘‘Indian-owned economic enterprise’’ price included in the subcontract initially means any Indian-owned (as determined by awarded to the Indian organization or In- the Secretary of the Interior) commercial, dian-owned economic enterprise. industrial, or business activity established (3) The Contractor has the burden of prov- or organized for the purpose of profit, pro- ing the amount claimed and must assert its vided that Indian ownership constitutes not request for an adjustment prior to comple- less than 51 percent of the enterprise. tion of contract performance. ‘‘Indian tribe’’ means any Indian tribe, (4) The Contracting Officer, subject to the band, group, pueblo, or community, includ- terms and conditions of the contract and the ing native villages and native groups (includ- availability of funds, will authorize an incen- ing corporations organized by Kenai, Juneau, tive payment of 5 percent of the amount paid Sitka, and Kodiak) as defined in the Alaska to the subcontractor. Native Claims Settlement Act, that is recog- (5) If the Contractor requests and receives nized by the Federal Government as eligible an adjustment on behalf of a subcontractor, for services from BIA in accordance with 25 the Contractor is obligated to pay the sub- U.S.C. 1452 (c). contractor the adjustment. ‘‘Interested party’’ means a contractor or (f) The Contractor shall insert the sub- an actual or prospective offeror whose direct stance of this clause, including this para- economic interest would be affected by the graph (f), in all subcontracts that—
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(1) Are for other than commercial items; terms which are more favorable to the li- and censee than those contained herein, the Gov- (2) Are expected to exceed the simplified ernment shall be entitled to the benefit of acquisition threshold in Part 2 of the Federal such more favorable terms with respect to Acquisition Regulation. all royalties accruing under this contract (End of clause) after the date such more favorable terms be- come effective, and the Contractor shall [66 FR 47111, Sept. 11, 2001; 66 FR 50504, Oct. promptly notify the Secretary in writing of 3, 2001] the granting of such more favorable terms. (b) In the event any claim of any patent 252.227–7000 Non-estoppel. hereby licensed is construed or held invalid As prescribed at 227.7009–1, insert the by decision of a court of competent jurisdic- following clause in patent releases, li- tion, the requirement to pay royalties under cense agreements, and assignments: this contract insofar as its arises solely by reason of such claim, and any other claim NON-ESTOPPEL (OCT 1966) not materially different therefrom, shall be interpreted in conformity with the court’s The Government reserves the right at any decision as to the scope of validity of such time to contest the enforceability, validity, claims; Provided, however, that in the event scope of, or the title to any patent or patent such decision is modified or reversed on ap- application herein licensed without waiving peal, the requirement to pay royalties under or forfeiting any right under this contract. this contract shall be interpreted in con- formity with the final decision rendered on (End of clause) such appeal. 252.227–7001 Release of past infringe- (End of clause) ment. As prescribed at 227.7009–2(a), insert 252.227–7003 Termination. the following clause in patent releases, As prescribed at 227.7009–2(c), insert license agreements, and assignments: the following clause in patent releases, license agreements, and assignments: RELEASE OF PAST INFRINGEMENT (AUG 1984) The Contractor hereby releases each and TERMINATION (AUG 1984) every claim and demand which he now has or Notwithstanding any other provision of may hereafter have against the Government this contract, the Government shall have the for the manufacture or use by or for the Gov- right to terminate the within license, in ernment prior to the effective date of this whole or in part, by giving the Contractor contract, of any inventions covered by (i) not less than thirty (30) days notice in writ- any of the patents and applications for pat- ing of the date such termination is to be ef- ent identified in this contract, and (ii) any fective; provided, however, that such termi- other patent or application for patent owned nation shall not affect the obligation of the or hereafter acquired by him, insofar as and Government to pay royalties which have ac- only to the extent that such other patent or crued prior to the effective date of such ter- patent application covers the manufacture, mination. use, or disposition of (description of subject matter).* (End of clause)
(End of clause) 252.227–7004 License grant. 252.227–7002 Readjustment of pay- As prescribed at 227.7009–3(a), insert ments. the following clause in patent releases, As prescribed at 227.7009–2(b), insert license agreements, and assignments: the following clause in patent releases, LICENSE GRANT (AUG 1984) license agreements, and assignments: (a) The Contractor hereby grants to the READJUSTMENT OF PAYMENTS (OCT 1966) Government an irrevocable, nonexclusive, nontransferable, and paid up license under (a) If any license, under substantially the the following patents, applications for pat- same patents and authorizing substantially ent, and any patents granted on such appli- the same acts which are authorized under cations, and under any patents which may this contract, has been or shall hereafter be issue as the result of any reissue, division or granted within the United States, on royalty continuation thereof, to practice by or cause to be practiced for the Government through- *Bracketed portions of the clause may be out the world, any and all of the inventions omitted when not appropriate or not encom- thereunder, in the manufacture and use of passed by the release as negotiated. any article or material, in the use of any
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method or process, and in the disposition of patents, applications for patent, and any any article or material in accordance with patents granted on such applications, and law: under any patents which may issue as the re- U.S. Patent No. lllllllllllllll sult of any reissue, division, or continuation Date lllllllllllllllllllll thereunder to practice by or cause to be Application Serial No. lllllllllll practiced for the Department of llll, Filing Date lllllllllllllllll throughout the world, any and all of the in- together with corresponding foreign patents ventions thereunder in the manufacture and and foreign applications for patents, insofar use of any article or material, in the use of as the Contractor has the right to grant li- any method or process, and in the disposi- censes thereunder without incurring an obli- tion of any article or material in accordance gation to pay royalties or other compensa- with law: U.S. Patent No. tion to others solely on account of such lllllllllllllll Date grant. lllllllllllllllllllll Application Serial No. (b) No rights are granted or implied by the lllllllllll Filing Date lllllllllllllllll agreement under any other patents other than as provided above or by operation of together with corresponding foreign patents law. and foreign applications for patent, insofar (c) Nothing contained herein shall limit as the Contractor has the right to grant li- any rights which the Government may have censes thereunder without incurring an obli- obtained by virtue of prior contracts or by gation to pay royalties or other compensa- operation of law or otherwise. tion to others solely on account of such grant. (End of clause) (b) No rights are granted or implied by the agreement under any other patents other 252.227–7005 License term. than as provided above or by operation of law. As prescribed at 227.7009–3(b), insert (c) Nothing contained herein shall limit one of the following clauses in patent any rights which the Government may have releases, license agreements, and as- obtained by virtue of prior contracts or by signments: operation of law or otherwise.
LICENSE TERM (OCT 2001) (End of clause) Alternate I (AUG 1984). The license hereby granted shall remain in full force and effect 252.227–7007 License term—running for the full term of each of the patents re- royalty. ferred to in the ‘‘License Grant’’ clause of As prescribed at 227.7009–4(b), insert this contract and any and all patents here- the following clause in patent releases, after issued on applications for patent re- license agreements, and assignments: ferred to in such ‘‘License Grant’’ clause. Alternate II (OCT 2001). The license hereby LICENSE TERM—RUNNING ROYALTY (AUG 1984) granted shall terminate on the llll day of llll ,llll; Provided, however, that The license hereby granted shall remain in said termination shall be without prejudice full force and effect for the full term of each to the completion of any contract entered of the patents referred to in the ‘‘License into by the Government prior to said date of Grant’’ clause of this contract and any and termination or to the use or disposition all patents hereafter issued on applications for patent referred to above unless sooner thereafter of any articles or materials manu- terminated as elsewhere herein provided. factured by or for the Government under this license. (End of clause) [56 FR 36479, July 31, 1991, as amended at 66 FR 49861, Oct. 1, 2001] 252.227–7008 Computation of royalties. As prescribed at 227.7009–4(c), insert 252.227–7006 License grant—running royalty. the following clause in patent releases, license agreements, and assignments: As prescribed at 227.7009–4(a), insert the following clause in patent releases, COMPUTATION OF ROYALTIES (AUG 1984) license agreements, and assignments: Subject to the conditions hereinafter stat- ed, royalties shall accrue to the Contractor LICENSE GRANT—RUNNING ROYALTY (AUG under this agreement on all articles or mate- 1984) rials embodying, or manufactured by the use (a) The Contractor hereby grants to the of, any or all inventions claimed under any Government, as represented by the Secretary unexpired United States patent licensed of lllll, an irrevocable, nonexclusive, herein, upon acceptance thereof by the De- nontransferable license under the following partment of llllll, at the rate of
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llll percent of the net selling price of (End of clause) such articles or materials (amount) per (name of item) * whether manufactured by 252.227–7010 License to other Govern- the Government or procured under a fixed ment agencies. price contract, and at the rate of (amount) per (name of item) acquired or manufactured As prescribed at 227.7009–4(e), insert by a Contractor performing under a cost-re- the following clause in patent releases, imbursement contract. With respect to such license agreements, and assignments: articles or materials made by the Depart- ment of llllll, ‘‘net selling price,’’ as LICENSE TO OTHER GOVERNMENT AGENCIES used in this paragraph, means the actual (AUG 1984) cost of direct labor and materials without al- The Contractor hereby agrees to grant a lowance for overhead and supervision. separate license under the patents, applica- tions for patents, and improvements referred (End of clause) to in the ‘‘License Grant’’ clause of this con- tract, on the same terms and conditions as 252.227–7009 Reporting and payment appear in this license contract, to any other of royalties. department or agency of the Government at As prescribed at 227.7009–4(d), insert any time on receipt of a written request for the following clause in patent releases, such a license from such department or agen- license agreements, and assignments: cy; Provided, however, that as to royalties which accrue under such separate licenses, REPORTING AND PAYMENT OF ROYALTIES (AUG reports and payments shall be made directly 1984) to the Contractor by each such other depart- ment or agency pursuant to the terms of (a) The (procuring office) shall, on or be- such separate licenses. The Contractor shall fore the sixtieth (60th) day next following notify the Licensee hereunder promptly upon the end of each yearly* period ending receipt of any request for license hereunder. llllll during which royalties have ac- crued under this license, deliver to the Con- tractor, subject to military security regula- (End of clause) tions, a report in writing furnishing nec- essary information relative to royalties 252.227–7011 Assignments. which have accrued under this contract. As prescribed at 227.7010, insert the (b) Royalties which have accrued under following clause in assignments. this contract during the yearly* period end- ing llllll shall be paid to the Con- ASSIGNMENT (AUG 1984) tractor (if appropriations therefor are avail- The Contractor hereby conveys to the Gov- able or become available) within sixty (60) ernment, as represented by the Secretary of days next following the receipt of a voucher llllll, the entire right, title, and inter- from the Contractor submitted in accordance est in and to the following patents (and ap- with the report referred to in (a) of this plications for patent), in and to the inven- clause; Provided, that the Government shall tions thereof, and in and to all claims and not be obligated to pay, in respect of any demands whatsoever for infringement there- such yearly period, on account of the com- of heretofore accrued, the same to be held bined royalties accruing under this contract and enjoyed by the Government through its directly and under any separate licenses duly appointed representatives to the full granted pursuant to the ‘‘License to Other end of the term of said patents (and to the Government Agencies’’ clause (if any) of this contract, an amount greater than full end of the terms of all patents which llllll dollars ($llllll), and if such may be granted upon said applications for combined royalties exceed the said max- patent, or upon any division, continuation- imum yearly obligation, each department or in-part or continuation thereof): agency shall pay a pro rata share of the said U.S. Patent No. lllllllllllllll maximum yearly obligation as determined Date lllllllllllllllllllll by the proportion its accrued royalties bear Name of Inventor llllllllllllll to the combined total of accrued royalties. U.S. Application Serial No. lllllllll Filing Date lllllllllllllllll * Use bracketed matter as appropriate. Name of Inventor llllllllllllll * The frequency, date, and length of report- together with corresponding foreign patents ing periods should be selected as appropriate and applications for patent insofar as the to the particular circumstances of the con- Contractor has the right to assign the same. tract.
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(End of clause) authorize an assignment of any claim against the Government otherwise than as 252.227–7012 Patent license and re- permitted by law. lease contract. In Witness Whereof, the parties hereto have executed this contract. As prescribed at 227.7012, insert the following clause in patent releases, li- THE UNITED STATES OF AMERICA By llllllllllllllllllllll cense agreements, and assignments: Date lllllllllllllllllllll llllllllllllllllllllllll (Signature and Title of (Contract No.) Contractor Representative) lllllllll By llllllllllllllllllllll PATENT LICENSE AND RELEASE CONTRACT Date lllllllllllllllllllll (SEP 1999) *If only a release is procured, delete this This CONTRACT is effective as of the ll article; if an assignment is procured, use the day of [month, year], between the UNITED clause at 252.227–7011. STATES OF AMERICA (hereinafter called **When the Contractor is an individual, the Government), and lllll (hereinafter change ‘‘successors’’ to ‘‘heirs’’; if a partner- called the Contractor), (a corporation orga- ship, modify appropriately. nized and existing under the laws of the (End of clause) State of lllll), (a partnership consisting of lllll), (an individual trading as [64 FR 49685, Sept. 14, 1999] lllll), of the City of lllll, in the State of lllll. 252.227–7013 Rights in technical Whereas, the Contractor warrants that it data—Noncommercial items. has the right to grant the within license and As prescribed in 227.7103–6(a), use the release, and the Government desires to pro- following clause: cure the same, and Whereas, this contract is authorized by RIGHTS IN TECHNICAL DATA—NONCOMMERCIAL law, including 10 U.S.C. 2386. ITEMS (NOV 1995) Now Therefore, in consideration of the grant, release and agreements hereinafter re- (a) Definitions. As used in this clause: cited, the parties have agreed as follows: (1) Computer data base means a collection of Article 1. License Grant.* data recorded in a form capable of being (Insert the clause at 252.227–7004 for a paid processed by a computer. The term does not up license, or the clause at 252.227–7006 for a include computer software. license on a running royalty basis.) (2) Computer program means a set of in- Article 2. License Term.* structions, rules, or routines recorded in a (Insert the appropriate alternative clause form that is capable of causing a computer at 252.227–7005 for a paid up license, or the to perform a specific operation or series of clause at 252.227–7007 for a license on a run- operations. ning royalty basis.) (3) Computer software means computer pro- Article 3. Release of Past Infringement. grams, source code, source code listings, ob- (Insert the clause at 252.227–7001.) ject code listings, design details, algorithms, Article 4. Non-Estoppel. processes, flow charts, formulae and related (Insert the clause at 252.227–7000.) material that would enable the software to Article 5. Payment. be reproduced, recreated, or recompiled. The Contractor shall be paid the sum of Computer software does not include com- lll Dollars ($lll) in full compensation puter data bases or computer software docu- for the rights herein granted and agreed to mentation. be granted. (For a license on a running roy- (4) Computer software documentation means alty basis, insert the clause at 252.227–7006 in owner’s manuals, user’s manuals, installa- accordance with the instructions therein, tion instructions, operating instructions, and also the clause as specified at 252.227– and other similar items, regardless of stor- 7002 and 252.227–7009 and 252.227–7010.) age medium, that explain the capabilities of Article 6. Covenant Against Contingent the computer software or provide instruc- Fees. tions for using the software. (Insert the clause at FAR 52.203–5.) (5) Detailed manufacturing or process data Article 7. Assignment of Claims. means technical data that describe the steps, (Insert the clause at FAR 52.232–23.) sequences, and conditions of manufacturing, Article 8. Gratuities. processing or assembly used by the manufac- (Insert the clause at FAR 52.203–3.) turer to produce an item or component or to Article 9. Disputes. perform a process. (Insert the clause at FAR 52.233–1.) (6) Developed means that an item, compo- Article 10. Successors and Assignees. nent, or process exists and is workable. Thus, This Agreement shall be binding upon the the item or component must have been con- Contractor, its successors** and assignees, structed or the process practiced. Work- but nothing contained in this Article shall ability is generally established when the
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item, component, or process has been ana- (ii) Release or disclose technical data out- lyzed or tested sufficiently to demonstrate side the Government and authorize persons to reasonable people skilled in the applicable to whom release or disclosure has been made art that there is a high probability that it to use, modify, reproduce, release, perform, will operate as intended. Whether, how display, or disclose that data for United much, and what type of analysis or testing is States government purposes. required to establish workability depends on (13) Limited rights means the rights to use, the nature of the item, component, or proc- modify, reproduce, release, perform, display, ess, and the state of the art. To be considered or disclose technical data, in whole or in ‘‘developed,’’ the item, component, or proc- part, within the Government. The Govern- ess need not be at the stage where it could be ment may not, without the written permis- offered for sale or sold on the commercial sion of the party asserting limited rights, re- market, nor must the item, component, or lease or disclose the technical data outside process be actually reduced to practice with- the Government, use the technical data for in the meaning of Title 35 of the United manufacture, or authorize the technical data States Code. to be used by another party, except that the (7) Developed exclusively at private expense Government may reproduce, release or dis- means development was accomplished en- close such data or authorize the use or repro- tirely with costs charged to indirect cost duction of the data by persons outside the pools, costs not allocated to a government Government if reproduction, release, disclo- contract, or any combination thereof. sure, or use is— (i) Private expense determinations should (i) Necessary for emergency repair and be made at the lowest practicable level. overhaul; or (ii) A release or disclosure of technical (ii) Under fixed-price contracts, when total data (other than detailed manufacturing or costs are greater than the firm-fixed-price or process data) to, or use of such data by, a ceiling price of the contract, the additional foreign government that is in the interest of development costs necessary to complete de- the Government and is required for velopment shall not be considered when de- evaluational or informational purposes; termining whether development was at gov- (iii) Subject to a prohibition on the further ernment, private, or mixed expense. reproduction, release, disclosure, or use of (8) Developed exclusively with government the technical data; and funds means development was not accom- (iv) The contractor or subcontractor as- plished exclusively or partially at private ex- serting the restriction is notified of such re- pense. production, release, disclosure, or use. (9) Developed with mixed funding means de- (14) Technical data means recorded informa- velopment was accomplished partially with tion, regardless of the form or method of the costs charged to indirect cost pools and/or recording, of a scientific or technical nature costs not allocated to a government con- (including computer software documenta- tract, and partially with costs charged di- tion). The term does not include computer rectly to a government contract. software or data incidental to contract ad- (10) Form, fit, and function data means tech- ministration, such as financial and/or man- nical data that describes the required overall agement information. physical, functional, and performance char- (15) Unlimited rights means rights to use, acteristics (along with the qualification re- modify, reproduce, perform, display, release, quirements, if applicable) of an item, compo- or disclose technical data in whole or in nent, or process to the extent necessary to part, in any manner, and for any purpose permit identification of physically and func- whatsoever, and to have or authorize others tionally interchangeable items. to do so. (11) Government purpose means any activity (b) Rights in technical data. The Contractor in which the United States Government is a grants or shall obtain for the Government party, including cooperative agreements the following royalty free, world-wide, non- with international or multi-national defense exclusive, irrevocable license rights in tech- organizations, or sales or transfers by the nical data other than computer software doc- United States Government to foreign govern- umentation (see the Rights in Noncommer- ments or international organizations. Gov- cial Computer Software and Noncommercial ernment purposes include competitive pro- Computer Software Documentation clause of curement, but do not include the rights to this contract for rights in computer software use, modify, reproduce, release, perform, dis- documentation): play, or disclose technical data for commer- (1) Unlimited rights. The Government shall cial purposes or authorize others to do so. have unlimited rights in technical data that (12) Government purpose rights means the are— rights to— (i) Data pertaining to an item, component, (i) Use, modify, reproduce, release, per- or process which has been or will be devel- form, display, or disclose technical data oped exclusively with Government funds; within the Government without restriction; (ii) Studies, analyses, test data, or similar and data produced for this contract, when the
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study, analysis, test, or similar work was (iii) The Government shall not release or specified as an element of performance; disclose technical data in which it has gov- (iii) Created exclusively with Government ernment purpose rights unless— funds in the performance of a contract that (A) Prior to release or disclosure, the in- does not require the development, manufac- tended recipient is subject to the non-disclo- ture, construction, or production of items, sure agreement at 227.7103–7 of the Defense components, or processes; Federal Acquisition Regulation Supplement (iv) Form, fit, and function data; (DFARS); or (v) Necessary for installation, operation, (B) The recipient is a Government con- maintenance, or training purposes (other tractor receiving access to the data for per- than detailed manufacturing or process formance of a Government contract that data); contains the clause at DFARS 252.227–7025, (vi) Corrections or changes to technical Limitations on the Use or Disclosure of Gov- data furnished to the Contractor by the Gov- ernment-Furnished Information Marked ernment; with Restrictive Legends. (vii) Otherwise publicly available or have (iv) The Contractor has the exclusive right, been released or disclosed by the Contractor including the right to license others, to use or subcontractor without restrictions on fur- technical data in which the Government has ther use, release or disclosure, other than a obtained government purpose rights under release or disclosure resulting from the sale, this contract for any commercial purpose transfer, or other assignment of interest in during the time period specified in the gov- the technical data to another party or the ernment purpose rights legend prescribed in sale or transfer of some or all of a business paragraph (f)(2) of this clause. entity or its assets to another party; (3) Limited rights. (i) Except as provided in (viii) Data in which the Government has paragraphs (b)(1)(ii) and (b)(1)(iv) through obtained unlimited rights under another (b)(1)(ix) of this clause, the Government Government contract or as a result of nego- shall have limited rights in technical data— tiations; or (A) Pertaining to items, components, or (ix) Data furnished to the Government, processes developed exclusively at private under this or any other Government con- expense and marked with the limited rights tract or subcontract thereunder, with— legend prescribed in paragraph (f) of this (A) Government purpose license rights or clause; or limited rights and the restrictive condi- (B) Created exclusively at private expense tion(s) has/have expired; or in the performance of a contract that does (B) Government purpose rights and the not require the development, manufacture, Contractor’s exclusive right to use such data construction, or production of items, compo- for commercial purposes has expired. nents, or processes. (2) Government purpose rights. (i) The Gov- (ii) The Government shall require a recipi- ernment shall have government purpose ent of limited rights data for emergency re- rights for a five-year period, or such other pair or overhaul to destroy the data and all period as may be negotiated, in technical copies in its possession promptly following data— completion of the emergency repair/overhaul (A) That pertain to items, components, or and to notify the Contractor that the data processes developed with mixed funding ex- have been destroyed. cept when the Government is entitled to un- (iii) The Contractor, its subcontractors, limited rights in such data as provided in and suppliers are not required to provide the paragraphs (b)(ii) and (b)(iv) through (b)(ix) Government additional rights to use, modify, of this clause; or reproduce, release, perform, display, or dis- (B) Created with mixed funding in the per- close technical data furnished to the Govern- formance of a contract that does not require ment with limited rights. However, if the the development, manufacture, construction, Government desires to obtain additional or production of items, components, or proc- rights in technical data in which it has lim- esses. ited rights, the Contractor agrees to prompt- (ii) The five-year period, or such other pe- ly enter into negotiations with the Con- riod as may have been negotiated, shall com- tracting Officer to determine whether there mence upon execution of the contract, sub- are acceptable terms for transferring such contract, letter contract (or similar contrac- rights. All technical data in which the Con- tual instrument), contract modification, or tractor has granted the Government addi- option exercise that required development of tional rights shall be listed or described in a the items, components, or processes or cre- license agreement made part of the contract. ation of the data described in paragraph The license shall enumerate the additional (b)(2)(i)(B) of this clause. Upon expiration of rights granted the Government in such data. the five-year or other negotiated period, the (4) Specifically negotiated license rights. The Government shall have unlimited rights in standard license rights granted to the Gov- the technical data. ernment under paragraphs (b)(1) through
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(b)(3) of this clause, including the period dur- (3) In addition to the assertions made in ing which the Government shall have gov- the Attachment, other assertions may be ernment purpose rights in technical data, identified after award when based on new in- may be modified by mutual agreement to formation or inadvertent omissions unless provide such rights as the parties consider the inadvertent omissions would have mate- appropriate but shall not provide the Gov- rially affected the source selection decision. ernment lesser rights than are enumerated Such identification and assertion shall be in paragraph (a)(13) of this clause. Any rights submitted to the Contracting Officer as soon so negotiated shall be identified in a license as practicable prior to the scheduled date for agreement made part of this contract. delivery of the data, in the following format, (5) Prior government rights. Technical data and signed by an official authorized to con- that will be delivered, furnished, or other- tractually obligate the Contractor: Identi- wise provided to the Government under this fication and Assertion of Restrictions on the contract, in which the Government has pre- Government’s Use, Release, or Disclosure of viously obtained rights shall be delivered, Technical Data. furnished, or provided with the pre-existing The Contractor asserts for itself, or the rights, unless— persons identified below, that the Govern- (i) The parties have agreed otherwise; or ment’s rights to use, release, or disclose the (ii) Any restrictions on the Government’s following technical data should be re- rights to use, modify, reproduce, release, per- stricted— form, display, or disclose the data have ex- pired or no longer apply. Technical data Asserted Name of per- to be fur- Basis for as- rights cat- son asserting (6) Release from liability. The Contractor nished with sertion 2 egory 3 restrictions 4 agrees to release the Government from li- restrictions 1 ability for any release or disclosure of tech- nical data made in accordance with para- (LIST) ...... (LIST) ...... (LIST) ...... (LIST) graph (a)(13) or (b)(2)(iii) of this clause, in ac- 1 If the assertion is applicable to items, components or proc- cordance with the terms of a license nego- esses developed at private expense, identify both the data and each such item, component, or process. tiated under paragraph (b)(4) of this clause, 2 Generally, the development of an item, component, or or by others to whom the recipient has re- process at private expense, either exclusively or partially, is leased or disclosed the data and to seek re- the only basis for asserting restrictions on the Government’s rights to use, release, or disclose technical data pertaining to lief solely from the party who has improp- such items, components, or processes. Indicate whether de- erly used, modified, reproduced, released, velopment was exclusively or partially at private expense. If performed, displayed, or disclosed Con- development was not at private expense, enter the specific reason for asserting that the Government’s rights should be tractor data marked with restrictive leg- restricted. ends. 3 Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data gen- (c) Contractor rights in technical data. All erated under another contract, limited or government purpose rights not granted to the Government are re- rights under this or a prior contract, or specifically negotiated tained by the Contractor. licenses). 4 (d) Third party copyrighted data. The Con- Corporation, individual, or other person, as appropriate. tractor shall not, without the written ap- Date proval of the Contracting Officer, incor- lllllllllllllllllllll porate any copyrighted data in the technical Printed Name and Title lllllllllll data to be delivered under this contract un- llllllllllllllllllllllll less the Contractor is the copyright owner or Signature llllllllllllllllll has obtained for the Government the license rights necessary to perfect a license or li- (End of identification and assertion) censes in the deliverable data of the appro- priate scope set forth in paragraph (b) of this (4) When requested by the Contracting Offi- clause, and has affixed a statement of the li- cer, the Contractor shall provide sufficient cense or licenses obtained on behalf of the information to enable the Contracting Offi- Government and other persons to the data cer to evaluate the Contractor’s assertions. transmittal document. The Contracting Officer reserves the right to (e) Identification and delivery of data to be add the Contractor’s assertions to the At- furnished with restrictions on use, release, or tachment and validate any listed assertion, disclosure. (1) This paragraph does not apply at a later date, in accordance with the proce- to restrictions based solely on copyright. dures of the Validation of Restrictive Mark- (2) Except as provided in paragraph (e)(3) of ings on Technical Data clause of this con- this clause, technical data that the Con- tract. tractor asserts should be furnished to the (f) Marking requirements. The Contractor, Government with restrictions on use, re- and its subcontractors or suppliers, may lease, or disclosure are identified in an at- only assert restrictions on the Government’s tachment to this contract (the Attachment). rights to use, modify, reproduce, release, per- The Contractor shall not deliver any data form, display, or disclose technical data to with restrictive markings unless the data be delivered under this contract by marking are listed on the Attachment. the deliverable data subject to restriction.
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Except as provided in paragraph (f)(5) of this The Government’s rights to use, modify, clause, only the following legends are au- reproduce, release, perform, display, or dis- thorized under this contract: the government close these technical data are restricted by purpose rights legend at paragraph (f)(2) of paragraph (b)(3) of the Rights in Technical this clause; the limited rights legend at Data—Noncommercial Items clause con- paragraph (f)(3) of this clause; or the special tained in the above identified contract. Any license rights legend at paragraph (f)(4) of reproduction of technical data or portions this clause; and/or a notice of copyright as thereof marked with this legend must also prescribed under 17 U.S.C. 401 or 402. reproduce the markings. Any person, other (1) General marking instructions. The Con- than the Government, who has been provided tractor, or its subcontractors or suppliers, access to such data must promptly notify shall conspicuously and legibly mark the ap- the above named Contractor. propriate legend on all technical data that qualify for such markings. The authorized (End of legend) legends shall be placed on the transmittal document or storage container and, for (4) Special license rights markings. (i) Data in printed material, each page of the printed which the Government’s rights stem from a material containing technical data for which specifically negotiated license shall be restrictions are asserted. When only portions marked with the following legend: of a page of printed material are subject to the asserted restrictions, such portions shall Special License Rights be identified by circling, underscoring, with The Government’s rights to use, modify, a note, or other appropriate identifier. Tech- reproduce, release, perform, display, or dis- nical data transmitted directly from one close these data are restricted by Contract computer or computer terminal to another No. llllllll (Insert contract number) shall contain a notice of asserted restric- llllllll, License No. llllllll tions. Reproductions of technical data or any (Insert license identifier) llllllll. portions thereof subject to asserted restric- Any reproduction of technical data or por- tions shall also reproduce the asserted re- tions thereof marked with this legend must strictions. also reproduce the markings. (2) Government purpose rights markings. Data delivered or otherwise furnished to the Gov- (End of legend) ernment purpose rights shall be marked as follows: (ii) For purposes of this clause, special li- censes do not include government purpose li- Government Purpose Rights cense rights acquired under a prior contract Contract No. llllllllllllllll (see paragraph (b)(5) of this clause). (5) Pre-existing data markings. If the terms Contractor Name llllllllllllll of a prior contract or license permitted the Contractor Address lllllllllllll Contractor to restrict the Government’s llllllllllllllllllllllll rights to use, modify, reproduce, release, per- Expiration Date lllllllllllllll form, display, or disclose technical data de- The Government’s rights to use, modify, liverable under this contract, and those re- reproduce, release, perform, display, or dis- strictions are still applicable, the Contractor close these technical data are restricted by may mark such data with the appropriate re- paragraph (b)(2) of the Rights in Technical strictive legend for which the data qualified Data—Noncommercial Items clause con- under the prior contract or license. The tained in the above identified contract. No marking procedures in paragraph (f)(1) of restrictions apply after the expiration date this clause shall be followed. shown above. Any reproduction of technical (g) Contractor procedures and records. data or portions thereof marked with this Throughout performance of this contract, legend must also reproduce the markings. the Contractor and its subcontractors or suppliers that will deliver technical data (End of legend) with other than unlimited rights, shall— (1) Have, maintain, and follow written pro- (3) Limited rights markings. Data delivered cedures sufficient to assure that restrictive or otherwise furnished to the Government markings are used only when authorized by with limited rights shall be marked with the the terms of this clause; and following legend: (2) Maintain records sufficient to justify the validity of any restrictive markings on Limited Rights technical data delivered under this contract. Contract No. llllllllllllllll (h) Removal of unjustified and nonconforming markings. (1) Unjustified technical data mark- Contractor Name llllllllllllll ings. The rights and obligations of the par- Contractor Address lllllllllllll ties regarding the validation of restrictive llllllllllllllllllllllll markings on technical data furnished or to
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be furnished under this contract are con- subcontractor or supplier for delivery to the tained in the Validation of Restrictive Mark- Government under this contract, the Con- ings on Technical Data clause of this con- tractor shall use this same clause in the sub- tract. Notwithstanding any provision of this contract or other contractual instrument, contract concerning inspection and accept- and require its subcontractors or suppliers to ance, the Government may ignore or, at the do so, without alteration, except to identify Contractor’s expense, correct or strike a the parties. No other clause shall be used to marking if, in accordance with the proce- enlarge or diminish the Government’s, the dures in the Validation of Restrictive Mark- Contractor’s, or a higher-tier subcontrac- ings on Technical Data clause of this con- tor’s or supplier’s rights in a subcontractor’s tract, a restrictive marking is determined to or supplier’s technical data. be unjustified. (3) Technical data required to be delivered (2) Nonconforming technical data markings. A by a subcontractor or supplier shall nor- nonconforming marking is a marking placed mally be delivered to the next higher-tier on technical data delivered or otherwise fur- contractor, subcontractor, or supplier. How- nished to the Government under this con- ever, when there is a requirement in the tract that is not in the format authorized by prime contract for data which may be sub- this contract. Correction of nonconforming mitted with other than unlimited rights by a markings is not subject to the Validation of subcontractor or supplier, then said subcon- Restrictive Markings on Technical Data tractor or supplier may fulfill its require- clause of this contract. If the Contracting ment by submitting such data directly to the Officer notifies the Contractor of a noncon- Government, rather than through a higher- forming marking and the Contractor fails to tier contractor, subcontractor, or supplier. remove or correct such marking within sixty (4) The Contractor and higher-tier sub- (60) days, the Government may ignore or, at contractors or suppliers shall not use their the Contractor’s expense, remove or correct power to award contracts as economic lever- any nonconforming marking. age to obtain rights in technical data from (i) Relation to patents. Nothing contained in their subcontractors or suppliers. this clause shall imply a license to the Gov- (5) In no event shall the Contractor use its ernment under any patent or be construed as obligation to recognize and protect subcon- affecting the scope of any license or other tractor or supplier rights in technical data right otherwise granted to the Government as an excuse for failing to satisfy its contrac- under any patent. tual obligations to the Government. (j) Limitation on charges for rights in tech- nical data. (1) The Contractor shall not (End of clause) charge to this contract any cost, including, but not limited to, license fees, royalties, or Alternate I (JUNE 1995). As prescribed in similar charges, for rights in technical data 227.7103–6(b), add the following paragraph (l) to be delivered under this contract when— to the basic clause: (i) The Government has acquired, by any (l) Publication for sale. (1) This paragraph means, the same or greater rights in the only applies to technical data in which the data; or Government has obtained unlimited rights (ii) The data are available to the public or a license to make an unrestricted release without restrictions. of technical data. (2) The limitation in paragraph (j)(1) of (2) The Government shall not publish a de- this clause— liverable technical data item or items identi- (i) Includes costs charged by a subcon- fied in this contract as being subject to para- tractor or supplier, at any tier, or costs in- graph (l) of this clause or authorize others to curred by the Contractor to acquire rights in publish such data on its behalf if, prior to subcontractor or supplier technical data, if publication for sale by the Government and the subcontractor or supplier has been paid within twenty-four (24) months following the for such rights under any other Government date specified in this contract for delivery of contract or under a license conveying the such data or the removal of any national se- rights to the Government; and curity or export control restrictions, which- (ii) Does not include the reasonable costs ever is later, the Contractor publishes that of reproducing, handling, or mailing the doc- item or items for sale and promptly notifies the Contracting Officer of such publica- uments or other media in which the tech- tion(s). Any such publication shall include a nical data will be delivered. notice identifying the number of this con- (k) Applicability to subcontractors or sup- tract and the Government’s rights in the pliers. (1) The Contractor shall ensure that published data. the rights afforded its subcontractors and (3) This limitation on the Government’s suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, right to publish for sale shall continue as and the identification, assertion, and deliv- long as the data are reasonably available to ery processes of paragraph (e) of this clause the public for purchase. are recognized and protected. (2) Whenever any technical data for non- [60 FR 33490, June 28, 1995, as amended at 60 commercial items is to be obtained from a FR 61602, Nov. 30, 1995]
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252.227–7014 Rights in noncommercial (iii) Computer software documentation re- computer software and noncommer- quired to be delivered under a contract has cial computer software documenta- been written, in any medium, in sufficient tion. detail to comply with requirements under that contract. As prescribed in 227.7203–6(a)(1), use (7) Developed exclusively at private expense the following clause. means development was accomplished en- tirely with costs charged to indirect cost RIGHTS IN NONCOMMERCIAL COMPUTER SOFT- pools, costs not allocated to a government WARE AND NONCOMMERCIAL COMPUTER SOFT- contract, or any combination thereof. WARE DOCUMENTATION (JUN 1995) (i) Private expense determinations should (a) Definitions. As used in this clause: be made at the lowest practicable level. (1) Commercial computer software means (ii) Under fixed-price contracts, when total software developed or regularly used for non- costs are greater than the firm-fixed-price or governmental purposes which— ceiling price of the contract, the additional development costs necessary to complete de- (i) Has been sold, leased, or licensed to the velopment shall not be considered when de- public; termining whether development was at gov- (ii) Has been offered for sale, lease, or li- ernment, private, or mixed expense. cense to the public; (8) Developed exclusively with government (iii) Has not been offered, sold, leased, or funds means development was not accom- licensed to the public but will be available plished exclusively or partially at private ex- for commercial sale, lease, or license in time pense. to satisfy the delivery requirements of this (9) Developed with mixed funding means de- contract; or velopment was accomplished partially with (iv) Satisfies a criterion expressed in para- costs charged to indirect cost pools and/or graph (a)(1) (i), (ii), or (iii) of this clause and costs not allocated to a government con- would require only minor modification to tract, and partially with costs charged di- meet the requirements of this contract. rectly to a government contract. (2) Computer database means a collection of (10) Government purpose means any activity recorded data in a form capable of being in which the United States Government is a processed by a computer. The term does not party, including cooperative agreements include computer software. with international or multi-national defense (3) Computer program means a set of in- organizations or sales or transfers by the structions, rules, or routines, recorded in a United States Government to foreign govern- form that is capable of causing a computer ments or international organizations. Gov- to perform a specific operation or series of ernment purposes include competitive pro- operations. curement, but do not include the rights to (4) Computer software means computer pro- use, modify, reproduce, release, perform, dis- grams, source code, source code listings, ob- play, or disclose computer software or com- ject code listings, design details, algorithms, puter software documentation for commer- processes, flow charts, formulae, and related cial purposes or authorize others to do so. material that would enable the software to (11) Government purpose rights means the be reproduced, recreated, or recompiled. rights to— Computer software does not include com- (i) Use, modify, reproduce, release, per- puter databases or computer software docu- form, display, or disclose computer software mentation. or computer software documentation within (5) Computer software documentation means the Government without restriction; and owner’s manuals, user’s manuals, installa- (ii) Release or disclose computer software tion instructions, operating instructions, or computer software documentation outside and other similar items, regardless of stor- the Government and authorize persons to age medium, that explain the capabilities of whom release or disclosure has been made to the computer software or provide instruc- use, modify, reproduce, release, perform, dis- tions for using the software. play, or disclose the software or documenta- (6) Developed means that— tion for United States government purposes. (i) A computer program has been success- (12) Minor modification means a modifica- fully operated in a computer and tested to tion that does not significantly alter the the extent sufficient to demonstrate to rea- nongovernmental function or purpose of the sonable persons skilled in the art that the software or is of the type customarily pro- program can reasonably be expected to per- vided in the commercial marketplace. form its intended purpose; (13) Noncommercial computer software means (ii) Computer software, other than com- software that does not qualify as commercial puter programs, has been tested or analyzed computer software under paragraph (a)(1) of to the extent sufficient to demonstrate to this clause. reasonable persons skilled in the art that the (14) Restricted rights apply only to non- software can reasonably be expected to per- commercial computer software and mean the form its intended purpose; or Government’s rights to—
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(i) Use a computer program with one com- computer software to reflect the repairs or puter at one time. The program may not be overhaul made, provided that— accessed by more than one terminal or cen- (A) The intended recipient is subject to the tral processing unit or time shared unless use and non-disclosure agreement at DFARS otherwise permitted by this contract; 227.7103–7 or is a Government contractor re- (ii) Transfer a computer program to an- ceiving access to the software for perform- other Government agency without the fur- ance of a Government contract that contains ther permission of the Contractor if the the clause at DFARS 252.227–7025, Limita- transferor destroys all copies of the program tions on the Use or Disclosure of Govern- and related computer software documenta- ment-Furnished Information Marked with tion in its possession and notifies the licen- Restrictive Legends; and sor of the transfer. Transferred programs re- (B) The Government shall not permit the main subject to the provisions of this clause; recipient to decompile, disassemble, or re- (iii) Make the minimum number of copies verse engineer the software, or use software of the computer software required for safe- decompiled, disassembled, or reverse engi- keeping (archive), backup, or modification neered by the Government pursuant to para- purposes; graph (a)(14)(iv) of this clause, for any other (iv) Modify computer software provided purpose. that the Government may— (15) Unlimited rights means rights to use, (A) Use the modified software only as pro- modify, reproduce, release, perform, display, vided in paragraphs (a)(14) (i) and (iii) of this clause; and or disclose computer software or computer (B) Not release or disclose the modified software documentation in whole or in part, software except as provided in paragraphs in any manner and for any purpose whatso- (a)(14) (ii), (v) and (vi) of this clause; ever, and to have or authorize others to do (v) Permit contractors or subcontractors so. performing service contracts (see 37.101 of (b) Rights in computer software or computer the Federal Acquisition Regulation) in sup- software documentation. The Contractor port of this or a related contract to use com- grants or shall obtain for the Government puter software to diagnose and correct defi- the following royalty free, world-wide, non- ciencies in a computer program, to modify exclusive, irrevocable license rights in non- computer software to enable a computer pro- commercial computer software or computer gram to be combined with, adapted to, or software documentation. All rights not merged with other computer programs or granted to the Government are retained by when necessary to respond to urgent tactical the Contractor. situations, provided that— (1) Unlimited rights. The Government shall (A) The Government notifies the party have unlimited rights in— which has granted restricted rights that a (i) Computer software developed exclu- release or disclosure to particular contrac- sively with Government funds; tors or subcontractors was made; (ii) Computer software documentation re- (B) Such contractors or subcontractors are quired to be delivered under this contract; subject to the use and non-disclosure agree- (iii) Corrections or changes to computer ment at 227.7103–7 of the Defense Federal Ac- software or computer software documenta- quisition Regulation Supplement (DFARS) tion furnished to the Contractor by the Gov- or are Government contractors receiving ac- ernment; cess to the software for performance of a (iv) Computer software or computer soft- Government contract that contains the ware documentation that is otherwise pub- clause at DFARS 252.227–7025, Limitations on licly available or has been released or dis- the Use or Disclosure of Government-Fur- closed by the Contractor or subcontractor nished Information Marked with Restrictive Legends; without restriction on further use, release or (C) The Government shall not permit the disclosure, other than a release or disclosure recipient to decompile, disassemble, or re- resulting from the sale, transfer, or other as- verse engineer the software, or use software signment of interest in the software to an- decompiled, disassembled, or reverse engi- other party or the sale or transfer of some or neered by the Government pursuant to para- all of a business entity or its assets to an- graph (a)(14)(iv) of this clause, for any other other party; purpose; and (v) Computer software or computer soft- (D) Such use is subject to the limitation in ware documentation obtained with unlim- paragraph (a)(14)(i) of this clause; and ited rights under another Government con- (vi) Permit contractors or subcontractors tract or as a result of negotiations; or performing emergency repairs or overhaul of (vi) Computer software or computer soft- items or components of items procured under ware documentation furnished to the Gov- this or a related contract to use the com- ernment, under this or any other Govern- puter software when necessary to perform ment contract or subcontract thereunder the repairs or overhaul, or to modify the with—
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(A) Restricted rights in computer software, (4) Specifically negotiated license rights. (i) limited rights in technical data, or govern- The standard license rights granted to the ment purpose license rights and the restric- Government under paragraphs (b)(1) through tive conditions have expired; or (b)(3) of this clause, including the period dur- (B) Government purpose rights and the ing which the Government shall have gov- Contractor’s exclusive right to use such soft- ernment purpose rights in computer soft- ware or documentation for commercial pur- ware, may be modified by mutual agreement poses has expired. to provide such rights as the parties consider (2) Government purpose rights. (i) Except as appropriate but shall not provide the Gov- provided in paragraph (b)(1) of this clause, ernment lesser rights in computer software the Government shall have government pur- than are enumerated in paragraph (a)(14) of pose rights in computer software develop- this clause or lesser rights in computer soft- ment with mixed funding. ware documentation than are enumerated in (ii) Government purpose rights shall re- paragraph (a)(13) of the Rights in Technical main in effect for a period of five years un- Data—Noncommercial Items clause of this less a different period has been negotiated. contract. Upon expiration of the five-year or other ne- (ii) Any rights so negotiated shall be iden- gotiated period, the Government shall have tified in a license agreement made part of unlimited rights in the computer software or this contract. computer software documentation. The gov- (5) Prior government rights. Computer soft- ernment purpose rights period shall com- ware or computer software documentation mence upon execution of the contract, sub- that will be delivered, furnished, or other- contract, letter contract (or similar contrac- wise provided to the Government under this tual instrument), contract modification, or contract, in which the Government has pre- option exercise that required development of viously obtained rights shall be delivered, the computer software. furnished, or provided with the pre-existing (iii) The Government shall not release or rights, unless— disclose computer software in which it has (i) The parties have agreed otherwise; or government purpose rights to any other per- (ii) Any restrictions on the Government’s son unless— rights to use, modify, reproduce, release, per- (A) Prior to release or disclosure, the in- form, display, or disclose the data have ex- tended recipient is subject to the use and pired or no longer apply. non-disclosure agreement at DFARS 227.7103–7; or (6) Release from liability. The Contractor agrees to release the Government from li- (B) The recipient is a Government con- ability for any release or disclosure of com- tractor receiving access to the software or documentation for performance of a Govern- puter software made in accordance with ment contract that contains the clause at paragraph (a)(14) or (b)(2)(iii) of this clause, DFARS 252.227–7025, Limitations on the Use in accordance with the terms of a license ne- or Disclosure of Government Furnished In- gotiated under paragraph (b)(4) of this formation Marked with Restrictive Legends. clause, or by others to whom the recipient (3) Restricted rights. (i) The Government has released or disclosed the software, and to shall have restricted rights in noncommer- seek relief solely from the party who has im- cial computer software required to be deliv- properly used, modified, reproduced, re- ered or otherwise provided to the Govern- leased, performed, displayed, or disclosed ment under this contract that were devel- Contractor software marked with restrictive oped exclusively at private expense. legends. (ii) The Contractor, its subcontractors, or (c) Rights in derivative computer software or suppliers are not required to provide the computer software documentation. The Govern- Government additional rights in non- ment shall retain its rights in the unchanged commercial computer software delivered or portions of any computer software or com- otherwise provided to the Government with puter software documentation delivered restricted rights. However, if the Govern- under this contract that the Contractor uses ment desires to obtain additional rights in to prepare, or includes in, derivative com- such software, the Contractor agrees to puter software or computer software docu- promptly enter into negotiations with the mentation. Contracting Officer to determine whether (d) Third party copyrighted computer soft- there are acceptable terms for transferring ware or computer software documentation. The such rights. All noncommercial computer Contractor shall not, without the written ap- software in which the Contractor has grant- proval of the Contracting Officer, incor- ed the Government additional rights shall be porate any copyrighted computer software or listed or described in a license agreement computer software documentation in the made part of the contract (see paragraph software or documentation to be delivered (b)(4) of this clause). The license shall enu- under this contract unless the Contractor is merate the additional rights granted the the copyright owner or has obtained for the Government. Government the license rights necessary to
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perfect a license or licenses in the deliver- llllllllllllllllllllllll able software or documentation of the appro- Signature llllllllllllllllll priate scope set forth in paragraph (b) of this (End of identification and assertion) clause, and prior to delivery of such— (1) Computer software, has provided a (4) When requested by the Contracting Offi- statement of the license rights obtained in a cer, the Contractor shall provide sufficient form acceptable to the Contracting Officer; information to enable the Contracting Offi- or cer to evaluate the Contractor’s assertions. (2) Computer software documentation, has The Contracting Officer reserves the right to affixed to the transmittal document a state- add the Contractor’s assertions to the At- ment of the license rights obtained. tachment and validate any listed assertion, (e) Identification and delivery of computer at a later date, in accordance with the proce- software and computer software documentation dures of the Validation of Asserted Restric- to be furnished with restrictions on use, release, tions—Computer Software clause of this con- or disclosure. (1) This paragraph does not tract. apply to restrictions based solely on copy- (f) Marking requirements. The Contractor, right. and its subcontractors or suppliers, may (2) Except as provided in paragraph (e)(3) of only assert restrictions on the Government’s this clause, computer software that the Con- rights to use, modify, reproduce, release, per- tractor asserts should be furnished to the form, display, or disclose computer software Government with restrictions on use, re- by marking the deliverable software or docu- lease, or disclosure is identified in an attach- mentation subject to restriction. Except as ment to this contract (the Attachment). The provided in paragraph (f)(5) of this clause, Contractor shall not deliver any software only the following legends are authorized with restrictive markings unless the soft- under this contract; the government purpose ware is listed on the Attachment. rights legend at paragraph (f)(2) of this (3) In addition to the assertions made in clause; the restricted rights legend at para- the Attachment, other assertions may be graph (f)(3) of this clause; or the special li- identified after award when based on new in- cense rights legend at paragraph (f)(4) of this formation or inadvertent omissions unless clause; and/or a notice of copyright as pre- the inadvertent omissions would have mate- scribed under 17 U.S.C. 401 or 402. rially affected the source selection decision. Such identification and assertion shall be (1) General marking instructions. The Con- submitted to the Contracting Officer as soon tractor, or its subcontractors or suppliers, as practicable prior to the scheduled data for shall conspicuously and legibly mark the ap- delivery of the software, in the following for- propriate legend on all computer software mat, and signed by an official authorized to that qualify for such markings. The author- contractually obligate the Contractor: Iden- ized legends shall be placed on the trans- tification and Assertion of Restrictions on mitted document or software storage con- the Government’s Use, Release, or Disclosure tainer and each page, or portions thereof, of of Computer Software. printed material containing computer soft- The Contractor asserts for itself, or the ware for which restrictions are asserted. persons identified below, that the Govern- Computer software transmitted directly ment’s rights to use, release, or disclose the from one computer or computer terminal to following computer software should be re- another shall contain a notice of asserted re- stricted: strictions. However, instructions that inter- fere with or delay the operation of computer Computer software in order to display a restrictive Software to Asserted Name of Per- be Furnished Basis for Rights son Asserting rights legend or other license statement at With Assertion** Category*** Restrictions**** any time prior to or during use of the com- Restrictions* puter software, or otherwise cause such in- (LIST) (LIST) (LIST) (LIST) terference or delay, shall not be inserted in software that will or might be used in com- *Generally, development at private expense, either exclu- bat or situations that simulate combat con- sively or partially, is the only basis for asserting restrictions on the Government’s rights to use, release, or disclose computer ditions, unless the Contracting Officer’s software. written permission to deliver such software **Indicate whether development was exclusively or partially at private expense. If development was not at private ex- has been obtained prior to delivery. Repro- pense, enter the specific reason for asserting that the Govern- ductions of computer software or any por- ment’s rights should be restricted. tions thereof subject to asserted restrictions, ***Enter asserted rights category (e.g., restricted or govern- ment purpose rights in computer software, government pur- shall also reproduce the asserted restric- pose license rights from a prior contract, rights in SBIR soft- tions. ware generated under another contract, or specifically nego- tiated licenses). (2) Government purpose rights markings. ****Corporation, individual, or other person, as appropriate. Computer software delivered or otherwise furnished to the Government with govern- Date lllllllllllllllllllll ment purpose rights shall be marked as fol- Printed Name and Title lllllllllll lows:
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GOVERNMENT PURPOSE RIGHTS (End of legend) Contract No. llllllllllllllll (ii) For purposes of this clause, special li- Contractor Name llllllllllllll censes do not include government purpose li- cense rights acquired under a prior contract Contractor Address lllllllllllll (see paragraph (b)(5) of this clause). llllllllllllllllllllllll (5) Pre-existing markings. If the terms of a Expiration Date lllllllllllllll prior contract or license permitted the Con- The Government’s rights to use, modify, tractor to restrict the Government’s rights reproduce, release, perform, display, or dis- to use, modify, release, perform, display, or close this software are restricted by para- disclose computer software or computer soft- ware documentation and those restrictions graph (b)(2) of the Rights in Noncommercial are still applicable, the Contractor may Computer Software and Noncommercial mark such software or documentation with Computer Software Documentation clause the appropriate restrictive legend for which contained in the above identified contract. the software qualified under the prior con- No restrictions apply after the expiration tract or license. The marking procedures in date shown above. Any reproduction of the paragraph (f)(1) of this clause shall be fol- software or portions thereof marked with lowed. this legend must also reproduce the mark- (g) Contractor procedures and records. ings. Throughout performance of this contract, (End of legend) the Contractor and its subcontractors or (3) Restricted rights markings. Software de- suppliers that will deliver computer software livered or otherwise furnished to the Govern- or computer software documentation with ment with restricted rights shall be marked other than unlimited rights, shall— with the following legend: (1) Have, maintain, and follow written pro- cedures sufficient to assure that restrictive RESTRICTED RIGHTS markings are used only when authorized by the terms of this clause; and Contract No. llllllllllllllll (2) Maintain records sufficient to justify Contractor Name llllllllllllll the validity of any restrictive markings on Contractor Address lllllllllllll computer software or computer software documentation delivered under this con- llllllllllllllllllllllll tract. The Government’s rights to use, modify, (h) Removal of unjustified and nonconforming reproduce, release, perform, display, or dis- markings. (1) Unjustified computer software or close this software are restricted by para- computer software documentation markings. graph (b)(3) of the Rights in Noncommercial The rights and obligations of the parties re- Computer Software and Noncommercial garding the validation of restrictive mark- Computer Software Documentation clause ings on computer software or computer soft- contained in the above identified contract. ware documentation furnished or to be fur- Any reproduction of computer software or nished under this contract are contained in portions thereof marked with this legend the Validation of Asserted Restrictions— must also reproduce the markings. Any per- Computer Software and the Validation of Re- son, other than the Government, who has strictive Markings on Technical Data been provided access to such software must clauses of this contract, respectively. Not- promptly notify the above named Con- withstanding any provision of this contract tractor. concerning inspection and acceptance, the (End of legend) Government may ignore or, at the Contrac- (4) Special license rights markings. (i) Com- tor’s expense, correct or strike a marking if, puter software or computer documentation in accordance with the procedures of those in which the Government’s rights stem from clauses, a restrictive marking is determined a specifically negotiated license shall be to be unjustified. marked with the following legend: (2) Nonconforming computer software or com- puter software documentation markings. A non- SPECIAL LICENSE RIGHTS conforming marking is a marking placed on computer software or computer software The Government’s rights to use, modify, documentation delivered or otherwise fur- reproduce, release, perform, display, or dis- nished to the Government under this con- close this software are restricted by Con- tract that is not in the format authorized by tract No. llll(Insert contract num- this contract. Correction of nonconforming ber)llll, License No.llll(Insert li- markings is not subject to the Validation of cense identifier)llll. Any reproduction of Asserted Restrictions—Computer Software computer software, computer software docu- or the Validation of Restrictive Markings on mentation, or portions thereof marked with Technical Data clause of this contract. If the this legend must also reproduce the mark- Contracting Officer notifies the Contractor ings. of a nonconforming marking or markings
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and the Contractor fails to remove or correct (4) In no event shall the Contractor use its such markings within sixty (60) days, the obligation to recognize and protect subcon- Government may ignore or, at the Contrac- tractor or supplier rights in computer soft- tor’s expense, remove or correct any noncon- ware or computer software documentation as forming markings. an excuse for failing to satisfy its contrac- (i) Relation to patents. Nothing contained in tual obligation to the Government. this clause shall imply a license to the Gov- ernment under any patent or be construed as (End of clause) affecting the scope of any license or other right otherwise granted to the Government Alternate I (JUN 1995). As prescribed in under any patent. 227.7203–6(a)(2), add the following paragraph (j) Limitation on charges for rights in com- (l) to the basic clause: puter software or computer software documenta- (l) Publication for sale. (1) This paragraph tion. (1) The Contractor shall not charge to only applies to computer software or com- this contract any cost, including but not puter software documentation in which the limited to license fees, royalties, or similar Government has obtained unlimited rights charges, for rights in computer software or or a license to make an unrestricted release computer software documentation to be de- of the software or documentation. livered under this contract when— (2) The Government shall not publish a de- (i) The Government has acquired, by any liverable item or items of computer software means, the same or greater rights in the or computer software documentation identi- software or documentation; or fied in this contract as being subject to para- (ii) The software or documentation are graph (l) of this clause or authorize others to available to the public without restrictions. publish such software or documentation on (2) The limitation in paragraph (j)(1) of its behalf if, prior to publication for sale by this clause— the Government and within twenty-four (24) (i) Includes costs charged by a subcon- months following the date specified in this tractor or supplier, at any tier, or costs in- contract for delivery of such software or doc- curred by the Contractor to acquire rights in umentation, or the removal of any national subcontractor or supplier computer software security or export control restrictions, or computer software documentation, if the whichever is later, the Contractor publishes subcontractor or supplier has been paid for that item or items for sale and promptly no- such rights under any other Government tifies the Contracting Officer of such publi- contract or under a license conveying the cation(s). Any such publication shall include rights to the Government; and a notice identifying the number of this con- (ii) Does not include the reasonable costs tract and the Government’s rights in the of reproducing, handling, or mailing the doc- published software or documentation. uments or other media in which the software (3) This limitation on the Government’s or documentation will be delivered. rights to publish for sale shall continue as (k) Applicability to subcontractors or sup- long as the software or documentation are pliers. (1) Whenever any noncommercial com- reasonably available to the public for pur- puter software or computer software docu- chase. mentation is to be obtained from a subcon- tractor or supplier for delivery to the Gov- [60 FR 33493, June 28, 1995] ernment under this contract, the Contractor shall use this same clause in its subcontracts 252.227–7015 Technical data—Com- or other contractual instruments, and re- mercial items. quire its subcontractors or suppliers to do As prescribed in 227.7102–3, use the so, without alteration, except to identify the parties. No other clause shall be used to en- following clause: large or diminish the Government’s, the Con- TECHNICAL DATA—COMMERCIAL ITEMS (NOV tractor’s, or a higher tier subcontractor’s or 1995) supplier’s rights in a subcontractor’s or sup- plier’s computer software or computer soft- (a) Definitions. As used in this clause: ware documentation. (1) Commercial item does not include com- (2) The Contractor and higher tier sub- mercial computer software. contractors or suppliers shall not use their (2) Form, fit, and function data means tech- power to award contracts as economic lever- nical data that describes the required overall age to obtain rights in computer software or physical, functional, and performance char- computer software documentation from acteristics (along with the qualification re- their subcontractors or suppliers. quirements, if applicable) of an item, compo- (3) The Contractor shall ensure that sub- nent, or process to the extent necessary to contractor or supplier rights are recognized permit identification of physically and func- and protected in the identification, asser- tionally interchangeable items. tion, and delivery processes required by (3) The term item includes components or paragraph (e) of this clause. processes.
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(4) Technical data means recorded informa- (d) Release from liability. The Contractor tion, regardless of the form or method of re- agrees that the Government, and other per- cording, of a scientific or technical nature sons to whom the Government may have re- (including computer software documenta- leased or disclosed technical data delivered tion). The term does not include computer or otherwise furnished under this contract, software or data incidental to contract ad- shall have no liability for any release or dis- ministration, such as financial and/or man- closure of technical data that are not agement information. marked to indicate that such data are li- (b) License. (1) The Government shall have censed data subject to use, modification, re- the unrestricted right to use, modify, repro- production, release, performance, display, or duce, release, perform, display, or disclose disclosure restrictions. technical data, and to permit others to do so, that— (End of clause) (i) Have been provided to the Government or others without restrictions on use, modi- [60 FR 33497, June 28, 1995, as amended at 60 fication, reproduction, release, or further FR 61602, Nov. 30, 1995] disclosure other than a release or disclosure resulting from the sale, transfer, or other as- signment of interest in the technical data to 252.227–7016 Rights in bid or proposal another party or the sale or transfer of some information. or all of a business entity or its assets to an- As prescribed in 227.7103–6(e)(1), other party; 227.7104(e)(1), or 227.7203–6(b), use the (ii) Are form, fit, and function data; following clause: (iii) Are a correction or change to tech- nical data furnished to the Contractor by the RIGHTS IN BID OR PROPOSAL INFORMATION Government; (JUN 1995) (iv) Are necessary for operation, mainte- nance, installation, or training (other than (a) Definitions. (1) For contracts that re- detailed manufacturing or process data); or quire the delivery of technical data, the (v) Have been provided to the Government terms ‘‘technical data’’ and ‘‘computer soft- under a prior contract or licensing agree- ware’’ are defined in the Rights in Technical ment through which the Government has ac- Data—Noncommercial Item clause of this quired the rights to use, modify, reproduce, contract or, if this is a contract awarded release, perform, display, or disclose the data under the Small Business Innovative Re- without restrictions. search Program, the Rights in Noncommer- (2) Except as provided in paragraph (b)(1) of cial Technical Data and Computer Soft- this clause, the Government may use, mod- ware—Small Business Innovative Research ify, reproduce, release, perform, display, or (SBIR) Program clause of this contract. disclose technical data within the Govern- (2) For contracts that do not require the ment only. The Government shall not— delivery of technical data, the term ‘‘com- (i) Use the technical data to manufacture puter software’’ is defined in the Rights in additional quantities of the commercial Noncommercial Computer and Noncommer- items; or cial Computer Software Documentation (ii) Release, perform, display, disclose, or clause of this contract or, if this is a con- authorize use of the technical data outside tract awarded under the Small Business In- the Government without the Contractor’s novative Research Program, the Rights in written permission unless a release, disclo- Noncommercial Technical Data and Com- sure or permitted use is necessary for emer- puter Software—Small Business Innovative gency repair or overhaul of the commercial Research (SBIR) Program clause of this con- items furnished under this contract. tract. (c) Additional license rights. The Contractor, (b) Government rights to contract award. By its subcontractors, and suppliers are not re- submission of its offer, the Offeror agrees quired to provide the Government additional that the Government— rights to use, modify, reproduce, release, per- (1) May reproduce the bid or proposal, or form, display, or disclose technical data. any portions thereof, to the extent necessary However, if the Government desires to ob- to evaluate the offer. tain additional rights in technical data, the (2) Except as provided in paragraph (d) of Contractor agrees to promptly enter into ne- this clause, shall use information contained gotiations with the Contracting Officer to in the bid or proposal only for evaluational determine whether there are acceptable purposes and shall not disclose, directly or terms for transferring such rights. All tech- indirectly, such information to any person nical data in which the Contractor has including potential evaluators, unless that granted the Government additional rights person has been authorized by the head of shall be listed or described in a special li- the agency, his or her designee, or the Con- cense agreement made part of this contract. tracting Officer to receive such information. The license shall enumerate the additional (c) Government rights subsequent to contract rights granted the Government in such data. award. The Contractor agrees—
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(1) Except as provided in paragraphs (c)((2), IDENTIFICATION AND ASSERTION OF USE, RE- (d), and (e) of this clause, the Government LEASE, OR DISCLOSURE RESTRICTIONS (JUN shall have the rights to use, modify, repro- 1995) duce, release, perform, display, or disclose (a) The terms used in this provision are de- information contained in the Contractor’s fined in following clause or clauses con- bid or proposal within the Government. The tained in this solicitation— Government shall not release, perform, dis- (1) If a successful offeror will be required play, or disclose such information outside to deliver technical data, the Rights in Tech- the Government without the Contractor’s nical Data—Noncommercial Items clause, or, written permission. (2) The Government’s right to use, modify, if this solicitation contemplates a contract reproduce, release, perform, display, or dis- under the Small Business Innovative Re- close information that is technical data or search Program, the Rights in Noncommer- computer software required to be delivered cial Technical Data and Computer Soft- under this contract are determined by the ware—Small Business Innovative Research Rights in Technical Data—Noncommercial (SBIR) Program clause. Items, Rights in Noncommercial Computer (2) If a successful offeror will not be re- Software and Noncommercial Computer quired to deliver technical data, the Rights Software Documentation, or Rights in Non- in Noncommercial Computer Software and commercial Technical Data and Computer Noncommercial Computer Software Docu- Software—Small Business Innovative Re- mentation clause, or, if this solicitation con- search (SBIR) Program clause(s) of this con- templates a contract under the Small Busi- tract. ness Innovative Research Program, the (d) Government-furnished information. The Rights in Noncommercial Technical Data Government’s rights with respect to tech- and Computer Software—Small Business In- nical data or computer software contained in novative Research (SBIR) Program clause. the Contractor’s bid or proposal that were (b) The identification and assertion re- provided to the Contractor by the Govern- quirements in this provision apply only to ment are subject only to restrictions on use, technical data, including computer software modification, reproduction, release, perform- documents, or computer software to be deliv- ance, display, or disclosure, if any, imposed ered with other than unlimited rights. For by the developer or licensor of such data or contracts to be awarded under the Small software. Business Innovative Research Program, the (e) Information available without restrictions. notification requirements do not apply to The Government’s rights to use, modify, re- technical data or computer software that produce, release, perform, display, or, dis- will be generated under the resulting con- close information contained in a bid or pro- tract. Notification and identification is not posal, including technical data or computer required for restrictions based solely on software, and to permit others to do so, shall copyright. not be restricted in any manner if such infor- (c) Offers submitted in response to this so- mation has been released or disclosed to the licitation shall identify, to the extent known Government or to other persons without re- at the time an offer is submitted to the Gov- strictions other than a release or disclosure ernment, the technical data or computer resulting from the sale, transfer, or other as- software that the Offeror, its subcontractors signment of interest in the information to or suppliers, or potential subcontractors or another party or the sale or transfer of some suppliers, assert should be furnished to the or all of a business entity or its assets to an- Government with restrictions on use, re- other party. lease, or disclosure. (f) Flowdown. Contractor shall include this (d) The Offeror’s assertions, including the clause in all subcontracts or similar contrac- assertions of its subcontractors or suppliers tual instruments and require its subcontrac- or potential subcontractors or suppliers shall tors or suppliers to do so without alteration, be submitted as an attachment to its offer in except to identify the parties. the following format, dated and signed by an official authorized to contractually obligate (End of clause) the Offeror: Identification and Assertion of Restrictions [60 FR 33498, June 28, 1995] on the Government’s Use, Release, or Dis- closure of Technical Data or Computer 252.227–7017 Identification and asser- Software tion of use, release, or disclosure re- strictions. The Offeror asserts for itself, or the per- sons identified below, that the Government’s As prescribed in 227.7103–3(b), rights to use, release, or disclose the fol- 227.7104(e)(2), or 227.7203–3(a), use the lowing technical data or computer software following provision: should be restricted:
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Technical Data or Computer Software to be Furnished Basis for Assertion** Asserted Rights Category*** Name of Person Asserting With Restrictions* 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 tech- nical 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 li- censes). ****Corporation, individual, or other person, as appropriate. *****Enter ‘‘none’’ when all data or software will be submitted without restrictions.
Date lllllllllllllllllllll (iv) Satisfies a criterion expressed in para- Printed Name and Title lllllllllll graph (a)(1)(i), (ii), or (iii) of this clause and llllllllllllllllllllllll would require only minor modification to meet the requirements of this contract. Signature llllllllllllllllll (2) Computer database means a collection of (End of identification and assertion) recorded data in a form capable of being (e) An offeror’s failure to submit, com- processed by a computer. The term does not plete, or sign the notification and identifica- include computer software. tion required by paragraph (d) of this provi- (3) Computer program means a set of in- sion with its offer may render the offer ineli- gible for award. structions, rules, or routines, recorded in a (f) If the Offeror is awarded a contract, the form that is capable of causing a computer assertions identified in paragraph (d) of this to perform a specific operation or series of provision shall be listed in an attachment to operations. that contract. Upon request by the Con- (4) Computer software means computer pro- tracting Officer, the Offeror shall provide grams, source code, source code listings, ob- sufficient information to enable the Con- ject code listings, design details, algorithms, tracting Officer to evaluate any listed asser- processes, flow charts, formulae, and related tion. material that would enable the software to be reproduced, re-created, or recompiled. (End of provision) Computer software does not include com- puter databases or computer software docu- [60 FR 33498, June 28, 1994] mentation. (5) Computer software documentation means 252.227–7018 Rights in noncommercial owner’s manuals, user’s manuals, installa- technical data and computer soft- tion instructions, operating instructions, ware—Small Business Innovation and other similar items, regardless of stor- Research (SBIR) Program. age medium, that explain the capabilities of As prescribed in 227.7104(a), use the the computer software or provide instruc- following clause: tions for using the software. (6) Detailed manufacturing or process data RIGHTS IN NONCOMMERCIAL TECHNICAL DATA means technical data that describe the steps, AND COMPUTER SOFTWARE—SMALL BUSI- sequences, and conditions of manufacturing, NESS INNOVATION RESEARCH (SBIR) PRO- processing or assembly used by the manufac- GRAM (JUN 1995) turer to produce an item or component or to perform a process. (a) Definitions. As used in this clause: (1) Commercial computer software means (7) Developed means— software developed or regularly used for non- (i) (Applicable to technical data other than governmental purposes which— computer software documentation.) An item, (i) Has been sold, leased, or licensed to the component, or process, exists and is work- public; able. Thus, the item or component must (ii) Has been offered for sale, lease, or li- have been constructed or the process prac- cense to the public; ticed. Workability is generally established (iii) Has not been offered, sold, leased, or when the item, component, or process has licensed to the public but will be available been analyzed or tested sufficiently to dem- for commercial sale, lease, or license in time onstrate to reasonable people skilled in the to satisfy the delivery requirements of this applicable art that there is a high prob- contract; or ability that it will operate as intended.
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Whether, how much, and what type of anal- organizations or sales or transfers by the ysis or testing is required to establish work- United States Government to foreign govern- ability depends on the nature of the item, ments or international organizations. Gov- component, or process, and the state of the ernment purposes include competitive pro- art. To be considered ‘‘developed,’’ the item, curement, but do not include the rights to component, or process need not be at the use, modify, reproduce, release, perform, dis- stage where it could be offered for sale or play, or disclose technical data or computer sold on the commercial market, nor must software for commercial purposes or author- the item, component or process be actually ize others to do so. reduced to practice within the meaning of (14) Limited rights means the rights to use, Title 35 of the United States Code; modify, reproduce, release, perform, display, (ii) A computer program has been success- fully operated in a computer and tested to or disclose technical data, in whole or in the extent sufficient to demonstrate to rea- part, within the Government. The Govern- sonable persons skilled in the art that the ment may not, without the written permis- program can reasonably be expected to per- sion of the party asserting limited rights, re- form its intended purpose; lease or disclose the technical data outside (iii) Computer software, other than com- the Government, use the technical data for puter programs, has been tested or analyzed manufacture, or permit the technical data to to the extent sufficient to demonstrate to be used by another party, except that the reasonable persons skilled in the art that the Government may reproduce, release or dis- software can reasonably be expected to per- close such data or permit the use or repro- form its intended purpose; or duction of the data by persons outside the (iv) Computer software documentation re- Government if reproduction, release, disclo- quired to be delivered under a contract has sure, or use is— been written, in any medium, in sufficient (i) Necessary for emergency repair and detail to comply with requirements under overhaul; or that contract. (ii) A release or disclosure of technical (8) Developed exclusively at private expense data (other than detailed manufacturing or means development was accomplished en- process data) to, or use of such data by, a tirely with costs charged to indirect cost foreign government that is in the interest of pools, costs not allocated to a government the Government and is required for contract, or any combination thereof. evaluational or informational purposes; (i) Private expense determinations should be made at the lowest practicable level. (iii) Subject to a prohibition on the further (ii) Under fixed-price contracts, when total reproduction, release disclosure, or use of costs are greater than the firm-fixed-price or the technical data; and ceiling price of the contract, the additional (iv) The Contractor or subcontractor as- development costs necessary to complete de- serting the restriction is notified of such re- velopment shall not be considered when de- production, release, disclosure, or use. termining whether development was at gov- (15) Minor modification means a modifica- ernment, private, or mixed expense. tion that does not significantly alter the (9) Developed exclusively with government nongovernmental function or purpose of funds means development was not accom- computer software or is of the type custom- plished exclusively or partially at private ex- arily provided in the commercial market- pense. place. (10) Developed with mixed funding means de- (16) Noncommercial computer software means velopment was accomplished partially with software that does not qualify as commercial costs charged to indirect cost pools and/or computer software under paragraph (a)(1) of costs not allocated to a government con- this clause. tract, and partially with costs charged di- (17) Restricted rights apply only to non- rectly to a government contract. commercial computer software and mean the (11) Form, fit, and function data means tech- Government’s rights to— nical data that describe the required overall physical, functional, and performance char- (i) Use a computer program with one com- acteristics (along with the qualification re- puter at one time. The program may not be quirements, if applicable) of an item, compo- accessed by more than one terminal or cen- nent, or process to the extent necessary to tral processing unit or time shared unless permit identification of physically and func- otherwise permitted by this contract; tionally interchangeable items. (ii) Transfer a computer program to an- (12) Generated means technical data or other Government agency without the fur- computer software first created in the per- ther permission of the Contractor if the formance of this contract. transferor destroys all copies of the program (13) Government purpose means any activity and related computer software documenta- in which the United States Government is a tion in its possession and notifies the licen- party, including cooperative agreements sor of the transfer. Transferred programs re- with international or multi-national defense main subject to the provisions of this clause;
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(iii) Make the minimum number of copies neered by the Government pursuant to para- of the computer software required for safe- graph (a)(17)(iv) of this clause, for any other keeping (archive), backup, or modification purpose. purposes; (18) SBIR data rights means a royalty-free (iv) Modify computer software provided license for the Government, including its that the Government may— support service contractors, to use, modify, (A) Use the modified software only as pro- reproduce, release, perform, display, or dis- vided in paragraphs (a)(17) (i) and (iii) of this close technical data or computer software clause; and generated and delivered under this contract (B) Not release or disclose the modified for any United States Government purpose. software except as provided in paragraphs (19) Technical data means recorded informa- (a)(17) (ii), (v) and (vi) of this clause; tion, regardless of the form or method of the (v) Permit contractors or subcontractors recording, of a scientific or technical nature performing service contracts (see 37.101 of (including computer software documenta- the Federal Acquisition Regulation) in sup- tion). The term does not include computer port of this or a related contract to use com- software or data incidental to contract ad- puter software to diagnose and correct defi- ministration, such as financial and/or man- ciencies in a computer program, to modify agement information. computer software to enable a computer pro- (20) Unlimited rights means rights to use, gram to be combined with, adapted to, or modify, reproduce, release, perform, display, merged with other computer programs or or disclose, technical data or computer soft- when necessary to respond to urgent tactical ware in whole or in part, in any manner and situations, provided that— for any purpose whatsoever, and to have or (A) The Government notifies the party authorize others to do so. which has granted restricted rights that a (b) Rights in technical data and computer release or disclosure to particular contrac- software. The Contractor grants or shall ob- tors or subcontractors was made; tain for the Government the following roy- (B) Such contractors or subcontractors are alty-free, world-wide, nonexclusive, irrev- subject to the non-disclosure agreement at ocable license rights in technical data or 227.7103–7 of the Defense Federal Acquisition noncommercial computer software. All Regulation Supplement (DFARS or are Gov- rights not granted to the Government are re- ernment contractors receiving access to the tained by the Contractor. software for performance of a Government (1) Unlimited rights. The Government shall contract that contains the clause at DFARS have unlimited rights in technical data, in- 252.227–7025, Limitations on the Use or Dis- cluding computer software documentation, closure of Government-Furnished Informa- or computer software generated under this tion Marked with Restrictive Legends; contract that are— (C) The Government shall not permit the (i) Form, fit, and function data; recipient to decompile disassemble, or re- (ii) Necessary for installation, operation, verse engineer the software, or use software maintenance, or training purposes (other decompiled, disassembled, or reverse engi- than detailed manufacturing or process neered by the Government pursuant to para- data); graph (a)(17)(iv) of this clause, for any other (iii) Corrections or changes to Govern- purpose; and ment-furnished technical data or computer (D) Such use is subject to the limitation in software; paragraph (a)(17)(i) of this clause; and (iv) Otherwise publicly available or have (vi) Permit contractors or subcontractors been released or disclosed by the Contractor performing emergency repairs or overhaul of or a subcontractor without restrictions on items or components of items, procured further use, release or disclosure other than under this or a related contract to use the a release or disclosure resulting from the computer software when necessary to per- sale, transfer, or other assignment of inter- form the repairs or overhaul, or to modify est in the technical data or computer soft- the computer software to reflect the repairs ware to another party or the sale or transfer or overhaul made, provided that— of some or all of a business entity or its as- (A) The intended recipient is subject to the sets to another party; non-disclosure agreement at DFARS (v) Data or software in which the Govern- 227.7103–7 or is a Government contractor re- ment has acquired previously unlimited ceiving access to the software for perform- rights under another Government contract ance of a Government contract that contains or through a specific license; and the clause at DFARS 252.227–7025, Limita- (vi) SBIR data upon expiration of the SBIR tions on the Use or Disclosure of Govern- data rights period. ment Furnished Information Marked with (2) Limited rights. The Government shall Restrictive Legends; and have limited rights in technical data, that (B) The Government shall not permit the were not generated under this contract, per- recipient to decompile, disassemble, or re- tain to items, components or processes de- verse engineer the software, or use software veloped exclusively at private expense, and decompiled, disassembled, or reverse engi- are marked, in accordance with the marking
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instructions in paragraph (f)(1) of this shall be delivered, furnished, or provided clause, with the legend prescribed in para- with the pre-existing rights, unless— graph (f)(2) of this clause. (i) The parties have agreed otherwise; or (3) Restricted rights in computer software. (ii) Any restrictions on the Government’s The Government shall have restricted rights rights to use, modify, release, perform, dis- in noncommercial computer software re- play, or disclose the technical data or com- quired to be delivered or otherwise furnished puter software have expired or no longer to the Government under this contract that apply. were developed exclusively at private ex- (7) Release from liability. The Contractor pense and were not generated under this con- agrees to release the Government from li- tract. ability for any release or disclosure of tech- (4) SBIR data rights. (i) Except for technical data, including computer software docu- nical data, computer software, or computer mentation, or computer software in which software documentation made in accordance the Government has unlimited rights under with paragraph (a)(14), (a)(17), or (b)(4) of this paragraph (b)(1) of this clause, the Govern- clause, or in accordance with the terms of a ment shall have SBIR data rights in all tech- license negotiated under paragraph (b)(5) of nical data or computer software generated this clause, or by others to whom the recipi- under this contract during the period com- ent has released or disclosed the data, soft- mencing with contract award and ending ware, or documentation and to seek relief upon the date five years after completion of solely from the party who has improperly the project from which such data were gen- used, modified, reproduced, released, per- erated. formed, displayed, or disclosed Contractor (ii) The Government may not release or data or software marked with restrictive leg- disclose SBIR data to any person, other than ends. its support services contractors, except— (c) Rights in derivative computer software or (A) As expressly permitted by the Con- computer software documentation. The Govern- tractor; ment shall retain its rights in the unchanged (B) For evaluation purposes; or portions of any computer software or com- (C) A release, disclosure, or use that is nec- puter software documentation delivered essary for emergency repair or overhaul of under this contract that the Contractor uses items operated by the Government. to prepare, or includes in, derivative soft- (iii) A release or disclosure of SBIR data to ware or documentation. the Government’s support services contrac- (d) Third party copyrighted technical data tors, or a release or disclosure under para- and computer software. The Contractor shall graph (b)(4)(ii)(B) or (C) of this clause, may not, without the written approval of the be made only if, prior to release or disclo- Contracting Officer, incorporate any copy- sure, the intended recipient is subject to the righted technical data, including computer use and non-disclosure agreement at DFARS software documentation, or computer soft- 227.7103–7 or is a Government contractor re- ware in the data or software to be delivered ceiving access to the technical data or soft- under this contract unless the Contractor is ware for performance of a Government con- the copyright owner or has obtained for the tract that contains the clause at DFARS Government the license rights necessary to 252.227–7025, Limitations on the Use of Dis- perfect a license or licenses in the deliver- closure of Government-Furnished Informa- able data or software of the appropriate tion Marked with Restrictive Legends. (5) Specifically negotiated license rights. The scope set forth in paragraph (b) of this clause standard license rights granted to the Gov- and, prior to delivery of such— ernment under paragraphs (b)(1) through (1) Technical data, has affixed to the trans- (b)(4) of this clause may be modified by mu- mittal document a statement of the license tual agreement to provide such rights as the rights obtained; or parties consider appropriate but shall not (2) Computer software, has provided a provide the Government lesser rights in statement of the license rights obtained in a technical data, including computer software form acceptable to the Contracting Officer. documentation, than are enumerated in (e) Identification and delivery of technical paragraph (a)(14) of this clause or lesser data or computer software to be furnished with rights in computer software than are enu- restrictions on use, release, or disclosure. (1) merated in paragraph (a)(17) of this clause. This paragraph does not apply to technical Any rights so negotiated shall be identified data or computer software that were or will in a license agreement made part of this con- be generated under this contract or to re- tract. strictions based solely on copyright. (6) Prior government rights. Technical data, (2) Except as provided in paragraph (e)(3) of including computer software documentation, this clause, technical data or computer soft- or computer software that will be delivered, ware that the Contractor asserts should be furnished, or otherwise provided to the Gov- furnished to the Government with restric- ernment under this contract, in which the tions on use, release, or disclosure is identi- Government has previously obtained rights fied in an attachment to this contract (the
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Attachment). The Contractor shall not de- (f) Marking requirements. The Contractor, liver any technical data or computer soft- and its subcontractors or suppliers, may ware with restrictive markings unless the only assert restrictions on the Government’s technical data or computer software are list- rights to use, modify, reproduce, release, per- ed on the Attachment. form, display, or disclose technical data or (3) In addition to the assertions made in computer software to be delivered under this the Attachment, other assertions may be contract by marking the deliverable data or identified after award when based on new in- software subject to restriction. Except as formation or inadvertent omissions unless provided in paragraph (f)(6) of this clause, the inadvertent omissions would have mate- only the following markings are authorized rially affected the source selection decision. under this contract: the limited rights leg- Such identification and assertion shall be end at paragraph (f)(2) of this clause; the re- submitted to the Contracting Officer as soon stricted rights legend at paragraph (f)(3) of as practicable prior to the scheduled date for this clause, the SBIR data rights legend at delivery of the technical data or computer paragraph (f)(4) of this clause, or the special software, in the following format, and signed license rights legend at paragraphs (f)(5) of by an official authorized to contractually ob- this clause; and/or a notice of copyright as ligate the Contractor: prescribed under 17 U.S.C. 401 or 402. (1) General marking instructions. The Con- Identification and Assertion of Restrictions tractor, or its subcontractors or suppliers, on the Government’s Use, Release, or Dis- shall conspicuously and legibly mark the ap- closure of Technical Data or Computer propriate legend to all technical data and Software computer software that qualify for such The Contractor asserts for itself, or the markings. The authorized legends shall be persons identified below, that the Govern- placed on the transmittal document or stor- ment’s rights to use, release, or disclose the age container and, for printed material, each following technical data or computer soft- page of the printed material containing tech- ware should be restricted: nical data or computer software for which restrictions are asserted. When only portions Technical data of a page of printed material are subject to or computer Asserted Name of per- the asserted restrictions, such portions shall software to be Basis for as- rights cat- son asserting sertion 2 be identified by circling, underscoring, with furnished with egory 3 restrictions 4 restrictions 1 a note, or other appropriate identifier. Tech- nical data or computer software transmitted (LIST) ...... (LIST) ...... (LIST) ...... (LIST) directly from one computer or computer ter- minal to another shall contain a notice of as- 1 If the assertion is applicable to items, components, or processes developed at private expense, identify both the serted restrictions. However, instructions technical data and each such item, component, or process. that interfere with or delay the operation of 2 Generally, development at private expense, either exclu- computer software in order to display a re- sively or partially, is the only basis for asserting restrictions on the Government’s rights to use, release, or disclose technical strictive rights legend or other license state- data or computer software. Indicate whether development was ment at any time prior to or during use of exclusively or partially at private expense. If development was the computer software, or otherwise cause not at private expense, enter the specific reason for asserting that the Government’s rights should be restricted. such interference or delay, shall not be in- 3 Enter asserted rights category (e.g., limited rights, re- serted in software that will or might be used stricted rights, government purpose rights, or government pur- in combat or situations that simulate com- pose license rights from a prior contract, SBIR data rights under another contract, or specifically negotiated licenses). bat conditions, unless the Contracting Offi- 4 Corporation, individual, or other person, as appropriate. cer’s written permission to deliver such soft- ware has been obtained prior to delivery. Re- Date lllllllllllllllllllll productions of technical data, computer soft- Printed Name and Title lllllllllll ware, or any portions thereof subject to as- Signature llllllllllllllllll serted restrictions shall also reproduce the asserted restrictions. (End of identification and assertion) (2) Limited rights markings. Technical data not generated under this contract that per- (4) When requested by the Contracting Offi- tain to items, components, or processes de- cer, the Contractor shall provide sufficient veloped exclusively at private expense and information to enable the Contracting Offi- delivered or otherwise furnished with limited cer to evaluate the Contractor’s assertions. rights shall be marked with the following The Contracting Officer reserves the right to legend: add the Contractor’s assertions to the At- tachment and validate any listed assertions, Limited Rights at a later date, in accordance with the proce- Contract No. llllllllllllllll dures of the Validation of Asserted Restric- Contractor Name llllllllllllll tions—Computer Software and/or Validation of Restrictive Markings on Technical Data Contractor Address lllllllllllll clauses of this contract. llllllllllllllllllllllll
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The Government’s rights to use, modify, re- marked with this legend are restricted dur- produce, release, perform, display, or dis- ing the period shown as provided in para- close these technical data are restricted by graph (b)(4) of the Rights in Noncommercial paragraph (b)(2) of the Rights in Non- Technical Data and Computer Software— commercial Technical Data and Computer Small Business Innovative Research (SBIR) Software—Small Business Innovative Re- Program clause contained in the above iden- search (SBIR) Program clause contained in tified contract. No restrictions apply after the above identified contract. Any reproduc- the expiration date shown above. Any repro- tion of technical data or portions thereof duction of technical data, computer soft- marked with this legend must also reproduce ware, or portions thereof marked with this the markings. Any person, other than the legend must also reproduce the markings. Government, who has been provided access to such data must promptly notify the above (End of legend) named Contractor. (5) Special license rights markings. (i) Tech- (End of legend) nical data or computer software in which the Government’s rights stem from a specifically (3) Restricted rights markings. Computer negotiated license shall be marked with the software delivered or otherwise furnished to following legend: the Government with restricted rights shall be marked with the following legend: Special License Rights Restricted Rights The Government’s rights to use, modify, reproduce, release, perform, display, or dis- Contract No. llllllllllllllll close this technical data or computer soft- Contractor Name llllllllllllll ware are restricted by Contract No. Contractor Address lllllllllllll llllllll (Insert contract number) llllllllllllllllllllllll llllllll, License No. llllllll The Government’s rights to use, modify, re- (Insert license identifier) llllllll. produce, release, perform, display, or dis- Any reproduction of technical data, com- close this software are restricted by para- puter software, or portions thereof marked graph (b)(3) of the Rights in Noncommercial with this legend must also reproduce the Technical Data and Computer Software— markings. Small Business Innovative Research (SBIR) Program clause contained in the above iden- (End of legend) tified contract. Any reproduction of com- puter software or portions thereof marked (ii) For purposes of this clause, special li- with this legend must also reproduce the censes do not include government purpose li- markings. Any person, other than the Gov- cense rights acquired under a prior contract ernment, who has been provided access to (see paragraph (b)(6) of this clause). such data must promptly notify the above (6) Pre-existing data markings. If the terms named Contractor. of a prior contract or license permitted the Contractor to restrict the Government’s (End of legend) rights to use, modify, reproduce, release, per- form, display, or disclose technical data or (4) SBIR data rights markings: Except for computer software, and those restrictions technical data or computer software in are still applicable, the Contractor may which the Government has acquired unlim- mark such data or software with the appro- ited rights under paragraph (b)(1) of this priate restrictive legend for which the data clause, or negotiated special license rights as or software qualified under the prior con- provided in paragraph (b)(5) of this clause, tract or license. The marking procedures in technical data or computer software gen- paragraph (f)(1) of this clause shall be fol- erated under this contract shall be marked lowed. with the following legend. The Contractor (g) Contractor procedures and records. shall enter the expiration date for the SBIR Throughout performance of this contract, data rights period on the legend: the Contractor, and its subcontractors or suppliers that will deliver technical data or SBIR Data Rights computer software with other than unlim- Contract No. llllllllllllllll ited rights, shall— Contractor Name llllllllllllll (1) Have, maintain, and follow written pro- Address lllllllllllllllllll cedures sufficient to assure that restrictive markings are used only when authorized by llllllllllllllllllllllll the terms of this clause; and Expiration of SBIR Data Rights Period ll (2) Maintain records sufficient to justify The Government’s rights to use, modify, re- the validity of any restrictive markings on produce, release, perform, display, or dis- technical data or computer software deliv- close technical data or computer software ered under this contract.
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(h) Removal of unjustified and nonconforming uments or other media in which the tech- markings. nical data or computer software will be de- (1) Unjustified markings. The rights and ob- livered. ligations of the parties regarding the valida- (k) Applicability to subcontractors or sup- tion of restrictive markings on technical pliers. (1) the Contractor shall assure that data or computer software furnished or to be the rights afforded its subcontractors and furnished under this contract are contained suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, in the Validation of Restrictive Markings on and the identification, assertion, and deliv- Technical Data and the Validation of As- ery processes required by paragraph (e) of serted Restrictions—Computer Software this clause are recognized and protected. clauses of this contract, respectively. Not- (2) Whenever any noncommercial technical withstanding any provision of this contract data or computer software is to be obtained concerning inspection and acceptance, the from a subcontractor or supplier for delivery Government may ignore or, at the Contrac- to the Government under this contract, the tor’s expense, correct or strike a marking if, Contractor shall use this same clause in the in accordance with the applicable procedures subcontract or other contractual instru- of those clauses, a restrictive marking is de- ment, and require its subcontractors or sup- termined to be unjustified. pliers to do so, without alteration, except to (2) Nonconforming markings. A noncon- identify the parties. The Contractor shall forming marking is a marking placed on use the Technical Data—Commercial Items technical data or computer software deliv- clause of this contract to obtain technical ered or otherwise furnished to the Govern- data pertaining to commercial items, compo- ment under this contract that is not in the nents, or processes. No other clause shall be format authorized by this contract. Correc- used to enlarge or diminish the Govern- tion of nonconforming markings is not sub- ment’s, the Contractor’s, or a higher tier ject to the Validation of Restrictive Mark- subcontractor’s or supplier’s rights in a sub- ings on Technical Data or the Validation of contractor’s or supplier’s technical data or Asserted Restrictions—Computer Software computer software. clause of this contract. If the Contracting (3) Technical data required to be delivered Officer notifies the Contractor of a noncon- by a subcontractor or supplier shall nor- forming marking or markings and the Con- mally be delivered to the next higher tier tractor fails to remove or correct such mark- contractor, subcontractor, or supplier. How- ings within sixty (6)) days, the Government ever, when there is a requirement in the may ignore or, at the Contractor’s expense, prime contract for technical data which may remove or correct any nonconforming mark- be submitted with other than unlimited ings. rights by a subcontractor or supplier, then (i) Relation to patents. Nothing contained in said subcontractor or supplier may fulfill its this clause shall imply a license to the Gov- requirement by submitting such technical ernment under any patent or be construed as data directly to the Government, rather affecting the scope of any license or other than through a higher tier contractor, sub- right otherwise granted to the Government contractor, or supplier. under any patent. (4) The Contractor and higher tier sub- (j) Limitation on charges for rights in tech- contractors or suppliers shall not use their nical data or computer software. (1) The Con- power to award contracts as economic lever- tractor shall not charge to this contract any age to obtain rights in technical data or cost, including but not limited to, license computer software from their subcontractors fees, royalties, or similar charges, for rights or suppliers. in technical data or computer software to be (5) In no event shall the Contractor use its delivered under this contract when— obligation to recognize and protect subcon- (i) The Government has acquired, by any tractor or supplier rights in technical data means, the same or greater rights in the or computer software as an excuse for failing data or software; or to satisfy its contractual obligation to the (ii) The data are available to the public Government. without restrictions. (2) The limitation in paragraph (j)(1) of (End of clause) this clause— (i) Includes costs charged by a subcon- Alternate I (JUN 1995). As prescribed in tractor or supplier, at any tier, or costs in- 227.7104(d), add the following paragraph (l) to curred by the Contractor to acquire rights in the basic clause: subcontractor of supplier technical data or (l) Publication for sale. (1) This paragraph computer software, if the subcontractor or applies only to technical data or computer supplier has been paid for such rights under software delivered to the Government with any other Government contract or under a SBIR data rights. license conveying the rights to the Govern- (2) Upon expiration of the SBIR data rights ment; and period, the Government will not exercise its (ii) Does not include the reasonable costs right to publish or authorize others to pub- of reproducing, handling, or mailing the doc- lish an item of technical data or computer
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software identified in this contract as being to provide sufficient information to enable subject to paragraph (l) of this clause if the the Contracting Officer to evaluate the Con- Contractor, prior to the expiration of the tractor’s asserted restrictions. Such infor- SBIR data rights period, or within two years mation shall be based upon the records re- following delivery of the data or software quired by this clause or other information item, or within twenty-four months fol- reasonably available to the Contractor. lowing the removal of any national security (2) Based upon the information provided, if or export control restrictions, whichever is the— later, publishes such data or software item(s) (i) Contractor agrees that an asserted re- and promptly notifies the Contracting Offi- striction is not valid, the Contracting Officer cer of such publication(s). Any such publica- may— tion(s) shall include a notice identifying the (A) Strike or correct the unjustified mark- number of this contract and the Govern- ing at the Contractor’s expense; or ment’s rights in the published data. (B) Return the computer software to the (3) This limitation on the Government’s Contractor for correction at the Contractor’s right to publish for sale shall continue as expense. If the Contractor fails to correct or long as the technical data or computer soft- strike the unjustified restrictions and return ware are reasonably available to the public the corrected software to the Contracting Of- for purchase. ficer within sixty (60) days following receipt [60 FR 33499, June 28, 1995, as amended at 60 of the software, the Contracting Officer may FR 61602, Nov. 30, 1995] correct the strike the markings at the Con- tractor’s expense. 252.227–7019 Validation of asserted re- (ii) Contracting Officer concludes that the strictions—Computer software. asserted restriction is appropriate for this contract, the Contracting Officer shall so no- As prescribed in 227.7104(e)(3) or tify the Contractor in writing. 227.7203–6(c), use the following clause: (3) The Contractor’s failure to provide a timely response to a Contracting Officer’s VALIDATION OF ASSERTED RESTRICTIONS— request for information or failure to provide COMPUTER SOFTWARE (JUN 1995) sufficient information to enable the Con- (a) Definitions. (1) As used in this clause, tracting Officer to evaluate an asserted re- unless otherwise specifically indicated, the striction shall constitute reasonable grounds term ‘‘Contractor’’ means the Contractor for questioning the validity of an asserted and its subcontractors or suppliers. restriction. (2) Other terms used in this clause are de- (e) Government right to challenge and vali- fined in the Rights in Noncommercial Com- date asserted restrictions. (1) The Government, puter Software and Noncommercial Com- when there are reasonable grounds to do so, puter Software Documentation clause of this has the right to review and challenge the va- contract. lidity of any restrictions asserted by the (b) Justification. The Contractor shall main- Contractor on the Government’s rights to tain records sufficient to justify the validity use, modify, reproduce, release, perform, dis- of any markings that assert restrictions on play, or disclose computer software deliv- the Government’s rights to use, modify, re- ered, to be delivered under this contract, or produce, perform, display, release, or dis- otherwise provided to the Government in the close computer software delivered or re- performance of this contract. Except for quired to be delivered under this contract software that is publicly available, has been and shall be prepared to furnish to the Con- furnished to the Government without re- tracting Officer a written justification for strictions, or has been otherwise made avail- such restrictive markings in response to a able without restrictions, the Government request for information under paragraph (d) may exercise this right only within three or a challenge under paragraph (f) of this years after the date(s) the software is deliv- clause. ered or otherwise furnished to the Govern- (c) Direct contact with subcontractors or sup- ment, or three years following final payment pliers. The Contractor agrees that the Con- under this contract, whichever is later. tracting Officer may transact matters under (2) The absence of a challenge to an as- this clause directly with subcontractors or serted restriction shall not constitute vali- suppliers at any tier who assert restrictions dation under this clause. Only a Contracting on the Government’s right to use, modify, Officer’s final decision or actions of an agen- reproduce, release, perform, display, or dis- cy Board of Contract Appeals or a court of close computer software. Neither this clause, competent jurisdiction that sustain the va- nor any action taken by the Government lidity of an asserted restriction constitute under this clause, creates or implies privity validation of the restriction. of contract between the Government and the (f) Challenge procedures. (1) A challenge Contractor’s subcontractors or suppliers. must be in writing and shall— (d) Requests for information. (1) The Con- (i) State the specific grounds for chal- tracting Officer may request the Contractor lenging the asserted restriction;
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(ii) Require the Contractor to respond lenges. The notice shall also state which within sixty (60) days; Contracting Officer initiated the first in (iii) Require the Contractor to provide jus- time unanswered challenge. The Contracting tification for the assertion based upon Officer who initiated the first in time unan- records kept in accordance with paragraph swered challenge, after consultation with the (b) of this clause and such other documenta- other Contracting Officers who have chal- tion that are reasonably available to the lenged the restrictions and the Contractor, Contractor, in sufficient detail to enable the shall formulate and distribute a schedule Contracting Officer to determine the valid- that provides the contractor a reasonable op- ity of the asserted restrictions; and portunity for responding to each challenge. (iv) State that a Contracting Officer’s final (g) Contractor appeal—Government obliga- decision, during the three-year period pre- tion. (1) The Government agrees that, not- ceding this challenge, or action of a court of withstanding a Contracting Officer’s final competent jurisdiction or Board of Contract decision denying the validity of an asserted Appeals that sustained the validity of an restriction and except as provided in para- identical assertion made by the Contractor graph (g)(3) of this clause, it will honor the (or a licensee) shall serve as justification for asserted restriction— the asserted restriction. (2) The Contracting Officer shall extend (i) For a period of ninety (90) days from the the time for response if the Contractor sub- date of the Contracting Officer’s final deci- mits a written request showing the need for sion to allow the Contractor to appeal to the additional time to prepare a response. appropriate Board of Contract Appeals or to (3) The Contracting Officer may request file suit in an appropriate court; additional supporting documentation if, in (ii) For a period of one year from the date the Contracting Officer’s opinion, the Con- of the Contracting Officer’s final decision if, tractor’s explanation does not provide suffi- within the first ninety (90) days following cient evidence to justify the validity of the the Contracting Officer’s final decision, the asserted restrictions. The Contractor agrees Contractor has provided notice of an intent to promptly respond to the Contracting Offi- to file suit in an appropriate court; or cer’s request for additional supporting docu- (iii) Until final disposition by the appro- mentation. priate Board of Contract Appeals or court of (4) Notwithstanding challenge by the Con- competent jurisdiction, if the Contractor tracting Officer, the parties may agree on has: (A) appealed to the Board of Contract the disposition of an asserted restriction at Appeals or filed suit an appropriate court any time prior to a Contracting Officer’s within ninety (90) days; or (B) submitted, final decision or, if the Contractor has ap- within ninety (90) days, a notice of intent to pealed that decision, filed suit, or provided file suit in an appropriate court and filed notice of an intent to file suit, at any time suit within one year. prior to a decision by a court of competent (2) The Contractor agrees that the Govern- jurisdiction or Board of Contract Appeals. ment may strike, correct, or ignore the re- (5) If the Contractor fails to respond to the strictive markings if the Contractor fails Contracting Officer’s request for information to— or additional information under paragraph (i) Appeal to a Board of Contract Appeals (f)(1) of this clause, the Contracting Officer shall issue a final decision, in accordance within ninety (90) days from the date of the with the Disputes clause of this contract, Contracting Officer’s final decision; pertaining to the validity of the asserted re- (ii) File suit in an appropriate court within striction. ninety (90) days from such date; or (6) If the Contracting Officer, after review- (iii) File suit within one year after the ing the written explanation furnished pursu- date of the Contracting Officer’s final deci- ant to paragraph (f)(1) of this clause, or any sion if the Contractor had provided notice of other available information pertaining to intent to file suit within ninety (90) days fol- the validity of an asserted restriction, deter- lowing the date of the Contracting Officer’s mines that the asserted restriction has— final decision. (i) Not been justified, the Contracting Offi- (3) The agency head, on a nondelegable cer shall issue promptly a final decision, in basis, may determine that urgent or compel- accordance with the Disputes clause of this ling circumstances do not permit awaiting contract, denying the validity of the as- the filing of suit in an appropriate court, or serted restriction; or the rendering of a decision by a court of (ii) Been justified, the Contracting Officer competent jurisdiction or Board of Contract shall issue promptly a final decision, in ac- Appeals. In that event, the agency head shall cordance with the Disputes clause of this notify the Contractor of the urgent or com- contract, validating the asserted restriction. pelling circumstances. Notwithstanding (7) A Contractor receiving challenges to paragraph (g)(1) of this clause, the Con- the same asserted restriction(s) from more tractor agrees that the agency may use, than one Contracting Officer shall notify modify, reproduce, release, perform, display, each Contracting Officer of the other chal- or disclose computer software marked with
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(i) government purpose legends for any pur- 252.227–7020 Rights in special works. pose, and authorize others to do so; or (ii) re- stricted or special license rights for govern- As prescribed in 227.7105–3, 227.7106(a) ment purposes only. The Government agrees or 227.7205(a), use the following clause: not to release or disclose such software un- RIGHTS IN SPECIAL WORKS (JUN 1995) less, prior to release or disclosure, the in- tended recipient is subject to the use and (a) Applicability. This clause applies to non-disclosure agreement at 227.7103–7 of the works first created, generated, or produced Defense Federal Acquisition Regulation Sup- and required to be delivered under this con- tract. plement (DFARS), or is a Government con- (b) Definitions. As used in this clause: tractor receiving access to the software for (1) ‘‘Computer data base’’ means a collec- performance of a Government contract that tion of data recorded in a form capable of contains the clause at DFARS 252.227–7025, being processed by a computer. The term Limitations on the Use or Disclosure of Gov- does not include computer software. ernment-Furnished Information Marked (2) ‘‘Computer program’’ means a set of in- with Restrictive Legends. The agency head’s structions, rules, or routines recorded in a determination may be made at any time form that is capable of causing a computer after the date of the Contracting Officer’s to perform a specific operation or series of final decision and shall not affect the Con- operations. tractor’s right to damages against the (3) ‘‘Computer software’’ means computer United States, or other relief provided by programs, source code, source code listings, law, if its asserted restrictions are ulti- object code listings, design details, algo- mately upheld. rithms, processes, flow charts, formulae and (h) Final disposition of appeal or suit. If the related material that would enable the soft- ware to be reproduced, recreated, or recom- Contractor appeals or files suit and if, upon piled. Computer software does not include final disposition of the appeal or suit, the computer data bases or computer software Contracting Officer’s decision is: documentation. (1) Sustained— (4) ‘‘Computer software documentation’’ (i) Any restrictive marking on such com- means owner’s manuals, user’s manuals, in- puter software shall be struck or corrected stallation instructions, operating instruc- at the contractor’s expense or ignored; and tions, and other similar items, regardless of (ii) If the asserted restriction is found not storage medium, that explain the capabili- to be substantially justified, the Contractor ties of the computer software or provide in- shall be liable to the Government for pay- structions for using the software. ment of the cost to the Government of re- (5) ‘‘Unlimited rights’’ means the rights to viewing the asserted restriction and the fees use, modify, reproduce, perform, display, re- and other expenses (as defined in 28 U.S.C. lease, or disclose a work in whole or in part, 2412(d)(2)(A)) incurred by the Government in in any manner, and for any purpose whatso- challenging the restriction, unless special ever, and to have or authorize others to do circumstances would make such payment so. (6) The term ‘‘works’’ includes computer unjust. data bases, computer software, or computer (2) Not sustained— software documentation; literary, musical, (i) The Government shall be bound by the choreographic, or dramatic compositions; asserted restriction; and pantomimes; pictorial, graphic, or sculptural (ii) If the challenge by the Government is compositions; motion pictures and other found not to have been made in good faith, audiovisual compositions; sound recordings the Government shall be liable to the Con- in any medium; or, items of similar nature. tractor for payment of fees and other ex- (c) License rights. (1) The Government shall penses (as defined in 28 U.S.C. 2412(d)(2)(A)) have unlimited rights in works first pro- incurred by the Contractor in defending the duced, created, or generated and required to restriction. be delivered under this contract. (i) Flowdown. The Contractor shall insert (2) When a work is first produced, created, this clause in all contracts, purchase orders, or generated under this contract, and such and other similar instruments with its sub- work is required to be delivered under this contractors or suppliers, at any tier, who contract, the Contractor shall assign copy- will be furnishing computer software to the right in those works to the Government. The Contractor, unless directed to the contrary Government in the performance of this con- by the Contracting Officer, shall place the tract. The clause may not be altered other following notice on such works: ‘‘ (Year than to identify the appropriate parties. date of delivery) United States Government, as represented by the Secretary of (End of clause) (department). All rights reserved.’’ For phonorecords, the ‘‘’’ markings shall [60 FR 33503, June 28, 1995] be replaced by a ‘‘P’’.
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(3) The Contractor grants to the Govern- the Government a nonexclusive, paid-up li- ment a royalty-free, world-wide, nonexclu- cense throughout the world (1) to distribute, sive, irrevocable license to reproduce, pre- perform publicly, and display publicly the pare derivative works from, distribute, per- works called for under this contract and (2) form, or display, and to have or authorize to authorize others to do so for Government others to do so, the Contractor’s copyrighted purposes. works not first produced, created, or gen- (c) The Contractor shall indemnify and erated under this contract that have been in- save and hold harmless the Government, and corporated into the works deliverable under its officers, agents, and employees acting for this contract. the Government, against any liability, in- (d) Third party copyrighted data. The Con- cluding costs and expenses, (1) for violation tractor shall not incorporate, without the of proprietary rights, copyrights, or rights of written approval of the Contracting Officer, privacy or publicity arising out of the cre- any copyrighted works in the works to be de- ation, delivery, or use, of any works fur- livered under this contract unless the Con- nished under this contract, or (2) based upon tractor is the copyright owner or has ob- any libelous or other unlawful matter con- tained for the Government the license rights tained in same works. necessary to perfect a license of the scope identified in paragraph (c)(3) of this clause (End of clause) and, prior to delivery of such works— (1) Has affixed to the transmittal docu- ment a statement of the license rights ob- [56 FR 36479, July 31, 1991, as amended at 60 tained; or FR 33504, June 28, 1994] (2) For computer software, has provided a statement of the license rights obtained in a 252.227–7022 Government rights (un- form acceptable to the Contracting Officer. limited). (e) Indemnification. The Contractor shall As prescribed at 227.7107–1(a), use the indemnify and save and hold harmless the following clause: Government, and its officers, agents and em- ployees acting for the Government, against GOVERNMENT RIGHTS (UNLIMITED) (MAR 1979) any liability, including costs and expenses, (1) for violation of proprietary rights, copy- The Government shall have unlimited rights, or rights of privacy or publicity, aris- rights, in all drawings, designs, specifica- ing out of the creation, delivery, use, modi- tions, notes and other works developed in fication, reproduction, release, performance, the performance of this contract, including display, or disclosure of any works furnished the right to use same on any other Govern- under this contract, or (2) based upon any li- ment design or construction without addi- belous or other unlawful matter contained in tional compensation to the Contractor. The such works. Contractor hereby grants to the Government (f) Government-furnished information. Para- a paid-up license throughout the world to all graphs (d) and (e) of this clause are not appli- such works to which he may assert or estab- cable to information furnished to the Con- lish any claim under design patent or copy- tractor by the Government and incorporated right laws. The Contractor for a period of in the works delivered under this contract. three (3) years after completion of the project agrees to furnish the original or cop- (End of clause) ies of all such works on the request of the Contracting Officer. [60 FR 33504, June 28, 1995] (End of clause) 252.227–7021 Rights in data—existing works. [56 FR 36479, July 31, 1991, as amended at 60 FR 33504, June 28, 1994] As prescribed at 227.7105–2(a), use the following clause: 252.227–7023 Drawings and other data RIGHTS IN DATA—EXISTING WORKS (MAR 1979) to become property of Government. (a) The term works as used herein includes As prescribed at 227.7107–1(b), use the literary, musical, and dramatic works; pan- following clause: tomimes and choreographic works; pictorial, DRAWINGS AND OTHER DATA TO BECOME graphic and sculptural works; motion pic- PROPERTY OF GOVERNMENT (MAR 1979) tures and other audiovisual works; sound re- cordings; and works of a similar nature. The All designs, drawings, specifications, notes term does not include financial reports, cost and other works developed in the perform- analyses, and other information incidental ance of this contract shall become the sole to contract administration. property of the Government and may be used (b) Except as otherwise provided in this on any other design or construction without contract, the Contractor hereby grants to additional compensation to the Contractor.
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The Government shall be considered the LIMITATIONS ON THE USE OR DISCLOSURE OF ‘‘person for whom the work was prepared’’ GOVERNMENT-FURNISHED INFORMATION for the purpose of authorship in any copy- MARKED WITH RESTRICTIVE LEGENDS (JUN rightable work under 17 U.S.C. 201(b). With 1995) respect thereto, the Contractor agrees not to (a)(1) For contracts requiring the delivery assert or authorize others to assert any of technical data, the terms ‘‘limited rights’’ rights nor establish any claim under the de- and ‘‘Government purpose rights’’ are de- sign patent or copyright laws. The Con- fined in the Rights in Technical Data—Non- tractor for a period of three (3) years after commercial Items clause of this contract. completion of the project agrees to furnish (2) For contracts that do not require the all retained works on the request of the Con- delivery of technical data, the terms ‘‘gov- tracting Officer. Unless otherwise provided ernment purpose rights’’ and ‘‘restricted in this contract, the Contractor shall have rights’’ are defined in the Rights in Non- the right to retain copies of all works beyond commercial Computer Software and Non- such period. commercial Computer Software Documenta- tion clause of this contract. (End of clause) (3) For Small Business Innovative Re- search program contracts, the terms ‘‘lim- [56 FR 36479, July 31, 1991, as amended at 60 ited rights’’ and ‘‘restricted rights’’ are de- FR 33505, June 28, 1995] fined in the Rights in Noncommercial Tech- nical Data and Computer Software—Small 252.227–7024 Notice and approval of Business Innovative Research (SBIR) Pro- restricted designs. gram clause of this contract. (b) Technical data or computer software As prescribed at 227.7107–3, use the provided to the Contractor as Government following clause: furnished information (GFI) under this con- tract may be subject to restrictions on use, NOTICE AND APPROVAL OF RESTRICTED modification, reproduction, release, perform- DESIGNS (APR 1984) ance, display, or further disclosure. In the performance of this contract, the (1) GFI marked with limited or restricted Contractor shall, to the extent practicable, rights legends. The Contractor shall use, mod- make maximum use of structures, machines, ify, reproduce, perform, or display technical products, materials, construction methods, data received from the Government with and equipment that are readily available limited rights legends or computer software through Government or competitive com- received with restricted rights legends only mercial channels, or through standard or in the performance of this contract. The proven production techniques, methods, and Contractor shall not, without the express processes. Unless approved by the Con- written permission of the party whose name tracting Officer, the Contractor shall not appears in the legend, release or disclose produce a design or specification that re- such data or software to any person. quires in this construction work the use of (2) GFI marked with government purpose structures, products, materials, construction rights legends. The Contractor shall use tech- equipment, or processes that are known by nical data or computer software received the Contractor to be available only from a from the Government with government pur- sole source. The Contractor shall promptly pose rights legends for government purposes report any such design or specification to only. The Contractor shall not, without the the Contracting Officer and give the reason express written permission of the party whose name appears in the restrictive leg- why it is considered necessary to so restrict end, use, modify, reproduce, release, per- the design or specification. form, or display such data or software for any commercial purpose or disclose such (End of clause) data or software to a person other than its subcontractors, suppliers, or prospective sub- [56 FR 36479, July 31, 1991, as amended at 60 contractors or suppliers, who require the FR 33505, June 28, 1995] data or software to submit offers for, or per- form, contracts under this contract. Prior to 252.227–7025 Limitations on the use or disclosing the data or software, the Con- disclosure of government-furnished tractor shall require the persons to whom information marked with restric- disclosure will be made to complete and sign tive legends. the non-disclosure agreement at 227.7103–7 of the Defense Federal Acquisition Regulation As prescribed in 227.7103–6(c), Supplement (DFARS). 227.7104(f)(1), or 227.7203–6(d), use the (3) GFI marked with specially negotiated li- following clause: cense rights legends. The Contractor shall use,
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modify, reproduce, release, perform, or dis- expire two (2) years after the date Con- play technical data or computer software re- tractor accepts the last delivery of that item ceived from the Government with specially from that subcontractor for use in per- negotiated license legends only as permitted forming this contract. in the license. Such data or software may not be released or disclosed to other persons (End of clause) unless permitted by the license and, prior to release or disclosure, the intended recipient [56 FR 36479, July 31, 1991, as amended at 60 has completed the non-disclosure agreement FR 33505, June 28, 1995] at DFARS 227.7103–7. The Contractor shall modify paragraph (1)(c) of the non-disclosure 252.227–7027 Deferred ordering of agreement to reflect the recipient’s obliga- technical data or computer soft- tions regarding use, modification, reproduc- ware. tion, release, performance, display, and dis- closure of the data or software. As prescribed at 227.7103–8(b), use the (c) Indemnification and creation of third following clause: party beneficiary rights. The Contractor agrees— DEFERRED ORDERING OF TECHNICAL DATA OR (1) To indemnify and hold harmless the COMPUTER SOFTWARE (APR 1988) Government, its agents, and employees from In addition to technical data or computer every claim or liability, including attorneys software specified elsewhere in this contract fees, court costs, and expenses, arising out to be delivered hereunder, the Government of, or in any way related to, the misuse or may, at any time during the performance of unauthorized modification, reproduction, re- this contract or within a period of three (3) lease, performance, display, or disclosure of years after acceptance of all items (other technical data or computer software received than technical data or computer software) to from the Government with restrictive leg- be delivered under this contract or the ter- ends by the Contractor or any person to mination of this contract, order any tech- whom the Contractor has released or dis- nical data or computer software generated in closed such data or software; and the performance of this contract or any sub- (2) That the party whose name appears on contract hereunder. When the technical data the restrictive legend, in addition to any or computer software is ordered, the Con- other rights it may have, is a third party beneficiary who has the right of direct ac- tractor shall be compensated for converting tion against the Contractor, or any person to the data or computer software into the pre- whom the Contractor has released or dis- scribed form, for reproduction and delivery. closed such data or software, for the unau- The obligation to deliver the technical data thorized duplication, release, or disclosure of of a subcontractor and pertaining to an item technical data or computer software subject obtained from him shall expire three (3) to restrictive legends. years after the date the Contractor accepts the last delivery of that item from that sub- (End of clause) contractor under this contract. The Govern- ment’s rights to use said data or computer software shall be pursuant to the ‘‘Rights in [60 FR 33505, June 28, 1995] Technical Data and Computer Software’’ clause of this contract. 252.227–7026 Deferred delivery of technical data or computer soft- (End of clause) ware. As prescribed at 227.7103–8(a), use the [56 FR 36479, July 31, 1991, as amended at 60 following clause: FR 33505, June 28, 1995]
DEFERRED DELIVERY OF TECHNICAL DATA OR 252.227–7028 Technical data or com- COMPUTER SOFTWARE (APR 1988) puter software previously delivered The Government shall have the right to re- to the government. quire, at any time during the performance of As prescribed in 227.7103–6(d), this contract, within two (2) years after ei- ther acceptance of all items (other than data 227.7104(f)(2), or 227.7203–6(e), use the or computer software) to be delivered under following provision: this contract or termination of this con- TECHNICAL DATA OR COMPUTER SOFTWARE tract, whichever is later, delivery of any PREVIOUSLY DELIVERED TO THE GOVERN- technical data or computer software item MENT (JUN 1995) identified in this contract as ‘‘deferred deliv- ery’’ data or computer software. The obliga- The Offeror shall attach to its offer an tion to furnish such technical data required identification of all documents or other to be prepared by a subcontractor and per- media incorporating technical data or com- taining to an item obtained from him shall puter software it intends to deliver under
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this contract with other than unlimited 252.227–7031 [Reserved] rights that are identical or substantially similar to documents or other media that 252.227–7032 Rights in technical data the Offeror has produced for, delivered to, or and computer software (foreign). is obligated to deliver to the Government under any contract or subcontract. The at- As prescribed in 227.7103–17, use the tachment shall identify— following clause: (a) The contract number under which the RIGHTS IN TECHNICAL DATA AND COMPUTER data or software were produced; SOFTWARE (FOREIGN) (JUN 1975) (b) The contract number under which, and the name and address of the organization to The United States Government may dupli- whom, the data or software were most re- cate, use, and disclose in any manner for any cently delivered or will be delivered; and purposes whatsoever, including delivery to (c) Any limitations on the Government’s other governments for the furtherance of rights to use or disclose the data or software, mutual defense of the United States Govern- including, when applicable, identification of ment and other governments, all technical the earliest date the limitations expire. data including reports, drawings and blue- prints, and all computer software, specified (End of provision) to be delivered by the Contractor to the United States Government under this con- tract. [60 FR 33505, June 28, 1995] (End of clause) 252.227–7029 [Reserved]
252.227–7030 Technical data—with- [56 FR 36479, July 31, 1991, as amended at 60 holding of payment. FR 33505, June 28, 1995] As prescribed at 227.7103–6(e)(2) or 252.227–7033 Rights in shop drawings. 227.7104(e)(4), use the following clause: As prescribed in 227.7107–(1)(c), use TECHNICAL DATA—WITHHOLDING OF PAYMENT the following clause: (MAR 2000) RIGHTS IN SHOP DRAWINGS (APR 1966) (a) If technical data specified to be deliv- ered under this contract, is not delivered (a) Shop drawings for construction means within the time specified by this contract or drawings, submitted to the Government by the Construction Contractor, subcontractor is deficient upon delivery (including having or any lower-tier subcontractor pursuant to restrictive markings not identified in the a construction contract, showing in detail (i) list described in the clause at 252.227– the proposed fabrication and assembly of 7013(e)(2) or 252.227–7018(e)(2) of this con- structural elements and (ii) the installation tract), the Contracting Officer may until (i.e., form, fit, and attachment details) of such data is accepted by the Government, materials or equipment. The Government withhold payment to the Contractor of ten may duplicate, use, and disclose in any man- percent (10%) of the total contract price or ner and for any purpose shop drawings deliv- amount unless a lesser withholding is speci- ered under this contract. fied in the contract. Payments shall not be (b) This clause, including this paragraph withheld nor any other action taken pursu- (b), shall be included in all subcontracts ant to this paragraph when the Contractor’s hereunder at any tier. failure to make timely delivery or to deliver such data without deficiencies arises out of (End of clause) causes beyond the control and without the fault or negligence of the Contractor. [56 FR 36479, July 31, 1991, as amended at 60 (b) The withholding of any amount or sub- FR 33505, June 28, 1995] sequent payment to the Contractor shall not be construed as a waiver of any rights accru- 252.227–7034 Patents—subcontracts. ing to the Government under this contract. As prescribed at 227.304–4, insert the (End of clause) following clause:
PATENTS—SUBCONTRACTS (APR 1984) [56 FR 36479, July 31, 1991, as amended at 60 FR 33505, June 28, 1995; 62 FR 34132, June 24, The Contractor will include the clause at 1997; 65 FR 14398, Mar. 16, 2000] FAR 52.227–12, Patent Rights—Retention by
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the Contractor (Long Form), suitably modi- duplicate, or disclose technical data deliv- fied to identify the parties, in all sub- ered or required to be delivered under the contracts, regardless of tier, for experi- contract or subcontract. Except under con- mental, developmental, or research work to tracts for commercial items, the Contractor be performed by other than a small business or subcontractor shall be prepared to furnish firm or nonprofit organization. to the Contracting Officer a written jus- tification for such restrictive markings in (End of clause) response to a challenge under paragraph (e) of this clause. 252.227–7035 [Reserved] (d) Prechallenge request for information. (1) The Contracting Officer may request the 252.227–7036 Declaration of Technical Contractor or subcontractor to furnish a Data Conformity. written explanation for any restriction as- As prescribed at 227.7103–6(e)(3) or serted by the Contractor or subcontractor on 227.7104(e)(5), use the following clause: the right of the United States or others to use technical data. If, upon review of the ex- DECLARATION OF TECHNICAL DATA planation submitted, the Contracting Officer CONFORMITY (JAN 1997) remains unable to ascertain the basis of the restrictive marking, the Contracting Officer All technical data delivered under this may further request the Contractor or sub- contract shall be accompanied by the fol- contractor to furnish additional information lowing written declaration: The Contractor, in the records of, or otherwise in the posses- llllllllll, hereby declares that, to sion of or reasonably available to, the Con- the best of its knowledge and belief, the tractor or subcontractor to justify the valid- technical data delivered herewith under Con- ity of any restrictive marking on technical tract No. llllllllll is complete, ac- data delivered or to be delivered under the curate, and complies with all requirements contract or subcontract (e.g., a statement of of the contract. facts accompanied with supporting docu- Date lllllllllllllllllllll mentation). The Contractor or subcontractor Name and Title of Authorized Official lll shall submit such written data as requested by the Contracting Officer within the time (End of clause) required or such longer period as may be mu- tually agreed. [62 FR 2614, Jan. 17, 1997] (2) If the Contracting Officer, after review- ing the written data furnished pursuant to 252.227–7037 Validation of restrictive paragraph (d)(1) of this clause, or any other markings on technical data. available information pertaining to the va- lidity of a restrictive marking, determines As prescribed in 227.7102–3(c), that reasonable grounds exist to question 227.7103(e)(4), 227.7104(e)(6), or 227.7203– the current validity of the marking and that 6(f), use the following clause: continued adherence to the marking would make impracticable the subsequent competi- VALIDATION OF RESTRICTIVE MARKINGS ON tive acquisition of the item, component, or TECHNICAL DATA (SEP 1999) process to which the technical data relates, (a) Definitions. The terms used in this the Contracting Officer shall follow the pro- clause are defined in the Rights in Technical cedures in paragraph (e) of this clause. Data—Noncommercial Items clause of this (3) If the Contractor or subcontractor fails contract. to respond to the Contracting Officer’s re- (b) Contracts for commercial items—presump- quest for information under paragraph (d)(1) tion of development at private expense. Under a of this clause, and the Contracting Officer contract for a commercial item, component, determines that continued adherence to the or process, the Department of Defense shall marking would make impracticable the sub- presume that a Contractor’s asserted use or sequent competitive acquisition of the item, release restrictions are justified on the basis component, or process to which the technical that the item, component, or process was de- data relates, the Contracting Officer may veloped exclusively at private expense. The challenge the validity of the marking as de- Department shall not challenge such asser- scribed in paragraph (e) of this clause. tions unless information the Department (e) Challenge. (1) Notwithstanding any pro- provides demonstrates that the item, compo- vision of this contract concerning inspection nent, or process was not developed exclu- and acceptance, if the Contracting Officer sively at private expense. determines that a challenge to the restric- (c) Justification. The Contractor or subcon- tive marking is warranted, the Contracting tractor at any tier is responsible for main- Officer shall send a written challenge notice taining records sufficient to justify the va- to the Contractor or subcontractor asserting lidity of its markings that impose restric- the restrictive markings. Such challenge tions on the Government and others to use, shall—
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(i) State the specific grounds for chal- procedures in paragraphs (g)(2) (ii) through lenging the asserted restriction; (iv) of this clause. (ii) Require a response within sixty (60) (g) Final decision when Contractor or subcon- days justifying and providing sufficient evi- tractor responds. (1) if the Contracting Officer dence as to the current validity of the as- determines that the Contractor or subcon- serted restriction; tractor has justified the validity of the re- (iii) State that a DoD Contracting Officer’s strictive marking, the Contracting Officer final decision, issued pursuant to paragraph shall issue a final decision to the Contractor (g) of this clause, sustaining the validity of or subcontractor sustaining the validity of a restrictive marking identical to the as- the restrictive marking, and stating that the serted restriction, within the three-year pe- Government will continue to be bound by the riod preceding the challenge, shall serve as restrictive marking. This final decision shall justification for the asserted restriction if be issued within sixty (60) days after receipt the validated restriction was asserted by the of the Contractor’s or subcontractor’s re- same Contractor or subcontractor (or any li- sponse to the challenge notice, or within censee of such Contractor or subcontractor) such longer period that the Contracting Offi- to which such notice is being provided; and cer has notified the Contractor or subcon- (iv) State that failure to respond to the tractor that the Government will require. challenge notice may result in issuance of a final decision pursuant to paragraph (f) of The notification of a longer period for this clause. issuance of a final decision will be made (2) The Contracting Officer shall extend within sixty (60) days after receipt of the re- the time for response as appropriate if the sponse to the challenge notice. Contractor or subcontractor submits a writ- (2)(i) If the Contracting Officer determines ten request showing the need for additional that the validity of the restrictive marking time to prepare a response. is not justified, the Contracting Officer shall (3) The Contractor’s or subcontractor’s issue a final decision to the Contractor or written response shall be considered a claim subcontractor in accordance with the Dis- within the meaning of the Contract Disputes putes clause of this contract. Notwith- Act of 1978 (41 U.S.C. 601, et seq.), and shall standing paragraph (e) of the Disputes be certified in the form prescribed at 33.207 of clause, the final decision shall be issued the Federal Acquisition Regulation, regard- within sixty (60) days after receipt of the less of dollar amount. Contractor’s or subcontractor’s response to (4) A Contractor or subcontractor receiving the challenge notice, or within such longer challenges to the same restrictive markings period that the Contracting Officer has noti- from more than one Contracting Officer shall fied the Contractor or subcontractor of the notify each Contracting Officer of the exist- longer period that the Government will re- ence of more than one challenge. The notice quire. The notification of a longer period for shall also state which Contracting Officer issuance of a final decision will be made initiated the first in time unanswered chal- within sixty (60) days after receipt of the re- lenge. The Contracting Officer initiating the sponse to the challenge notice. first in time unanswered challenge after con- (ii) The Government agrees that it will sultation with the Contractor or subcon- continue to be bound by the restrictive tractor and the other Contracting Officers, marking of a period of ninety (90) days from shall formulate and distribute a schedule for the issuance of the Contracting Officer’s responding to each of the challenge notices final decision under paragraph (g)(2)(i) of to all interested parties. The schedule shall this clause. The Contractor or subcontractor afford the Contractor or subcontractor an agrees that, if it intends to file suit in the opportunity to respond to each challenge no- tice. All parties will be bound by this sched- United States Claims Court it will provide a ule. notice of intent to file suit to the Con- (f) Final decision when Contractor or subcon- tracting Officer within ninety (90) days from tractor fails to respond. Upon a failure of a the issuance of the Contracting Officer’s Contractor or subcontractor to submit any final decision under paragraph (g)(2)(i) of response to the challenge notice, other than this clause. If the Contractor or subcon- a failure to respond under a contract for tractor fails to appeal, file suit, or provide a commercial items, the Contracting Officer notice of intent to file suit to the Con- will issue a final decision to the Contractor tracting Officer within the ninety (90)-day or subcontractor in accordance with the Dis- period, the Government may cancel or ignore putes clause of this contract pertaining to the restrictive markings, and the failure of the validity of the asserted restriction. This the Contractor or subcontractor to take the final decision shall be issued as soon as pos- required action constitutes agreement with sible after the expiration of the time period such Government action. of paragraph (e)(1)(ii) or (e)(2) of this clause. (iii) The Government agrees that it will Following issuance of the final decision, the continue to be bound by the restrictive Contracting Officer will comply with the marking where a notice of intent to file suit
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in the United States Claims Court is pro- the marking, unless special circumstances vided to the Contracting Officer within nine- would make such payment unjust. ty (90) days from the issuance of the final de- (2) If the Contractor or subcontractor ap- cision under paragraph (g)(2)(i) of this peals or files suit and if, upon final disposi- clause. The Government will no longer be tion of the appeal or suit, the Contracting bound, and the Contractor or subcontractor Officer’s decision is not sustained— agrees that the Government may strike or (i) The Government shall continue to be ignore the restrictive markings, if the Con- bound by the restrictive marking; and tractor or subcontractor fails to file its suit (ii) The Government shall be liable to the within one (1) year after issuance of the final Contractor or subcontractor for payment of decision. Notwithstanding the foregoing, fees and other expenses (as defined in 28 where the head of an agency determines, on U.S.C. 2412(d)(2)(A)) incurred by the Con- a nondelegable basis, that urgent or compel- tractor or subcontractor in defending the ling circumstances will not permit waiting marking, if the challenge by the Government for the filing of a suit in the United States Claims Court, the Contractor or subcon- is found not to have been made in good faith. tractor agrees that the agency may, fol- (i) Duration of right to challenge. The Gov- lowing notice to the Contractor or subcon- ernment may review the validity of any re- tractor, authorize release or disclosure of the striction on technical data, delivered or to technical data. Such agency determination be delivered under a contract, asserted by may be made at any time after issuance of the Contractor or subcontractor. During the the final decision and will not affect the Con- period within three (3) years of final pay- tractor’s or subcontractor’s right to damages ment on a contract or within three (3) years against the United States where its restric- of delivery of the technical data to the Gov- tive markings are ultimately upheld or to ernment, whichever is later, the Contracting pursue other relief, if any, as may be pro- Officer may review and make a written de- vided by law. termination to challenge the restriction. The (iv) The Government agrees that it will be Government may, however, challenge a re- bound by the restrictive marking where an striction on the release, disclosure or use of appeal or suit is filed pursuant to the Con- technical data at any time if such technical tract Disputes Act until final disposition by data— an agency Board of Contract Appeals or the (1) Is publicly available; United States Claims Court. Notwith- (2) Has been furnished to the United States standing the foregoing, where the head of an without restriction; or agency determines, on a nondelegable basis, (3) Has been otherwise made available following notice to the Contractor that ur- without restriction. Only the Contracting gent or compelling circumstances will not Officer’s final decision resolving a formal permit awaiting the decision by such Board challenge by sustaining the validity of a re- of Contract Appeals or the United States strictive marking constitutes ‘‘validation’’ Claims Court, the Contractor or subcon- as addressed in 10 U.S.C. 2321. tractor agrees that the agency may author- (j) Decision not to challenge. A decision by ize release or disclosure of the technical the Government, or a determination by the data. Such agency determination may be Contracting Officer, to not challenge the re- made at any time after issuance of the final strictive marking or asserted restriction decision and will not affect the Contractor’s shall not constitute ‘‘validation.’’ or subcontractor’s right to damages against (k) Privity of contract. The Contractor or the United States where its restrictive subcontractor agrees that the Contracting markings are ultimately upheld or to pursue other relief, if any, as may be provided by Officer may transact matters under this law. clause directly with subcontractors at any tier that assert restrictive markings. How- (h) Final disposition of appeal or suit. (1) If ever, this clause neither creates nor implies the Contractor or subcontractor appeals or privity of contract between the Government files suit and if, upon final disposition of the and subcontractors. appeal or suit, the Contracting Officer’s deci- sion is sustained— (l) Flowdown. The Contractor or subcon- (i) The restrictive marking on the tech- tractor agrees to insert this clause in contrac- nical data shall be cancelled, corrected or ig- tual instruments with its subcontractors or sup- nored; and pliers at any tier requiring the delivery of tech- nical data, except contractual instruments for (ii) If the restrictive marking is found not commercial items or commercial components. to be substantially justified, the Contractor or subcontractor, as appropriate, shall be lia- ble to the Government for payment of the (End of clause) cost to the Government of reviewing the re- strictive marking and the fees and other ex- [60 FR 33505, June 28, 1995, as amended at 60 penses (as defined in 28 U.S.C. 2412(d)(2)(A)) FR 61602, Nov. 30, 1995; 64 FR 51077, Sept. 21, incurred by the Government in challenging 1999]
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252.227–7038 [Reserved] (c) The Contracting Officer may require the Contractor to assign to the Government 252.227–7039 Patents—reporting of all right, title, and interest to any refund, subject inventions. rebate, or recapture arising out of any claim settlements. As prescribed at 227.303(a), insert the (d) The Contractor agrees to— following clause: (1) Investigate and promptly notify the Contracting Officer in writing of any occur- PATENTS—REPORTING OF SUBJECT INVENTIONS rence which may give rise to a claim or po- (APR 1990) tential claim, including the estimated The Contractor shall furnish the Con- amount of the claim; tracting Officer the following: (2) Give the Contracting Officer immediate (a) Interim reports every twelve (12) written notice of any suit or action filed months (or such longer period as may be which may result in a payment under this specified by the Contracting Officer) from clause; and (3) Provide assistance to the Government the date of the contract, listing subject in- in connection with any third party suit or ventions during that period and stating that claim relating to this clause which the Gov- all subject inventions have been disclosed or ernment elects to prosecute or defend in its that there are no such inventions. own behalf. (b) A final report, within three (3) months after completion of the contracted work, (End of clause) listing all subject inventions or stating that there were no such inventions. 252.228–7001 Ground and flight risk. (c) Upon request, the filing date, serial number and title, a copy of the patent appli- As prescribed in 228.370(b), use the cation and patent number, and issue data for following clause: any subject invention for which the Con- tractor has retained title. GROUND AND FLIGHT RISK (SEP 1996) (d) Upon request, the Contractor shall fur- (a) Definitions. As used in this clause— nish the Government an irrevocable power to (1) Aircraft, unless otherwise provided in inspect and make copies of the patent appli- the Schedule, means— cation file. (i) Aircraft to be delivered to the Govern- ment under this contract (either before or (End of clause) after Government acceptance), including complete aircraft and aircraft in the process 252.228–7000 Reimbursement for war- of being manufactured, disassembled, or re- hazard losses. assembled; provided that an engine, portion As prescribed in 228.370(a), use the of a wing or a wing is attached to a fuselage of the aircraft; and following clause: (ii) Aircraft, whether in a state of dis- REIMBURSEMENT FOR WAR-HAZARD LOSSES assembly or reassembly, furnished by the (DEC 1991) Government to the Contractor under this contract, including all property installed, in (a) Costs for providing employee war-haz- the process of installation, or temporarily ard benefits in accordance with paragraph (b) removed; provided that the aircraft and of the Workers’ Compensation and War-Haz- property are not covered by a separate bail- ard Insurance clause of this contract are al- ment agreement. lowable if the Contractor— (2) Contractor’s premises means those prem- (1) Submits proof of loss files to support ises designated in the Schedule or in writing payment or denial of each claim; by the Contracting Officer, and any other (2) Subject to Contracting Officer approval, place the aircraft is moved for safeguarding. makes lump sum final settlement of any (3) Flight means any flight demonstration, open claims and obtains necessary release flight test, taxi test, or other flight made in documents within one year of the expiration the performance of this contract, or for the or termination of this contract, unless other- purpose of safeguarding the aircraft, or pre- wise extended by the Contracting Officer; viously approved in writing by the Con- and tracting Officer. (3) Provides the Contracting Officer at the (i) For land based aircraft, flight begins time of final settlement of this contract— with the taxi roll from a flight line on the (i) An investigation report and evaluation Contractor’s premises and continues until of any potential claim; and the aircraft has completed the taxi roll in re- (ii) An estimate of the dollar amount in- turning to a flight line on the Contractor’s volved should the potential claim mature. premises; (b) The cost of insurance for liabilities re- (ii) For seaplanes, flight begins with the imbursable under this clause is not allow- launching from a ramp on the Contractor’s able. premises and continues until the aircraft has
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completed its landing run and is beached at If the Contracting Officer later determines a ramp on the Contractor’s premises; that the cited conditions were not unreason- (iii) For helicopters, flight begins upon en- able, an equitable adjustment shall be made gagement of the rotors for the purpose of in the contract price for any additional costs take-off from the Contractor’s premises and incurred in correcting the conditions. Any continues until the aircraft has returned to dispute as to the unreasonableness of the the ground on the Contractor’s premises and conditions or the equitable adjustment shall the rotors are disengaged; and be considered a dispute under the Disputes (iv) For vertical take-off aircraft, flight be- clause of this contract. gins upon disengagement from any launching (3) If the Contracting Officer finds that the platform or device on the Contractor’s prem- Contractor failed to act promptly to correct ises and continues until the aircraft has been the cited conditions or failed to correct the engaged to any launching platform or device conditions within a reasonable time, the on the Contractor’s premises; Contracting Officer may terminate the Gov- (v) All aircraft off the Contractor’s prem- ernment’s assumption of risk for any air- ises shall be considered to be in flight when craft in the open under the cited conditions. on the ground or water for reasonable peri- The termination will be effective at 12:01 am ods of time following emergency landings, on the fifteenth day following the day the landings made in performance of this con- written notice is received by the Contractor. tract, or landings approved in writing by the If the Contracting Officer later determines Contracting Officer. that the Contractor acted promptly to cor- (4) Flight crew member means the pilot, the rect the cited conditions or that the time co-pilot, and, unless otherwise provided in taken by the Contractor was not unreason- the Schedule, the flight engineer, navigator, able, an equitable adjustment shall be made and bombardier-navigator when assigned to in the contract price for any additional costs their respective crew positions for the pur- incurred as a result of termination of the pose of conducting any flight on behalf of the Government’s assumption of risk. Any dis- Contractor. If required, a defense systems pute as to the timeliness of the Contractor’s operator may also be assigned as a flight action or the equitable adjustment shall be crew member. considered a dispute under the Disputes (5) In the open means located wholly out- clause of this contract. side of buildings on the Contractor’s prem- ises or other places described in the Schedule (4) If the Government terminates its as- as being in the open. Government furnished sumption of risk, the risk of loss for Govern- aircraft shall be considered to be located in ment-furnished property shall be determined the open at all times while in the Contrac- in accordance with the Government Property tor’s possession, care, custody, or control. clause of this contract. (6) Operation means operations and tests of (5) The Contractor shall promptly notify the aircraft and its installed equipment, ac- the Contracting Officer when unreasonable cessories, and power plants, while the air- conditions have been corrected. If the Gov- craft is in the open or in motion. The term ernment elects to again assume the risk of does not apply to aircraft on any production loss and relieve the Contractor of liabilities, line or in flight. the Contracting Officer will notify the Con- (b) Except as may be specifically provided tractor. The Contractor shall be entitled to in the Schedule as an exception to this an equitable adjustment in the contract clause, the Government assumes the risk of price for any insurance costs extending from damage to, or loss or destruction of aircraft the end of the third working day after the in the open, during operation, and in flight. Contractor notice of correction until the The Contractor shall not be liable to the Contractor is notified that the Government Government for such damage, loss, or de- will assume the risk of loss. If the Govern- struction. ment does not again assume the risk of loss (c) The Government’s assumption of risk and conditions have been corrected, the Con- for aircraft in the open shall continue unless tractor shall be entitled to an equitable ad- the Contracting Officer finds that the air- justment for insurance costs, if any, extend- craft is in the open under unreasonable con- ing after the third working day. ditions, and the Contractor fails to take (d) The Government’s assumption of risk prompt corrective action. shall not extend to damage, loss, or destruc- (1) The Contracting Officer, when finding tion of aircraft which— aircraft in the open under unreasonable con- (1) Results from failure of the Contractor, ditions, shall notify the Contractor in writ- due to willful misconduct or lack of good ing of the unreasonable conditions and re- faith of any of the Contractor’s managerial quire the Contractor to make corrections personnel, to maintain and administer a pro- within a reasonable time. gram for the protection and preservation of (2) Upon receipt of the notice, the Con- aircraft in the open and during operation in tractor shall promptly correct the cited con- accordance with sound industrial practice. ditions, regardless of whether there is agree- The term Contractor’s managerial personnel ment that the conditions are unreasonable. means the Contractor’s directors, officers,
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and any of the Contractor’s managers, super- Contracting Officer, provides for relief from intendents, or other equivalent representa- each liability. In the absence of approval, the tives who supervise or direct all or substan- subcontract shall contain provisions requir- tially all of the Contractor’s business; or all ing the return of aircraft in as good condi- or substantially all of the Contractor’s oper- tion as when received, except for reasonable ations at any one plant or separate location wear and tear or for the utilization of the at which this contract is performed; or a sep- property in accordance with the provisions arate and complete major industrial oper- of this contract. Where a subcontractor has ation in connection with the performance of not been relieved from liability, and damage, this contract; loss, or destruction occurs, the Contractor (2) Is sustained during flight if the flight shall enforce liability against the subcon- crew members have not been approved in tractor for the benefit of the Government. writing by the Government Flight Rep- (g) The Contractor warrants that the con- resentative, who has been authorized in ac- tract price does not and will not include, ex- cordance with the combined regulation enti- cept as may be authorized in this clause, any tled ‘‘Contractor’s Flight and Ground Oper- charge or contingency reserve for insurance ations’’ (Air Force Regulation 55–22, Army covering damage, loss, or destruction of air- Regulation 95–20, NAVAIR Instruction craft while in the open, during operation, or 3710.1C, and Defense Logistics Agency Man- ual 8210.1); in flight when the risk has been assumed by (3) Occurs in the course of transportation the Government, even if the assumption may by rail, or by conveyance on public streets, be terminated for aircraft in the open. highways, or waterways, except for Govern- (h) In the event of damage, loss, or destruc- ment-furnished property; tion of aircraft in the open, during oper- (4) Is covered by insurance; ation, or in flight, the Contractor shall take (5) Consists of wear and tear; deterioration all reasonable steps to protect the aircraft (including rust and corrosion); freezing; or from further damage, to separate damaged mechanical, structural, or electrical break- and undamaged aircraft, to put all aircraft down or failure, unless these are the result of in the best possible order and further, except other loss, damage or destruction covered by in cases covered by paragraph (e) of this this clause. (This exclusion does not apply to clause, the Contractor shall furnish to the Government-furnished property if damage Contracting Officer a statement of— consists of reasonable wear and tear or dete- (1) The damaged, lost, or destroyed air- rioration, or results from inherent vice in craft; the property.); or (2) The time and origin of the damage, loss, (6) Is sustained while the aircraft is being or destruction; worked on and is a direct result of the work (3) All known interests in commingled unless such damage, loss, or destruction property of which aircraft are a part; and would be covered by insurance which would (4) The insurance, if any, covering the in- have been maintained by the Contractor, but terest in commingled property. for the Government’s assumption of risk. (e) With the exception of damage, loss, or Except in cases covered by paragraph (e) of destruction in flight, the Contractor assumes this clause, the Contracting Officer will the risk and shall be responsible for the first make an equitable adjustment in the con- $25,000 of loss or damage to aircraft in the tract price for expenditures made by the open or during operation resulting from each Contractor in performing the obligations separate event, except for reasonable wear under this paragraph. and tear and to the extent the loss or dam- (i) If prior to delivery and acceptance by age is caused by negligence of Government the Government, aircraft is damaged, lost, or personnel. If the Government elects to re- destroyed and the Government assumed the quire that the aircraft be replaced or re- risk, the Government shall either— stored by the Contractor to its condition im- (1) Require that the aircraft be replaced or mediately prior to the damage, the equitable restored by the Contractor to the condition adjustment in the price authorized by para- immediately prior to the damage, in which graph (i) of this clause shall not include the event the Contracting Officer will make an dollar amount of the risk assumed by the equitable adjustment in the contract price Contractor. In the event the Government and the time for contract performance; or does not elect repair or replacement, the (2) Terminate this contract with respect to Contractor agrees to credit the contract the aircraft, in which event the Contractor price or pay the Government $25,000 (or the shall be paid the contract price for the air- amount of the loss, if less) as directed by the craft (or, if applicable, any work to be per- Contracting Officer. formed on the aircraft) less any amount the (f) A subcontractor shall not be relieved Contracting Officer determines— from liability for damage, loss, or destruc- (i) It would have cost the Contractor to tion of aircraft while in its possession or complete the aircraft (or any work to be per- control, except to the extent that the sub- formed on the aircraft) together with antici- contract, with the written approval of the pated profit on uncompleted work; and
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(ii) Would be the value of the damaged air- (i) For land-based aircraft, flight begins craft or any salvage retained by the Con- with the taxi roll from a flight line and con- tractor. tinues until the aircraft has completed the The Contracting Officer shall prescribe the taxi roll to a flight line. manner of disposition of the damaged, lost, (ii) For seaplanes, flight begins with the or destroyed aircraft, or any parts of the air- launching from a ramp and continues until craft. If any additional costs of such disposi- the aircraft has completed its landing run tion are incurred by the Contractor, a fur- and is beached at a ramp. ther equitable adjustment will be made in (iii) For helicopters, flight begins upon en- the amount due the Contractor. Failure of gagement of the rotors for the purpose of the parties to agree upon termination costs take-off and continues until the aircraft has or an equitable adjustment with respect to returned to the ground and rotors are dis- any aircraft shall be considered a dispute engaged. under the Disputes clause. (iv) For vertical take-off aircraft, flight be- (j) In the event the Contractor is reim- gins upon disengagement from any launching bursed or compensated by a third person for platform or device and continues until the damage, loss, or destruction of aircraft and aircraft has been reengaged to any launching has also been compensated by the Govern- platform or device. ment, the Contractor shall equitably reim- (3) Flight crew members means the pilot, co- burse the Government. The Contractor shall pilot, and unless otherwise provided in the do nothing to prejudice the Government’s Schedule, the flight engineer, navigator, right to recover against third parties for bombardier-navigator, and defense systems damage, loss, or destruction. Upon the re- operator as required, when assigned to their quest of the Contracting Officer or author- respective crew positions to conduct any ized representative, the Contractor shall at flight on behalf of the Contractor. Government expense furnish to the Govern- (b) This clause takes precedence over any ment all reasonable assistance and coopera- other provision of this contract (particularly paragraph (g) of the Government Property tion (including the prosecution of suit and (Cost-Reimbursement, Time-and-Materials, the execution of instruments of assignment or Labor-Hour Contracts) clause and para- of subrogation) in obtaining recovery. graph (c) of the Insurance—Liability to (k) The Contractor agrees to be bound by Third Persons clause). the operating procedures contained in the (c) Unless the flight crew members pre- combined regulation entitled ‘‘Contractor’s viously have been approved in writing by the Flight and Ground Operations’’ in effect on Government Flight Representative, who has the date of contract award. been authorized in accordance with the com- (End of clause) bined regulation entitled ‘‘Contractor’s Flight and Ground Operations’’ (Air Force Regulation 55–22, Army Regulation 95–20, [56 FR 36479, July 31, 1991, as amended at 56 NAVAIR Instruction 3710.1C, and Defense Lo- FR 67221, Dec. 30, 1991; 61 FR 50456, Sept. 26, gistics Agency Manual 8210.1), the Con- 1996] tractor shall not be— (1) Relieved of liability for damage, loss, or 252.228–7002 Aircraft flight risk. destruction of aircraft sustained during As prescribed in 228.370(c), use the flight; or following clause: (2) Reimbursed for liabilities to third per- sons for loss or damage to property or for AIRCRAFT FLIGHT RISK (SEP 1996) death or bodily injury caused by aircraft during flight. (a) Definitions. As used in this clause— (d)(1) The loss, damage, or destruction of (1) Aircraft, unless otherwise provided in aircraft during flight in an amount exceed- the Schedule, means— ing $100,000 or 20 percent of the estimated (i) Aircraft furnished by the Contractor cost of this contract, whichever is less, is under this contract (either before or after subject to an equitable adjustment when the Government acceptance); or Contractor is not liable under— (ii) Aircraft furnished by the Government (i) The Government Property (Cost-Reim- to the Contractor, including all Government bursement, Time-and-Materials, or Labor- property placed on, installed or attached to Hour Contracts) clause, and the aircraft; provided that the aircraft and (ii) Paragraph (c) of this clause. property are not covered by a separate bail- (2) The equitable adjustment under this ment agreement. contract for the resulting repair, restora- (2) Flight means any flight demonstration, tion, or replacement of aircraft shall be flight test, taxi test, or other flight made in made— the performance of this contract, or for the (i) In the estimated cost, the delivery purpose of safeguarding the aircraft, or pre- schedule, or both; and viously approved in writing by the Con- (ii) In the amount of any fee to be paid to tracting Officer. the Contractor.
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(3) In determining the amount of equitable gated to pay and has paid detention benefits adjustment in the fee, the Contracting Offi- to a captured person, or the person’s depend- cer will consider any fault of the Contractor, ents, the Government will reimburse the its employees, or any subcontractor that ma- Contractor up to an amount equal to the terially contributed to the damage, loss, or lesser of— destruction. (1) Total wage or salary being paid at the (4) Failure to agree on any adjustment time of capture due from the Contractor to shall be a dispute concerning a question of the captured person for the period of deten- fact within the meaning of the Disputes tion; or clause of this contract. (2) That amount which would have been (e) The Contractor agrees to be bound by payable if the detention had occurred under the operating procedures contained in the circumstances covered by the War Hazards combined regulation entitled ‘‘Contractor’s Compensation Act. Flight and Found Operations’’ in effect on (c) The period of detention shall not be the date of contract award. considered as time spent in contract per- formance, and the Government shall not be (End of clause) obligated to make payment for that time ex- cept as provided in this clause. [56 FR 36479, July 31, 1991, as amended at 61 (d) The obligation of the Government shall FR 50456, Sept. 26, 1996] apply to the entire period of detention, ex- cept that it is subject to the availability of 252.228–7003 Capture and detention. funds from which payment can be made. The As prescribed in 228.370(d), use the rights and obligations of the parties under following clause: this clause shall survive prior expiration, completion, or termination of this contract. CAPTURE AND DETENTION (DEC. 1991) (e) The Contractor shall not be reimbursed under this clause for payments made if the (a) As used in this clause— employees were entitled to compensation for (1) Captured person means any employee of capture and detention under the War Haz- the Contractor who is— ards Compensation Act, as amended. (i) Assigned to duty outside the United States for the performance of this contract; (End of clause) and (ii) Found to be missing from his or her [56 FR 36479, July 31, 1991, as amended at 57 place of employment under circumstances FR 42633, Sept. 15, 1992] that make it appear probable that the ab- sence is due to the action of the force of any power not allied with the United States in a 252.228–7004 Bonds or other security. common military effort; or As prescribed in 228.170, use the fol- (iii) Known to have been taken prisoner, lowing provision: hostage, or otherwise detained by the force of such power, whether or not actually en- BONDS OR OTHER SECURITY (DEC. 1991) gaged in employment at the time of capture; provided, that at the time of capture or de- (a) Offerors shall furnish a bid guarantee in tention, the person was either— the amount of $llll with their bids. The (A) Engaged in activity directly arising offeror receiving notice of award shall fur- out of and in the course of employment nish— under this contract; or (1) A performance bond in the penal (B) Captured in an area where required to amount of $llll; and be only in order to perform this contract. (2) Payment in full of any sum due the (2) A period of detention begins with the day Government. of capture and continues until the captured (b) The Contractor shall furnish the per- person is returned to the place of employ- formance bond to the Contracting Officer ment, the United States, or is able to be re- within ll days after receipt of the notice of turned to the jurisdiction of the United award. The Contracting Officer will not issue States, or until the person’s death is estab- the notice to proceed until receipt of an ac- lished or legally presumed to have occurred ceptable performance bond and payment of by evidence satisfactory to the Contracting any sum due the Government. Officer, whichever occurs first. (c) Bonds supported by sureties whose (3) United States comprises geographically names appear on the list contained in Treas- the 50 states and the District of Columbia. ury Department Circular 570 are acceptable. (4) War Hazards Compensation Act refers to Performance bonds from individual sureties the statute compiled in chapter 12 of title 42, are acceptable if each person acting as a sur- U.S. Code (sections 1701–1717), as amended. ety provides a SF 28, Affidavit of Individual (b) If pursuant to an agreement entered Surety, and a pledge of assets acceptable to into prior to capture, the Contractor is obli- the Contracting Officer.
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(End of provision) days after the date of the Notice to Proceed, that the Contractor has obtained the re- 252.228–7005 Accident reporting and quired types of insurance in the following investigation involving aircraft, minimum amounts. The representation also missiles, and space launch vehicles. shall state that the Contractor will promptly notify the Contracting Officer of any notice As prescribed in 228.370(e), use the of cancellation of insurance or material following clause: change in insurance coverage that could af- fect the United States Government’s inter- ACCIDENT REPORTING AND INVESTIGATION IN- ests. VOLVING AIRCRAFT, MISSILES, AND SPACE LAUNCH VEHICLES (DEC. 1991) Type of insur- Coverage Coverage Property (a) The Contractor shall report promptly ance per person per accident damage to the Administrative Contracting Officer all Comprehensive pertinent facts relating to each accident in- General Liabil- volving an aircraft, missile, or space launch ity ...... $300,000 $1,000,000 $100,000 vehicle being manufactured, modified, re- paired, or overhauled in connection with this (e) The Contractor shall provide the Con- contract. tracting Officer with a similar representa- (b) If the Government conducts an inves- tion for all subcontracts with non-Spanish tigation of the accident, the Contractor will concerns that will perform work in Spain cooperate and assist the Government’s per- under this contract. sonnel until the investigation is complete. (f) Insurance policies required herein shall (c) The Contractor will include a clause in be purchased from Spanish insurance compa- subcontracts under this contract to require nies or other insurance companies legally subcontractor cooperation and assistance in authorized to conduct business in Spain. accident investigations. Such policies shall conform to Spanish laws and regulations and shall— (End of clause) (1) Contain provisions requiring submission to Spanish law and jurisdiction of any prob- 252.228–7006 Compliance with Spanish lem that may arise with regard to the inter- laws and insurance. pretation or application of the clauses and As prescribed at 228.370(f), use the fol- conditions of the insurance policy; lowing clause: (2) Contain a provision authorizing the in- surance company, as subrogee of the insured COMPLIANCE WITH SPANISH LAWS AND entity, to assume and attend to directly, INSURANCE (DEC 1998) with respect to any person damaged, the (a) The requirements of this clause apply legal consequences arising from the occur- only if the Contractor is not a Spanish con- rence of such damages; cern. (3) Contain a provision worded as follows: (b) The Contractor shall, without addi- ‘‘The insurance company waives any right of tional expense to the United States Govern- subrogation against the United States of ment, comply with all applicable Spanish America that may arise by reason of any Government laws pertaining to sanitation, payment under this policy.’’; traffic, security, employment of labor, and (4) Not contain any deductible amount or all other laws relevant to the performance of similar limitation; and this contract. The Contractor shall hold the (5) Not contain any provisions requiring United States Government harmless and free submission to any type of arbitration. from any liability resulting from the Con- tractor’s failure to comply with such laws. (End of clause) (c) The contractor shall, at its own ex- pense, provide and maintain during the en- [62 FR 34132, June 24, 1997, as amended at 63 tire performance of this contract, all work- FR 69006, Dec. 15, 1998] men’s compensation, employees’ liability, bodily injury insurance, and other required 252.229–7000 Invoices exclusive of insurance adequate to cover the risk as- taxes or duties. sumed by the Contractor. The Contractor As prescribed in 229.402–1, use the fol- shall indemnify and hold harmless the United States Government from liability re- lowing clause: sulting from all claims for damages as a re- INVOICES EXCLUSIVE OF TAXES OR DUTIES sult of death or injury to personnel or dam- (JUNE 1997) age to real or personal property related to the performance of this contract. Invoices submitted in accordance with the (d) The Contractor agrees to represent in terms and conditions of this contract shall writing to the Contracting Officer, prior to be exclusive of all taxes or duties for which commencement of work and not later than 15 relief is available.
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(End of clause) 252.229–7002 Customs exemptions (Germany). [62 FR 34132, June 24, 1997] As prescribed in 229.402–70(b), use the following clause: 252.229–7001 Tax relief. As prescribed in 229.402–70(a), use the CUSTOMS EXEMPTIONS (GERMANY) (JUNE 1997) following clause: Imported products required for the direct benefit of the United States Forces are au- TAX RELIEF (JUNE 1997) thorized to be acquired duty-free by the Con- tractor in accordance with the provisions of (a) Prices set forth in this contract are ex- the Agreement Between the United States of clusive of all taxes and duties from which America and Germany Concerning Tax Re- the United States Government is exempt by lief to be Accorded by Germany to United virtue of tax agreements between the United States Expenditures in the Interest of Com- States Government and the Contractor’s mon Defense. government. The following taxes or duties have been excluded from the contract price: (End of clause) NAME OF TAX: (Offeror Insert) RATE (PERCENTAGE): (Offeror Insert) [62 FR 34133, June 24, 1997] (b) The Contractor’s invoice shall list sepa- 252.229–7003 Tax exemptions (Italy). rately the gross price, amount of tax de- As prescribed in 229.402–70(c), use the ducted, and net price charged. following clause: (c) When items manufactured to United States Government specifications are being TAX EXEMPTIONS (ITALY) (JUNE 1997) acquired, the Contractor shall identify the materials or components intended to be im- (a) The Contractor represents that the con- ported in order to ensure that relief from im- tract prices, including the prices in sub- port duties is obtained. If the Contractor in- contracts awarded hereunder, do not include tends to use imported products from inven- taxes from which the United States Govern- tories on hand, the price of which includes a ment is exempt. factor for import duties, the Contractor shall (b) The United States Government is ex- ensure the United States Government’s ex- empt from payment of Imposta Valore emption from these taxes. The Contractor Aggiunto (IVA) tax in accordance with Arti- cle 72 of the IVA implementing decree on all may obtain a refund of the import duties supplies and services sold to United States from its government or request the duty-free Military Commands in Italy. import of an amount of supplies or compo- (1) Upon receipt of the invoice, the paying nents corresponding to that used from inven- office will stamp the following statement on tory for this contract. one copy of the invoice: ‘‘I certify that this invoice is true and cor- (End of clause) rect and reflects expenditures made in Italy for the Common Defense by the United ALTERNATE I (JUNE 1997) States Government pursuant to inter- As prescribed in 229.402–70(a), add the fol- national agreements. The amount to be paid lowing paragraph (d) to the basic clause: does not include the IVA tax, because this (d) Tax relief will be claimed in Germany transaction is not subject to the tax in ac- pursuant to the provisions of the Agreement cordance with Article 72 of Decree Law 633, Between the United States of America and dated October 26, 1972.’’ Germany Concerning Tax Relief to be Ac- (2) This certified copy, signed by an au- corded by Germany to United States Expend- thorized Government official, will be re- itures in the Interest of Common Defense. turned together with payment to the Con- The Contractor shall use Abwicklungsschein tractor. The payment will not include the fuer abgabenbeguenstigte Lieferungen/ amount of IVA tax. Leistungen nach dem Offshore (3) The Contractor must retain this copy of Steuerabkommen (Performance Certificate the invoice with the representation to sub- for Tax-Free Deliveries/Performance accord- stantiate non-payment of the IVA tax. ing to the Offshore Tax Relief Agreement) or (c) In addition to the IVA tax, purchases by other documentary evidence acceptable to the United States Forces in Italy are exempt the German tax authorities. All purchases from the following taxes: made and paid for on a tax-free basis during (1) Imposta di Fabbricazione (Production a 30-day period may be accumulated, totaled, Tax for Petroleum Products). and reported as tax-free. (2) Imposta di Consumo (Consumption Tax for Electrical Power). [62 FR 34132, June 24, 1997] (3) Dazi Doganali (Customs Duties).
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(4) Tassa di Sbarco e d’Imbarco sulle Merci in sufficient time to permit processing by Transportate per Via Aerea e per Via the appropriate United States and Spanish Maritima (Port Fees). Government agencies prior to the arrival of (5) Tassa de Circolazione sui Veicoli (Vehi- the equipment, material, or supplies in cle Circulation Tax). Spain. Seasonal variations in processing (6) Imposta di Registro (Registration Tax). times are common, and the Contractor (7) Imposta di Bollo (Stamp Tax). should program its projects accordingly. Any (d) The Contractor’s administrative proce- delay or expense arising directly or indi- dures for claiming and validating the exemp- rectly from this process shall not excuse un- tions are as follows: timely performance (except as expressly al- (1) Contract offer price shall not reflect lowed in other provisions of this contract), IVA or any other tax or duty. (2) Contract number must be set forth on constitute a direct or constructive change, Contractor invoices, which should state the or otherwise provide a basis for additional exemptions claimed pursuant to Article 72 of compensation or adjustment of any kind. Decree Law 633, dated October 26, 1972, for (d) To ensure that all duty-free imports are IVA exemption. properly accounted for, exported, or disposed (3) Fiscal code for appropriated funds pay- of, in accordance with Spanish law, the Con- ments by Aviano Air Base is: 91000190933. tractor shall obtain a written bank letter of (4) Questions may be addressed to the Min- guaranty payable to the Treasurer of the istry of Finance, 11th District, Rome (06) United States, or such other authority as 5910982. may be designated by the Contracting Offi- cer, in the amount set forth in paragraph (g) (End of clause) of this clause, prior to effecting any duty- free imports for the performance of this con- [62 FR 34133, June 24, 1997; 62 FR 49305, Sept. tract. 19, 1997] (e) If the Contractor fails to obtain the re- quired guaranty, the Contractor agrees that 252.229–7004 Status of contractors as a the Contracting Officer may withhold a por- direct contractor (Spain). tion of the contract payments in order to es- As prescribed in 229.402–70(d), use the tablish a fund in the amount set forth in following clause: paragraph (g) of this clause. The fund shall be used for the payment of import taxes in STATUS OF CONTRACTOR AS A DIRECTOR the event that the Contractor fails to prop- CONTRACTOR (SPAIN) (JUNE 1997) erly account for, export, or dispose of equip- ment, materials, or supplies imported on a (a) ‘‘Direct Contractor,’’ as used in this duty-free basis. clause, means an individual, company, or en- tity with whom an agency of the United (f) The amount of the bank letter of guar- States Department of Defense has executed a anty or size of the fund required under para- written agreement that allows duty-free im- graph (d) or (e) of this clause normally shall port of equipment, materials, and supplies be 5 percent of the contract value. However, into Spain for the construction, develop- if the Contractor demonstrates to the Con- ment, maintenance, and operation of Span- tracting Officer’s satisfaction that the ish-American installations and facilities. amount retained by the United States Gov- (b) The Contractor is hereby designated as ernment or guaranteed by the bank is exces- a Direct Contractor under the provisions of sive, the amount shall be reduced to an Complementary Agreement 5, articles 11, 14, amount commensurate with contingent im- 15, 17, and 18 of the Agreement on Friend- port tax and duty-free liability. This bank ship, Defense and Cooperation between the guaranty or fund shall not be released to the United States Government and the Kingdom Contractor until the Spanish General Direc- of Spain, dated July 2, 1982. The Agreement torate of Customs verifies the accounting, relates to contacts to be performed in whole export, or disposition of the equipment, ma- or part in Spain, the provisions of which are terial, or supplies imported on a duty-free hereby incorporated into and made a part of basis. this contract by reference. (g) The amount required under paragraph (c) The Contractor shall apply to the ap- (d), (e), or (f) of this clause is (Contracting Of- propriate Spanish authorities for approval of ficer insert amount at time of contract award). status as a Direct Contractor in order to (h) The Contractor agrees to insert the complete duty-free import of non-Spanish provisions of this clause, including this para- equipment, materials, and supplies rep- graph (h), in all subcontracts. resented as necessary for contract perform- ance by the Contracting Officer. Orders for equipment, materials, and supplies placed (End of clause) prior to official notification of such approval shall be at the Contractor’s own risk. The [62 FR 34133, June 24, 1997, as amended at 63 Contractor must submit its documentation FR 11548, Mar. 9, 1998]
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252.229–7005 Tax exemptions (Spain). between the appropriate United States au- thorities and Her Majesty’s Customs and Ex- As prescribed in 229.402–70(e), use the cise (Reference Priv 46/7). By executing this following clause: contract, the Contracting Officer certifies that these supplies or services are being pur- TAX EXEMPTIONS (SPAIN) (JUNE 1997) chased for United States Government official (a) The Contractor represents that the con- purposes only. tract prices, including subcontract prices, do not include the taxes identified herein, or (End of clause) any other taxes from which the United States Government is exempt. [62 FR 34134, June 24, 1997] (b) In accordance with tax relief agree- ments between the United States Govern- 252.229–7007 Verification of United ment and the Spanish Government, and be- States receipt of goods. cause the incumbent contract arises from the activities of the United States Forces in As prescribed in 229.402–70(g), use the Spain, the contract will be exempt from the following clause: following excise, luxury, and transaction taxes: VERIFICATION OF UNITED STATES RECEIPT OF (1) Derechos de Aduana (Customs Duties). GOODS (JUNE 1997) (2) Impuesto de Compensacion a la The Contractor shall insert the following Importacion (Compensation Tax on Imports). statement on all Material Inspection and Re- (3) Transmissiones Patrionomiales (Prop- ceiving Reports (DD Form 250 series) for erty Transfer Tax). Contracting Officer approval: ‘‘I certify that (4) Impuesto Sobre el Lujo (Luxury Tax). the items listed on this invoice have been re- (5) Actos Juridocos Documentados (Legal ceived by the United States.’’ Official Transactions). (6) Impuesto Sobre el Trafico de Empresas (Business Trade Tax). (End of clause) (7) Impuestos Especiales de Fabricacion (Special Products Tax). [62 FR 34134, June 24, 1997] (8) Impuesto Sobre el Petroleo y Derivados (Tax on Petroleum and its By-Products). 252.229–7008 Relief from import duty (9) Impuesto Sobre el Uso de Telefona (United Kingdom). (Telephone Tax). As prescribed in 229.402–70(h), use the (10) Impuesto General Sobre la Renta de Sociedades y demas Entidades Juridicas following clause: (General Corporation Income Tax). RELIEF FROM IMPORT DUTY (UNITED KINGDOM) (11) Impuesto Industrial (Industrial Tax). (JUNE 1997) (12) Impuesto de Rentas Sobre el Capital (Capital Gains Tax). Any import dutiable articles, components, (13) Plus Vailia (Increase on Real Prop- or raw materials supplied to the United erty). States Government under this contract shall (14) Contribucion Territorial Urbana (Met- be exclusive of any United Kingdom import ropolitan Real Estate Tax). duties. Any imported items supplied for (15) Contribucion Territorial Rustica y which import duty already has been paid will Pecuaria (Farmland Real Estate Tax). be supplied at a price exclusive of the (16) Impuestos de la Diputacion (County amount of import duty paid. The Contractor Service Charges). is advised to contact Her Majesty’s (HM) (17) Impuestos Municipal y Tasas Customs and Excise to obtain a refund upon Parafiscales (Municipal Tax and Charges). completion of the contract (Reference HM Customs and Excise Notice No. 431, February (End of clause) 1973, entitled ‘‘Relief from Customs Duty and/or Value Added Tax on United States [62 FR 34133, June 24, 1997] Government Expenditures in the United Kingdom’’). 252.229–7006 Value added tax exclu- sion (United Kingdom). (End of clause) As prescribed in 229.402–70(f), use the following clause: [62 FR 34134, June 24, 1997]
VALUE ADDED TAX EXCLUSION (UNITED 252.229–7009 Relief from customs duty KINGDOM) (JUNE 1997) and value added tax on fuel (pas- senger vehicles) (United Kingdom). The supplies or services identified in this contract are to be delivered at a price exclu- As prescribed in 229.402–70(i), use the sive of value added tax under arrangements following clause:
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RELIEF FROM CUSTOMS DUTY AND VALUE timated mileage per contract period, and ADDED TAX ON FUEL (PASSENGER VEHICLES) any other information that will assist HM (UNITED KINGDOM) (JUNE 1997) Customs and Excise in determining the (a) Pursuant to an agreement between the amount of relief to be granted. United States Government and Her Maj- (c) Within 30 days after the award of this esty’s (HM) Customs and Excise, fuels and contract, the Contractor shall provide the lubricants used by passenger vehicles (except Contracting Officer with evidence that an at- taxis) in the performance of this contract tempt to obtain such relief has been initi- will be exempt from customs duty and value ated. In the event the Contractor does not added tax. Therefore, the procedures out- attempt to obtain relief within the time lined in HM Customs and Excise Notice No. specified, the Contracting Officer may de- 431B, August 1982, and any amendment there- duct from the contract price the amount of to, shall be used to obtain relief from both relief that would have been allowed if HM customs duty and value added tax for fuel Customs and Excise had favorably considered used under the contract. These procedures the request for relief. shall apply to both loaded and unloaded (d) The amount of any rebate granted by miles. The unit prices shall be based on the HM Customs and Excise shall be paid in full recoupment by the Contractor of customs to the United States Government. Checks duty in accordance with the following allow- shall be made payable to the Treasurer of ances: (1) Vehicles (except taxis) with a seating the United States and forwarded to the Ad- capacity of less than 29, one gallon for every ministrative Contracting Officer. 27 miles. (2) Vehicles with a seating capacity of 29– (End of clause) 53, one gallon for every 13 miles. (3) Vehicles with a seating capacity of 54 or [62 FR 34134, June 24, 1997] more, one gallon for every 10 miles. (b) In the event the mileage of any route is 252.231–7000 Supplemental cost prin- increased or decreased within 10 percent, re- ciples. sulting in no change in route price, the cus- toms duty shall be reclaimed from HM Cus- As prescribed in 231.100–70, use the toms and Excise on actual mileage per- following clause: formed. SUPPLEMENTAL COST PRINCIPLES (DEC 1991) (End of clause) When the allowability of costs under this contract is determined in accordance with [62 FR 34134, June 24, 1997] part 31 of the Federal Acquisition Regulation 252.229–7010 Relief from customs duty (FAR), allowability shall also be determined on fuel (United Kingdom). in accordance with part 231 of the Defense FAR Supplement, in effect on the date of As prescribed in 229.402–70(j), use the this contract. following clause: (End of clause) RELIEF FROM CUSTOMS DUTY ON FUEL (UNITED KINGDOM) (JUNE 1997) 252.232–7000 Advance payment pool. (a) Pursuant to an agreement between the United States Government and Her Maj- As prescribed in 232.412–70(a), use the esty’s (HM) Customs and Excise, it is pos- following clause: sible to obtain relief from customs duty on fuels and lubricants used in support of cer- ADVANCE PAYMENT POOL (DEC. 1991) tain contracts. If vehicle fuels and lubricants (a) Notwithstanding any other provision of are used in support of this contract, the Con- this contract, advance payments will be tractor shall seek relief from customs duty made for contract performance in accord- in accordance with HM Customs Notice No. ance with the Determinations, Findings, and 431, February 1973, entitled ‘‘Relief from Cus- Authorization for Advance payment dated toms Duty and/or Value Added Tax on United States Government Expenditures in lllllll. the United Kingdom.’’ Application should be (b) Payments made in accordance with this sent to the Contractor’s local Customs and clause shall be governed by the terms and Excise Office. conditions of the Advance Payment Pool (b) Specific information should be included Agreement between the United States of in the request for tax relief, such as the America and (insert the name of the con- number of vehicles involved, types of vehi- tractor). The Agreement is incorporated in cles, rating of vehicles, fuel consumption, es- the contract by reference.
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(End of clause) liquidation rate (excepting paragraph (k), Limitations on Undefinitized Contract Actions) 252.232–7001 Disposition of payments. to 90 percent. As prescribed in 232.412–70(b), use the (b) If the contractor is a small disadvan- following clause: taged business concern, the Progress Pay- ments clause of this contract is modified to DISPOSITION OF PAYMENTS (DEC 1991) change each mention of the progress pay- ment rate and liquidation rate (excepting Payment will be by a dual payee Treasury check made payable to the contractor or the paragraph (k), Limitations on Undefinitized (insert the name of the disbursing office in the Contract Actions) to 95 percent. advance payment pool agreement), and will be (End of clause) forwarded to that disbursing office for appro- priate disposition. [66 FR 49865, Oct. 1, 2001]
(End of clause) 252.232–7005 Reimbursement of sub- contractor advance payments—DoD [56 FR 36479, July 31, 1991, as amended at 57 pilot mentor-protege program. FR 42633, Sept. 15, 1992] As prescribed in 232.412–70(c), use the 252.232–7002 Progress payments for following clause: foreign military sales acquisitions. REIMBURSEMENT OF SUBCONTRACTOR ADVANCE As prescribed in 232.502–4–70(a), use PAYMENTS—DOD PILOT MENTOR-PROTEGE the following clause: PROGRAM (SEP 2001)
PROGRESS PAYMENTS FOR FOREIGN MILITARY (a) The Government will reimburse the SALES ACQUISITIONS (DEC 1991) Contractor for any advance payments made If this contract includes foreign military by the Contractor, as a mentor firm, to a sales (FMS) requirements, the Contractor protege firm, pursuant to an approved men- shall— tor-protege agreement, provided— (a) Submit a separate progress payment re- (1) The Contractor’s subcontract with the quest for each progress payment rate; and protege firm includes a provision substan- (b) Submit a supporting schedule show- tially the same as FAR 52.232–12, Advance ing— Payments; (1) The amount of each request distributed (2) The Contractor has administered the to each country’s requirements; and advance payments in accordance with the (2) Total price per contract line item appli- policies of FAR subpart 32.4; and cable to each separate progress payment (3) The Contractor agrees that any finan- rate. cial loss resulting from the failure or inabil- (c) Identify in each progress payment re- ity of the protege firm to repay any unliqui- quest the contract requirements to which it dated advance payments is the sole financial applies (i.e., FMS or U.S.); (d) Calculate each request on the basis of responsibility of the Contractor. the prices, costs (including costs to com- (b) For a fixed price type contract, advance plete), subcontractor progress payments, and payments made to a protege firm shall be progress payment liquidations of the con- paid and administered as if there were 100 tract requirements to which it applies; and percent progress payments. The Contractor (e) Distribute costs among contract line shall include as a separate attachment with items and countries in a manner acceptable each Standard Form (SF) 1443, Contractor’s to the Administrative Contracting Officer. Request for Progress Payment, a request for reimbursement of advance payments made (End of clause) to a protege firm. The attachment shall pro- vide a separate calculation of lines 14a 252.232–7003 [Reserved] through 14e of SF 1443 for each protege, re- flecting the status of advance payments 252.232–7004 DoD progress payment made to that protege. rates. (c) For cost reimbursable, contracts, reim- As prescribed in 232.502–4–70(b), use bursement of advance payments shall be the following clause: made via public voucher. The Contractor shall show the amounts of advance payments DOD Progress Payment Rates (OCT 2001) made to each protege on the public voucher, (a) If the contractor is a small business in the form and detail directed by the cog- concern, the Progress Payments clause of nizant contracting officer or contract audi- this contract is modified to change each tor. mention of the progress payment rate and
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(End of clause) quired for the timely performance of the item(s) funded pursuant to this clause, for a [56 FR 67221, Dec. 30, 1991, as amended at 57 subsequent period as may be specified in the FR 53602, Nov. 12, 1992; 66 FR 47109, Sept. 11, allotment schedule in paragraph (i) of this clause, or otherwise agreed to by the parties. 2001] If after such notification additional funds are not allotted by the date identified in the 252.232–7006 [Reserved] Contractor’s notification, or by an agreed substitute date, the Contracting Officer will 252.232–7007 Limitation of Govern- terminate any item(s) for which additional ment’s obligation. funds have not been allotted, pursuant to the As prescribed in 232.705–70, use the clause of this contract entitled ‘‘Termi- following clause: nation for Convenience of the Government.’’ (d) When additional funds are allotted for LIMITATION OF GOVERNMENT’S OBLIGATION continued performance of the contract line (AUG 1993) item(s) identified in paragraph (a) of this clause, the parties will agree as to the period (a) Contract line item(s) lll* through of contract performance which will be cov- lll* are incrementally funded. For these ered by the funds. The provisions of para- item(s), the sum of $lll* of the total price graph (b) through (d) of this clause will apply is presently available for payment and allot- in like manner to the additional allotted ted to this contract. An allotment schedule funds and agreed substitute date, and the is set forth in paragraph (i) of this clause. contract will be modified accordingly. (b) For item(s) identified in paragraph (a) (e) If, solely by reason of failure of the of this clause, the Contractor agrees to per- Government to allot additional funds, by the form up to the point at which the total dates indicated below, in amounts sufficient amount payable by the Government, includ- for timely performance of the contract line ing reimbursement in the event of termi- item(s) identified in paragraph (a) of this nation of those item(s) for the Government’s clause, the Contractor incurs additional convenience, approximates the total amount costs or is delayed in the performance of the currently allotted to the contract. The Con- work under this contract and if additional tractor will not be obligated to continue funds are allotted, an equitable adjustment work on those item(s) beyond that point. will be made in the price or prices (including The Government will not be obligated in any appropriate target, billing, and ceiling prices event to reimburse the Contractor in excess where applicable) of the item(s), or in the of the amount allotted to the contract for time of delivery, or both. Failure to agree to those item(s) regardless of anything to the any such equitable adjustment hereunder contrary in the clause entitled ‘‘Termination will be a dispute concerning a question of for Convenience of the Government.’’ As fact within the meaning of the clause enti- used in this clause, the total amount payable tled ‘‘Disputes.’’ by the Government in the event of termi- (f) The Government may at any time prior nation of applicable contract line item(s) for to termination allot additional funds for the convenience includes costs, profit, and esti- performance of the contract line item(s) mated termination settlement costs for identified in paragraph (a) of this clause. those items(s). (g) The termination provisions of this (c) Notwithstanding the dates specified in clause do not limit the rights of the Govern- the allotment schedule in paragraph (i) of ment under the clause entitled ‘‘Default.’’ this clause, the Contractor will notify the The provisions of this clause are limited to Contracting Officer in writing at least nine- the work and allotment of funds for the con- ty days prior to the date when, in the Con- tract line item(s) set forth in paragraph (a) tractor’s best judgment, the work will reach of this clause. This clause no longer applies the point at which the total amount payable once the contract is fully funded except with by the Government, including any cost for regard to the rights or obligations of the par- termination for convenience, will approxi- ties concerning equitable adjustments nego- mate 85 percent of the total amount then al- tiated under paragraphs (d) or (e) of this lotted to the contract for performance of the clause. applicable item(s). The notification will (h) Nothing in this clause affects the right state (1) the estimated date when that point of the Government to terminate this con- will be reached and (2) an estimate of addi- tract pursuant to the clause of this contract tional funding, if any, needed to continue entitled ‘‘Termination for Convenience of performance of applicable line items up to the Government.’’ the next scheduled date for allotment of (i) The parties contemplate that the Gov- funds identified in paragraph (i) of this ernment will allot funds to this contract in clause, or to a mutually agreed upon sub- accordance with the following schedule: stitute date. The notification will also ad- On execution of contract...... $ vise the Contracting Officer of the estimated (month) (day), 199x ...... $ amount of additional funds that will be re- (month) (day), 199y...... $
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(month) (day), 199z ...... $ (End of clause)
(End of clause) [62 FR 34134, June 24, 1997]
Alternate I (AUG 1993). 252.232–7009 Mandatory payment by If only one line item will be incrementally Governmentwide commercial pur- funded, substitute the following paragraph chase card. (a) for paragraph (a) of the basic clause. (a) Contract line item lll is incremen- As prescribed in 232.1110, use the fol- tally funded. The sum of $lll* is presently lowing clause: available for payment and allotted to this contract. An allotment schedule is contained MANDATORY PAYMENT BY GOVERNMENTWIDE in paragraph (i) of this clause. COMMERCIAL PURCHASE CARD (JUL 2000) *To be inserted after negotiation. The Contractor agrees to accept the Gov- ernmentwide commercial purchase card as [58 FR 46093, Sept. 1, 1993] the method of payment for orders or calls valued at or below $2,500 under this contract 252.232–7008 Assignment of claims or agreement. (overseas). As prescribed in 232.806(a)(1), use the (End of clause) following clause: [65 FR 46626, July 31, 2000] ASSIGNMENT OF CLAIMS (OVERSEAS) (JUNE 1997) 252.233–7000 [Reserved] (a) No claims for monies due, or to become 252.233–7001 Choice of law (overseas). due, shall be assigned by the Contractor un- less— As prescribed in 233.215–70, use the (1) Approved in writing by the Contracting following clause: Officer; (2) Made in accordance with the laws and CHOICE OF LAW (OVERSEAS) (JUNE 1997) regulations of the United States of America; This contract shall be construed and inter- and preted in accordance with the substantive (3) Permitted by the laws and regulations laws of the United States of America. By the of the Contractor’s country. execution of this contract, the Contractor (b) In no event shall copies of this contract expressly agrees to waive any rights to in- of any plans, specifications, or other similar voke the jurisdiction of local national courts documents relating to work under this con- where this contract is performed and agrees tract, if marked ‘‘Top Secret,’’ ‘‘Secret,’’ or to accept the exclusive jurisdiction of the ‘‘Confidential’’ be furnished to any assignee United States Armed Services Board of Con- of any claim arising under this contract or tract Appeals and the United States Court of to any other person not entitled to receive Federal Claims for hearing and determina- such documents. However, a copy of any part tion of any and all disputes that may arise or all of this contract so marked may be fur- under the Disputes clause of this contract. nished, or any information contained herein may be disclosed, to such assignee upon the (End of clause) Contracting Officer’s prior written author- ization. [62 FR 34135, June 24, 1997] (c) Any assignment under this contract shall cover all amounts payable under this 252.234–7000 Notice of earned value contract and not already paid, and shall not management system. be made to more than one party, except that any such assignment may be made to one As prescribed in 234.005–71(a), use the party as agent or trustee for two or more following provision: parties participating in such financing. On each invoice or voucher submitted for pay- NOTICE OF EARNED VALUE MANAGEMENT ment under this contract to which any as- SYSTEM (MAR 1998) signment applies, and for which direct pay- (a) The offeror shall provide documenta- ment thereof is to be made to an assignee, tion that the cognizant Administrative Con- the Contractor shall— tracting Officer (ACO) has recognized that (1) Identify the assignee by name and com- the proposed earned value management sys- plete address; and tem (EVMS) complies with the EVMS cri- (2) Acknowledge the validity of the assign- teria of DoD 5000.2–R, Mandatory Procedures ment and the right of the named assignee to for Major Defense Acquisition Programs receive payment in the amount invoiced or (MDAPs) and Major Automated Information vouchered. System (MAIS) Acquisition Programs, or
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that the proposed cost/schedule control sys- isting cost/schedule control system that has tem has been accepted by the Department of been accepted by the Department of De- Defense. fense), the Contractor shall apply the system (b) If the offeror proposes to use a system to the contract and shall be prepared to dem- that does not meet the requirements of para- onstrate to the ACO that the EVMS complies graph (a) of this provision, the offeror shall with the EVMS criteria referenced in para- submit a comprehensive plan for compliance graph (a) of this clause. with the EVMS criteria. (c) The Government may require inte- (1) The plan shall— grated baseline reviews. Such reviews shall (A) Describe the EVMS the offeror intends be scheduled as early as practicable and to use in performance of the contract; should be conducted within 180 calendar days (B) Distinguish between the offeror’s exist- after (1) contract award, (2) the exercise of ing management system and modifications significant contract options, or (3) the incor- proposed to meet the criteria; poration of major modifications. The objec- (C) Describe the management system and tive of the integrated baseline review is for its application in terms of the 32 EVMS cri- the Government and the Contractor to joint- teria; ly assess areas, such as the Contractor’s (D) Describe the proposed procedure for ad- planning, to ensure complete coverage of the ministration of the criteria as applied to statement of work, logical scheduling of the subcontractors; and work activities, adequate resourcing, and (E) Provide documentation describing the identification of inherent risks. process and results of any third-party or self- (d) Unless a waiver is granted by the ACO, evaluation of the system’s compliance with Contractor-proposed EVMS changes require EVMS criteria. approval of the ACO prior to implementa- (2) The offeror shall provide information tion. The ACO shall advise the Contractor of and assistance as required by the Con- the acceptability of such changes within 30 tracting Officer to support review of the calendar days after receipt of the notice of plan. proposed changes from the Contractor. If the (3) The Government will review the advance approval requirements are waived offeror’s plan for EVMS before contract by the ACO, the Contractor shall disclose award. EVMS changes to the ACO at least 14 cal- (c) Offerors shall identify the major sub- endar days prior to the effective date of im- contractors, or major subcontracted effort if plementation. major subcontractors have not been selected, (e) The Contractor agrees to provide access planned for application of the criteria. The to all pertinent records and data requested prime contractor and the Government shall by the ACO or duly authorized representa- agree to subcontractors selected for applica- tive. Access is to permit Government sur- tion of the EVMS criteria. veillance to ensure that the EVMS complies, (End of provision) and continues to comply, with the criteria referenced in paragraph (a) of this clause. (f) The Contractor shall require the fol- [62 FR 9991, Mar. 5, 1997, as amended at 62 FR lowing subcontractors to comply with the re- 34135, June 24, 1997; 62 FR 49305, Sept. 19, 1997; quirements of this clause: 63 FR 11548, Mar. 9, 1998] (Contracting Officer to insert names of sub- 252.234–7001 Earned value manage- contractors selected for application of EVMS ment system. criteria in accordance with 252.234–7000(c).) llllllllllllllllllllllll As prescribed in 234.005–71(b), use the llllllllllllllllllllllll following clause: llllllllllllllllllllllll EARNED VALUE MANAGEMENT SYSTEM (MAR llllllllllllllllllllllll 1998) (a) In the performance of this contract, the (End of clause) Contractor shall use an earned value man- agement system (EVMS) that has been rec- [63 FR 11548, Mar. 9, 1998] ognized by the cognizant Administrative Contracting Officer (ACO) as complying with 252.235–7000 Indemnification under 10 the criteria provided in DoD 5000.2–R, Man- U.S.C. 2354—fixed price. datory Procedures for Major Defense Acqui- sition Programs (MDAPs) and Major Auto- As prescribed in 235.070–3, use the fol- mated Information System (MAIS) Acquisi- lowing clause: tion Programs. INDEMNIFICATION UNDER 10 U.S.C. 2354—FIXED (b) If, at the time of award, the Contrac- PRICE (DEC 1991) tor’s EVMS has not been recognized by the cognizant ACO as complying with EVMS cri- (a) This clause provides for indemnifica- teria (or the Contractor does not have an ex- tion under 10 U.S.C. 2354 if the Contractor
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meets all the terms and conditions of this the execution of this contract shall not in- clause. crease the Government’s liability under this (b) Claims, losses, and damages covered— clause unless the Contracting Officer con- (1) Claims by third persons for death, bod- sents, and the contract price is equitably ad- ily injury, sickness, or disease, or the loss, justed, if appropriate, to reflect the Contrac- damage, or lost use of property. Claims in- tor’s consideration for the Government’s as- clude those for reasonable expenses of litiga- sumption of increased liability. tion or settlement. The term third persons in- (f) Notice. The Contractor shall— cludes employees of the contractor; (1) Promptly notify the Contracting Officer (2) The loss, damage, and lost use of the of any occurrence, action, or claim that Contractor’s property, but excluding lost might trigger the Government’s liability profit; and under this clause; (3) Loss, damage, or lost use of the Govern- ment’s property. (2) Furnish the proof or evidence of any (c) The claim, loss, or damage— claim, loss, or damage in the form and man- (1) Must arise from the direct performance ner that the Government requires; and of this contract; (3) Immediately provide copies of all perti- (2) Must not be compensated by insurance nent papers that the Contractor receives or or other means, or be within deductible has received. amounts of the Contractor’s insurance; (g) The Government may direct, partici- (3) Must result from an unusually haz- pate in, and supervise the settlement or de- ardous risk as specifically defined in the con- fense of the claim or action. The Contractor tract; shall comply with the Government’s direc- (4) Must not result from willful misconduct tions and execute any authorizations re- or lack of good faith on the part of any of quired. the Contractor’s directors or officers, man- (h) Flowdown. The Government shall in- agers, superintendents, or other equivalent demnify the Contractor if the Contractor has representatives who have supervision or di- an obligation to indemnify a subcontractor rection of— under any subcontract at any tier under this (i) All or substantially all of the Contrac- contract for the unusually hazardous risk tor’s business; identified in this contract only if— (ii) All or substantially all of the Contrac- (1) The Contracting Officer gave prior writ- tor’s operations at any one plant or separate ten approval for the Contractor to provide in location where this contract is being per- a subcontract for the Contractor to indem- formed; or nify the subcontractor for unusually haz- (iii) A separate and complete major indus- ardous risks defined in this contract; trial operation connected with the perform- ance of this contract; (2) The Contracting Officer approved those (5) Must not be a liability assumed under indemnification provisions; any contract or agreement (except for sub- (3) The subcontract indemnification provi- contracts covered by paragraph (h) of this sions entitle the Contractor, or the Govern- clause), unless the Contracting Officer (or in ment, or both, to direct, participate in, and contracts with the Department of the Navy, supervise the settlement or defense of rel- the Department) specifically approved the evant actions and claims; and assumption of liability; and (4) The subcontract provides the same (6) Must be certified as just and reasonable rights and duties, the same provisions for no- by the Secretary of the department or des- tice, furnishing of papers and the like, be- ignated representative. tween the Contractor and the subcontractor, (d) The Contractor shall buy and maintain, as exist between the Government and the to the extent available, insurance against Contractor under this clause. unusually hazardous risks in the form, (i) The Government may discharge its obli- amount, period(s) of time, at the rate(s), and gations under paragraph (h) of this clause by with such insurers, as the Contracting Offi- making payments directly to subcontractors cer (or, for Navy contracts, the Department) or to persons to whom the subcontractors may from time to time require and approve. may be liable. If the cost of this insurance is higher than (j) The rights and obligations of the parties the cost of the insurance the Contractor had under this clause shall survive the termi- as of the date of the contract, the Govern- nation, expiration, or completion of this con- ment shall reimburse the Contractor for the tract. difference in cost, as long as it is properly al- locable to this contract and is not included (End of clause) in the contract price. The Government shall not be liable for claims, loss, or damage if in- 252.235–7001 Indemnification under 10 surance was available and is either required U.S.C. 2354—cost reimbursement. or approved under this paragraph. (e) A reduction of the insurance coverage As prescribed in 235.070–3, use the fol- maintained by the Contractor on the date of lowing clause:
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INDEMNIFICATION UNDER 10 U.S.C. 2354—COST (1) Promptly notify the Contracting Officer REIMBURSEMENT (DEC 1991) of any occurrence, action, or claim that (a) This clause provides for indemnifica- might trigger the Government’s liability tion under 10 U.S.C. 2354 if the Contractor under this clause; meets all the terms and conditions of this (2) Furnish the proof or evidence of any clause. claim, loss, or damage in the form and man- (b) Claims, losses, and damages covered— ner that the Government requires; and (1) Claims by third persons for death, bod- (3) Immediately provide copies of all perti- ily injury, sickness, or disease, or the loss, nent papers that the contractor receives or damage, or lost use of property. Claims in- has received. clude those for reasonable expenses of litiga- (f) The Government may direct, partici- tion or settlement. The term ‘‘third persons’’ pate in, and supervise the settlement or de- includes employees of the Contractor; fense of the claim or action. The Contractor (2) The loss, damage, and lost use of the shall comply with the Government’s direc- Contractor’s property, but excluding lost tions, and execute any authorizations re- profit; and quired. (3) Loss, damage, or lost use of the Govern- (g) The Limitation of Cost clause of this ment’s property. (c) The claim, loss, or damage— contract does not apply to the Government’s (1) Must arise from the direct performance obligations under this clause. The obliga- of this contract; tions under this clause are excepted from the (2) Must not be compensated by insurance release required by the Allowable Cost, Fee, or other means, or be within deductible and Payment clause of this contract. amounts of the Contractor’s insurance; (h) Under this clause, a claim, loss, or dam- (3) Must result from an unusually haz- age arises from the direct performance of ardous risk as specifically defined in the con- this contract if the cause of the claim, loss, tract; or damage occurred during the period of per- (4) Must not result from willful misconduct formance of this contract or as a result of or lack of good faith on the part of any of the performance of this contract. the Contractor’s directors or officers, man- (i) Flowdown. The Government shall in- agers, superintendents, or other equivalent demnify the Contractor if the Contractor has representatives who have supervision or di- an obligation to indemnify a subcontractor rection of— under any subcontract at any tier under this (i) All or substantially all of the Contrac- contract for the unusually hazardous risk tor’s business; identified in this contract only if— (ii) All or substantially all of the Contrac- tor’s operations at any one plant or separate (1) The Contracting Officer gave prior writ- location where this contract is being per- ten approval for the Contractor to provide in formed; or a subcontract for the Contractor to indem- (iii) A separate and complete major indus- nify the subcontractor for unusually haz- trial operation connected with the perform- ardous risks defined in this contract; ance of this contract; (2) The Contracting Officer approved those (5) Must not be a liability assumed under indemnification provisions; any contract or agreement (except for sub- (3) The subcontract indemnification provi- contracts covered by paragraph (i) of this sions entitle the Contractor, or the Govern- clause), unless the Contracting Officer (or in ment, or both, to direct, participate in, and contracts with the Department of the Navy, supervise the settlement or defense of rel- the Department) specifically approved the evant actions and claims; and assumption of liability; and (4) The subcontract provides the same (6) Must be certified as just and reasonable rights and duties, the same provisions for no- by the Secretary of the department or des- tice, furnishing of paper and the like, be- ignated representative. tween the Contractor and the subcontractor, (d) A reduction of the insurance coverage as exist between the Government and the maintained by the Contractor on the date of the execution of this contract shall not in- Contractor under this clause. crease the Government’s liability under this (j) The Government may discharge its obli- clause unless the Contracting Officer con- gations under paragraph (i) of this clause by sents, and the contract price is equitably ad- making payments directly to subcontractors justed, if appropriate, to reflect the Contrac- or to persons to whom the subcontractors tor’s consideration for the Government’s as- may be liable. sumption of increased liability. (k) The rights and obligations of the par- (e) Notice. The Insurance—Liability to ties under this clause shall survive the ter- Third Persons clause of this contract applies mination, expiration, or completion of this also to claims under this clause. In addition, contract. the Contractor shall—
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(End of clause) FREQUENCY AUTHORIZATION (DEC 1991) (a) The Contractor shall obtain authoriza- 252.235–7002 Animal welfare. tion for radio frequencies required in support As prescribed in 235.071(a), use the of this contract. following clause: (b) For any experimental, developmental, or operational equipment for which the ap- ANIMAL WELFARE (DEC 1991) propriate frequency allocation has not been made, the Contractor shall provide the tech- (a) The Contractor shall register its re- nical operating characteristics of the pro- search facility with the Secretary of Agri- posed electromagnetic radiating device to culture in accordance with 7 U.S.C. 2316 and the Contracting Officer during the initial 9 CFR subpart C, and § 2.30, and furnish evi- planning, experimental, or developmental dence of such registration to the Contracting phase of contract performance. Officer before beginning work under this (c) The Contracting Officer shall furnish contract. the procedures for obtaining radio frequency (b) The Contractor shall acquire animals authorization. only from dealers licensed by the Secretary (d) The Contractor shall include this of Agriculture under 7 U.S.C. 2133 and 9 CFR clause, including this paragraph (d), in all subpart A, §§ 2.1 through 2.11, or from sources subcontracts requiring the development, pro- that are exempt from licensing under those duction, construction, testing, or operation sections. of a device for which a radio frequency au- (c) The Contractor agrees that the care and thorization is required. use of animals will conform with the perti- nent laws of the United States and regula- tions of the Department of Agriculture (see 7 (End of clause) U.S.C. 2131 et seq. and 9 CFR subchapter A, ALTERNATE I (DEC 1991) parts 1 through 4). (d) The Contracting Officer may imme- Substitute the following paragraph diately suspend, in whole or in part, work (c) for paragraph (c) of the basic clause and further payments under this contract for if agency procedures authorize use of failure to comply with the requirements of DD Form 1494, Application for Fre- paragraphs (a) through (c) of this clause. quency Authorization: (1) The suspension will stay in effect until the Contractor complies with the require- (c) The Contractor shall use DD Form 1494, ments. Application for Frequency Authorization, to obtain radio frequency authorization. (2) Failure to complete corrective action within the time specified by the Contracting Officer may result in termination of this 252.235–7004—252.235–7009 [Reserved] contract and removal of the Contractor’s name from the list of contractors with ap- 252.235–7010 Acknowledgment of sup- proved Public Health Service Welfare Assur- port and disclaimer. ances. As prescribed in 235.071(c), use the (e) The Contractor may request registra- following clause: tion of its facility and a current listing of li- censed dealers from the Regional Office of ACKNOWLEDGMENT OF SUPPORT AND the Animal and Plant Health Inspection DISCLAIMER (MAY 1995) Service (APHIS), United States Department of Agriculture (USDA), for the region in (a) The Contractor shall include an ac- which its research facility is located. The lo- knowledgment of the Government’s support cation of the appropriate APHIS regional of- in the publication of any material based on fice, as well as information concerning this or developed under this contract, stated in program may be obtained by contacting the the following terms: This material is based Senior Staff Officer, Animal Care Staff, upon work supported by the (name of con- USDA/APHIS, Federal Center Building, Hy- tracting agency(ies)) under Contract No. attsville, MD 20782. (Contracting agency(ies) contract num- (f) The Contractor shall include this ber(s)). clause, including this paragraph (f), in all (b) All material, except scientific articles subcontracts involving research of live or papers published in scientific journals, vertebrate animals. must, in addition to any notices or dis- claimers by the Contractor, also contain the (End of clause) following disclaimer: Any opinions, findings and conclusions or recommendations ex- 252.235–7003 Frequency authorization. pressed in this material are those of the au- thor(s) and do not necessarily reflect the As prescribed in 235.071(b), use the views of the (name of contracting agen- following clause: cy(ies)).
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(End of clause) (End of clause)
[60 FR 29503, June 5, 1995] 252.236–7001 Contract drawings and specifications. 252.235–7011 Final scientific or tech- As prescribed in 236.570(a), use the nical report. following clause:
As prescribed in 235.071(d), use the CONTRACT DRAWINGS AND SPECIFICATIONS following clause: (AUG 2000)
FINAL SCIENTIFIC OR TECHNICAL REPORT (SEP (a) The Government will provide to the 1999) Contractor, without charge, one set of con- tract drawings and specifications, except The Contractor shall submit two copies of publications incorporated into the technical the approved scientific or technical report provisions by reference, in electronic or delivered under this contract to the Defense paper media as chosen by the Contracting Technical Information Center (DTIC), Attn: Officer. DTIC–OC, 8725 John J. Kingman Road, Suite (b) The Contractor shall— 0944, Fort Belvoir, VA 22060–6218. The Con- (1) Check all drawings furnished imme- tractor shall include a completed Standard diately upon receipt; Form 298, Report Documentation Page, with (2) Compare all drawings and verify the fig- each copy of the report. For submission of ures before laying out the work; reports in other than paper copy, contact the (3) Promptly notify the Contracting Officer Defense Technical Information Center, Attn: of any discrepancies; DTIC–OC, 8725 John J. Kingman Road, Suite (4) Be responsible for any errors that might 0944, Fort Belvoir, VA 22060–6218. have been avoided by complying with this paragraph (b); and (End of clause) (5) Reproduce and print contract drawings and specifications as needed. (c) In general— [60 FR 29503, June 5, 1995, as amended at 64 (1) Large-scale drawings shall govern FR 51077, Sept. 21, 1999] small-scale drawings; and (2) The Contractor shall follow figures 252.236–7000 Modification proposals— marked on drawings in preference to scale price breakdown. measurements. As prescribed in 236.570(a), use the (d) Omissions from the drawings or speci- following clause: fications or the misdescription of details of work that are manifestly necessary to carry out the intent of the drawings and specifica- MODIFICATION PROPOSALS—PRICE BREAKDOWN (DEC 1991) tions, or that are customarily performed, shall not relieve the Contractor from per- (a) The Contractor shall furnish a price forming such omitted or misdescribed details breakdown, itemized as required and within of the work. The Contractor shall perform the time specified by the Contracting Offi- such details as if fully and correctly set cer, with any proposal for a contract modi- forth and described in the drawings and spec- fication. ifications. (b) The price breakdown— (e) The work shall conform to the speci- (1) Must include sufficient detail to permit fications and the contract drawings identi- fied on the following index of drawings: an analysis of profit, and of all costs for— (i) Material; Title File Drawing No. (ii) Labor; (iii) Equipment; (End of Clause) (iv) Subcontracts; and (v) Overhead; and [65 FR 50152, Aug. 17, 2000] (2) Must cover all work involved in the modification, whether the work was deleted, 252.236–7002 Obstruction of navigable waterways. added, or changed. (c) The Contractor shall provide similar As prescribed in 236.570(b)(1), use the price breakdowns to support any amounts following clause: claimed for subcontracts. (d) The Contractor’s proposal shall include OBSTRUCTION OF NAVIGABLE WATERWAYS (DEC 1991) a justification for any time extension pro- posed. (a) The Contractor shall—
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(1) Promptly recover and remove any ma- (1) An account of the Contractor’s actual terial, plant, machinery, or appliance which expenditures; the contractor loses, dumps, throws over- (2) Supporting documentation, including board, sinks, or misplaces, and which, in the receipted bills or copies of payrolls and opinion of the Contracting Officer, may be freight bills; and dangerous to or obstruct navigation; (3) The Contractor’s documentation— (2) Give immediate notice, with description (i) Showing that it has acquired the con- and locations of any such obstructions, to struction plant, equipment, and material the Contracting Officer; and free from all encumbrances; (3) When required by the Contracting Offi- (ii) Agreeing that the construction plant, cer, mark or buoy such obstructions until equipment, and material will not be removed the same are removed. from the site without the written permission (b) The Contracting Officer may— of the Contracting Officer; and (1) Remove the obstructions by contract or (iii) Agreeing that structures and facilities otherwise should the Contractor refuse, ne- prepared or erected for the prosecution of glect, or delay compliance with paragraph the contract work will be maintained and (a) of this clause; and not dismantled prior to the completion and (2) Deduct the cost of removal from any acceptance of the entire work, without the monies due or to become due to the Con- written permission of the Contracting Offi- tractor; or cer. (d) Upon receiving a request for payment, (3) Recover the cost of removal under the the Government will make payment, less Contractor’s bond. any prescribed retained percentage, if— (c) The Contractor’s liability for the re- (1) The Contracting Officer finds the— moval of a vessel wrecked or sunk without (i) Construction plant, material, equip- fault or negligence is limited to that pro- ment, and the mobilization and preparatory vided in sections 15, 19, and 20 of the River work performed are suitable and necessary and Harbor Act of March 3, 1899 (33 U.S.C. 410 to the efficient prosecution of the contract; et seq.). and (ii) Preparatory work has been done with (End of clause) proper economy and efficiency. (2) Payments for construction plant, equip- 252.236–7003 Payment for mobilization ment, material, and structures and facilities and preparatory work. prepared or erected for prosecution of the As prescribed in 236.570(b)(2), use the contract work do not exceed— following clause: (i) The Contractor’s cost for the work per- formed less the estimated value upon com- PAYMENT FOR MOBILIZATION AND pletion of the contract; and PREPARATORY WORK (JAN 1997) (ii) 100 percent of the cost to the con- tractor of any items having no appreciable (a) The Government will make payment to salvage value; and the Contractor under the procedures in this (iii) 75 percent of the cost to the contractor clause for mobilization and preparatory of items which do have an appreciable sal- work under item no. lllll. vage value. (b) Payments will be made for actual pay- (e) (1) Payments will continue to be made ments by the Contractor on work pre- for item no. llll, and all payments will paratory to commencing actual work on the be deducted from the contract price for this construction items for which payment is pro- item, until the total deductions reduce this vided under the terms of this contract, as item to zero, after which no further pay- follows— ments will be made under this item. (1) For construction plant and equipment (2) If the total of payments so made does exceeding $25,000 in value per unit (as ap- not reduce this item to zero, the balance will praised by the Contracting Officer at the be paid to the Contractor in the final pay- work site) acquired for the execution of the ment under the contract. work; (3) The retained percentage will be paid in (2) Transportation of all plant and equip- accordance with the Payments to Contractor ment to the site; clause of this contract. (3) Material purchased for the prosecution (f) The Contracting Officer shall determine of the contract, but not to be incorporated in the value and suitability of the construction the work; plant, equipment, materials, structures and (4) Construction of access roads or rail- facilities. The Contracting Officer’s deter- roads, camps, trailer courts, mess halls, dor- minations are not subject to appeal. mitories or living quarters, field head- quarters facilities, and construction yards; (End of clause) (5) Personal services; and (6) Hire of plant. [56 FR 36479, July 31, 1991, as amended at 62 (c) Requests for payment must include— FR 2614, Jan. 17, 1997]
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252.236–7004 Payment for mobilization the taxiways (the outer edge of each lateral and demobilization. clearance zone is laterally 250 feet from the far or opposite edge of the taxiway, e.g., a 75- As prescribed in 236.570(b)(2), use the foot-wide taxiway would have a combined following clause: width of taxiway and lateral clearance zones of 425 feet); and PAYMENT FOR MOBILIZATION AND (iv) All aircraft parking aprons, plus the DEMOBILIZATION (DEC 1991) area 125 feet in width extending beyond each (a) The Government will pay all costs for edge all around the aprons. the mobilization and demobilization of all of (2) Safety precaution areas means those por- the Contractor’s plant and equipment at the tions of approach-departure clearance zones contract lump sum price for this item. and transitional zones where placement of (1) llll percent of the lump sum price objects incident to contract performance upon completion of the contractor’s mobili- might result in vertical projections at or zation at the work site. above the approach-departure clearance, or (2) The remaining llll percent upon the transitional surface. completion of demobilization. (i) The approach-departure clearance surface (b) The Contracting Officer may require is an extension of the primary surface and the Contractor to furnish cost data to justify the clear zone at each end of each runway, this portion of the bid if the Contracting Of- for a distance of 50,000 feet, first along an in- ficer believes that the percentages in para- clined (glide angle) and then along a hori- graphs (a) (1) and (2) of this clause do not zontal plane, both flaring symmetrically bear a reasonable relation to the cost of the about the runway centerline extended. work in this contract. (A) The inclined plane (glide angle) begins (1) Failure to justify such price to the sat- in the clear zone 200 feet past the end of the isfaction of the Contracting Officer will re- runway (and primary surface) at the same sult in payment, as determined by the Con- elevation as the end of the runway. It con- tracting Officer, of— tinues upward at a slope of 50:1 (1 foot (i) Actual mobilization costs at completion vertically for each 50 feet horizontally) to an of mobilization; elevation of 500 feet above the established (ii) Actual demobilization costs at comple- airfield elevation. At that point the plane be- tion of demobilization; and comes horizontal, continuing at that same (iii) The remainder of this item in the final uniform elevation to a point 50,000 feet longi- payment under this contract. tudinally from the beginning of the inclined (2) The Contracting Officer’s determina- plane (glide angle) and ending there. tion of the actual costs in paragraph (b)(1) of (B) The width of the surface at the begin- this clause is not subject to appeal. ning of the inclined plane (glide angle) is the same as the width of the clear zone. It then (End of clause) flares uniformly, reaching the maximum width of 16,000 feet at the end. 252.236–7005 Airfield safety pre- (ii) The approach-departure clearance zone is cautions. the ground area under the approach-depar- ture clearance surface. As prescribed in 236.570(b)(3), use the (iii) The transitional surface is a sideways following clause. At some airfields, the extension of all primary surfaces, clear width of the primary surface is 1,500 zones, and approach-departure clearance sur- feet (750 feet on each side of the run- faces along inclined planes. way centerline). In such instances, sub- (A) The inclined plane in each case begins at the edge of the surface. stitute the proper width in the clause. (B) The slope of the incline plane is 7:1 (1 foot vertically for each 7 feet horizontally). AIRFIELD SAFETY PRECAUTIONS (DEC 1991) It continues to the point of intersection with (a) Definitions. As used in this clause— the— (1) Landing areas means— (1) Inner horizontal surface (which is the (i) The primary surfaces, comprising the horizontal plane 150 feet above the estab- surface of the runway, runway shoulders, and lished airfield elevation); or lateral safety zones. The length of each pri- (2) Outer horizontal surface (which is the mary surface is the same as the runway horizontal plane 500 feet above the estab- length. The width of each primary surface is lished airfield elevation), whichever is appli- 2,000 feet (1,000 feet on each side of the run- cable. way centerline); (iv) The ‘‘transitional zone’’ is the ground (ii) The clear zone beyond the ends of each area under the transitional surface. (It ad- runway, i.e., the extension of the primary joins the primary surface, clear zone, and ap- surface for a distance of 1,000 feet beyond proach-departure clearance zone.) each end of each runway; (b) General. (1) The Contractor shall com- (iii) All taxiways, plus the lateral clear- ply with the requirements of this clause ance zones along each side for the length of while—
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(i) Operating all ground equipment (mobile and white squares of 1 foot on each side (ex- or stationary); cept that the flag may vary up to ten per- (ii) Placing all materials; and cent from each of these dimensions); (iii) Performing all work, upon and around (5) Mark all other equipment and materials all airfields. in the landing areas, using the same marking (2) The requirements of this clause are in devices as in paragraph (d)(2) of this clause; addition to any other safety requirements of and this contract. (6) Perform work so as to leave that por- (c) The Contractor shall— tion of the landing area which is available to (1) Report to the Contracting Officer before aircraft free from hazards, holes, piles of ma- initiating any work; terial, and projecting shoulders that might (2) Notify the Contracting Officer of pro- damage an airplane tire. posed changes to locations and operations; (e) Safety precaution areas. The Contractor (3) Not permit either its equipment or per- shall— sonnel to use any runway for purposes other (1) Place nothing upon the safety pre- than aircraft operation without permission caution areas without authorization of the of the Contracting Officer, unless the runway Contracting Officer; is— (2) Mark all equipment and materials in (i) Closed by order of the Contracting Offi- safety precaution areas, using (unless other- cer; and wise authorized by the Contracting Officer) (ii) Marked as provided in paragraph (d)(2) red flags by day, and electric, battery-oper- of this clause; (4) Keep all paved surfaces, such as run- ated, low-intensity red flasher lights by ways, taxiways, and hardstands, clean at all night; and times and, specifically, free from small (3) Provide all objects placed in safety pre- stones which might damage aircraft propel- caution areas with a red light or red lantern lers or jet aircraft; at night, if the objects project above the ap- (5) Operate mobile equipment according to proach-departure clearance surface or above the safety provisions of this clause, while ac- the transitional surface. tually performing work on the airfield. At all other times, the Contractor shall remove (End of clause) all mobile equipment to locations— (i) Approved by the Contracting Officer; 252.236–7006 Cost limitation. (ii) At a distance of at least 750 feet from As prescribed in 236.570(b)(4), use the the runway centerline, plus any additional following provision: distance; and (iii) Necessary to ensure compliance with COST LIMITATION (JAN 1997) the other provisions of this clause; and (6) Not open a trench unless material is on (a) Certain items in this solicitation are hand and ready for placing in the trench. As subject to statutory cost limitations. The soon as practicable after material has been limitations are stated in the Schedule. placed and work approved, the Contractor (b) An offer which does not state separate shall backfill and compact trenches as re- prices for the items identified in the Sched- quired by the contract. Meanwhile, all haz- ule as subject to a cost limitation may be ardous conditions shall be marked and light- considered nonresponsive. ed in accordance with the other provisions of (c) Prices stated in offers for items subject this clause. to cost limitations shall include an appro- (d) Landing areas. The Contractor shall— priate apportionment of all costs, direct and (1) Place nothing upon the landing areas indirect, overhead, and profit. without the authorization of the Contracting (d) Offers may be rejected which— Officer; (1) Are materially unbalanced for the pur- (2) Outline those landing areas hazardous pose of bringing items within cost limita- to aircraft, using (unless otherwise author- tions; or ized by the Contracting Officer) red flags by (2) Exceed the cost limitations, unless the day, and electric, battery-operated low-in- limitations have been waived by the Govern- tensity red flasher lights by night; ment prior to award. (3) Obtain, at an airfield where flying is controlled, additional permission from the (End of provision) control tower operator every time before en- tering any landing area, unless the landing [56 FR 36479, July 31, 1991, as amended at 62 area is marked as hazardous in accordance FR 2615, Jan. 17, 1997] with paragraph (d)(2) of this clause; (4) Identify all vehicles it operates in land- 252.236–7007 Additive or deductive ing areas by means of a flag on a staff at- items. tached to, and flying above, the vehicle. The flag shall be three feet square, and consist of As prescribed in 236.570(b)(5), use the a checkered pattern of international orange following provision:
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ADDITIVE OR DEDUCTIVE ITEMS (DEC 1991) constitute full compensation to the Con- tractor for— (a) The low offeror and the items to be awarded shall be determined as follows— (1) Furnishing all plant, labor, equipment, (1) Prior to the opening of bids, the Gov- appliances, and materials; and ernment will determine the amount of funds (2) Performing all operations required to available for the project. complete the work in conformity with the (2) The low offeror shall be the Offeror drawings and specifications. that— (b) The Contractor shall include in the (i) Is otherwise eligible for award; and prices for the items listed in the Bidding (ii) Offers the lowest aggregate amount for Schedule all costs for work in the specifica- the first or base bid item, plus or minus (in tions, whether or not specifically listed in the order stated in the list of priorities in the Bidding Schedule. the bid schedule) those additive or deductive items that provide the most features within (End of provision) the funds determined available. (3) The Contracting Officer shall evaluate 252.236–7009 Option for supervision all bids on the basis of the same additive or and inspection services. deductive items. As prescribed in 236.609–70, use the (i) If adding another item from the bid schedule list of priorities would make the following clause: award exceed the available funds for all OPTION FOR SUPERVISION AND INSPECTION offerors, the Contracting Officer will skip SERVICES (DEC 1991) that item and go to the next item from the bid schedule of priorities; and (a) The Government may— (ii) Add that next item if an award may be (1) At its option, direct the Contractor to made that includes that item and is within perform any part or all of the supervision the available funds. and inspection services for the construction (b) The Contracting Officer will use the list contract as provided under appendix A of of priorities in the bid schedule only to de- this contract; and termine the low offeror. After determining (2) Exercise its option, by written order, at the low offeror, an award may be made on any time prior to six months after satisfac- any combination of items if— tory completion and acceptance of the work (1) It is in the best interest of the Govern- under this contract. ment; (b) Upon receipt of the Contracting Offi- (2) Funds are available at the time of cer’s written order, the Contractor shall pro- award; and ceed with the supervision and inspection (3) The low offeror’s price for the combina- services. tion to be awarded is less than the price of- fered by any other responsive, responsible of- (End of clause) feror. (c) Example. The amount available is 252.236–7010 Overseas military con- $100,000. Offeror A’s base bid and four addi- struction—Preference for United tives (in the order stated in the list of prior- States firms. ities in the bid Schedule) are $85,000, $10,000, $8,000, $6,000, and $4,000. Offeror B’s base bid As prescribed in 236.570(c)(1), use the and four additives are $80,000, $16,000, $9,000, following provision: $7,000, and $4,000. Offeror A is the low offeror. The aggregate amount of offeror A’s bid for OVERSEAS MILITARY CONSTRUCTION—PREF- purposes of award would be $99,000, which in- ERENCE FOR UNITED STATES FIRMS (JAN cludes a base bid plus the first and fourth ad- 1997) ditives. The second and third additives were skipped because each of them would cause (a) Definition. the aggregate bid to exceed $100,000. ‘‘United States firm,’’ as used in this provi- sion, means a firm incorporated in the (End of provision) United States that complies with the fol- lowing: 252.236–7008 Contract prices—bidding (1) The corporate headquarters are in the schedules. United States; (2) The firm has filed corporate and em- As prescribed in 236.570(b)(6), use the ployment tax returns in the United States following provision: for a minimum of 2 years (if required), has filed State and Federal income tax returns CONTRACT PRICES—BIDDING SCHEDULES (DEC (if required) for 2 years, and has paid any 1991) taxes due as a result of these filings; and (a) The Government’s payment for the (3) The firm employs United States citizens items listed in the Bidding Schedule shall in key management positions.
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(b) Evaluation. Offers from firms that do (A) The firm has done business in the Mar- not qualify as United States firms will be shall Islands on a continuing basis for not evaluated by adding 20 percent to the offer. less than 3 years prior to the date of issuance (c) Status. The offeror lll is, lll is not of this solicitation; a United States firm. (B) Substantially all of the firm’s directors of local operations, senior staff, and oper- (End of provision) ating personnel are resident in the Marshall Islands or are U.S. citizens; and [62 FR 2857, Jan. 17, 1997, as amended at 63 (C) Most of the operating equipment and FR 11549, Mar. 9, 1998] physical plant are in the Marshall Islands. (2) United States firm means a firm incor- 252.236–7011 Overseas architect-engi- porated in the United States that complies neer services—Restriction to United with the following: States firms. (i) The corporate headquarters are in the United States; As prescribed in 236.609–70(b), use the (ii) The firm has filed corporate and em- following provision: ployment tax returns in the United States for a minimum of 2 years (if required), has OVERSEAS ARCHITECT-ENGINEER SERVICES— filed State and Federal income tax returns RESTRICTION TO UNITED STATES FIRMS (JAN (if required) for 2 years, and has paid any 1997) taxes due as a result of these filings; and (a) Definition. (iii) The firm employs United States citi- United States firm, as used in this provision, zens in key management positions. means a firm incorporated in the United (b) Evaluation. Offers from firms that do States that complies with the following: not qualify as United States firms or (1) The corporate headquarters are in the Marshallese firms will be evaluated by add- United States; ing 20 percent to the offer, unless application (2) The firm has filed corporate and em- of the factor would not result in award to a ployment tax returns in the United States United States firm. for a minimum of 12 years (if required), has (c) Status. The offeror is llll a United filed State and Federal income tax returns States firm; llll a Marshallese firm; (if required) for 2 years, and has paid any llll Other. taxes due as a result of these filings; and (3) The firm employs United States citizens (End of provision) in key management positions. (b) Restriction. Military construction ap- [63 FR 11549, Mar. 9, 1998] propriations acts restrict award of a con- tract, resulting from this solicitation, to a 252.237–7000 Notice of special stand- United States firm or a joint venture of ards of responsibility. United States and host nation firms. (c) Status. The offeror confirms, by submis- As prescribed in 237.270(d)(1), use the sion of its offer, that it is a United States following provision: firm or a joint venture of United States and NOTICE OF SPECIAL STANDARDS OF host nation firms. RESPONSIBILITY (DEC 1991) (End of provision) (a) To be determined responsible, the Offer- or must meet the general standards of re- [62 FR 2858, Jan. 17, 1997] sponsibility set forth at FAR 9.104–1 and the following criteria, as described in Chapter 3, 252.236–7012 Military construction on General Standards, of ‘‘Government Audit- Kwajalein Atoll—evaluation pref- ing Standards.’’ erence. (1) Qualifications; (2) Independence; and As prescribed in 236.570(c)(2), use the (3) Quality Control. following provision: (b) ‘‘Government Auditing Standards’’ is issued by the Comptroller General of the MILITARY CONSTRUCTION ON KWAJALEIN United States and is available for sale from ATOLL—EVALUATION PREFERENCE (MAR 1998) the: Superintendent of Documents, U.S. Gov- (a) Definitions. As used in this provision— ernment Printing Office. Washington, DC (1) Marshallese firm means a local firm in- 20401, Stock number 020–000–00243–3. corporated in the Marshall Islands, or other- (c) The apparently successful Offeror, be- wise legally organized under the laws of the fore award, shall give the Contracting Officer Marshall Islands, that— evidence that it is licensed by the cognizant (i) Is more than 50 percent owned by citi- licensing authority in the state or other po- zens of the Marshall Islands; or litical jurisdiction where the Offeror oper- (ii) Complies with the following: ates its professional practice.
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(End of provision) (2) The quantities to be furnished; (3) Delivery or performance dates; [56 FR 36479, July 31, 1991, as amended at 66 (4) Place of delivery or performance; FR 49861, Oct. 1, 2001] (5) Packing and shipping instructions; (6) The address to send invoices; and 252.237–7001 Compliance with audit (7) The funds from which payment will be standards. made. (c) The Government may elect not to order As prescribed in 237.270(d)(2), use the supplies and services under this contract in following clause: instances where the body is removed from the area for medical, scientific, or other rea- COMPLIANCE WITH AUDIT STANDARDS (MAY son. 2000) (d) In an epidemic or other emergency, the The Contractor, in performance of all audit contracting activity may obtain services be- services under this contract, shall comply yond the capacity of the Contractor’s facili- with ‘‘Government Auditing Standards’’ ties from other sources. issued by the Comptroller General of the (e) Contracting Officers of the following United States. activities may order services and supplies under this contract— (End of clause) llllllllllllllllllllllll llllllllllllllllllllllll [65 FR 32041, May 22, 2000] llllllllllllllllllllllll 252.237–7002 Award to single offeror. (End of clause) As prescribed in 237.7004(a), use the following provision: 252.237–7004 Area of performance. AWARD TO SINGLE OFFEROR (DEC 1991) As prescribed in 237.7004(b), use the (a) Award shall be made to a single offeror. following clause: (b) Offerors shall include unit prices for AREA OF PERFORMANCE (DEC 1991) each item. Failure to include unit prices for each item will be cause for rejection of the (a) The area of performance is as specified entire offer. in the contract. (c) The Government will evaluate offers on (b) The Contractor shall take possession of the basis of the estimated quantities shown. the remains at the place where they are lo- (d) Award will be made to that responsive, cated, transport them to the Contractor’s responsible offeror whose total aggregate place of preparation, and later transport offer is the lowest price to the Government. them to a place designated by the Con- tracting Officer. (End of provision) (c) The Contractor will not be reimbursed for transportation when both the place ALTERNATE I (DEC 1991) where the remains were located and the de- As prescribed in 237.7004(a), substitute the livery point are within the area of perform- following paragraph (d) for paragraph (d) of ance. the basic provision: (d) If remains are located outside the area (d) Award will be made to that responsive, of performance, the Contracting Officer may responsible offeror whose total aggregate place an order with the Contractor under offer is in the best interest of the Govern- this contract or may obtain the services ment. elsewhere. If the Contracting Officer requires the Contractor to transport the remains into 252.237–7003 Requirements. the area of performance, the Contractor shall be paid the amount per mile in the As prescribed in 237.7004(b), use the schedule for the number of miles required to following clause: transport the remains by a reasonable route from the point where located to the bound- REQUIREMENTS (DEC 1991) ary of the area of performance. (a) Except as provided in paragraphs (c) (e) The Contracting Officer may require and (d) of this clause, the Government will the Contractor to deliver remains to any order from the Contractor all of its require- point within 100 miles of the area of perform- ments in the area of performance for the sup- ance. In this case, the Contractor shall be plies and services listed in the schedule of paid the amount per mile in the schedule for this contract. the number of miles required to transport (b) Each order will be issued as a delivery the remains by a reasonable route from the order and will list— boundary of the area of performance to the (1) The supplies or services being ordered; delivery point.
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(End of clause) ceased voluntarily request, select, and pay for them.); 252.237–7005 Performance and deliv- (3) The services or any part of the services ery. are performed by anyone other than the Con- tractor or the Contractor’s employees with- As prescribed in 237.7004(b), use the out the written authorization of the Con- following clause: tracting Officer; (4) The Contractor refuses to perform the PERFORMANCE AND DELIVERY (DEC 1991) services required for any particular remains; (a) The Contractor shall furnish the mate- or rial ordered and perform the services speci- (5) The Contractor mentions or otherwise fied as promptly as possible but not later uses this contract in its advertising in any than 36 hours after receiving notification to way. remove the remains, excluding the time nec- essary for the Government to inspect and (End of clause) check results of preparation. (b) The Government may, at no additional 252.237–7008 Group interment. charge, require the Contractor to hold the As prescribed in 237.7004(b), use the remains for an additional period not to ex- ceed 72 hours from the time the remains are following clause: casketed and final inspection completed. GROUP INTERMENT (DEC 1991) (End of clause) The Government will pay the Contractor for supplies and services provided for re- 252.237–7006 Subcontracting. mains interred as a group on the basis of the number of caskets furnished, rather than on As prescribed in 237.7004(b), use the the basis of the number of persons in the following clause: group.
SUBCONTRACTING (DEC 1991) (End of clause) The Contractor shall not subcontract any work under this contract without the Con- 252.237–7009 Permits. tracting Officer’s written approval. This As prescribed in 237.7004(b), use the clause does not apply to contracts of employ- ment between the Contractor and its per- following clause: sonnel. PERMITS (DEC 1991) (End of clause) The Contractor shall meet all State and local licensing requirements and obtain and 252.237–7007 Termination for default. furnish all necessary health department and shipping permits at no additional cost to the As prescribed in 237.7004(b), use the Government. The Contractor shall ensure following clause: that all necessary health department per- mits are in order for disposition of the re- TERMINATION FOR DEFAULT (DEC 1991) mains. (a) This clause supplements and is in addi- tion to the Default clause of this contract. (End of clause) (b) The Contracting Officer may terminate this contract for default by written notice 252.237–7010 Facility requirements. without the ten day notice required by para- As prescribed in 237.7004(b), use the graph (a)(2) of the Default clause if— (1) The Contractor, through circumstances following clause: reasonably within its control or that of its FACILITY REQUIREMENTS (DEC 1991) employees, performs any act under or in con- nection with this contract, or fails in the (a) The Contractor’s building shall have performance of any service under this con- complete facilities for maintaining the high- tract and the act or failures may reasonably est standards of solemnity, reverence, assist- be considered to reflect discredit upon the ance to the family, and prescribed ceremo- Department of Defense in fulfilling its re- nial services. sponsibility for proper care of remains; (b) The Contractor’s preparation room (2) The Contractor, or its employees, solic- shall be clean, sanitary, and adequately its relatives or friends of the deceased to equipped. purchase supplies or services not under this (c) The Contractor shall have, or be able to contract. (The Contractor may furnish sup- get, catafalques, church trucks, and equip- plies or arrange for services not under this ment for Protestant, Catholic, and Jewish contract, only if representatives of the de- services.
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(d) The Contractor’s funeral home, fur- (c) Award generally will be made to a sin- nishings, grounds, and surrounding area gle offeror for all lots. However, the Con- shall present a clean and well-kept appear- tracting Officer may award by individual lot ance. when it is more advantageous to the Govern- ment. (End of clause) (d) Prospective offerors may inspect the types of articles to be serviced. Contact the 252.237–7011 Preparation history. Contracting Officer to make inspection ar- As prescribed in 237.7004(b), use the rangements. following clause: (End of provision) PREPARATION HISTORY (DEC 1991) 252.237–7014 Loss or damage (count- For each body prepared, or for each casket of-articles). handled in a group interment, the Con- tractor shall state briefly the results of the As prescribed in 237.7102(c), use the embalming process on a certificate furnished following clause: by the Contracting Officer. LOSS OR DAMAGE (COUNT-OF-ARTICLES) (DEC (End of clause) 1991) (a) The count-of-articles will be— 252.237–7012 Instruction to offerors (1) The count of the Contracting Officer; or (count-of-articles). (2) The count agreed upon as a result of a joint count by the Contractor and the Con- As prescribed in 237.7102(a), use the tracting Officer at the time of delivery to following provision: the Contractor. (b) The Contractor shall— INSTRUCTION TO OFFERORS (COUNT-OF- (1) Be liable for return of the number and ARTICLES) (DEC 1991) kind of articles furnished for service under (a) The Offeror shall include unit prices for this contract; and each item in a lot. Unit prices shall include (2) Shall indemnify the Government for all costs to the Government of providing the any loss or damage to such articles. services, including pickup and delivery (c) The Contractor shall pay to the Govern- charges. ment the value of any lost or damaged prop- (b) Failure to offer on any item in a lot erty using Federal supply schedule price shall be cause for rejection of the offer on lists. If the property is not on these price that lot. The Contracting Officer will evalu- lists, the Contracting Officer shall determine ate offers based on the estimated quantities a fair and reasonable price. in the solicitation. (d) The Contracting Officer will allow cred- (c) Award generally will be made to a sin- it for any depreciation in the value of the gle offeror for all lots. However, the Con- property at the time of loss or damage. The tracting Officer may award by individual lot Contracting Officer and the Contractor shall when it is more advantageous to the Govern- mutually determine the amount of the al- ment. lowable credit. (d) Prospective offerors may inspect the (e) Failure to agree upon the value of the types of articles to be serviced. Contact the property or on the amount of credit due will Contracting Officer to make inspection ar- be treated as a dispute under the Disputes rangements. clause of this contract. (f) In case of damage to any property that (End of provision) the Contracting Officer and the Contractor agree can be satisfactorily repaired, the Con- 252.237–7013 Instruction to offerors tractor may repair the property at its ex- (bulk weight). pense in a manner satisfactory to the Con- As prescribed in 237.7102(b), use the tracting Officer, rather than make payment under paragraph (c) of this clause. following provision:
INSTRUCTION TO OFFERORS (BULK WEIGHT) (End of clause) (DEC 1991) 252.237–7015 Loss or damage (weight (a) Offers shall be submitted on a unit of articles). price per pound of serviced laundry. Unit prices shall include all costs to the Govern- As prescribed in 237.7102(d), use the ment of providing the service, including following clause: pickup and delivery charges. LOSS OR DAMAGE (WEIGHT OF ARTICLES) (DEC (b) The Contracting Officer will evaluate 1991) bids based on the estimated pounds of serv- iced laundry stated in the solicitation. (a) The Contractor shall—
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(1) Be liable for return of the articles fur- (e) At the time of delivery, the Contractor nished for service under this contract; and shall record the weight and bag type of serv- (2) Indemnify the Government for any arti- iced laundry on the delivery ticket. The Con- cles delivered to the Contractor for servicing tracting Officer will ensure that this weight under this contract that are lost or damaged, and bag type are verified at time of delivery. and in the opinion of the Contracting Officer, cannot be repaired satisfactorily. ALTERNATE II (DEC. 1991) (b) The Contractor shall pay to the Gov- ernment llll per pound for lost or dam- As prescribed in 237.7102(e)(2), add the aged articles. The Contractor shall pay the following paragraphs (c), (d), and (e) to Government only for losses which exceed the the basic clause— maximum weight loss in paragraph (e) of this clause. (c) Before the Contractor picks up articles (c) Failure to agree on the amount of cred- for service under this contract, the Con- it due will be treated as a dispute under the tracting Officer will ensure that each bag is Disputes clause of this contract. weighed and that the weight is identified on (d) In the case of damage to any articles the bag. that the Contracting Officer and the Con- (d) The Contractor, at time of pickup, shall tractor agree can be satisfactorily repaired, verify and record the weight on the delivery the Contractor shall repair the articles at its ticket and shall provide the Contracting Of- expense in a manner satisfactory to the Con- ficer, or representative, a copy of the deliv- tracting Officer. ery ticket. (e) The maximum weight loss allowable in (e) At the time of delivery, the Contractor servicing the laundry is llll percent of shall record the weight of serviced laundry the weight recorded on delivery tickets when on the delivery ticket. The Contracting Offi- the laundry is picked up. Any weight loss in cer will ensure that this weight is verified at excess of this amount shall be subject to the time of delivery. loss provisions of this clause. (End of clause) 252.237–7017 Individual laundry. As prescribed in 237.7102(f), use the 252.237–7016 Delivery tickets. following clause: As prescribed in 237.7102(e), use the following clause: INDIVIDUAL LAUNDRY (DEC 1991) (a) The Contractor shall provide laundry DELIVERY TICKETS (DEC 1991) service under this contract on both a unit (a) The Contractor shall complete delivery bundle and on a piece-rate bundle basis for tickets in the number of copies required and individual personnel. in the form approved by the Contracting Of- (b) The total number of pieces listed in the ficer, when it receives the articles to be serv- ‘‘Estimated Quantity’’ column in the sched- iced. ule is the estimated amount of individual (b) The Contractor shall include one copy laundry for this contract. The estimate is for of each delivery ticket with its invoice for information only and is not a representation payment. of the amount of individual laundry to be or- dered. Individuals may elect whether or not (End of clause) to use the laundry services. ALTERNATE I (DEC 1991) (c) Charges for individual laundry will be on a per unit bundle or a piece-rate basis. As prescribed in 237.7102(e)(1), add the The Contractor shall provide individual following paragraphs (c), (d), and (e) to laundry bundle delivery tickets for use by the basic clause: the individuals in designating whether the laundry is a unit bundle or a piece-rate bun- (c) Before the Contractor picks up articles dle. An individual laundry bundle will be ac- for service under this contract, the Con- companied by a delivery ticket listing the tracting Officer will ensure that— contents of the bundle. (1) Each bag contains only articles within a single bag type as specified in the schedule; (d) The maximum number of pieces to be and allowed per bundle is as specified in the (2) Each bag is weighed and the weight and schedule and as follows— bag type are identified on the bag. (1) Bundle consisting of 26 pieces, including (d) The Contractor shall, at time of pick- laundry bag. This bundle will contain ap- up— proximately llll pieces of outer gar- (1) Verify the weight and bag type and ments which shall be starched and pressed. record them on the delivery ticket; and Outer garments include, but are not limited (2) Provide the Contracting Officer, or rep- to, shirts, trousers, jackets, dresses, and resentative, a copy of the delivery ticket. coats.
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(2) Bundle consisting of 13 pieces, including nations Laboratory Test Standard, laundry bag. This bundle will contain ap- Electromagnetics (U)); or proximately llll pieces of outer gar- (2) Other standard specified by this con- ments which shall be starched and pressed. tract. Outer garments include, but are not limited (b) Upon request of the Contracting Offi- to, shirts, trousers, jackets, dresses, and cer, the Contractor shall provide documenta- coats. tion supporting the accreditation. (c) The Government may, as part of its in- (End of clause) spection and acceptance, conduct additional tests to ensure that equipment or systems 252.237–7018 Special definitions of delivered under this contract satisfy the se- Government property. curity standards specified. The Government As prescribed in 237.7102(g), use the may conduct additional tests— following clause: (1) At the installation site or contractor’s facility. SPECIAL DEFINITIONS OF GOVERNMENT (2) Notwithstanding the existence of valid PROPERTY (DEC 1991) accreditations of equipment prior to the award of this contract. Articles delivered to the Contractor to be (d) Unless otherwise provided in this con- laundered or dry-cleaned, including any arti- tract under the Warranty of Supplies or War- cles which are actually owned by individual ranty of Systems and Equipment clauses, the Government personnel, are Government- Contractor shall correct or replace accepted owned property, not Government-furnished equipment or systems found to be deficient property. Government-owned property does within one year after proper installations. not fall under the requirements of any Gov- (1) The correction or replacement shall be ernment-furnished property clause of this at no cost to the Government. contract. (2) Should a modification to the delivered (End of clause) equipment be made by the Contractor, the one year period applies to the modification upon its proper installation. 252.237–7019—252.237–7021 [Reserved] (3) This paragraph (d) applies regardless of 252.237–7022 Services at installations f.o.b. point or the point of acceptance of the being closed. deficient equipment/systems. As prescribed in 237.7402, use the fol- (End of clause) lowing clause: [56 FR 36479, July 31, 1991, as amended at 56 SERVICES AT INSTALLATIONS BEING CLOSED FR 67222, Dec. 30, 1991; 66 FR 49861, Oct. 1, (MAY 1995) 2001] Professional employees shall be used by the local government to provide services 52.239–7001 [Reserved] under this contract to the extent that pro- fessionals are available in the area under the 252.239–7002 Access. jurisdiction of such government. As prescribed in 239.7411(a), use the (End of clause) following clause: ACCESS (DEC 1991) [59 FR 36090, July 15, 1994, as amended at 60 FR 29503, June 5, 1995] (a) Subject to military security regula- tions, the Government shall permit the Con- 252.239–7000 Protection against com- tractor access at all reasonable times to promising emanations. Contractor furnished facilities. However, if the Government is unable to permit access, As prescribed in 239.7102–3, use the the Government at its own risk and expense following clause: shall maintain these facilities and the Con- tractor shall not be responsible for the serv- PROTECTION AGAINST COMPROMISING ice involving any of these facilities during EMANATIONS (DEC 1991) the period of nonaccess, unless the service (a) The Contractor shall provide or use failure results from the Contractor’s fault or only computer equipment, as specified by negligence. the Government, that has been accredited to (b) During periods when the Government meet the appropriate security requirements does not permit Contractor access, the Gov- of— ernment will reimburse the Contractor at (1) The National Security Agency National mutually acceptable rates for the loss of or TEMPEST Standards (NACSEM No. 5100 or damage to the equipment due to the fault or NACSEM No. 5100A, Compromising Ema- negligence of the Government. Failure to
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agree shall be a dispute concerning a ques- any body with less than statewide jurisdic- tion of fact within the meaning of the Dis- tion when operating under the state author- putes clause of this contract. ity. Regulatory bodies whose decisions are not subject to judicial appeal and regulatory (End of clause) bodies which regulate a company owned by the same entity which creates the regulatory 252.239–7003 Facilities and services to body are not ‘‘governmental regulatory bod- be furnished—common carriers. ies.’’ (b) The Contractor shall furnish the serv- As prescribed in 239.7411(a), use the ices and facilities under this agreement/con- following clause: tract in accordance with— (1) All applicable tariffs, rates, charges, FACILITIES AND SERVICES TO BE FURNISHED— rules, regulations, or requirements; COMMON CARRIERS (DEC 1991) (i) Lawfully established by a governmental (a) The Contractor shall furnish any class- regulatory body; and es of services or facilities that the Con- (ii) Applicable to service and facilities fur- tractor offers or furnishes under published nished or offered by the Contractor to the tariffs. general public or the Contractor’s sub- (b) When it is mutually agreed that the scribers; Contractor shall furnish nontariffed services, (2) Rates, terms, and conditions of service the Government shall order them under the and facilities furnished or offered by the Ordering of Facilities and Services clause of Contractor to the general public or the Con- this agreement/contract. These nontariffed tractor’s subscribers; or services may include the engineering, instal- (3) Rates, terms, and conditions of service lation, alteration, or maintenance of facili- as may be agreed upon, subject, when appro- ties owned either by the Contractor or the priate, to jurisdiction of a governmental reg- Government, wherever located. ulatory body. (c) Upon request of the Contracting Officer, (c) The Government shall not prepay for the Contractor agrees to interconnect its fa- services. cilities with any Government-owned or fur- (d) For nontariffed services, the Contractor nished telecommunications equipment, fa- shall charge the Government at the lowest cilities, or transmission media. The Con- rate and under the most favorable terms and tractor shall use established technical cri- conditions for similar service and facilities teria for ensuring continuity of service and offered to any other customer. traffic without damage to or degradation of (e) Recurring charges for services and fa- commercial facilities. cilities shall, in each case, start with the satisfactory beginning of service or provision (End of clause) of facilities or equipment and are payable monthly in arrears. 252.239–7004 Orders for facilities and (f) Subject to the Cancellation or Termi- services—common carriers. nation of Orders—Common Carriers clause, of this agreement/contract, the Government As prescribed in 239.7411(a), use the may stop the use of any service or facilities following clause: furnished under this agreement/contract at any time. The Government shall pay the ORDERS FOR FACILITIES AND SERVICES— contractor all charges for services and facili- COMMON CARRIERS (DEC 1991) ties adjusted to the effective date of dis- The Contractor shall acknowledge a com- continuance. munication service authorization or other (g) Expediting charges are costs necessary type order for supplies and facilities by— to get services earlier than normal. Exam- (a) Commencing performance; or ples are overtime pay or special shipment. (b) Written acceptance by a duly author- When authorized, expediting charges shall be ized representative. the additional costs incurred by the Con- tractor and the subcontractor. The Govern- (End of clause) ment shall pay expediting charges only when— 252.239–7005 Rates, charges, and serv- (1) They are provided for in the tariff es- ices—common carriers. tablished by a governmental regulatory body; or As prescribed in 239.7411(a), use the (2) They are authorized in a communica- following clause: tion service authorization or other contrac- tual document. RATES, CHARGES, AND SERVICES—COMMON (h) When services normally provided are CARRIERS (DEC 1991) technically unacceptable and the develop- (a) Definition—Governmental regulatory body ment, fabrication, or manufacture of special means the Federal Communications Com- equipment is required, the Government mission, any statewide regulatory body, or may—
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(1) Provide the equipment; or CANCELLATION OR TERMINATION OF ORDERS— (2) Direct the Contractor to acquire the COMMON CARRIERS (JAN 1997) equipment or facilities. If the Contractor ac- (a) If the Government cancels any of the quires the equipment or facilities, the acqui- services ordered under this agreement/con- sition shall be competitive, if practicable. tract, before the services are made available (i) If at any time the Government defers or to the Government, or terminates any of changes its orders for any of the services but these services after they are made available does not cancel or terminate them, the to the Government, the Government shall re- amount paid or payable to the Contractor for imburse the Contractor for the actual non- the services deferred or modified shall be eq- recoverable costs the Contractor has reason- uitably adjusted under applicable tariffs ably incurred in providing facilities and filed by the Contractor with the regulatory equipment for which the Contractor has no commission in effect at the time of deferral foreseeable reuse. or change. If no tariffs are in effect, the Gov- (b) The amount of the Government’s liabil- ernment and the Contractor shall equitably ity upon cancellation or termination of any adjust the rates by mutual agreement. Fail- of the services ordered under this agreement/ ure to agree on any adjustment shall be a contract will be determined under applicable dispute concerning a question of fact within tariffs governing cancellation and termi- the meaning of the Disputes clause of this nation charges which— contract. (1) Are filed by the Contractor with a gov- ernmental regulatory body, as defined in the (End of clause) Rates, Charges, and Services—Common Car- riers clause of this agreement/contract; 252.239–7006 Tariff information. (2) Are in effect on the date of termination; and As prescribed in 239.7411(a), use the (3) Provide specific cancellation or termi- following clause: nation charges for the facilities and equip- ment involved or show how to determine the TARIFF INFORMATION (JUL 1997) charges. (a) The Contractor shall provide to the (c) The amount of the Government’s liabil- Contracting Officer— ity upon cancellation or termination of any (1) Upon request, a copy of the Contrac- of the services ordered under this agreement/ tor’s current existing tariffs (including contract, which are not subject to a govern- changes); mental regulatory body, will be determined under a mutually agreed schedule in the (2) Before filing, any application to a Fed- communication services authorization (CSA) eral, State, or any other regulatory agency or other contractual document. for new or changes to, rates, charges, serv- (d) If no applicable tariffs are in effect on ices, or regulations relating to any tariff or the date of cancellation or termination or any of the facilities or services to be fur- set forth in the applicable CSA or other con- nished solely or primarily to the Govern- tractual document, the Government’s liabil- ment; and ity will be determined under the following (3) Upon request, a copy of all information, settlement procedures— material, and data developed or prepared in (1) The Contractor agrees to provide the support of or in connection with an applica- Contracting Officer, in such reasonable de- tion under paragraph (a)(2) of this clause. tail as the Contracting Officer may require, (b) The Contractor shall notify the Con- inventory schedules covering all items of tracting Officer of any application that any- property or facilities in the Contractor’s pos- one other than the Contractor files with a session, the cost of which is included in the governmental regulatory body which affects Basic Cancellation or Termination Liability or will affect the rate or conditions of serv- for which the Contractor has no foreseeable ices under this agreement/contract. These re- reuse. quirements also apply to applications pend- (2) The Contractor shall use its best efforts ing on the effective date of this agreement/ to sell property or facilities when the Con- contract. tractor has no foreseeable reuse or when the Government has not exercised its option to (End of clause) take title under the title to Telecommuni- cations Facilities and Equipment clause of [56 FR 36479, July 31, 1991, as amended at 62 this agreement/contract. The Contractor FR 40473, July 29, 1997] shall apply any proceeds of the sale to reduce any payments by the Government to the 252.239–7007 Cancellation or termi- Contractor under a cancellation or termi- nation of orders—common carriers. nation settlement. (3) The Contractor shall record actual non- As prescribed in 239.7411(a), use the recoverable costs under established account- following clause: ing procedures prescribed by the cognizant
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governmental regulatory authority or, if no (ii) Charges not ordinarily made by the such procedures have been prescribed, under Contractor for similar facilities or equip- generally accepted accounting procedures ment, furnished under similar cir- applicable to the provision of telecommuni- cumstances. cation services for public use. (e) The Government may, under such terms (4) The actual nonrecoverable costs are the and conditions as it may prescribe, make installed costs of the facilities and equip- partial payments and payments on account ment, less cost of reusable materials, and against costs incurred by the Contractor in less net salvage value. Installed costs shall connection with the canceled or terminated include the actual cost of equipment and ma- portion of this agreement/contract. The Gov- terials specifically provided or used, plus the ernment may make these payments if in the actual cost of installing (including engineer- opinion of the Contracting Officer the total ing, labor, supervision, transportation, of the payments is within the amount the rights-of-way, and any other items which are Contractor is entitled. If the total of the chargeable to the capital accounts of the payments is in excess of the amount finally Contractor) less any costs the Government agreed or determined to be due under this may have directly reimbursed the Con- clause, the Contractor shall pay the excess tractor under the Special Construction and to the Government upon demand. Equipment Charges clause of this agreement/ (f) Failure to agree shall be a dispute con- contract. Deduct from the Contractor’s in- cerning a question of fact within the mean- stalled cost, the net salvage value (salvage ing of the Disputes clause. value less cost of removal). In determining net salvage value, give consideration to fore- (End of clause) seeable reuse of the facilities and equipment by the Contractor. Make allowance for the cost of dismantling, removal, reconditioning, [56 FR 36479, July 31, 1991, as amended at 62 and disposal of the facilities and equipment FR 2615, Jan. 17, 1997] when necessary either to the sale of facilities or their reuse by the Contractor in another 252.239–7008 Reuse arrangements. location. As prescribed in 239.7411(a), use the (5) The Basic Cancellation Liability is de- following clause: fined as the actual nonrecoverable cost which the Government shall reimburse the REUSE ARRANGEMENTS (DEC 1991) Contractor at the time services are can- celled. The Basic Termination Liability is (a) When feasible, the Contractor shall defined as the nonrecoverable cost amortized reuse canceled or terminated facilities or in equal monthly increments throughout the equipment to minimize the charges to the liability period. Upon termination of serv- Government. ices, the Government shall reimburse the (b) If at any time the Government requires Contractor for the nonrecoverable cost less that telecommunications facilities or equip- such costs amortized to the date services are ment be relocated within the Contractor’s terminated. Establish the liability period as service area, the Government shall have the mutually agreed to but not to exceed ten option of paying the costs of relocating the years. facilities or equipment in lieu of paying any (6) When the Basic Cancellation or Termi- termination or cancellation charge under nation Liability established by the CSA or the Cancellation or Termination of Orders- other contractual document is based on esti- Common Carriers clause of this agreement/ mated costs, the Contractor agrees to settle contract. The Basic Termination Liability on the basis of actual cost at the time of ter- applicable to the facilities or equipment in mination or cancellation. their former location shall continue to apply (7) The Contractor agrees that, if after set- to the facilities and equipment in their new tlement but within the termination liability location. Monthly rental charges shall con- period of the services, should the Contractor tinue to be paid during the period. make reuse of equipment or facilities which (c) When there is another requirement or were treated as nonreusable or foreseeable reuse in place of canceled or ter- nonsalvagable in the settlement, the Con- minated facilities or equipment, no charge tractor shall reimburse the Government for shall apply and the Basic Cancellation or the value of the equipment or facilities. Termination Liability shall be appropriately (8) The Contractor agrees to exclude— reduced. When feasible, the Contractor shall (i) Any costs which are not included in de- promptly reuse discontinued channels or fa- termining cancellation and termination cilities, including equipment for which the charges under the Contractor’s standard Government is obligated to pay a minimum practices or procedures; and service charge.
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(End of clause) (3) The need for replacement was due to circumstances beyond the control and with- 252.239–7009—252.239–7010 [Reserved] out the fault of the Contractor. (g) Before incurring any costs under para- 252.239–7011 Special construction and graph (f) of this clause, the Government equipment charges. shall have the right to terminate the service under the Cancellation or Termination of Or- As prescribed in 239.7411(b), use the ders clause of this contract. following clause: (End of clause) SPECIAL CONSTRUCTION AND EQUIPMENT CHARGES (DEC 1991) 252.239–7012 Title to telecommuni- (a) The Government will not directly reim- cation facilities and equipment. burse the Contractor for the cost of con- structing any facilities or providing any As prescribed in 239.7411(b), use the equipment, unless the Contracting Officer following clause: authorizes direct reimbursement. (b) If the Contractor stops using facilities TITLE TO TELECOMMUNICATION FACILITIES AND or equipment which the Government has, in EQUIPMENT (DEC 1991) whole or part, directly reimbursed, the Con- (a) Title to all Contractor furnished facili- tractor shall allow the Government credit ties and equipment used under this agree- for the value of the facilities or equipment ment/contract shall remain with the Con- attributable to the Government’s contribu- tractor even if the Government paid the tion. Determine the value of the facilities costs of constructing the facilities or equip- and equipment on the basis of their foresee- ment. A mutually accepted communications able reuse by the Contractor at the time service authorization may provide for excep- their use is discontinued or on the basis of tions. the net salvage value, whichever is greater. (b) The Contractor shall operate and main- The Contractor shall promptly pay the Gov- ernment the amount of any credit. tain all telecommunication facilities and equipment used under this agreement/con- (c) The amount of the direct special con- tract whether the Government or the Con- struction charge shall not exceed— tractor has title. (1) The actual costs to the Contractor; and (2) An amount properly allocable to the (End of clause) services to be provided to the Government. (d) The amount of the direct special con- struction charge shall not include costs in- 252.239–7013 Obligation of the Govern- curred by the Contractor which are covered ment. by— As prescribed in 239.7411(c), use the (1) A cancellation or termination liability; following clause: or (2) The Contractor’s recurring or other OBLIGATION OF THE GOVERNMENT (DEC 1991) nonrecurring charges. (a) This basic agreement is not a contract. (e) The Contractor represents that— The Government incurs no monetary liabil- (1) Recurring charges for the services, fa- ity under this agreement. cilities, and equipment do not include in the rate base any costs that have been reim- (b) The Government incurs liability only bursed by the Government to the Contractor; upon issuance of a communications service and authorization under the terms of this agree- (2) Depreciation charges are based only on ment. the cost of facilities and equipment paid by the Contractor and not reimbursed by the (End of clause) Government. (f) If it becomes necessary for the Con- 252.239–7014 Term of agreement. tractor to incur costs to replace any facili- As prescribed in 239.7411(c), use the ties or equipment, the Government shall as- following clause: sume those costs or reimburse the Con- tractor for replacement costs at mutually TERM OF AGREEMENT (DEC 1991) acceptable rates under the following cir- cumstances— (a) This agreement shall continue in force (1) The Government paid direct special from year to year, unless terminated by ei- construction charges; or ther party by 60 days written notice. (2) The Government reimbursed the Con- (b) Termination of this agreement does not tractor for those facilities or equipment as a cancel any communication service author- part of the recurring charges; and izations previously issued.
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(End of clause) (b) This solicitation/contract identifies classified or sensitive information that re- 252.239–7015 Continuation of commu- quires securing during telecommunications nication service authorizations. and requires the Contractor to secure tele- communications systems. The Contractor As prescribed in 239.7411(c), use the agrees to secure information and systems at following clause: the following location: (Identify the loca- tion.) CONTINUATON OF COMMUNICATION SERVICE (c) To provide the security, the Contractor AUTHORIZATIONS (DEC 1991) shall use Government-approved tele- (a) All communication service authoriza- communications equipment, devices, tech- tions (CSAs) issued by lll under Basic niques, or services. A list of the approved Agreement Number ll, dated ll , are equipment, etc. may be obtained from (iden- transferred to this basic agreement. The tify where list can be obtained). Equipment, CSAs shall continue in full force and effect devices, techniques, or services used by the as though placed under this agreement. Contractor must be compatible or interoper- (b) Communication service authorizations able with (list and identify the location of currently in effect which were issued by the any telecommunications security equip- activity in paragraph (a) of this clause under ment, device, technique, or service currently other agreements with the Contractor may being used by the technical or requirements also be transferred to this agreement. organization or other offices with which the Contractor must communicate). (End of clause) (d) Except as may be provided elsewhere in this contract, the Contractor shall furnish 252.239–7016 Telecommunications se- all telecommunications security equipment, curity equipment, devices, tech- devices, techniques, or services necessary to niques, and services. perform this contract. The Contractor must meet ownership eligibility conditions for As prescribed in 239.7411(d), use the communications security equipment des- following clause: ignated as controlled cryptographic items. (e) The Contractor agrees to include this TELECOMMUNICATIONS SECURITY EQUIPMENT, clause, including this paragraph (e), in all DEVICES, TECHNIQUES, AND SERVICES (DEC subcontracts which require securing tele- 1991) communications. (a) Definitions. As used in this clause— (1) Securing means the application of Gov- (End of clause) ernment-approved telecommunications secu- rity equipment, devices, techniques, or serv- 252.241–7000 Superseding contract. ices to contractor telecommunications sys- As prescribed in 241.501–70(a), use the tems. (2) Sensitive information means any informa- following clause: tion the loss, misuse, or modification of SUPERSEDING CONTRACT (DEC 1991) which, or unauthorized access to, could ad- versely affect the national interest or the This contract supersedes contract No. conduct of Federal programs, or the privacy lll, dated ll which provided similar to which individuals are entitled under 5 services. Any capital credits accrued to the U.S.C. 552a (the Privacy Act), but which has Government, any remaining credits due to not been specifically authorized under cri- the Government under the connection teria established by an Executive Order or charge, or any termination liability are Act of Congress to be kept secret in the in- transferred to this contract, as follows: terest of national defense or foreign policy. (3) Telecommunications systems means voice, CAPITAL CREDITS record, and data communications, including (List years and accrued credits by year and management information systems and local separate delivery points.) data networks that connect to external transmission media, when employed by Gov- OUTSTANDING CONNECTION CHARGE CREDITS ernment agencies, contractors, and sub- contractors to transmit— (List by month and year the amount cred- (i) Classified or sensitive information; ited and show the remaining amount of out- (ii) Matters involving intelligence activi- standing credits due the Government.) ties, cryptologic activities related to na- TERMINATION LIABILITY CHARGES tional security, the command and control of military forces, or equipment that is an inte- (List by month and year the amount of gral part of a weapon or weapons system; or monthly facility cost recovered and show the (iii) Matters critical to the direct fulfill- remaining amount of facility cost to be re- ment of military or intelligence missions. covered.)
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(End of clause) MATERIAL MANAGEMENT AND ACCOUNTING SYSTEM (DEC 2000) [56 FR 36479, July 31, 1991, as amended at 63 (a) Definitions. As used in this clause— FR 11549, Mar. 9, 1998] (1) Material management and accounting sys- tem (MMAS) means the Contractor’s system 252.241–7001 Government access. or systems for planning, controlling, and ac- counting for the acquisition, use, issuing, As prescribed in 241.501–70(b), use the and disposition of material. Material man- following clause: agement and accounting systems may be manual or automated. They may be stand- GOVERNMENT ACCESS (DEC 1991) alone systems or they may be integrated Authorized representatives of the Govern- with planning, engineering, estimating, pur- ment may have access to the Contractor’s chasing, inventory, accounting, or other sys- on-base facilities upon reasonable notice or tems. in case of emergency. (2) Valid time-phased requirements means material that is— (End of clause) (i) Needed to fulfill the production plan, in- cluding reasonable quantities for scrap, shrinkage, yield, etc.; and [56 FR 36479, July 31, 1991, as amended at 63 (ii) Charged/billed to contracts or other FR 11549, Mar. 9, 1998] cost objectives in a manner consistent with the need to fulfill the production plan. 252.242–7000 Postaward conference. (3) ‘‘Contractor’’ means a business unit as As prescribed in 242.570, use the fol- defined in section 31.001 of the Federal Ac- quisition Regulation (FAR). lowing clause: (b) General. The Contractor shall— (1) Maintain an MMAS that— POSTAWARD CONFERENCE (DEC 1991) (i) Reasonably forecasts material require- The Contractor agrees to attend any ments; postaward conference convened by the con- (ii) Ensures that costs of purchased and tracting activity or contract administration fabricated material charged or allocated to a office in accordance with Federal Acquisi- contract are based on valid time-phased re- tion Regulation subpart 42.5. quirements; and (iii) Maintains a consistent, equitable, and (End of clause) unbiased logic for costing of material trans- actions; and 252.242–7001—252.242–7002 [Reserved] (2) Assess its MMAS and take reasonable action to comply with the MMAS standards 252.242–7003 Application for U.S. Gov- in paragraph (e) of this clause. ernment shipping documentation/ (c) Disclosure and maintenance requirements. instructions. The Contractor shall— (1) Have policies, procedures, and operating As prescribed in 242.1404–2–70, use the instructions that adequately described its following clause: MMAS; (2) Provide to the Administrative Con- APPLICATION FOR U.S. GOVERNMENT SHIPPING tracting Officer (ACO), upon request, the re- DOCUMENTATION/INSTRUCTIONS (DEC 1991) sults of the internal reviews that it has con- ducted to ensure compliance with estab- The Contractor shall request Government lished MMAS policies, procedures, and oper- bills of lading by submitting a DD Form 1659, ating instructions; and Application for U.S. Government Shipping (3) Disclose significant changes in its Documentation/Instructions, to the— MMAS to the ACO at least 30 days prior to (a) Transportation Officer, if named in the implementation. contract schedule; or (d) Deficiencies. (1) If the Contractor re- (b) Contract administration office. ceives a report from the ACO that identifies any deficiencies in its MMAS, the Con- (End of clause) tractor shall respond as follows: (i) If the Contractor agrees with the report [56 FR 36479, July 31, 1991, as amended at 62 findings and recommendations, the Con- FR 34135, June 24, 1997] tractor shall— (A) Within 30 days (or such other date as 252.242–7004 Material management may be mutually agreed to by the ACO and and accounting system. the Contractor), state its agreement in writ- ing; and As prescribed in 242.7204, use the fol- (B) Within 60 days (or such other date as lowing caluse: may be mutually agreed to by the ACO and
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the Contractor), correct the deficiencies or ation of recorded inventory quantities to submit a corrective action plan showing physical inventory by part number on a peri- milestones and actions to eliminate the defi- odic basis. A 95 percent accuracy level is de- ciencies. sirable. If systems have an accuracy level (ii) If the Contractor disagrees with the re- below 95 percent, the Contractor shall pro- port findings and recommendations, the Con- vide adequate evidence that— tractor shall, within 30 days (or such other (i) There is no material harm to the Gov- date as may be mutually agreed to by the ernment due to lower accuracy levels; and ACO and the Contractor), state its rationale (ii) The cost to meet the accuracy goal is for each area of disagreement. excessive in relation to the impact on the (2) The ACO will evaluate the Contractor’s Government; response and will notify the Contractor in (6) Provide detailed descriptions of cir- writing of the— cumstances that will result in manual or (i) Determination concerning any remain- system generated transfers of parts; ing deficiencies; (7) Maintain a consistent, equitable, and (ii) Adequacy of any proposed or completed unbiased logic for costing of material trans- corrective action plan; and actions as follows: (iii) Need for any new or revised corrective (i) The Contractor shall maintain and dis- action plan. close written policies describing the transfer (3) When the ACO determines the MMAS methodology and the loan/pay-back tech- deficiencies have a material impact on Gov- nique. ernment contract costs, the ACO must re- (ii) The costing methodology may be duce progress payments by an appropriate standard or actual cost, or any of the inven- percentage based on affected costs (in ac- tory costing methods in 48 CFR 9904.411– cordance with FAR 32.503–6) and/or disallow 50(b). The Contractor shall maintain consist- costs on vouchers (in accordance with FAR ency across all contract and customer types, 42.803) until the ACO determines that— and from accounting period to accounting (i) The deficiencies are corrected; or period for initial charging and transfer (ii) The amount of the impact is immate- charging. rial. (iii) The system should transfer parts and (e) MMAS standards. The MMAS shall have associated costs within the same billing pe- adequate internal controls to ensure system riod. In the few instances where this may not and data integrity, and shall— be appropriate, the Contractor may accom- (1) Have an adequate system description plish the material transaction using a loan/ including policies, procedures, and operating pay-back technique. The ‘‘loan/pay-back instructions that comply with the FAR and technique’’ means that the physical part is Defense FAR Supplement; moved temporarily from the contract, but (2) Ensure that costs of purchased and fab- the cost of the part remains on the contract. ricated material charged or allocated to a The procedures for the loan/pay-back tech- contract are based on valid time-phased re- nique must be approved by the ACO. When quirements as impacted by minimum/eco- the technique is used, the Contractor shall nomic order quantity restrictions. have controls to ensure— (i) A 98 percent bill of material accuracy (A) Parts are paid back expeditiously; and a 95 percent master production schedule (B) Procedures and controls are in place to accuracy are desirable as a goal in order to correct any overbilling that might occur; ensure that requirements are both valid and (C) Monthly, at a minimum, identification appropriately time-phased. of the borrowing contract and the date the (ii) If systems have accuracy levels below part was borrowed; and these, the Contractor shall provide adequate (D) The cost of the replacement part is evidence that— charged to the borrowing contract; (A) There is no material harm to the Gov- (8) Where allocations from common inven- ernment due to lower accuracy levels; and tory accounts are used, have controls (in ad- (B) The cost to meet the accuracy goals is dition to those in paragraphs (e)(2) and (7) of excessive in relation to the impact on the this clause) to ensure that— Government; (i) Reallocations and any credit due are (3) Provide a mechanism to identify, re- processed no less frequently than the routine port, and resolve system control weaknesses billing cycle; and manual override. Systems should iden- (ii) Inventories retained for requirements tify operational exceptions such as excess/re- that are not under contract are not allocated sidual inventory as soon as known; to contracts; and (4) Provide audit trails and maintain (iii) Algorithms are maintained based on records (manual and those in machine read- valid and current data; able form) necessary to evaluate system (9) Regardless of the provisions of FAR logic and to verify through transaction test- 45.505–3(f)(1)(ii), have adequate controls to ing that the system is operating as desired; ensure that physically commingled inven- (5) Establish and maintain adequate levels tories that may include material for which of record accuracy, and include reconcili- costs are charged or allocated to fixed-price,
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cost-reimbursement, and commercial con- value management system criteria provided tracts do not compromise requirements of in DoD 5000.2–R, Mandatory Procedures for any of the standards in paragraphs (e)(1) Major Defense Acquisition Programs through (8) of this clause. Government-fur- (MDAPs) and Major Automated Information nished material shall not be— System (MAIS) Acquisition Programs. (i) Physically commingled with other ma- (d) The Government may require inte- terial; or grated baseline reviews. Such reviews shall (ii) Used on commercial work; and be scheduled as early as practicable and (10) Be subjected to periodic internal re- should be conducted within 180 calendar days views to ensure compliance with established after (1) contract award, (2) the exercise of policies and procedures. significant contract options, or (3) the incor- poration of major modifications. The objec- (End of clause) tive of the integrated baseline review is for the Government and the Contractor to joint- [65 FR 77834, Dec. 13, 2000] ly assess areas, such as the Contractor’s planning, to ensure complete coverage of the 252.242–7005 Cost/Schedule Status Re- statement of work, logical scheduling of the port. work activities, adequate resourcing, and As prescribed in 242.1107–70(a), use identification of inherent risks. the following clause: (e) The Contractor shall provide access to all pertinent records, company procedures, COST/SCHEDULE STATUS REPORT (MAR 1998) and data requested by the ACO, or author- ized representative, to— (a) The Contractor shall use management procedures in the performance of this con- (1) Show proper implementation of the pro- tract that provide for— cedures generating the cost and schedule in- (1) Planning and control of costs; formation being used to satisfy the C/SSR (2) Measurement of performance (value for contractual data requirements to the Gov- completed tasks); and ernment; and (3) Generation of timely and reliable infor- (2) Ensure continuing application of the ac- mation for the cost/schedule status report (C/ cepted company procedures in satisfying the SSR). C/SSR data item. (b) As a minimum, these procedures must (f) The Contractor shall submit any sub- provide for— stantive changes to the procedures and their (1) Establishing the time-phased budgeted impact to the ACO for review. cost of work scheduled (including work au- (g) The Contractor shall require a subcon- thorization, budgeting, and scheduling), the tractor to furnish C/SSR in each case where budgeted cost for work performed, the actual the subcontract is other than firm-fixed- cost of work performed, the budget at com- price, is 12 months or more in duration, and pletion, the estimate at completion, and pro- has critical or significant tasks related to visions for subcontractor performance meas- the prime contract. Critical or significant urement and reporting; tasks shall be defined by mutual agreement (2) Applying all direct and indirect costs between the Government and Contractor. and provisions for use and control of man- Each subcontractor’s reported cost and agement reserve and undistributed budget; schedule information shall be incorporated (3) Incorporating changes to the contract into the Contractor’s C/SSR. budget base for both Government directed changes and internal replanning; (End of clause) (4) Establishing constraints to preclude subjective adjustment of data to ensure that performance measurement remains realistic. [62 FR 9992, Mar. 5, 1997, as amended at 62 FR The total allocated budget may exceed the 34135, June 24, 1997; 63 FR 11549, Mar. 9, 1998] contract budget base only after consultation with the Contracting Officer. For cost-reim- 252.242–7006 Cost/Schedule Status Re- bursement contracts, the contract budget port Plans. base shall exclude changes for cost growth As prescribed in 242.1107–70(b), use increase, other than for authorized changes the following provision: to the contract scope; and (5) Establishing the capability to accu- COST/SCHEDULE STATUS REPORT PLANS (MAR rately identify and explain significant cost 1997) and schedule variances, both on a cumu- lative basis and projected at completion (a) The offeror shall submit a written sum- basis. mary of the management procedures it will (c) The Contractor may use a cost/schedule establish, maintain, and use in the perform- control system that has been recognized by ance of any resultant contract to comply the cognizant Administrative Contracting with the requirements of the clause at Officer (ACO) as complying with the earned 252.242–7005, Cost/Schedule Status Report.
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(b) If the offeror proposes to use a cost/ cuted by an individual authorized to certify schedule control system that has been recog- the request on behalf of the Contractor: nized by the cognizant Administrative Con- I certify that the request is made in good tracting Officer as complying with the faith, and that the supporting data are accu- earned value management system criteria of rate and complete to the best of my knowl- DoD 5000.2–R, Mandatory Procedures for edge and belief. Major Defense Acquisition Programs llllllllllllllllllllllll (MDAPs) and Major Automated Information (Official’s Name) System (MAIS) Acquisition Programs, the llllllllllllllllllllllll offeror may submit a copy of the documenta- (Title) tion of such recognition instead of the writ- (c) The certification in paragraph (b) of ten summary required by paragraph (a) of this clause requires full disclosure of all rel- this provision. evant facts, including— (1) Cost or pricing data if required in ac- (End of provision) cordance with subsection 15.403–4 of the Fed- eral Acquisition Regulation (FAR); and [62 FR 9992, Mar. 5, 1997, as amended at 62 FR (2) Information other than cost or pricing 34135, June 24, 1997] data, in accordance with subsection 15.403–3 of the FAR, including actual cost data and 252.243–7000 [Reserved] data to support any estimated costs, even if cost or pricing data are not required. 252.243–7001 Pricing of contract modi- (d) The certification requirement in para- graph (b) of this clause does not apply to— fications. (1) Requests for routine contract pay- As prescribed in 243.205–70, use the ments; for example, requests for payment for following clause: accepted supplies and services, routine vouchers under a cost-reimbursement type PRICING OF CONTRACT MODIFICATIONS (DEC contract, or progress payment invoices; or 1991) (2) Final adjustment under an incentive provision of the contract. When costs are a factor in any price ad- justment under this contract, the contract (End of clause) cost principles and procedures in FAR part 31 and DFARS part 231, in effect on the date [63 FR 11549, Mar. 9, 1998, as amended at 66 of this contract, apply. FR 49865, Oct. 1, 2001]
(End of clause) 252.244–7000 Subcontracts for com- mercial items and commercial com- [56 FR 36479, July 31, 1991, as amended at 66 ponents (DoD contracts). FR 49865, Oct. 1, 2001] As prescribed in 244.403, use the fol- 252.243–7002 Requests for equitable lowing clause: adjustment. SUBCONTRACTS FOR COMMERCIAL ITEMS AND As prescribed in 243.205–71, use the COMMERCIAL COMPONENTS (DOD CON- following clause: TRACTS) (MAR 2000) In addition to the clauses listed in para- REQUESTS FOR EQUITABLE ADJUSTMENT (MAR graph (c) of the Subcontracts for Commer- 1998) cial Items and Commercial Components (a) The amount of any request for equi- clause of this contract (Federal Acquisition table adjustment to contract terms shall ac- Regulation 52.244–6), the Contractor shall in- curately reflect the contract adjustment for clude the terms of the following clauses, if which the Contractor believes the Govern- applicable, in subcontracts for commercial ment is liable. The request shall include only items or commercial components, awarded costs for performing the change, and shall at any tier under this contract: not include any costs that already have been 252.225–7014 Preference for Domestic Spe- reimbursed or that have been separately cialty Metals, Alternate I (10 U.S.C. 2241 claimed. All indirect costs included in the note). request shall be properly allocable to the 252.247–7023 Transportation of Supplies by change in accordance with applicable acqui- Sea (10 U.S.C. 2631). sition regulations. 252.247–7024 Notification of Transpor- (b) In accordance with 10 U.S.C. 2410(a), tation of Supplies by Sea (10 U.S.C. 2631). any request for equitable adjustment to con- tract terms that exceeds the simplified ac- (End of clause) quisition threshold shall bear, at the time of submission, the following certificate exe- [65 FR 14401, Mar. 16, 2000]
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252.245–7000 Government-furnished MATERIAL INSPECTION AND RECEIVING REPORT mapping, charting, and geodesy (DEC 1991) property. At the time of each delivery of supplies or As prescribed in 245.310–70, use the services under this contract, the Contractor following clause: shall prepare and furnish to the Government a material inspection and receiving report in GOVERNMENT-FURNISHED MAPPING, CHARTING, the manner and to the extent required by ap- AND GEODESY PROPERTY (DEC 1991) pendix F, Material Inspection and Receiving Report, of the Defense FAR Supplement. (a) Definition—Mapping, charting, and geod- esy (MC&G) property means geodetic, geo- (End of clause) magnetic, gravimetric, aeronautical, topo- graphic, hydrographic, cultural, and 252.246–7001 Warranty of data. toponymic data presented in the form of topographic, planimetric, relief, or thematic As prescribed in 246.710 (1), use the maps and graphics; nautical and aero- following clause: nautical charts and publications; and in sim- ulated, photographic, digital, or computer- WARRANTY OF DATA (DEC 1991) ized formats. (a) Definition—Technical data has the same (b) The Contractor shall not duplicate, meaning as given in the clause in this con- copy, or otherwise reproduce MC&G property tract entitled, Rights in Technical Data and for purposes other than those necessary for Computer Software. performance of the contract. (b) Warranty. Notwithstanding inspection (c) At the completion of performance of and acceptance by the Government of tech- the contract, the Contractor, as directed by nical data furnished under this contract, and the Contracting Officer, shall either destroy notwithstanding any provision of this con- or return to the Government all Govern- tract concerning the conclusiveness of ac- ment-furnished MC&G property not con- ceptance, the Contractor warrants that all sumed in the performance of this contract. technical data delivered under this contract will at the time of delivery conform with the (End of clause) specifications and all other requirements of this contract. The warranty period shall ex- 252.245–7001 Reports of Government tend for three years after completion of the property. delivery of the line item of data (as identi- As prescribed in 245.505–14(a), use the fied in DD Form 1423, Contract Data Re- quirements List) of which the data forms a following clause: part; or any longer period specified in the contract. REPORTS OF GOVERNMENT PROPERTY (MAY 1994) (c) Contractor notification. The Contractor agrees to notify the Contracting Officer in (a) The Contractor shall provide an annual writing immediately of any breach of the report— above warranty which the Contractor dis- (1) For all DoD property for which the Con- covers within the warranty period. tractor is accountable under the contract; (d) Remedies. The following remedies shall (2) Prepared in accordance with the re- apply to all breaches of the warranty, wheth- quirements of DD Form 1662, DoD Property er the Contractor notifies the Contracting in the Custody of Contractors, or approved Officer in accordance with paragraph (c) of substitute, including instructions on the re- this clause or if the Government notifies the verse side of the form; Contractor of the breach in writing within (3) In duplicate, to the cognizant Govern- the warranty period: ment property administrator, no later than (1) Within a reasonable time after such no- October 31. tification, the Contracting Officer may— (b) The Contractor is responsible for re- (i) By written notice, direct the Contractor porting all Government property account- to correct or replace at the Contractor’s ex- able to this contract, including that at sub- pense the nonconforming technical data contractor and alternate locations. promptly; or (ii) If the Contracting Officer determines (End of clause) that the Government no longer has a re- quirement for correction or replacement of [59 FR 27677, May 27, 1994] the data, or that the data can be more rea- sonably corrected by the Government, in- 252.246–7000 Material inspection and form the Contractor by written notice that receiving report. the Government elects a price or fee adjust- ment instead of correction or replacement. As prescribed in 246.370, use the fol- (2) If the Contractor refuses or fails to lowing clause: comply with a direction under paragraph (d)
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(1)(i) of this clause, the Contracting Officer Lists Drawings, provided that the data fur- may, within a reasonable time of the refusal nished by the Contractor was current, accu- or failure— rate at time of submission, and did not in- (i) By contract or otherwise, correct or re- volve a significant omission of data nec- place the nonconforming technical data and essary to comply with the requirements; or charge the cost to the Contractor; or (B) To defects the Contractor discovers and (ii) Elect a price or fee adjustment instead gives written notice to the Government be- of correction or replacement. fore the Government discovers the error. (3) The remedies in this clause represent the only way to enforce the Government’s ALTERNATE II (DEC 1991) rights under this clause. (e) The provisions of this clause apply As prescribed at 246.710(3), substitute anew to that portion of any corrected or re- the following paragraph for paragraph placed technical data furnished to the Gov- (d)(3) of the basic clause: ernment under paragraph (d)(1)(i) of this clause. (3) In addition to the remedies under para- graphs (d)(1) and (2) of this clause, the Con- (End of clause) tractor shall be liable to the Government for all damages to the Government as a result of ALTERNATE I (DEC 1991) the breach of the warranty. As prescribed in 246.710(2), substitute (i) The additional liability under para- the following for paragraph (d)(3) of the graph (d)(3) of this clause shall not exceed basic clause: ten percent of the total contract price. (3) In addition to the remedies under para- (ii) If the breach of the warranty is with graphs (d)(1) and (2) of this clause, the Con- respect to the data supplied by an equipment tractor shall be liable to the Government for subcontractor, the limit of the Contractor’s all damages to the Government as a result of liability shall be— the breach of warranty. (A) Ten percent of the total subcontract (i) The additional liability under para- price in a firm fixed-price subcontract; graph (d)(3) of this clause shall not exceed 75 (B) Seventy-five percent of the total sub- percent of the target profit. contract fee in a cost-plus-fixed-fee or cost- (ii) If the breach of the warranty is with plus-award-fee subcontract; or respect to the data supplied by an equipment subcontractor, the limit of the Contractor’s (C) Seventy-five percent of the total sub- liability shall be— contract target profit or fee in a fixed-price (A) Ten percent of the total subcontract or cost-plus-incentive-type contract. price in a firm fixed price subcontract; (iii) The additional liability specified in (B) Seventy-five percent of the total sub- paragraph (d)(3) of this clause shall not contract fee in a cost-plus-fixed-fee or cost- apply— plus-award-fee subcontract; or (A) With respect to the requirements for (C) Seventy-five percent of the total sub- product drawings and associated lists, spe- contract target profit or fee in a fixed-price cial inspection equipment (SIE) drawings or cost-plus-incentive-type contract. and associated lists, special tooling drawings (iii) Damages due the Government under and associated lists, SIE operating instruc- the provisions of this warranty are not an al- tions, SIE descriptive documentation, and lowable cost. SIE calibration procedures under MIL–T– (iv) The additional liability in paragraph 31000, General Specification for Technical (d)(3) of this clause shall not apply— Data Packages, Amendment 1, or MIL–T– (A) With respect to the requirements for 47500, General Specification for Technical product drawings and associated lists, spe- Data Packages, Supp 1, or drawings and as- cial inspection equipment (SIE) drawings sociated lists under level 2 or level 3 of MIL– and associated lists, special tooling drawings D–1000A, Engineering and Associated Data and associated lists, SIE operating instruc- Drawings, or DoD–D–1000B, Engineering and tions, SIE descriptive documentation, and Associated Lists Drawings (Inactive for New SIE calibration procedures under MIL–T– Design) Amendment 4, Notice 1; or drawings 31000, General Specification for Technical Data Packages, Amendment 1, or MIL–T– and associated lists under category E or I of 47500, General Specification for Technical MIL–D–1000, Engineering and Associated Data Packages, Supp 1, or drawings and as- Lists Drawings, provided that the data fur- sociated lists under level 2 or level 3 of MIL– nished by the Contractor was current, accu- D–1000A, Engineering and Associated Data rate at time of submission, and did not in- Drawings, or DoD–D–1000B, Engineering and volve a significant omission of data nec- Associated Lists Drawings (Inactive for New essary to comply with the requirements; or Design) Amendment 4, Notice 1; or drawings (B) To defects the Contractor discovers and and associated lists under category E or I of gives written notice to the Government be- MIL–D–1000, Engineering and Associated fore the Government discovers the error.
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252.246–7002 Warranty of construction expense to enforce a subcontractor’s, manu- (Germany). facturer’s, or supplier’s warranty. (i) Unless a defect is caused by the Con- As prescribed in 246.710(4), use the tractor’s negligence, or the negligence of a following clause: subcontractor or supplier at any tier, the Contractor shall not be liable for the repair WARRANTY OF CONSTRUCTION (GERMANY) (JUNE 1997) of any defects of material or design furnished by the Government or for the repair of any (a) In addition to any other representa- damage resulting from any defeat in Govern- tions in this contract, the Contractor war- ment-furnished material or design. rants, except as provided in paragraph (j) of (j) This warranty shall not limit the Gov- this clause, that the work performed under ernment’s right under the Inspection clause this contract conforms to the contract re- of this contract, with respect to latent de- quirements and is free of any defect of equip- fects, gross mistakes, or fraud. ment, material, or design furnished or work- manship performed by the Contractor or any (End of clause) subcontractor or supplier at any tier. (b) This warranty shall continue for the pe- riod(s) specified in Section 13, VOB, Part B, [62 FR 34135, June 24, 1997; 62 FR 49306, Sept. commencing from the date of final accept- 19, 1997] ance of the work under this contract. If the Government takes possession of any part of 252.247–7000 Hardship conditions. the work before final acceptance, this war- ranty shall continue for the period(s) speci- As prescribed in 247.270–6(a), use the fied in Section 13, VOB, Part B, from the following clause: date the Government takes possession. (c) The Contractor shall remedy, at the HARDSHIP CONDITIONS (AUG 2000) Contractor’s expense, any failure to conform (a) If the Contractor finds unusual ship, or any defect. In addition, the Contractor dock, or cargo conditions associated with shall remedy, at the Contractor’s expense, loading or unloading a particular cargo, that any damage to Government-owned or -con- will work a hardship on the Contractor if trolled real or personal property when that loaded or unloaded at the basic commodity damage is the result of— rates, the Contractor shall— (1) The Contractor’s failure to conform to contract requirements; or (1) Notify the Contracting Officer before (2) Any defect of equipment, material, or performing the work, if feasible, but no later design furnished or workmanship performed. than the vessel sailing time; and (d) The Contractor shall restore any work (2) Submit any associated request for price damaged in fulfilling the terms and condi- adjustment to the Contracting Officer within tions of this clause. 10 working days of the vessel sailing time. (e) The Contracting Officer shall notify the (b) Unusual conditions include, but are not Contractor, in writing, within a reasonable limited to, inaccessibility of place of stow- period of time after the discovery of any fail- age to the ship’s cargo gear, side port oper- ure, defect, or damage. ations, and small quantities of cargo in any (f) If the Contractor fails to remedy any one hatch. failure, defect, or damage within a reason- (c) The Contracting Officer will investigate able period of time after receipt of notice, the conditions promptly after receiving the the Government shall have the right to re- notice. If the Contracting Officer finds that place, repair, or otherwise remedy the fail- the conditions are unusual and do materially ure, defect, or damage at the Contractor’s affect the cost of loading or unloading, the expense. Contracting Officer will authorize payment (g) With respect to all warranties, express at the applicable man-hour rates set forth in or implied, from subcontractors, manufac- the schedule of rates of this contract. turers, or suppliers for work performed and materials furnished under this contract, the (End of clause) Contractor shall— (1) Obtain all warranties that would be given in normal commercial practice; [65 FR 50147, Aug. 17, 2000] (2) Require all warranties to be executed in writing, for the benefit of the Government, if 252.247–7001 Price adjustment. directed by the Contracting Officer; and As prescribed in 247.270–6(b), use the (3) Enforce all warranties for the benefit of following clause: the Government as directed by the Con- tracting Officer. PRICE ADJUSTMENT (JAN 1997) (h) In the event the Contractor’s warranty under paragraph (b) of this clause has ex- (a) The Contractor warrants that the pired, the Government may bring suit at its prices set forth in this contract—
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(1) Are based upon the wage rates, allow- (e) There will be no adjustment for any ances, and conditions set forth in the collec- changes in the quantities of labor that the tive bargaining agreements between the Con- Contractor contemplated for each specific tractor and its employees, in effect as of commodity, except as may result from modi- (insert date), and which are generally applica- fications of the collective bargaining agree- ble to the ports where work under this con- ments. For the purpose of administering this tract is performed; clause, the Contractor shall submit to the (2) Apply to operations by the Contractor Contracting Officer, within five days after on non-Government work as well as under award, the accounting data and computa- this contract; and tions the Contractor used to determine its (3) Do not include any allowance for cost estimated efficiency rate in the performance increases that may— of this contract, to include the Contractor’s (i) Become effective under the terms of the computation of the costs apportioned for collective bargaining agreements after the each rate set forth in the schedule of rates. date in paragraph (a)(1) of this clause; or (f) Failure of the parties to agree to an ad- (ii) Result from modification of the collec- justment under this clause will be deemed to tive bargaining agreements after the date in be a dispute concerning a question of fact paragraph (a)(1). within the meaning of the Disputes clause of (b) The Contractor shall notify the Con- this contract. The Contractor shall continue tracting Officer within 60 days of receipt of performance pending agreement on, or deter- notice of any changes (increase or decrease) mination of, any such adjustment and its ef- in the wage rates, allowances, fringe bene- fective date. fits, and conditions that apply to its direct (g) The Contractor shall include with the labor employees, if the changes— final invoice submitted under this contract a (1) Are pursuant to the provisions of the statement that the Contractor has not expe- collective bargaining agreements; or rienced a decrease in rates of pay for labor, (2) Are a result of effective modifications or that the Contractor has given notice of all to the agreements; and (3) Would change the Contractor’s costs to such decreases in compliance with paragraph perform this contract. (b) of this clause. (c) The Contractor shall include in its noti- fication— (End of clause) (1) A proposal for an adjustment in the contract commodity, activity, or work-hour [56 FR 36479, July 31, 1991, as amended at 62 prices; and FR 2615, Jan. 17, 1997; 65 FR 50147, Aug. 17, (2) Data, in such form as the Contracting 2000] Officer may require, explaining the— (i) Causes; 252.247–7002 Revision of prices. (ii) Effective date; and (iii) Amount of the increase or decrease in As prescribed in 247.270–6(c), use the the Contractor’s proposal for the adjust- following clause: ment. (d) Promptly upon receipt of any notice REVISION OF PRICES (DEC 1991) and data described in paragraph (c), the Con- (a) Definition. Wage adjustment, as used in tractor and the Contracting Officer shall ne- this clause, means a change in the wages, gotiate an adjustment in the existing con- salaries, or other terms or conditions of em- tract commodity, activity, or man-hour ployment which— prices. However, no upward adjustment of the existing commodity, activity, or work- (1) Substantially affects the cost of per- hour prices will be allowed in excess of forming this contract; llll percent per year, except as provided (2) Is generally applicable to the port in the Changes clause of this contract. where work under this contract is performed; (1) Changes in the contract prices shall re- and flect, in addition to the direct and variable (3) Applies to operations by the Contractor indirect labor costs, the associated changes on non-Government work as well as to work in the costs for social security, unemploy- under this contract. ment compensation, taxes, and workman’s (b) General. The prices fixed in this con- compensation insurance. tract are based on wages and working condi- (2) There will be no adjustment to increase tions established by collective bargaining the dollar amount allowances of the Contrac- agreements, and on other conditions in effect tor’s profit. on the date of this contract. The Contracting (3) The agreed upon adjustment, its effec- Officer and the Contractor may agree to in- tive date, and the revised commodity, activ- crease or decrease such prices in accordance ity, or work-hour prices for services set forth with this clause. in the schedule of rates, shall be incor- (c) Demand for negotiation. (1) At any time, porated in the contract by supplemental subject to the limitations specified in this agreement. clause, either the Contracting Officer or the
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Contractor may deliver to the other a writ- (f) Disagreements. If, within 30 days after ten demand that the parties negotiate to re- the date on which statements and data are vise the prices under this contract. required pursuant to paragraph (c) of this (2) No such demand shall be made before 90 clause, the Contracting Officer and the Con- days after the date of this contract, and tractor fail to agree to revised prices, the thereafter neither party shall make a de- failure to agree shall be resolved in accord- mand having an effective date within 90 days ance with the Disputes clause of this con- of the effective date of any prior demand. tract. The prices fixed by the Contracting Of- However, this limitation does not apply to a ficer will remain in effect for the balance of wage adjustment during the 90 day period. the contract, and the Contractor shall con- (3) Each demand shall specify a date (the tinue performance. same as or subsequent to the date of the de- (g) Retroactive changes in wages or working livery of the demand) as to when the revised conditions. (1) In the event of a retroactive prices shall be effective. This date is the ef- wage adjustment, the Contractor or the Con- fective date of the price revision. tracting Officer may request an equitable ad- (i) If the Contractor makes a demand under justment in the prices in this contract. this clause, the demand shall briefly state (2) The Contractor shall request a price ad- the basis of the demand and include the justment within 30 days of any retroactive statements and data referred to in paragraph wage adjustment. The Contractor shall sup- (d) of this clause. port its request with— (ii) If the demand is made by the Con- (i) An estimate of the changes in cost re- tracting Officer, the Contractor shall furnish sulting from the retroactive wage adjust- the statements and data within 30 days of ment; the delivery of the demand. (ii) Complete information upon which the (d) Submission of data. At the times speci- estimate is based; and fied in paragraphs (c)(3)(i) and (ii) of this (iii) A certified copy of the collective bar- clause, the Contractor shall submit— gaining agreement, arbitration award, or (1) A new estimate and breakdown of the other document evidencing the retroactive unit cost and the proposed prices for the wage adjustment. services the Contractor will perform under (3) Subject to the limitation in paragraph this contract after the effective date of the (g)(2) of this clause as to the time of making price revision, itemized to be consistent with a request, completion or termination of this the original negotiations of the contract; contract shall not affect the Contractor’s (2) An explanation of the difference be- right under paragraph (g) of this clause. tween the original (or last preceding) esti- (4) In case of disagreement concerning any mate and the new estimate; question of fact, including whether any ad- (3) Such relevant operating data, cost justment should be made, or the amount of records, overhead absorption reports, and ac- such adjustment, the disagreement will be counting statements as may be of assistance resolved in accordance with the Disputes in determining the accuracy and reliability clause of this contract. of the new estimate; (5) The Contractor shall notify the Con- (4) A statement of the actual costs of per- tracting Officer in writing of any request by formance under this contract to the extent or on behalf of the employees of the Con- that they are available at the time of the ne- tractor which may result in a retroactive gotiation of the revision of prices under this wage adjustment. The notice shall be given clause; and within 20 days after the request, or if the re- (5) Any other relevant data usually fur- quest occurs before contract execution, at nished in the case of negotiations of prices the time of execution. under a new contract. The Government may examine and audit the Contractor’s ac- (End of clause) counts, records, and books as the Con- tracting Officer considers necessary. [56 FR 36479, July 31, 1991, as amended at 65 (e) Negotiations. (1) Upon the filing of the FR 50147, Aug. 17, 2000] statements and data required by paragraph (d) of this clause, the Contractor and the 252.247–7003 [Reserved] Contracting Officer shall negotiate promptly in good faith to agree upon prices for serv- 252.247–7004 Indefinite quantities— ices the Contractor will perform on and after fixed charges. the effective date of the price revision. (2) If the prices in this contract were estab- As prescribed in 247.270–6(d), use the lished by competitive negotiation, they shall following clause: not be revised upward unless justified by INDEFINITE QUANTITIES—FIXED CHARGES changes in conditions occurring after the (DEC 1991) contract was awarded. (3) The agreement reached after each nego- The amount of work and services the Con- tiation will be incorporated into the con- tractor may be ordered to furnish shall be tract by supplemental agreement. the amount the Contracting Officer may
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order from time to time. In any event, the (2) Responsible for, and hold the Govern- Government is obligated to compensate the ment harmless from, loss of or damage to Contractor the monthly lump sum specified property not included in paragraph (a)(1); in the Schedule entitled Fixed Charges, for and each month or portion of a month the con- (3) Responsible for, and hold the Govern- tract remains in effect. ment harmless from, bodily injury and death of persons, resulting either in whole or in (End of clause) part from the negligence or fault of the Con- tractor, its officers, agents, or employees in [56 FR 36479, July 31, 1991, as amended at 65 the performance of work under this contract. FR 50147, Aug. 17, 2000] (b) For the purpose of this clause, all cargo loaded or unloaded under this contract is 252.247–7005 Indefinite quantities—no agreed to be property owned by the Govern- fixed charges. ment or property for which the Government As prescribed in 247.270–6(e), use the is liable. following clause: (1) The amount of the loss or damage as de- termined by the Contracting Officer will be INDEFINITE QUANTITIES—NO FIXED CHARGES withheld from payments otherwise due the (DEC 1991) Contractor. The amount of work and services the Con- (2) Determination of liability and responsi- tractor may be ordered to furnish shall be bility by the Contracting Officer will con- the amount the Contracting Officer may stitute questions of fact within the meaning order from time to time. In any event, the of the Disputes clause of this contract. Government shall order, during the term of (c) The general liability and responsibility this contract, work or services having an ag- of the Contractor under this clause are sub- gregate value of not less than $100. ject only to the following specific limita- tions. The Contractor is not responsible to (End of clause) the Government for, and does not agree to hold the Government harmless from, loss or [56 FR 36479, July 31, 1991, as amended at 65 damage to property or bodily injury to or FR 50148, Aug. 17, 2000] death of persons if— (1) The unseaworthiness of the vessel, or 252.247–7006 Removal of contractor’s failure or defect of the gear or equipment employees. furnished by the Government, contributed jointly with the fault or negligence of the As prescribed in 247.270–6(f), use the Contractor in causing such damage, injury, following clause: or death; and REMOVAL OF CONTRACTOR’S EMPLOYEES (DEC (i) The Contractor, his officers, agents, and 1991) employees, by the exercise of due diligence, could not have discovered such The Contractor agrees to use only experi- unseaworthiness or defect of gear or equip- enced, responsible, and capable people to per- ment; or form the work. The Contracting Officer may (ii) Through the exercise of due diligence require that the Contractor remove from the could not otherwise have avoided such dam- job, employees who endanger persons or age, injury, or death. property, or whose continued employment (2) The damage, injury, or death resulted under this contract is inconsistent with the interest of military security. solely from an act or omission of the Govern- ment or its employees, or resulted solely (End of clause) from proper compliance by officers, agents, or employees of the Contractor with specific directions of the Contracting Officer. [56 FR 36479, July 31, 1991, as amended at 65 (d) The Contractor shall at its own expense FR 50148, Aug. 17, 2000] acquire and maintain insurance during the 252.247–7007 Liability and insurance. term of this contract, as follows— (1) Standard workmen’s compensation and As prescribed in 247.270–6(g), use the employer’s liability insurance and long- following clause: shoremen’s and harbor workers’ compensa- tion insurance, or such of these as may be LIABILITY AND INSURANCE (DEC 1991) proper under applicable state or Federal (a) The Contractor shall be— statutes. (1) Liable to the Government for loss or (i) The Contractor may, with the prior ap- damage to property, real and personal, proval of the Contracting Officer, be a self- owned by the Government or for which the insurer against the risk of this paragraph Government is liable; (d)(1).
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(ii) This approval will be given upon re- 252.247–7008 Evaluation of bids. ceipt of satisfactory evidence that the Con- tractor has qualified as a self-insurer under As prescribed in 247.271–4(a), use the applicable provision of law. following provision: (2) Bodily injury liability insurance in an EVALUATION OF BIDS (DEC 1991) amount of not less than $300,000 on account of any one occurrence. (a) The Government will evaluate bids on (3) Property damage liability insurance the basis of total aggregate price of all items within an area of performance under a given (which shall include any and all property, schedule. whether or not in the care, custody, or con- (1) An offeror must bid on all items within trol of the Contractor) in an amount of not a specified area of performance for a given less than $300,000 for any one occurrence. schedule. Failure to do so shall be cause for (e) Each policy shall provide, by appro- rejection of the bid for that area of perform- priate endorsement or otherwise, that can- ance of that Schedule. If there is to be no cellation or material change in the policy charge for an item, an entry such as ‘‘No shall not be effective until after a 30 day Charge,’’ or the letters ‘‘N/C’’ or ‘‘0,’’ must be written notice is furnished the Contracting made in the unit price column of the Sched- Officer. ule. (f) The Contractor shall furnish the Con- (2) Any bid which stipulates minimum tracting Officer with satisfactory evidence of charges or graduated prices for any or all the insurance required in paragraph (d) be- items shall be rejected for that area of per- fore performance of any work under this con- formance within the Schedule. tract. (b) In addition to other factors, the Con- tracting Officer will evaluate bids on the (g) The Contractor shall, at its own cost basis of advantages or disadvantages to the and expense, defend any suits, demands, Government that might result from making claims, or actions, in which the United more than one award (multiple awards). States might be named as a co-defendant of (1) In making this evaluation, the Con- the Contractor, resulting from the Contrac- tracting Officer will assume that the admin- tor’s performance of work under this con- istrative cost to the Government for issuing tract. This requirement is without regard to and administering each contract awarded whether such suit, demand, claim, or action under this solicitation would be $500. was the result of the Contractor’s neg- (2) Individual awards will be for the items ligence. The Government shall have the and combinations of items which result in right to appear in such suit, participate in the lowest aggregate cost to the Govern- defense, and take such actions as may be ment, including the administrative costs in necessary to protect the interest of the paragraph (b)(1). United States. (c) When drayage is necessary for the ac- (h) It is expressly agreed that the provi- complishment of any item in the bid sched- sions in paragraphs (d) through (g) of this ule, the Offeror shall include in the unit clause shall not in any manner limit the li- price any costs for bridge or ferry tolls, road ability or extend the liability of the Con- use charges or similar expenses. tractor as provided in paragraphs (a) through (d) Unless otherwise provided in this solici- (c) of this clause. tation, the Offeror shall state prices in amounts per hundred pounds on gross or net (i) The Contractor shall— weights, whichever is applicable. All charges (1) Equitably reimburse the Government if shall be subject to, and payable on, the basis the Contractor is indemnified, reimbursed, of 100 pounds minimum weight for unaccom- or relieved of any loss or damage to Govern- panied baggage and a 500 pound minimum ment property; weight for household goods, net or gross (2) Do nothing to prevent the Govern- weight, whichever is applicable. ment’s right to recover against third parties for any such loss or damage; and (End of provision) (3) Furnish the Government, upon the re- quest of the Contracting Officer, at the Gov- ALTERNATE I (DEC 1991) ernment’s expense, all reasonable assistance As prescribed in 247.271–4(a), add the fol- and cooperation in obtaining recovery, in- lowing paragraph (e) to the basic clause: cluding the prosecution of suit and the exe- (e) Notwithstanding paragraph (a), when cution of instruments of assignment in favor ‘‘additional services’’ are added to any sched- of the Government. ule, such ‘‘additional services’’ items will not be considered in the evaluation of bids. (End of clause) 252.247–7009 Award. [56 FR 36479, July 31, 1991, as amended at 65 As prescribed in 247.271–4(b), use the FR 50148, Aug. 17, 2000] following provision:
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AWARD (DEC 1991) PERIOD OF CONTRACT (OCT 2001) (a) The Government shall make award by (a) This contract begins January 1, ll, area to the qualified low bidder under each of and ends December 31, ll, both dates inclu- the specified schedules to the extent of the sive. Any work ordered before, and not com- bidder’s stated guaranteed daily capability pleted by the expiration date shall be gov- as provided in this solicitation and the Esti- erned by the terms of this contract. mated Quantities Schedule. (b) The Government will not place new or- (b) The Government reserves the right to ders under this contract that require that make an award of two or more areas to a sin- performance commence more than 15 days gle bidder if such award will result in an after the expiration date. overall lower estimated cost to the Govern- (c) The Government may place orders re- ment. quired for the completion of services (for shipments in the Contractor’s possession) for (c) The Government also reserves the right 180 days past the expiration date. to award additional contracts, as a result of this solicitation, to the extent necessary to (End of clause) meet its estimated maximum daily require- ments. [56 FR 36479, July 31, 1991, as amended at 66 (End of provision) FR 49861, Oct. 1, 2001] 252.247–7012 Ordering limitation. 252.247–7010 Scope of contract. As prescribed in 247.271–4(g), use the As prescribed in 247.271–4(d), use the following clause: following clause: ORDERING LIMITATION (DEC 1991) SCOPE OF CONTRACT (DEC 1991) (a) The Government will place orders for (a) The Contractor shall furnish services items of supplies or services with the con- and materials for the preparation of personal tractor awarded the initial contract to the property (including servicing of appliances) extent of the contractor’s guaranteed max- for movement or storage, drayage and re- imum daily capability. However, the con- lated services. Unless otherwise indicated in tractor may accept an additional quantity in the Schedule, the Contractor shall— excess of its capability to accommodate a (1) Furnish all materials except Govern- single order. ment-owned containers (Federal Specifica- (b) Orders for additional requirements will tion PPP–B–580), all equipment, plant and be placed in a like manner with the next labor; and higher contractor to the extent of its guar- (2) Perform all work in accomplishing anteed maximum daily capability. The Gov- containerization of personal property for ernment will repeat this procedure until its overseas or domestic movement or storage, total daily requirement is fulfilled. including— (c) In the event the procedure in para- graphs (a) and (b) does not fulfill the Govern- (i) Stenciling; ment’s total daily requirement, the Govern- (ii) Cooperage; ment may offer additional orders under the (iii) Drayage of personal property in con- contract to contractors without regard to nection with other services; their guaranteed maximum daily capability. (iv) Decontainerization of inbound ship- ments of personal property; and (End of clause) (v) The handling of shipments into and out of the Contractor’s facility. 252.247–7013 Contract areas of per- (b) Excluded from the scope of this con- formance. tract is the furnishing of like services or ma- As prescribed in 247.271–4(h), use the terials which are provided incident to com- following clause and complete para- plete movement of personal property when purchased by the Through Government Bill graph (b) by defining each area of per- of Lading or other method/mode of shipment formance as required (see 247.271–2(b)): or property to be moved under the Do-It- CONTRACT AREAS OF PERFORMANCE (DEC 1991) Yourself moving program or otherwise moved by the owner. (a) The Government will consider all areas of performance described in paragraph (b) as (End of clause) including the Contractor’s facility, regard- less of geographical location. 252.247–7011 Period of contract. (b) The Contractor shall perform services within the following defined areas of per- As prescribed in 247.271–4(e), use the formance, which include terminals identified following clause: therein: llll.
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(End of clause) demnification shall be at a rate not to ex- ceed sixty cents per pound per article. 252.247–7014 Demurrage. (ii) Negligent damage. When loss or damage As prescribed in 247.271–4(i), use the is caused by the negligence of the Con- tractor, the liability is for the full cost of following clause: satisfactory repair or for the current re- DEMURRAGE (DEC 1991) placement value of the article. (2) The Contractor shall make prompt pay- The Contractor shall be liable for all de- ment to the owner of the property for any murrage, detention, or other charges as a re- loss or damage for which the Contractor is sult of its failure to load or unload trucks, liable. freight cars, freight terminals, vessel piers, (3) In the absence of evidence or supporting or warehouses within the free time allowed under applicable rules and tariffs. documentation which places liability on a carrier or another contractor, the destina- (End of clause) tion contractor shall be presumed to be lia- ble for the loss or damage, if timely notified. 252.247–7015 Requirements. (c) For shipments picked up or delivered under Schedule III, Intra-City and Intra- As prescribed in 216.506(d), substitute Area— the following paragraph (f) for para- (1) If notified of loss or damage within 75 graph (f) of the basic clause at FAR days following delivery, the Contractor 52.216–21. agrees to indemnify the Government for loss or damage to the owner’s property. ALTERNATE I (DEC 1991) (2) The Contractor’s liability shall be for (f) Orders issued during the effective period the full cost of satisfactory repair, or for the of this contract and not completed within current replacement value of the article less that time shall be completed by the Con- depreciation, up to a maximum liability of tractor within the time specified in the $1.25 per pound times the net weight of the order. The rights and obligations of the Con- shipment. tractor and the Government for those orders (3) The Contractor has full salvage rights shall be governed by the terms of this con- to damaged items which are not repairable tract to the same extent as if completed dur- and for which the Government has received ing the effective period. compensation at replacement value. [56 FR 36479, July 31, 1991, as amended at 65 FR 63805, Oct. 25, 2000] (End of clause)
252.247–7016 Contractor liability for 252.247–7017 Erroneous shipments. loss or damage. As prescribed in 247.271–4(l), use the As prescribed in 247.271–4(k), use the following clause: following clause: ERRONEOUS SHIPMENTS (DEC 1991) CONTRACTOR LIABILITY FOR LOSS OR DAMAGE (DEC 1991) (a) The Contractor shall— (1) Forward to the rightful owner, articles (a) Definitions. of personal property inadvertently packed As used in this clause— with goods of other than the rightful owner. Article means any shipping piece or pack- (2) Ensure that all shipments are stenciled age and its contents. correctly. When a shipment is sent to an in- Schedule means the level of service for correct address due to incorrect stenciling which specific types of traffic apply as de- by the Contractor, the Contractor shall for- scribed in DoD 4500.34–R, Personal Property ward it to its rightful owner. Traffic Management Regulation. (3) Deliver to the designated air or surface (b) For shipments picked up under Sched- terminal all pieces of a shipment, in one lot, ule I, Outbound Services, or delivered under at the same time. The Contractor shall for- Schedule II, Inbound Services— ward to the owner any pieces of one lot not (1) If notified within one year after deliv- included in delivery, and remaining at its fa- ery that the owner has discovered loss or cility after departure of the original ship- damage to the owner’s property, the Con- tractor agrees to indemnify the Government ment. for loss or damage to the property which (b) Forwarding under paragraph (a) shall arises from any cause while it is in the Con- be— tractor’s possession. The Contractor’s liabil- (1) With the least possible delay; ity is— (2) By a mode of transportation selected by (i) Non-negligent damage. For any cause, the Contracting Officer; and other than the Contractor’s negligence, in- (3) At the Contractor’s expense.
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(End of clause) (End of clause)
252.247–7018 Subcontracting. [65 FR 50148, Aug. 17, 2000] As prescribed in 247.271–4(m), use the following clause: 252.247–7021 Returnable containers other than cylinders. SUBCONTRACTING (DEC 1991) As prescribed in 247.305–70, use the The Contractor shall not subcontract with- following clause: out the prior written approval of the Con- RETURNABLE CONTAINERS OTHER THAN tracting Officer. The facilities of any ap- CYLINDERS (MAY 1995) proved subcontractor shall meet the min- imum standards required by this contract. (a) Returnable container, as used in this clause, includes reels, spools, drums, car- (End of clause) boys, liquid petroleum gas containers, and other returnable containers when the Con- 252.247–7019 Drayage. tractor retains title to the container. (b) Returnable containers shall remain the As prescribed in 247.271–4(n), use the Contractor’s property but shall be loaned following clause: without charge to the Government for a pe- riod of lll(insert number of days) calendar DRAYAGE (DEC 1991) days after delivery to the f.o.b. point speci- (a) Drayage included for Schedule I, Out- fied in the contract. Beginning with the first bound, applies in those instances when a day after the loan period expires, to and in- shipment requires drayage to an air, water, cluding the day the containers are delivered or other terminal for onward movement to the Contractor (if the original delivery after completion of shipment preparation by was f.o.b. origin) or are delivered or are made the Contractor. Drayage not included is available for delivery to the Contractor’s when it is being moved from a residence or designated carrier (if the original delivery other pickup point to the Contractor’s ware- was f.o.b. destination), the Government shall house for onward movement by another pay the Contractor a rental of $lll (insert freight company, carrier, etc. dollar amount for rental) per container per (b) Drayage included for Schedule II, In- day, computed separately for containers for bound, applies in those instances when ship- each type, size, and capacity, and for each ment is delivered, as ordered, from a destina- point of delivery named in the contract. No tion Contractor’s facility or other destina- rental shall accrue to the Contractor in ex- tion point to the final delivery point. cess of the replacement value per container Drayage not included is when shipment or specified in paragraph (c) of this clause. partial removal of items from shipment is (c) For each container lost or damaged be- performed and prepared for member’s pickup yond repair while in the Government’s pos- at destination delivery point. session, the Government shall pay to the (c) The Contractor will reposition empty Contractor the replacement value as follows, Government containers— less the allocable rental paid for that con- tainer: (1) Within the area of performance; (2) As directed by the Contracting Officer; llllllllllllllllllllllll and (Insert the container types, sizes, capacities, (3) At no additional cost to the Govern- and associated replacement values.) ment. These containers shall become Govern- ment property. (End of clause) (d) If any lost container is located within lll (insert number of days) calendar days 252.247–7020 Additional services. after payment by the Government, it may be returned to the Contractor by the Govern- As prescribed in 247.271–4(o), use the ment, and the Contractor shall pay to the following clause: Government the replacement value, less rental computed in accordance with para- ADDITIONAL SERVICES (AUG 2000) graph (b) of this clause, beginning at the ex- The Contractor shall provide additional piration of the loan period specified in para- services not included in the Schedule, but re- graph (b) of this clause, and continuing to quired for satisfactory completion of the the date on which the container was deliv- services ordered under this contract, at a ered to the Contractor. rate comparable to the rate for like services as contained in tenders on file with the Mili- (End of clause) tary Traffic Management Command in effect at time of order. [60 FR 29503, June 5, 1995]
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252.247–7022 Representation of extent contract and who is performing any part of of transportation by sea. the work or other requirement of the prime contract. As prescribed in 247.573(a), use the (6) Supplies means all property, except land following provision: and interests in land, that is clearly identifi- able for eventual use by or owned by the DoD REPRESENTATION OF EXTENT OF at the time of transportation by sea. (i) An TRANSPORTATION BY SEA (AUG 1992) item is clearly identifiable for eventual use (a) The Offeror shall indicate by checking by the DoD if, for example, the contract doc- the appropriate blank in paragraph (b) of umentation contains a reference to a DoD this provision whether transportation of sup- contract number or a military destination. plies by sea is anticipated under the result- (ii) Supplies includes (but is not limited to) ant contract. The term supplies is defined in public works; buildings and facilities; ships; the Transportation of Supplies by Sea clause floating equipment and vessels of every char- of this solicitation. acter, type, and description, with parts, sub- (b) Representation. The Offeror represents assemblies, accessories, and equipment; ma- that it— chine tools; material; equipment; stores of all kinds; end items; construction materials; Does anticipate that supplies will be llll and components of the foregoing. transported by sea in the performance of (7) U.S.-flag vessel means a vessel of the any contract or subcontract resulting United States or belonging to the United from this solicitation. States, including any vessel registered or llll Does not anticipate that supplies having national status under the laws of the will be transported by sea in the per- United States. formance of any contract or subcontract (b)(1) The Contractor shall use U.S.-flag resulting from this solicitation. vessels when transporting any supplies by (c) Any contract resulting from this solici- sea under this contract. tation will include the Transportation of (2) A subcontractor transporting supplies Supplies by Sea clause. If the Offeror rep- by sea under this contract shall use U.S.-flag resents that it will not use ocean transpor- vessels if— tation, the resulting contract will also in- (i) This contract is a construction con- clude the Defense FAR Supplement clause at tract; or 252.247–7024, Notification of Transportation (ii) The supplies being transported are— of Supplies by Sea. (A) Noncommercial items; or (B) Commercial items that— (End of provision) (1) The Contractor is reselling or distrib- uting to the Government without adding [56 FR 67222, Dec. 30, 1991, as amended at 57 value (generally, the Contractor does not add FR 42633, Sept. 15, 1992] value to items that it contracts for f.o.b. des- tination shipment); 252.247–7023 Transportation of sup- (2) Are shipped in direct support of U.S. plies by sea. military contingency operations, exercises, As prescribed in 247.573(b)(1), use the or forces deployed in humanitarian or peace- keeping operations; or following clause: (3) Are commissary or exchange cargoes transported outside of the Defense Transpor- TRANSPORTATION OF SUPPLIES BY SEA (MAR 2000) tation System in accordance with 10 U.S.C. 2643. (a) Definitions. As used in this clause— (c) The Contractor and its subcontractors (1) Components means articles, materials, may request that the Contracting Officer au- and supplies incorporated directly into end thorize shipment in foreign-flag vessels, or products at any level of manufacture, fab- designate available U.S.-flag vessels, if the rication, or assembly by the Contractor or Contractor or a subcontractor believes any subcontractor. that— (2) Department of Defense (DoD) means the (1) U.S.-flag vessels are not available for Army, Navy, Air Force, Marine Corps, and timely shipment; defense agencies. (2) The freight charges are inordinately ex- (3) Foreign flag vessel means any vessel that cessive or unreasonable; or is not a U.S.-flag vessel. (3) Freight charges are higher than charges (4) Ocean transportation means any trans- to private persons for transportation of like portation aboard a ship, vessel, boat, barge, goods. or ferry through international waters. (d) The Contractor must submit any re- (5) Subcontractor means a supplier, quest for use of other than U.S.-flag vessels materialman, distributor, or vendor at any in writing to the Contracting Officer at least level below the prime contractor whose con- 45 days prior to the sailing date necessary to tractual obligation to perform results from, meet its delivery schedules. The Contracting or is conditioned upon, award of the prime Officer will process requests submitted after
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such date(s) as expeditiously as possible, but (g) If the final invoice does not include the the Contracting Officer’s failure to grant ap- required representation, the Government provals to meet the shipper’s sailing date will reject and return it to the Contractor as will not of itself constitute a compensable an improper invoice for the purposes of the delay under this or any other clause of this Prompt Payment clause of this contract. In contract. Requests shall contain at a min- the event there has been unauthorized use of imum— non-U.S.-flag vessels in the performance of (1) Type, weight, and cube of cargo; this contract, the Contracting Officer is enti- (2) Required shipping date; tled to equitably adjust the contract, based (3) Special handling and discharge require- on the unauthorized use. ments; (h) The Contractor shall include this (4) Loading and discharge points; clause, including this paragraph (h), in all (5) Name of shipper and consignee; subcontractors under this contract that— (6) Prime contract number; and (1) Exceed the simplified acquisition (7) A documented description of efforts threshold in Part 2 of the Federal Acquisi- made to secure U.S.-flag vessels, including tion Regulation; and points of contact (with names and telephone (2) Are for a type of supplies described in numbers) with at least two U.S.-flag carriers paragraph (b)(3) of this clause. contacted. Copies of telephone notes, tele- graphic and facsimile message or letters will (End of clause) be sufficient for this purpose. (e) The Contractor shall, within 30 days ALTERNATE I (MAR 2000) after each shipment covered by this clause, As prescribed in 247.573(b)(2), substitute the provide the Contracting Officer and the Divi- following paragraph (b) for paragraph (b) of sion of National Cargo, Office of Market De- the basic clause: velopment, Maritime Administration, U.S. (b)(1) The Contractor shall use U.S.-flag Department of Transportation, Washington, vessels when transporting any supplies by DC 20590, one copy of the rated on board ves- sea under this contract. sel operating carrier’s ocean bill of lading, (2) A subcontractor transporting supplies which shall contain the following informa- by sea under this contract shall use U.S.-flag tion— vessels if the supplies being transported (1) Prime contract number; are— (2) Name of vessel; (i) Noncommercial items; or (3) Vessel flag of registry; (ii) Commercial items that— (4) Date of loading; (A) The Contractor is reselling or distrib- (5) Port of loading; uting to the Government without adding (6) Port of final discharge; value (generally, the Contractor does not add (7) Description of commodity; value to items that it subcontracts for f.o.b. (8) Gross weight in pounds and cubic feet if destination shipment); available; (B) Are shipped in direct support of U.S. (9) Total ocean freight in U.S. dollars; and military contingency operations, exercises, (10) Name of the steamship company. or forces deployed in humanitarian or peace- (f) The Contractor agrees to provide with keeping operations (Note: This contract re- its final invoice under this contract a rep- quires shipment of commercial items in di- resentation that to the best of its knowledge rect support of U.S. military contingency op- and belief— erations, exercises, or forces deployed in hu- (1) No ocean transportation was used in the manitarian or peacekeeping operations); or performance of this contract; (C) Are commissary or exchange cargoes (2) Ocean transportation was used and only transported outside of the Defense Transpor- U.S.-flag vessels were used for all ocean ship- tation System in accordance with 10 U.S.C. ments under the contract; 2643. (3) Ocean transportation was used, and the Contractor had the written consent of the ALTERNATE II (MAR 2000) Contracting Officer for all non-U.S.-flag ocean transportation; or As prescribed in 247.573(b)(3), substitute the (4) Ocean transportation was used and following paragraph (b) for paragraph (b) of some or all of the shipments were made on the basic clause: non-U.S.-flag vessels without the written (b)(1) The Contractor shall use U.S.-flag consent of the Contracting Officer. The Con- vessels when transporting any supplies by tractor shall describe these shipments in the sea under this contract. following format: (2) A subcontractor transporting supplies by sea under this contract shall use U.S.-flag vessels if the supplies being transported Item Descrip- Contract Line Quantity tion Items are— (i) Noncommercial items; or Total. (ii) Commercial items that—
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(A) The Contractor is reselling or distrib- (End of clause) uting to the Government without adding value (generally, the Contractor does not add [56 FR 36479, July 31, 1991, as amended at 60 value to items that it subcontracts for f.o.b. FR 61603, Nov. 30, 1995; 65 FR 14402, Mar. 16, destination shipment), 2000] (B) Are shipped in direct support of U.S. military contingency operations, exercises, 252.247–7025 Reflagging or repair or forces deployed in humanitarian or peace- work. keeping operations; or (C) Are commissary or exchange cargoes As prescribed in 247.573(d), use the transported outside of the Defense Transpor- following clause: tation System in accordance with 10 U.S.C. 2643 (Note: This contract requires transpor- REFLAGGING OR REPAIR WORK (MAY 1995) tation of commissary or exchange cargoes (a) Definition. outside of the Defense Transportation Sys- Reflagging or repair work, as used in this tem in accordance with 10 U.S.C. 2643). clause, means work performed on a vessel— [56 FR 36479, July 31, 1991, as amended at 60 (1) To enable the vessel to meet applicable FR 61602, Nov. 30, 1995; 65 FR 14401, Mar. 16, standards to become a vessel of the United 2000] States; or (2) To convert the vessel to a more useful 252.247–7024 Notification of transpor- military configuration. tation of supplies by sea. (b) Requirement. Unless the Secretary of Defense waives this requirement, reflagging As prescribed in 247.573(c), use the or repair work shall be performed in the following clause: United States or its territories, if the reflag- ging or repair work is performed— NOTIFICATION OF TRANSPORTATION OF (1) On a vessel for which the Contractor SUPPLIES BY SEA (MAR 2000) submitted an offer in response to the solici- (a) The Contractor has indicated by the re- tation for this contract; and sponse to the solicitation provision, Rep- (2) Prior to acceptance of the vessel by the resentation of Extent of Transportation by Government. Sea, that it did not anticipate transporting by sea any supplies. If, however, after the (End of clause) award of this contract, the Contractor learns that supplies, as defined in the Transpor- [60 FR 29503, June 5, 1995] tation of Supplies by Sea clause of this con- tract, will be transported by sea, the Con- 252.249–7000 Special termination tractor— costs. (1) Shall notify the Contracting Officer of that fact; and As prescribed in 249.501–70, use the (2) Hereby agrees to comply with all the following clause: terms and conditions of the Transportation SPECIAL TERMINATION COSTS (DEC 1991) of Supplies by Sea clause of this contract. (b) The Contractor shall include this (a) Definition.— Special termination costs, as clause; including this paragraph (b), revised used in this clause, means only costs in the as necessary to reflect the relationship of following categories as defined in part 31 of the contracting parties— the Federal Acquisition Regulation (FAR)— (1) In all subcontracts under this contract, (1) Severance pay, as provided in FAR if this contract is a construction contract; or 31.205–6(g); (2) If this contract is not a construction (2) Reasonable costs continuing after ter- contract, in all subcontracts under this con- mination, as provided in FAR 31.205–42(b); tract that are for— (3) Settlement of expenses, as provided in (i) Noncommercial items; or FAR 31.205–42(g); (ii) Commercial items that— (4) Costs of return of field service personnel (A) The Contractor is reselling or distrib- from sites, as provided in FAR 31.205–35 and uting to the Government without adding FAR 31.205–46(c); and value (generally, the Contractor does not add (5) Costs in paragraphs (a) (1), (2), (3), and value to items that it subcontracts for f.o.b. (4) of this clause to which subcontractors destination shipment); may be entitled in the event of termination. (B) Are shipped in direct support of U.S. (b) Notwithstanding the Limitation of military contingency operations, exercises, Cost/Limitation of Funds clause of this con- or forces deployed in humanitarian or peace- tract, the Contractor shall not include in its keeping operations; or estimate of costs incurred or to be incurred, (C) Are commissary or exchange cargoes any amount for special termination costs to transported outside of the Defense Transpor- which the Contractor may be entitled in the tation System in accordance with 10 U.S.C. event this contract is terminated for the 2643. convenience of the Government.
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(c) The Contractor agrees to perform this Training Partnership Act (29 U.S.C. contract in such a manner that the Contrac- 1661(b)(2)); and tor’s claim for special termination costs will (4) The chief elected official of the unit of not exceed $llll. The Government shall general local government within which the have no obligation to pay the Contractor any adverse effect may occur. amount for the special termination costs in (d) Notice to subcontractors. Not later than excess of this amount. 60 days after the Contractor receives the (d) In the event of termination for the con- Contracting Officer’s notice of the antici- venience of the Government, this clause pated termination or reduction, the Con- shall not be construed as affecting the allow- tractor shall— ability of special termination costs in any (1) Provide notice of the anticipated termi- manner other than limiting the maximum nation or reduction to each first-tier subcon- amount of the costs payable by the Govern- tractor with a subcontract of $500,000 or ment. more; and (e) This clause shall remain in full force (2) Require that each such subcontractor— and effect until this contract is fully funded. (i) Provide notice to each of its subcontrac- tors with a subcontract of $100,000 or more; (End of clause) and (ii) Impose a similar notice and flowdown 252.249–7001 [Reserved] requirement to subcontractors with sub- contracts of $100,000 or more. 252.249–7002 Notification of antici- (e) The notice provided an employee under pated contract termination or re- paragraph (c) of this clause shall have the duction. same effect as a notice of termination to the As prescribed in 249.7003(c), use the employee for the purposes of determining following clause: whether such employee is eligible for train- ing, adjustment assistance, and employment NOTIFICATION OF ANTICIPATED CONTRACT services under section 325 or 325A of the Job TERMINATION OR REDUCTION(DEC 1996) Training Partnership Act (29 U.S.C. 1662d, 1662d-1). If the Contractor has specified that (a) Definitions. the anticipated contract termination or re- Major defense program means a program duction is not likely to result in plant clo- that is carried out to produce or acquire a sure or mass layoff, as defined in 29 U.S.C. major system (as defined in 10 U.S.C. 2302(5)) 2101, the employee shall be eligible only for (see also DoD 5000.2–R, Mandatory Proce- services under section 314(b) and paragraphs dures for Major Defense Acquisition Pro- (1) through (14), (16), and (18) of section 314(c) grams (MDAPs) and Major Automated Infor- of the Job Training Partnership Act (29 mation System (MAIS) Acquisition Pro- U.S.C. 1661c(b) and paragraphs (1) through grams). (14), (16), and (18) of section 1661c(c)). Substantial reduction means a reduction of 25 percent or more in the total dollar value (End of clause) of funds obligated by the contract. (b) Section 1372 of the National Defense Authorization Act for Fiscal Year 1994 (Pub. [61 FR 64637, Dec. 6, 1996] L. 103–160) and Section 824 of the National Defense Authorization Act for Fiscal Year 252.251–7000 Ordering from Govern- 1997 (Pub. L. 104–201) are intended to help es- ment supply sources. tablish benefit eligibility under the Job As prescribed in 251.107, use the fol- Training Partnership Act (29 U.S.C. 1661 and lowing clause: 1662) for employees of DoD contractors and subcontractors adversely affected by con- ORDERING FROM GOVERNMENT SUPPLY tract terminations or substantial reductions SOURCES (MAY 1995) under major defense programs. (c) Notice to employees and state and local of- (a) When placing orders under Federal Sup- ficials. Within 2 weeks after the Contracting ply Schedules or Personal Property Rehabili- Officer notifies the Contractor that contract tation Price Schedules, the Contractor shall funding will be terminated or substantially follow the terms of the applicable schedule reduced, the Contractor shall provide notice and authorization. Include in each order: of such anticipated termination or reduction (1) A copy of the authorization (unless a to— copy was previously furnished to the Federal (1) Each employee representative of the Supply Schedule or Personal Property Reha- Contractor’s employees whose work is di- bilitation Price Schedule contractor). rectly related to the defense contract; or (2) The following statement: This order is (2) If there is no such representative, each placed under written authorization from such employee; llllll dated llllll. (3) The State dislocated worker unit or of- In the event of any inconsistency between fice described in section 311(b)(2) of the Job the terms and conditions of this order and
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those of your Federal Supply Schedule con- tractor shall be solely responsible for any in- tract or Personal Property Rehabilitation creased costs. Price Schedule contract, the latter will gov- (e) Only the Contractor may request au- ern. thorization for subcontractor use of Govern- (3) The completed address(es) to which the ment supply sources. The Contracting Offi- Contractor’s mail, freight, and billing docu- cer will not grant authorizations for subcon- ments are to be directed. tractor use without approval of the Con- (b) If a Federal Supply Schedule contractor tractor. refuses to honor an order placed by a Gov- (f) Government invoices shall be submitted ernment contractor under an agency author- to the Contractor’s billing address, and Con- ization, the Contractor shall report the cir- tractor payments shall be sent to the Gov- cumstances to the General Services Admin- ernment remittance address specified below: istration, FFN, Washington, DC 20406, with a Contractor’s Billing Address (include point copy to the authorizing office. of contact and telephone number): (c) When placing orders under nonmanda- tory schedule contracts and requirements Government Remittance Address (include contracts, issued by the General Services Ad- point of contact and telephone number): ministration (GSA) Office of Information Re- sources Management, for automated data (End of clause) processing equipment, software and mainte- nance, communications equipment and sup- [56 FR 36479, July 31, 1991, as amended at 60 plies, and teleprocessing services, the Con- FR 29503, June 5, 1995] tractor shall follow the terms of the applica- ble contract and the procedures in paragraph 252.251–7001 Use of Interagency Fleet (a) of this clause. Management System (IFMS) vehi- (d) When placing orders for Government cles and related services. stock, the Contractor shall— As prescribed in 251.205, use the fol- (1) Comply with the requirements of the Contracting Officer’s authorization, using lowing clause: FEDSTRIP or MILSTRIP procedures, as ap- USE OF INTERAGENCY FLEET MANAGEMENT propriate; SYSTEM (IFMS) VEHICLES AND RELATED (2) Use only the GSA Form 1948–A, Retail SERVICES (DEC 1991) Services Shopping Plate, when ordering from GSA Self-Service Stores; (a) The Contractor, if authorized use of (3) Order only those items required in the IFMS vehicles, shall submit requests for five performance of Government contracts; and or fewer vehicles and related services in (4) Pay invoices from Government supply writing to the appropriate General Services sources promptly. For purchases made from Administration (GSA) Regional Customer DoD supply sources, this means within 30 Service Bureau, Attention: Motor Equipment days of the date of a proper invoice (see also Activity. Submit requests for more than five Defense Federal Acquisition Regulation Sup- vehicles to GSA headquarters: General Serv- plement (DFARS) 251.105). For purposes of ices Administration, FTM, Washington, DC computing interest for late Contractor pay- 20406. Include the following in each request: ments, the Government’s invoice is deemed (1) Two copies of the agency authorization to be a demand for payment in accordance to obtain vehicles and related services from with the Interest clause of this contract. The GSA. Contractor’s failure to pay may also result (2) The number of vehicles and related in the DoD supply source refusing to honor services required and the period of use. the requisition (see DFARS 251.102(f)) or in (3) A list of the Contractor’s employees au- the Contracting Officer terminating the Con- thorized to request vehicles and related serv- tractor’s authorization to use DoD supply ices. sources. In the event the Contracting Officer (4) A list of the makes, models, and serial decides to terminate the authorization due numbers of Contractor-owned or leased to the Contractor’s failure to pay in a timely equipment authorized to be serviced. manner, the Contracting Officer shall pro- (5) Billing instructions and address. vide the Contractor with prompt written no- (b) The Contractor should make requests tice of the intent to terminate the authoriza- for any unusual quantities of vehicles as far tion and the basis for such action. The Con- in advance as possible. tractor shall have 10 days after receipt of the (c) The Contractor shall establish and en- Government’s notice in which to provide ad- force suitable penalties for employees who ditional information as to why the author- use or authorize the use of Government vehi- ization should not be terminated. Such ter- cles for other than performance of Govern- mination shall not provide the Contractor ment contracts. with an excusable delay for failure to per- (d) The Contractor shall assume, without form or complete the contract in accordance the right of reimbursement from the Govern- with the terms of the contract, and the Con- ment, the cost or expense of any use of IFMS
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vehicles and services not related to the per- in accordance with departmental data formance of the contract. collection point instructions. (e) Only the Contractor may request au- (iii) Code 2—Correcting. A correcting thorization for subcontractor use of IFMS action corrects an existing DD Form vehicles. The Contracting Officer will not grant authorization for subcontractor use 350 action in accordance with depart- without approval of the Contractor. mental data collection point instruc- tions. (End of clause) (2) LINE A2, REPORT NUMBER. Enter the six-position local control PART 253—FORMS number (see 204.670–3(a)(5)). If Line A1 is coded 1 or 2, use the prior report Subpart 253.2—Prescription of Forms number rather than a new one. (3) LINE A3, CONTRACTING OF- Sec. FICE. 253.204 Administrative matters. (i) LINE A3A, REPORTING AGENCY 253.204–70 DD Form 350, Individual Con- FIPS 95 CODE. Enter one of the fol- tracting Action Report. lowing codes: 2100 (Army); 1700 (Navy), 253.204–71 DD Form 1057, Monthly Summary of Contracting Actions. 5700 (Air Force); 96CE (Army Civil 253.208 Required sources of supplies and Works); 97AS (DLA); 9700 (all other de- services. fense agencies). 253.208–1 DD Form 448, Military Inter- (ii) LINE A3B, CONTRACTING OF- departmental Purchase Request. FICE CODE. Enter the code assigned 253.208–2 DD Form 448–2, Acceptance of by the departmental data collection MIPR. point in 204.670–1(c). 253.209 Contractor qualifications. (4) LINE A4, NAME OF CON- 253.209–1 Responsible prospective contrac- tors. TRACTING OFFICE. Enter sufficient 253.213 Simplified acquisition procedures detail to establish the identity of the (SF’s 18, 30, 44, 1165, 1449, and OF’s 336, contracting office. 347, and 348). (b) Part B of the DD Form 350. Part B 253.213–70 Instructions for completion of DD identifies the transaction. Form 1155. (1) LINE B1, CONTRACT IDENTI- 253.215 Contracting by negotiation. FICATION INFORMATION. Do not 253.215–70 DD Form 1547, Record of Weighted leave any parts of Line B1 blank. Guidelines Application. (i) LINE B1A, CONTRACT NUMBER. AUTHORITY: 41 U.S.C. 421 and 48 CFR chap- (A) Enter— ter 1. (1) The DoD contract number; or SOURCE: 56 FR 36554, July 31, 1991, unless (2) For orders under contracts award- otherwise noted. ed by other Federal agencies, the con- tract number of that Federal agency as Subpart 253.2—Prescription of it appears in the contractual instru- Forms ment. (B) Do not leave spaces between char- 253.204 Administrative matters. acters, and do not enter dashes, slants, or any other punctuation marks. 253.204–70 DD Form 350, Individual (C) The DoD contract number is the Contracting Action Report. basic (13-position alphanumeric char- Policy on use of a DD Form 350 is in acter) procurement instrument identi- 204.670–2. This subsection contains in- fication number (PIIN) that was as- structions for completion of the DD signed in accordance with 204.7003 or Form 350. constructed under an exception per- (a) Part A of the DD Form 350. Part A mitted by 204.7000. Do not enter any identifies the report and the reporting supplementary procurement instru- activity. Complete all four lines. ment identification numbers as part of (1) LINE A1, TYPE OF REPORT. the contract number (these go on Line Enter one of the following codes: B2). (i) Code 0—Original. Enter code 0 un- (ii) LINE B1B, ORIGIN OF CON- less code 1 or code 2 applies. TRACT. Enter the code that indicates (ii) Code 1—Canceling. A canceling ac- the agency that assigned the contract tion cancels an existing DD Form 350 number.
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(A) Code A—DoD. sition modification number (see (B) Code B—NASA. 204.7004(e)). When reporting modifica- (C) Code C—Other Non-DoD Agency. tions to calls and orders, enter both (iii) LINE B1C, BUNDLED CON- the call or order number and the modi- TRACT. Enter one of the following fication number. codes: (3) LINE B3, ACTION DATE. (A) Code Y—Yes. Enter code Y when (i) Enter the year, month, and day of the contract meets the definition of the effective date for fiscal obligation ‘‘bundled contract’’ at FAR 2.101 and purposes. the contract value exceeds $5 million. (ii) Enter four digits for the year, two (B) Code N—No. Enter code N when digits for the month, and two digits for code Y does not apply. the day. Use 01 through 12 for January (iv) LINE B1D, BUNDLED CON- through December. For example, enter TRACT EXCEPTION. If Line B1C is January 2, 2003, as 20030102. coded Y, enter one of the following (4) LINE B4, COMPLETION DATE. codes. Otherwise, leave Line B1D (i) Enter the year, month, and day of blank. the last contract delivery date or the (A) Code A—Mission Critical. Enter end of the performance period. If the code A if the agency has determined contract is incrementally funded, re- that the consolidation of requirements port the completion date for the entire is critical to the agency’s mission, but contract. Report the completion date the measurably substantial benefits do associated with an option quantity not meet the thresholds set forth in when the option is exercised. FAR 7.107 to determine that the con- (ii) Enter four digits for the year, two solidation is necessary and justified. digits for the month, and two digits for (B) Code B—OMB Circular A–76. Enter the day. Use 01 through 12 for January code B if the agency used the OMB Cir- through December. For example, enter cular A–76 process to determine that January 2, 2003, as 20030102. the consolidation of requirements is (5) LINE B5, CONTRACTOR IDENTI- necessary and justified rather than ap- FICATION INFORMATION. plying the substantial benefits analysis required by FAR 7.107. (i) Use data that relates to the con- (C) Code C—Other. Enter code C when tractor whose name and address appear codes A and B do not apply. in the contract document (Block 7 of (v) LINE BIE, PERFORMANCE- the SF 26, Award/Contract; Block 8 of BASED SERVICE CONTRACT (see the SF 30, Amendment of Solicitation/ FAR Subpart 37.6). Enter one of the fol- Modification of Contract; Block 15A of lowing codes: the SF 33, Solicitation, Offer and (A) Code Y—Yes. Enter code Y when— Award; or Block 9 of the DD Form 1155, (1) The contract value exceeds Order for Supplies or Services), ex- $100,000; and cept— (2) At least 80 percent of the contract (A) For contracts placed with the value is for work that is performance Small Business Administration under based. Section 8(a) of the Small Business Act, (B) Code N—No. Enter code N when use data that relates to the company code Y does not apply. that will be performing the work; (2) LINE B2, MODIFICATION, (B) For Federal schedule orders, use ORDER, OR OTHER ID NUMBER. data that applies to the contractor Enter the supplementary procurement whose name appears on the schedule instrument identification number (if (not the data for the agent to whom or- there is one) that was assigned in ac- ders may be sent); and cordance with 204.7004 or as permitted (C) For contracts with the Canadian by 204.7000. It can be up to 19 char- Commercial Corporation (CCC), use acters. Usually calls and orders have a data for the appropriate CCC office. four-position number (see 204.7004(d)); (ii) Some of the parts of Line B5 may modifications to contracts and agree- not apply to the action being reported. ments have a six-position modification Follow the instructions for each part. number (see 204.7004(c)); and modifica- (A) LINE B5A, CONTRACTOR IDEN- tions to calls and orders have a two-po- TIFICATION NUMBER (DUNS).
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(1) Enter the contractor’s 9-position (H) LINE B5H, PARENT NAME. If a Data Universal Numbering System parent company TIN is entered on Line (DUNS) number (see FAR 4.602(d) and B5G, enter the name of the parent com- 4.603 and DFARS subpart 204.73). pany (common parent) on Line B5H. (2) For U.S. Army Contracting Com- Leave Line B5H blank if there is no mand, Europe, consolidated reporting parent company or the parent company of vouchers for utilities from munici- is exempted from the requirement to palities, use DUNS number 15–390–6193 have a TIN. (see 204.670–6(b)(1)). (6) LINE B6, PRINCIPAL PLACE OF (B) LINE B5B, GOVERNMENT PERFORMANCE. AGENCY. Enter one of the following (i) The place, or places, where the codes: contract will be performed may be (1) Code Y—Yes. Enter code Y when specified by the Government or listed the contractor is a Federal, State, or by the contractor in response to the so- local government agency of the United licitation provision at FAR 52.214–14, States and outlying areas (see 204.670– Place of Performance—Sealed Bidding, 1(d)). Do not use code Y when the gov- or FAR 52.215–6, Place of Performance. ernment agency is an educational in- Use data for the contractor’s principal stitution. place of performance, which is gen- (2) Code N—No. Enter code N when erally the— code Y does not apply. (A) Final assembly point for items manufactured under supply contracts; (C) LINE B5C, Reserved. (B) Location from where shipments (D) LINE B5D, CONTRACTOR NAME from stock are made under supply con- AND DIVISION NAME. Enter the con- tracts; tractor’s name as stated in the offer (C) Actual construction site for con- and resultant contract. Include its di- struction contracts; vision name. (D) Planned construction site for ar- (E) LINE B5E, CONTRACTOR AD- chitect-engineer contracts; DRESS. Enter the contractor’s address (E) Place of mining for mined sup- as stated in the offer and resultant plies; or contract. Include street address or P.O. (F) Place (including military instal- Box, city or town, state or country, lations) where a service is performed and ZIP code, if applicable. Do not for service contracts. enter foreign postal codes. (ii) When there is more than one lo- (F) LINE B5F, TAXPAYER IDENTI- cation for any of paragraphs (b)(6)(i)(A) FICATION NUMBER. Enter the con- through (F) of this subsection (e.g., tractor’s taxpayer identification num- more than one construction site), use ber (TIN) (see FAR subpart 4.9). Leave the location involving the largest dol- Line B5F blank if the contractor is— lar amount of the acquisition. Do not (1) A nonresident alien, foreign cor- show more than one location on Line poration, or foreign partnership that B6. does not have income effectively con- (iii) If places of performance are too nected with the trade or business in varied or not known, enter the contrac- the United States; and does not have tor’s home office location. However, if an office or place of business or a fiscal the contractor is a domestic concern paying agent in the United States; and the entire contract will be per- (2) An agency or instrumentality of a formed outside the United States, foreign government; or enter the most frequent place of per- (3) An agency or instrumentality of formance. the Federal Government. (iv) Follow the instructions for each (G) LINE B5G, PARENT TAXPAYER part of Line B6 that applies to the ac- IDENTIFICATION NUMBER. Enter the tion being reported. contractor’s parent company (common (A) LINE B6A, CITY OR PLACE parent) TIN (see FAR subpart 4.9 and CODE. 52.204–3). If the contractor does not (1) For places in the United States have a parent company or the parent and outlying areas, enter the numeric company meets the exemption for Line place code from FIPS PUB 55, Guide- B5F, leave Line B5G blank. line: Codes for Named Populated
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Places, Primary Country Divisions, (i) Code Y—Yes. Enter code Y when and Other Locational Entities of the the action is under a foreign military United States and Outlying Areas. sales arrangement, or under any other Leave Line B6A blank for places out- arrangement when a foreign country or side the United States and outlying international organization is bearing areas. the cost of the acquisition. (2) If the city or locality is not listed, (ii) Code N—No. Enter code N when look in FIPS PUB 55 for the county code Y does not apply. code of the principal place of perform- (10) LINE B10, MULTIYEAR CON- ance. Enter that code on Line B6A. Use TRACT. Enter one of the following 50000 for Washington, DC, with a State codes: code of 11. (i) Code Y—Yes. Enter code Y when (3) Paragraph 5.2, Entry Selection the action is a multiyear contract as With the Aid of the Class Code, of FIPS defined at FAR 17.103. Do not report PUB 55 will help in selecting the cor- contracts containing options as rect code. Sometimes, a class code multiyear unless the definition at FAR should be used in addition to a place 17.103 applies to the contract. code to accurately identify the place of (ii) Code N—No. Enter code N when performance. Do not use place codes code Y does not apply. when the first position of the class (11) LINE B11, TOTAL ESTIMATED code is X or Z. CONTRACT VALUE. Enter the total (B) LINE B6B, STATE OR COUNTRY estimated contract value (in whole dol- CODE. lars) only at the time of initial place- (1) For places in the United States ment of the contract, including place- and outlying areas, enter the numeric ment of an indefinite-delivery or State code from FIPS PUB 55 or FIPS multiyear contract. Include the total PUB 5, Codes for the Identification of estimated value of orders and options the States, the District of Columbia anticipated to be placed over the life of and the Outlying Areas of the United the contract. States and Associated Areas. (12) LINE B12, PRINCIPAL PROD- (2) For places outside the United UCT OR SERVICE. Line B12 has five States and outlying areas, enter the parts. Do not leave any parts of Line alpha country code from FIPS PUB 10, B12 blank. Codes for Line B12 can be Countries, Dependencies, Areas of Spe- found in the DoD Procurement Coding cial Sovereignty, and Their Principal Manual (MN02) under ‘‘PRODUCT AND Administrative Divisions. SERVICE CODE ASCII FILE (C) LINE B6C, CITY OR PLACE AND DOWNLOADS’’ at the bottom of the STATE OR COUNTRY NAME. Enter following web page: http:// the name of the principal place of per- web1.whs.osd.mil/peidhome/guide/mn02/ formance. Do not leave Line B6C blank. mn02.htm. (7) LINE B7, TYPE OBLIGATION. (i) LINE B12A, FEDERAL SUPPLY Enter one of the following codes: CLASS OR SERVICE CODE. Enter the (i) Code 1—Obligation. Enter code 1 if 4-character Federal supply class (FSC) the action obligates funds. or service code that describes the con- (ii) Code 2—Deobligation. Enter code 2 tract effort. There are three categories if the action deobligates funds. of codes to choose from. If more than (iii) Code 3—No Dollars Obligated or one category or code applies to the ac- Deobligated. Enter code 3 if the action tion, enter the one that best identifies neither obligates nor deobligates funds. the product or service representing the (8) LINE B8, OBLIGATED OR largest dollar value. DEOBLIGATED DOLLARS. Enter the (A) Supplies. If the action is for the net amount of funds (whole dollars purchase (not lease or rental) of sup- only) obligated or deobligated by the plies, enter an FSC code on Line B12A. action. Enter zero if Line B7 is coded 3. FSC codes are all numeric. The Depart- (9) LINE B9, FOREIGN MILITARY ment of Defense Federal Supply Classi- SALE. Enter one of the following fication Cataloging Handbook (H2) may codes. If only part of the action is a also help with the correct 4-digit code. foreign military sale, separately report (B) Services. If the action is for serv- the parts (see 204.670–6(c)). ices (except research, development,
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test, and evaluation), construction, the action, enter three zeros. If more equipment lease or rental, or facilities than one code applies to the action, lease or rental, enter a service code on enter the one that best identifies the Line B12A. product or service representing the (C) Research, Development, Test, and largest dollar value. Evaluation (RDT&E). If the action is for (B) If the action is funded by the Bal- RDT&E (as defined in FAR 35.001 and listic Missile Defense Organization, 235.001), enter an RDT&E code on Line enter code CAA. B12A. All RDT&E codes should begin (C) If the action supports environ- with the letter ‘‘A.’’ Do not use an mental cleanup programs, enter one of RDT&E code for— the codes listed in Section II of the (1) Purchase, lease, or rental of DoD Procurement Coding Manual equipment, supplies, or services sepa- (MN02) under the heading ‘‘Environ- rately purchased in support of RDT&E mental Cleanup Programs’’ at http:// work, even if RDT&E funds are cited. web1.whs.osd.mil/peidhome/guide/mn02/ Instead, use an FSC or Service code SECT2.HTM. under the instructions in paragraph (D) Defense Logistics Agency and De- (b)(12)(i)(A) or (B) of this subsection; or fense Contract Management Agency ac- (2) Orders under Federal schedule tivities must use the code assigned by contracts. Instead, use an FSC or Serv- the sponsoring military department. ice code under the instructions in para- (iv) LINE B12D, NAICS CODE. Enter graph (b)(12)(i)(A) or (B) of this sub- the North American Industry Classi- section. fication System (NAICS) code for the (ii) LINE B12B, DOD CLAIMANT acquisition. Use the NAICS code in ef- PROGRAM CODE. Enter a code that fect at the time of award. These codes identifies the commodity described on are in the 1997 U.S. NAICS Manual Line B12E. If more than one code ap- (http://www.census.gov/pub/epcd/www/ plies to the action, enter the one that naics.html). If more than one code ap- best identifies the product or service plies to the action, enter the code that representing the largest dollar value. If best identifies the product or service the description on Line B12E is for— representing the largest dollar value. (A) Research and development (R&D), (v) LINE B12E, NAME OR DESCRIP- enter the code that best represents the TION. Enter the name or a brief de- objective of the R&D. For example, if scription of the commodity or service. the objective of the R&D is a guided If the description is classified, enter missile, enter code A20. If the R&D only the word ‘‘Classified.’’ Do not use cannot be identified to any particular ‘‘Classified’’ when a code name (e.g., objective, enter code S10; Minuteman, Polaris, Trident, Pershing) (B) Ship repair, inspect and repair as or an identifying program number (e.g., necessary (IRAN), modification of air- WS–107A) can be used. craft, overhaul of engines, or similar (vi) LINE B12F, EPA-DESIGNATED maintenance, repair, or modification PRODUCT(S). Enter one of the fol- services, enter the code that best iden- lowing codes: tifies the program; (1) Code A—EPA-Designated Product(s) (C) Equipment rental (including rent- with Minimum Recovered Material Con- al of automatic data processing equip- tent. Enter code A if Environmental ment), enter code S10; Protection Agency (EPA)-designated (D) Utility services, enter code S10; product(s) were acquired and all con- (E) Services that cannot be identified tained the required minimum recov- to any listed program, enter code S10; ered material content. See the EPA or Comprehensive Procurement Guide- (F) Supplies or equipment that can- lines program list at http:// not be identified to any listed program, www.epa.gov/cpg/. enter code C9E. (2) Code B—FAR 23.405(c)(1) Justifica- (iii) LINE B12C, PROGRAM, SYS- tion. Enter code B if EPA-designated TEM, OR EQUIPMENT CODE. product(s) were acquired without the (A) Enter a code that describes the required minimum recovered material program, weapons system, or equip- content and a justification was com- ment. If there is no code that applies to pleted based on inability to acquire the
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product(s) competitively within a rea- (ii) Notices of award. sonable period of time. (iii) Lease agreements. (3) Code C—FAR 23.405(c)(2) Justifica- (iv) Indefinite-delivery-definite-quan- tion. Enter code C if EPA-designated tity contracts (FAR 52.216–20). product(s) were acquired without the (v) Indefinite-delivery-indefinite- required minimum recovered material quantity contracts (FAR 52.216–22) content and a justification was com- when funds are obligated by the con- pleted based on inability to acquire the tract itself. product(s) at a reasonable price. (2) Code 3 excludes orders from the (4) Code D—FAR 23.405(c)(3) Justifica- Procurement List (see codes 6 and 8). tion. Enter code D if EPA-designated (C) Code 4—Order under an Agreement. product(s) were acquired without the Enter code 4 when the action is an required minimum recovered material order or definitization of an order content and a justification was com- under an agreement other than a blan- pleted based on inability to acquire the ket purchase agreement. Examples in- product(s) to reasonable performance standards in the specifications. clude an order exceeding $25,000 under a (5) Code E—No EPA-Designated Prod- basic ordering agreement or a master uct(s) Acquired. Enter code E if no EPA- ship repair agreement and a job order designated products were acquired. when the contract is created by issuing (vii) LINE B12G, RECOVERED MA- the order. An order under a blanket TERIAL CLAUSES. When Line B12F is purchase agreement established under coded A, B, C, or D, enter one of the a Federal schedule (see FAR 8.404(b)(4)) following codes. Otherwise, leave Line is coded 7. An order under other blan- B12G blank. ket purchase agreements, pursuant to (1) Code A—FAR 52.223–4. Enter code FAR 13.303, is coded 9. When the action A if the solicitation included the provi- is a modification to an order described sion at FAR 52.223–4, Recovered Mate- in code 4 instructions, enter code 4 on rial Certification. Line B13A. (2) Code B—FAR 52.223–4 and FAR (D) Code 5—Order under Indefinite-De- 52.223–9. Enter code B if the solicitation livery Contract. Enter code 5 when the included the provision at FAR 52.223–4, action is an order, including a task or Recovered Material Certification, and delivery order, under an indefinite-de- the contract includes the clause at livery contract awarded by a Federal FAR 52.223–9, Estimate of Percentage agency. For example, enter code 5 for of Recovered Material Content for an order under a GSA indefinite-deliv- EPA-Designated Products. ery contract, such as a GSA area-wide (13) LINE B13, KIND OF ACTION. contract for utility services, that is Some of the parts of Line B13 may not not a Federal schedule. When the ac- apply to the action being reported. Fol- tion is a modification to an order de- low instructions for each part. When scribed in code 5 instructions, enter the action is a modification, complete code 5 on Line B13A. Lines B13A and B13D. (E) Code 6—Order under Federal Sched- (i) LINE B13A, CONTRACT OR ule. Enter code 6 if the action is an ORDER. Enter one of the following order under a Federal schedule. An codes: order under a blanket purchase agree- (A) Code 1—Letter Contract. Enter ment established under a Federal code 1 when the action is a letter con- schedule is coded 7. Code 6 includes or- tract or a modification to a letter con- ders under Federal schedules for items tract that has not been definitized. on the Procurement List. When the ac- (B) Code 3—Definitive Contract. tion is a modification to an order de- (1) Enter code 3 when the action is scribed in code 6 instructions, enter the award or modification of a defini- code 6 on Line B13A. tive contract or a modification that de- (F) Code 7—BPA Order under Federal finitizes a contract. Code 3 includes the Schedule. Enter code 7 if the action is following: an order under a blanket purchase (i) Definitive contract awards under agreement established under a Federal the Small Business Administration 8(a) schedule (see FAR 8.404(b)(4)). When program. the action is a modification to an order
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described in code 7 instructions, enter tional work requiring a justification code 7 on Line B13A. and approval (J&A). (G) Code 8—Order from Procurement (B) Code B—Additional Work (other). List. Enter code 8 if the action is an Enter code B when the action is a order placed with Federal Prison Indus- modification of an existing contract tries (UNICOR) or a JWOD Partici- (including a letter contract) that is not pating Nonprofit Agency in accordance covered by code A or by codes C with FAR subpart 8.6 or 8.7. Use code 6 through H (see code H for exercise of an for orders from the Procurement List option). Code B includes actions that— under Federal schedules. When the ac- (1) Initiate an incremental yearly tion is a modification to an order de- buy under a multiyear contract; scribed in code 8 instructions, enter code 8 on Line B13A. (2) Amend a letter or other contract (H) Code 9—Award under FAR Part 13. to add work that does not require a Enter code 9 if the action, including an J&A; or action in a designated industry group (3) Order under a priced exhibit or under the Small Business Competitive- production list. ness Demonstration Program (see FAR (C) Code C—Funding Action. Enter subpart 19.10), is an award pursuant to code C when the action is a modifica- FAR part 13, except when the action is tion (to a letter or other contract) for a blanket purchase agreement order the sole purpose of obligating or pursuant to FAR 8.404(b)(4) (see code 7). deobligating funds. This includes— When the action is a modification to an (1) Incremental funding (other than award described in code 9 instructions, incremental yearly buys under enter code 9 on Line B13A. multiyear contracts, which are coded (ii) LINE B13B, TYPE OF INDEFI- B); NITE-DELIVERY CONTRACT. If Line (2) Changes to the estimated cost on B13A is coded 3 and the ninth position cost-reimbursement contracts; of B1A is coded D, complete Line B13B. Repricing actions covering incen- If Line B13A is coded 5, complete Line (3) B13B. Otherwise, leave Line B13B tive price revisions; blank. (4) Economic price adjustments; and (A) Code A—Requirements Contract (5) Initial citation and obligation of (FAR 52.216–21). funds for a contract awarded in one fis- (B) Code B—Indefinite-Quantity Con- cal year but not effective until a subse- tract (FAR 52.216–22). quent fiscal year. (C) Code C—Definite-Quantity Contract (D) Code D—Change Order. Enter code (FAR 52.216–20). D if the action is a change order issued (iii) LINE B13C, MULTIPLE OR SIN- under the ‘‘Changes,’’ ‘‘Differing Site GLE AWARD INDEFINITE-DELIVERY Conditions,’’ or similar clauses in ex- CONTRACT. If Line B13B is coded A, B, isting contracts. or C, complete Line B13C. Otherwise, (E) Code E—Termination for Default. leave Line B13C blank. Enter code E if the action is a modi- (A) Code M—Multiple Award. Enter fication that terminates all or part of code M if the action is a task or deliv- the contract for default. ery order under a multiple award in- (F) Code F—Termination for Conven- definite-delivery contract. ience. Enter code F if the action is a (B) Code S—Single Award. Enter code S if the action is a task or delivery modification that terminates all or order under a single award indefinite- part of the contract for convenience. delivery contract. (G) Code G—Cancellation. Enter code (iv) LINE B13D, MODIFICATION. If G if the action is a modification that the action is a modification, enter one cancels the contract. Do not use code G of the following codes. Otherwise, leave to cancel a prior DD Form 350 (see Line Line B13D blank. A1). (A) Code A—Additional Work (new (H) Code H—Exercise of an Option. agreement). Enter code A when the ac- Enter code H if the action is an exer- tion is a bilateral supplemental agree- cise of an option. ment that obligates funds for addi-
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(I) Code J—Definitization. Enter code (vii) LINE B13G—INDEFINITE–DE- J if the action is a definitization modi- LIVERY CONTRACT ORDERING PE- fication. For the definitization of a let- RIOD ENDING DATE. If Line B13F is ter contract, enter code 3 on Line coded A, B, C, or D, enter the date the B13A. ordering period ends. Otherwise, leave (v) LINE B13E, MULTIPLE AWARD Line B13G blank. Enter four digits for CONTRACT FAIR OPPORTUNITY. If the year, two digits for the month, and Line B13C is coded M, enter one of the two digits for the day. Use 01 through following codes. Otherwise, leave Line 12 for January through December. For B13E blank. example, enter January 2, 2003, as (A) Code A—Fair Opportunity Process. 20030102. Enter code A if the delivery or task (14) LINE B14, CICA APPLICA- order was issued pursuant to a process BILITY. Enter one of the following that permitted each contract awardee codes: a fair opportunity to be considered (see (i) Code A—Pre-CICA. Enter code A if FAR 16.505(b)(1)). the action resulted from a solicitation (B) Code B—Urgency. Enter code B if issued before April 1, 1985. Modifica- the agency need is so urgent that pro- tions within the original scope of work viding a fair opportunity would result of such awards and orders under pre- in unacceptable delays (see FAR CICA indefinite-delivery type contracts 16.505(b)(2)(i)). also are coded A. (C) Code C—One/Unique Source. Enter (ii) Code B—CICA Applicable. Enter code C if only one contract awardee is code B if— capable of providing the supplies or (A) The action resulted from a solici- services at the level or quality required tation issued on or after April 1, 1985, because the supplies or services are or is a modification coded A on Line unique or highly specialized (see FAR B13D issued on or after April 1, 1985; 16.505(b)(2)(ii)). and (B) Neither code C nor code D applies. (D) Code D—Follow-On Contract. (iii) Code C—Simplified Acquisition Enter code D if the order was issued on Procedures Other than FAR Subpart 13.5. a sole-source basis in the interest of Enter code C if the action resulted economy and efficiency as a logical fol- from use of the procedures in FAR part low-on to an order already issued under 13, other than those in subpart 13.5. the contract, provided that all award- (iv) Code D—Simplified Acquisition Pro- ees were given a fair opportunity to be cedures Pursuant to FAR Subpart 13.5. considered for the original order (see Enter code D if the action resulted FAR 16.505(b)(2)(iii)). from use of the procedures in FAR sub- (E) Code E—Minimum Guarantee. part 13.5. Enter code E if it was necessary to (15) LINE B15, INFORMATION TECH- place an order to satisfy a minimum NOLOGY PRODUCTS OR SERVICES. amount guaranteed to the contractor If the action is for information tech- (see FAR 16.505(b)(2)(iv)). nology products or services, enter one (vi) LINE B13F, INDEFINITE–DE- of the following codes. Otherwise, leave LIVERY CONTRACT USE. If Line B13B Line B15 blank. is coded A, B, or C, and the action is (i) Code A—Commercially Available Off- the initial placement of an indefinite- the-Shelf Item. Enter code A if the ac- delivery contract, enter one of the fol- tion is for an item of supply that meets lowing codes to indicate if the indefi- the definition of commercial item in nite-delivery contract can be used Gov- FAR 2.101, does not require any modi- ernment-wide, within DoD only, within fication, and is available in the com- the department or agency only, or by mercial marketplace. the contracting office only. Otherwise, (ii) Code B—Other Commercial Item of leave Line B13F blank. Supply. Enter code B if the action is for (A) Code A—Government-Wide. an item of supply that meets the defi- (B) Code B—DoD-Wide. nition of commercial item in FAR (C) Code C—DoD Department or Agency 2.101, but requires minor modifications, Only. or is not yet available in the commer- (D) Code D—Contracting Office Only. cial marketplace, but will be available
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in time to meet the Government’s Part C to describe the original con- needs. tract. (iii) Code C—Nondevelopmental Item (C) Otherwise, code the lines in Part Other than Commercial Item. Enter code C to describe the original contract. C if the action is for an item of supply, (ii) If there are no codes for the origi- other than a commercial item, that nal contract because a DD Form 350 meets the definition of nondevelop- was not required at the time, the origi- mental item in FAR 2.101. nal action is no longer available, the (iv) Code D—Other Noncommercial Item definition of the original code has of Supply. Enter code D if the action is changed, or a data element has been for an item of supply that does not added to the system after the original meet the definition of commercial item contract report, use codes that best de- or nondevelopmental item in FAR scribe the original action. 2.101. (4) Complete Part C as follows: (v) Code E—Commercial Service. Enter (i) LINE C1, SYNOPSIS. Enter one of code E if the action is for a service that the following codes: meets the definition of commercial (A) Code A—Synopsis Only. Enter code item in FAR 2.101. A only if a synopsis of the proposed ac- (vi) Code F—Noncommercial Service. tion was prepared and transmitted in Enter code F for all other services. accordance with FAR subpart 5.2. (16) LINE B16, CLINGER-COHEN ACT (B) Code B—Combined Synopsis/Solici- PLANNING COMPLIANCE. Enter one tation. Enter code B if a combined syn- of the following codes: opsis/solicitation of the proposed ac- (i) Code Y—Yes. Enter code Y if the tion was prepared and transmitted in action is for information technology accordance with FAR subpart 5.2 and products or services acquired in com- 12.603. pliance with the planning requirements (C) Code N—Not Synopsized. Enter of sections 5122 and 5123 of the Clinger- code N if a synopsis was not prepared. Cohen Act of 1996 (40 U.S.C. 1422 and (ii) LINE C2, REASON NOT SYNOP- 1423). SIZED. Enter one of the following (ii) Code N—No. Enter code N if code codes if Line C1 is coded N. Otherwise, Y does not apply. leave Line C2 blank. (c) Part C of the DD Form 350. (1) Part C gathers data concerning (A) Code A—Urgency. Enter code A if contracting procedures, use of competi- the action was not synopsized due to tion, financing, and statutory require- urgency (see FAR 6.302–2). ments other than socioeconomic (B) Code B—FAR 5.202(a)(13). Enter (which are in Part D). code B if the action was not synopsized (2) Do not complete Part C if the ac- because the acquisition did not exceed tion is with a government agency, i.e., the simplified acquisition threshold Line B5B (Government Agency) is and was made through FACNET or an- coded Y (Yes). If Line B13A is coded 6, other means that provided access to complete only the following lines in the notice of proposed action through Part C: Line C3, and Lines C13A and the Governmentwide point of entry C13B (when applicable). (see FAR 5.202(a)(13)). (3) In completing Part C, use codes (C) Code Z—Other Reason. Enter code that describe either the current action Z if the action was not synopsized due or the original contract, depending on to some other reason. the codes reported on Lines B13A and (iii) LINE C3, EXTENT COMPETED. B13D. Enter one of the following codes: (i)(A) If Line B13A is coded 1, 3, 4, 6, (A) Code A—Competed Action. Enter or 9 and Line B13D is coded A or is code A when— blank, code the lines in Part C to de- (1) The action is an order under a scribe the current action. Federal schedule (Line B13A is coded (B) If Line B13A is coded 5 and the 6); current action is an order under a mul- (2) Competitive procedures were used tiple award contract (Line B13C is to fulfill the requirement for full and coded M), code Lines C6 and C7 to de- open competition (see FAR subpart scribe the order and code the rest of 6.1);
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(3) Full and open competition proce- augment a specific competed program, dures after exclusion of sources were if such placement was necessitated by used in order to establish or maintain prior acquisition decisions. Code C ap- alternative sources, to set aside an ac- plies to contracts that meet the statu- quisition for small business or tory criteria for Phase III follow-on HUBZone small business, or to compete under the Small Business Innovation Section 8(a) awards (see FAR subpart Research Program. 6.2); (D) Code D—Not Competed. Enter code (4) Statutory authorities for other D when codes A, B, and C do not apply. than full and open competition were (iv) LINE C4, SEA TRANSPOR- used (see FAR subpart 6.3) and more TATION. Enter one of the following than one offer was received (if only one codes when Line B1B is coded A, Line offer was received, use code D); B5B is coded N, and Line B13A is coded (5) The action resulted from a con- other than 9. Otherwise, leave Line C4 tract awarded prior to the Competition blank. in Contracting Act that used two-step (A) Code Y—Yes—Positive Response to sealed bidding or other sealed bidding, DFARS 252.247–7022 or 252.212–7000(c)(2). or that was negotiated competitively; Enter code Y when the contractor’s re- or sponse to the provision at 252.247–7022, (6) Simplified acquisition procedures Representation of Extent of Transpor- were used and competition was ob- tation by Sea, or 252.212–7000(c)(2), Of- tained. feror Representations and Certifi- (B) Code B—Not Available for Competi- cations—Commercial Items, indicates tion. Enter code B for— that the contractor anticipates that (1) Awards for utilities or utility sys- some of the supplies being provided tems, excluding long distance tele- may be transported by sea. communications services, when only (B) Code N—No—Negative Response to one supplier can furnish the service DFARS 252.247–7022 or 252.212–7000(c)(2). (see FAR 6.302–1(b)(3)); Enter code N when the contractor’s re- (2) Brand name commercial products sponse to the provision at 252.247–7022 for authorized resale; or 252.212–7000(c)(2) indicates that the (3) Acquisitions authorized or re- contractor anticipates that none of the quired by statute to be awarded to a supplies being provided will be trans- specific source pursuant to FAR 6.302– ported by sea. 5(b)(2) or (4), e.g., qualified nonprofit (C) Code U—Unknown—No Response or agencies employing people who are Provision Not Included in Solicitation. blind or severely disabled (see FAR Enter code U when the contractor did subpart 8.7) or 8(a) program (see FAR not complete the representation at subpart 19.8); 252.247–7022 or 252.212–7000(c)(2) or the (4) International agreements and solicitation did not include either pro- Foreign Military Sales when the acqui- vision. sition is to be reimbursed by a foreign (v) LINE C5, TYPE OF CONTRACT. country that requires that the product (A) If the action is a letter contract, or services be obtained from a par- including modifications and amend- ticular firm as specified in official ments to letter contracts, enter the written direction such as a Letter of code that describes the anticipated Offer and Acceptance; and type of contract the letter contract (5) Other contracting actions when will become when it is definitized. the Director of Defense Procurement (B) If there is more than one type of has determined that there is no oppor- contract involved in the action, enter tunity for competition. the code that matches the type with NOTE: Even though Part C is not completed for actions with a government agency, the the most dollars. If the type with the database will automatically include these least dollars exceeds $500,000, fill out actions in the category of not available for separate DD Forms 350 (with different competition. report numbers) for each type. (C) Code C—Follow-On to Competed Ac- (C) Enter one of the following codes: tion. Enter code C when the action per- (1) Code A—Fixed-Price Redetermina- tains to an acquisition placed with a tion. particular contractor to continue or (2) Code J—Firm-Fixed-Price.
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(3) Code K—Fixed-Price Economic Price if the action resulted from an award Adjustment. pursuant to FAR 6.102(b). (4) Code L—Fixed-Price Incentive. (3) Code C—Full and Open Competi- (5) Code M—Fixed-Price-Award-Fee. tion—Combination. Enter code C if the (6) Code R—Cost-Plus-Award-Fee. action resulted from an award using a (7) Code S—Cost Contract. combination of competitive procedures (8) Code T—Cost-Sharing. (e.g., two-step sealed bidding) pursuant (9) Code U—Cost-Plus-Fixed-Fee. to FAR 6.102(c). (10) Code V—Cost-Plus-Incentive-Fee. (4) Code D—Architect-Engineer. Enter (11) Code Y—Time-and-Materials. code D if the action resulted from se- (12) Code Z—Labor-Hour. lection of sources for architect-engi- (vi) LINE C6, NUMBER OF OFFERORS SOLICITED. neer contracts pursuant to FAR (A) Leave Line C6 blank if— 6.102(d)(1). (1) The original contract resulted (5) Code E—Basic Research. Enter code from a solicitation issued before April E if the action resulted from competi- 1, 1985 (i.e., before the effective date of tive selection of basic research pro- the Competition in Contracting Act); posals pursuant to FAR 6.102(d)(2). (2) Line B1B is coded B or C and Line (6) Code F—Multiple Award Schedule. B13A is coded 5; or Enter code F if the action is an award (3) Line B13A is coded 6. of a multiple award schedule pursuant (B) Otherwise, enter— to FAR 6.102(d)(3) or an order against (1) Code 1—One. Enter code 1 if only such a schedule. one offeror was solicited; or (7) Code G—Alternative Sources. Enter (2) Code 2—More than One. Enter code code G if the action resulted from use 2 if more than one offeror was solicited. of competitive procedures but excluded (vii) LINE C7, NUMBER OF OFFERS a particular source pursuant to FAR RECEIVED. 6.202(a). (A) Leave Line C7 blank if— (8) Code K—Set-Aside. Enter code K if (1) The original contract resulted the action resulted from any— from a solicitation issued before April 1, 1985 (i.e., before the effective date of (i) Set-aside for small business con- the Competition in Contracting Act); cerns (see FAR subpart 19.5), including or small business innovation research (2) Line B13A is coded 6, Order or Call (SBIR) actions; under Federal Schedule. (ii) Set-aside for small disadvantaged (B) Otherwise, enter the specific business concerns; number of offers received (001–999). (iii) Set-aside for HUBZone small (viii) LINE C8, SOLICITATION PRO- business concerns (see FAR 19.1305); CEDURES. (iv) Set-aside for very small business (A) Leave Line C8 blank if— concerns (see FAR 19.904); (1) The original contract resulted (v) Set-aside (including portions of from a solicitation issued before April broad agency announcements) for his- 1, 1985 (i.e., before the effective date of torically black colleges and univer- the Competition in Contracting Act); sities or minority institutions (see (2) The action is pursuant to sim- 226.7003 and 235.016); plified acquisition procedures (Line (vi) Set-aside for emerging small B13A is coded 9); or business concerns (see FAR 19.1006(c)); (3) The action is an order or call under a Federal schedule (Line B13A is or coded 6). (vii) Competition among Section 8(a) (B) Otherwise, enter one of the fol- firms under FAR 19.805 (report non- lowing codes: competitive 8(a) awards as code N). (1) Code A—Full and Open Competi- (9) Code N—Other than Full and Open tion—Sealed Bid. Enter code A if the ac- Competition. Enter code N if the action tion resulted from an award pursuant resulted from use of other than full and to FAR 6.102(a). open competition pursuant to FAR (2) Code B—Full and Open Competi- subpart 6.3. This includes awards to tion—Competitive Proposal. Enter code B qualified nonprofit agencies employing
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people who are blind or severely dis- (13) Code 6A—National Security. Enter abled (see FAR subpart 8.7) or non- code 6A if the action was justified pur- competitive awards to the Small Busi- suant to FAR 6.302–6. ness Administration under Section 8(a) (14) Code 7A—Public Interest. Enter of the Small Business Act (see FAR code 7A if the action was taken pursu- 6.302–5(b)). ant to FAR 6.302–7. (ix) LINE C9, AUTHORITY FOR (x) LINE C10, SUBJECT TO LABOR OTHER THAN FULL AND OPEN COM- STANDARDS STATUTES. Enter one of PETITION. the following codes. When Line B13A is (A) Leave Line C9 blank if the origi- coded 6, leave Line C10 blank. nal contract resulted from a solicita- (A) Code A—Walsh-Healey Act. Enter tion issued before April 1, 1985 (i.e., be- code A when the action is subject to fore the effective date of the Competi- the provisions of FAR subpart 22.6. tion in Contracting Act). (B) Code C—Service Contract Act. (B) Enter one of the following codes Enter code C when the action is subject if Line C8 is coded N. Otherwise, leave to the provisions of the Service Con- Line C9 blank. tract Act (see FAR part 37). (1) Code 1A—Unique Source. Enter (C) Code D—Davis-Bacon Act. Enter code 1A if the action was justified pur- code D when the action is subject to suant to FAR 6.302–1(b)(1). the Davis-Bacon Act (see FAR 22.403–1). (2) Code 1B—Follow-On Contract. (D) Code Z—Not Applicable. Enter Enter code 1B if the action was justi- code Z when codes A, C, and D do not fied pursuant to FAR 6.302–1(a)(2)(ii) or apply. (iii). (xi) LINE C11, COST OR PRICING (3) Code 1C—Unsolicited Research Pro- DATA. Enter one of the following codes posal. Enter code 1C if the action was when Line B1B is coded A. Otherwise, justified pursuant to FAR 6.302– leave Line C11 blank. 1(a)(2)(i). (A) Code Y—Yes—Obtained. Enter code Y when cost or pricing data were (4) Code 1D—Patent or Data Rights. obtained (see FAR 15.403–4) and cer- Enter code 1D if the action was justi- tified in accordance with FAR 15.406–2. fied pursuant to FAR 6.302–1(b)(2). (B) Code N—No—Not Obtained. Enter (5) Code 1E—Utilities. Enter code 1E if code N when neither code Y nor code W the action was justified pursuant to applies. FAR 6.302–1(b)(3). (C) Code W—Not Obtained—Waived. . Enter (6) Code 1F—Standardization Enter code W when cost or pricing data code 1F if the action was justified pur- were not obtained because the head of suant to FAR 6.302–1(b)(4). the contracting activity waived the re- (7) Code 1G—Only One Source—Other. quirement (see FAR 15.403–1(c)(4)). Enter code 1G if the action was justi- (xii) LINE C12, CONTRACT FINANC- fied pursuant to FAR 6.302–1 in a situa- ING. Enter one of the following codes tion other than the examples cited in identifying whether or not progress codes 1A through 1F. payments, advance payments, or other (8) Code 2A—Urgency. Enter code 2A if financing methods were used. the action was justified pursuant to (A) Code A—FAR 52.232–16. Enter code FAR 6.302–2. A if the contract contains the clause at (9) Code 3A—Particular Sources. Enter FAR 52.232–16, Progress Payments. code 3A if the action was justified pur- (B) Code C—Percentage of Completion suant to FAR 6.302–3(a)(2). Progress Payments. Enter code C if the (10) Code 4A—International Agreement. contract provides for progress pay- Enter code 4A if the action was justi- ments based on percentage or stage of fied pursuant to FAR 6.302–4. completion, which is only permitted on (11) Code 5A—Authorized by Statute. contracts for construction, for ship- Enter code 5A if the action was justi- building, or for ship conversion, alter- fied pursuant to FAR 6.302–5(a)(2)(i). ation, or repair (see 232.102(e)(2)). (12) Code 5B—Authorized Resale. Enter (C) Code D—Unusual Progress Pay- code 5B if the action was justified pur- ments or Advance Payments. Enter code suant to FAR 6.302–5(a)(2)(ii). D if the contract provides unusual
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progress payments or advance pay- (xiv) LINE C14, COMMERCIAL ITEM. ments (see FAR subpart 32.4 and 32.501– Enter one of the following codes: 2). (A) Code Y—Yes—FAR 52.212–4 In- (D) Code E—Commercial Financing. cluded. Enter code Y if the contract Enter code E if the contract provides contains the clause at FAR 52.212–4, for commercial financing payments Contract Terms and Conditions—Com- (see FAR Subpart 32.2). mercial Items. (E) Code F—Performance-Based Fi- (B) Code N—No—FAR 52.212–4 Not In- nancing. Enter code F if the contract cluded. Enter code N if code Y does not provides for performance-based financ- apply. ing payments (see FAR subpart 32.10). (d) Part D of the DD Form 350. (F) Code Z—Not Applicable. Enter code (1) Do NOT complete Part D if the ac- Z when codes A through F do not tion is— apply. (i) With a government agency, i.e., (xiii) LINE C13, FOREIGN TRADE Line B5B is coded Y; or DATA. (ii) An order or call under a Federal (A) The term ‘‘United States (U.S.),’’ schedule. as used on Line C13, excludes the Trust (2) Use the codes on Lines B13A and Territory of Palau (see 204.670–1 for def- B13D to determine whether the codes inition of United States and outlying in Part D will describe the current ac- areas). tion or the original contract. (B) LINE C13A, PLACE OF MANU- (i) Code Part D to describe the cur- FACTURE. Complete Line C13A only if rent action when— the action is for a foreign end product (A) Line B13A is coded 1, 3, 4, or 9 and or a service provided by a foreign con- Line B13D is coded A or is blank; or cern. Otherwise, leave Line C13A blank. (B) Line B5B is coded N, Line B13A is (1) Code A—U.S. Enter code A if the coded 8, and Line B13D is coded A or is action is for— blank. (i) A foreign end product that is man- (ii) Otherwise, code Part D to de- ufactured in the United States but still scribe the original contract. If there determined to be foreign because 50 are no codes for the original contract percent or more of the cost of its com- because a DD Form 350 was not re- ponents is not mined, produced, or quired at the time, the original action manufactured inside the United States is no longer available, the definition of or inside qualifying countries; or the original code has changed, or a (ii) Services performed in the United data element has been added to the States by a foreign concern. system after the original contract re- (2) Code B—Foreign. Enter code B if port, use codes that best describe the the action is for— original action. (i) Any other foreign end product; or (3) Determine the status of the con- (ii) Services performed outside the cern (e.g., size and ownership) in ac- United States by a foreign concern. cordance with FAR part 19 and DFARS (C) LINE C13B, COUNTRY OF ORI- part 219. GIN CODE. (4) Complete Part D as follows: (1) Complete Line C13B only if Line (i) LINE D1, TYPE OF CON- C13A is coded A or B. Otherwise, leave TRACTOR. Line C13B blank. (A) LINE D1A, TYPE OF ENTITY. (2) Enter the code from FIPS PUB 10, Enter one of the following codes: Countries, Dependencies, Areas of Spe- (1) Code A—Small Disadvantaged Busi- cial Sovereignty, and Their Principal ness (SDB) Performing in U.S. Enter Administrative Divisions, that identi- code A if the contractor is a small dis- fies the country where the foreign advantaged business concern as defined product is coming from or where the in 219.001 and the place of performance foreign company providing the services is within the United States and out- is located. If more than one foreign lying areas. country is involved, enter the code of (2) Code B—Other Small Business (SB) the foreign country with the largest Performing in U.S. Enter code B if the dollar value of work under the con- contractor is a small business concern tract. as defined in FAR 19.001, other than a
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small disadvantaged business concern, 52.212–3(c), or 52.219–1(b) indicates that and the place of performance is within it is a women-owned business. the United States and outlying areas. (2) Code N—No. Enter code N if the (3) Code C—Large Business Performing contractor’s response to FAR 52.204–5, in U.S. Enter code C if the contractor is 52.212–3(c), or 52.219–1(b) indicates that a domestic large business concern and it is not a women-owned business. the place of performance is within the (3) Code U—Uncertified. Enter code U United States and outlying areas. if the information is not available be- (4) Code D—JWOD Participating Non- cause the contractor did not complete profit Agency. Enter code D if the con- the representation in FAR 52.204–5, tractor is a qualified nonprofit agency 52.212–3(c), or 52.219–1(b). employing people who are blind or se- (C) LINE D1C, HUBZONE REP- verely disabled (see FAR 8.701) and the RESENTATION. Enter one of the fol- place of performance is within the lowing codes when Line D1A is coded A United States and outlying areas. or B. Otherwise, leave Line D1C blank. (5) Code F—Hospital. Enter code F if (1) Code Y—Yes. Enter code Y if the the contractor is a hospital and the contractor represented that it is a place of performance is within the HUBZone small business concern (see United States and outlying areas. FAR 19.1303). (6) Code L—Foreign Concern or Entity. (2) Code N—No. Enter code N if code Y Enter code L if the contractor is a for- does not apply. eign concern, the Canadian Commer- (D) LINE D1D, ETHNIC GROUP. cial Corporation, or a non-U.S.-char- (1) Complete Line D1D if the action is tered nonprofit institution. with a small disadvantaged business. (7) Code M—Domestic Firm Performing Otherwise, leave Line D1D blank. Enter code M if the con- Outside U.S. (2) Enter the code from the following tractor is a domestic concern or a do- list that corresponds to the ethnic mestic nonprofit institution and the group that the contractor marked in place of performance is outside the the solicitation provision at FAR United States and outlying areas. 52.219–1, Small Business Program Rep- (8) Code T—Historically Black College resentations, or FAR 52.212–3(c). or University (HBCU). Enter code T if (i) Code A—Asian-Indian American. the contractor is an HBCU as defined at 252.226–7000 and the place of perform- (ii) Code B—Asian-Pacific American. ance is within the United States and (iii) Code C—Black American. outlying areas. (iv) Code D—Hispanic American. (9) Code U—Minority Institution (MI). (v) Code E—Native American. Enter code U if the contractor is an MI (vi) Code F—Other SDB Certified or De- as defined at 252.226–7000 and the place termined by SBA. of performance is within the United (vii) Code Z—No Representation. States and outlying areas. (E) LINE D1E, VETERAN-OWNED (10) Code V—Other Educational. Enter SMALL BUSINESS. Enter one of the code V if the contractor is an edu- following codes if the contractor is a cational institution that does not qual- veteran-owned small business. Other- ify as an HBCU or MI and the place of wise, leave Line D1E blank. performance is within the United (1) Code A—Service-Disabled Veteran. States and outlying areas. Enter code A if the contractor rep- (11) Code Z—Other Nonprofit. Enter resented that it is a service-disabled code Z if the contractor is a nonprofit veteran-owned small business. organization (as defined in FAR 31.701) (2) Code B—Other Veteran. Enter code that does not meet any of the criteria B if the contractor represented that it in codes D, F, T, U, or V and the place is a veteran-owned small business, of performance is within the United other than a service-disabled veteran- States and outlying areas. owned small business. (B) LINE D1B, WOMEN-OWNED (ii) LINE D2, REASON NOT AWARD- BUSINESS. Enter one of the following ED TO SDB. Enter one of the following codes: codes when Line D1A is coded B or C. (1) Code Y—Yes. Enter code Y if the Otherwise, leave Line D2 blank. contractor’s response to FAR 52.204–5, (A) Code A—No Known SDB Source.
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(B) Code B—SDB Not Solicited. Enter (1) Code A—None. Enter code A if code B when there was a known SDB there was no set-aside (i.e., codes B source, but it was not solicited. through L do not apply). (C) Code C—SDB Solicited and No Offer (2) Code B—Total SB Set-Aside. Enter Received. Enter code C when an SDB code B if the action was a total set- was solicited but it did not submit an aside for small business (see FAR offer, or its offer was not sufficient to 19.502–2), including actions reserved ex- cover the total quantity requirement clusively for small business concerns so it received a separate award for the pursuant to FAR 13.003(b)(1), or if the quantity offered. action resulted from the Small Busi- (D) Code D—SDB Solicited and Offer ness Innovation Research Program. Was Not Low. Enter code D when an (3) Code C—Partial SB Set-Aside. Enter SDB offer was not the low or most ad- code C if the action was a partial set- vantageous offer or an SDB was not aside for small business (see FAR willing to accept award of a partial 19.502–3). small business set-aside portion of an (4) Code D—Section 8(a) Set-Aside or action at the price offered by the Gov- Sole Source. Enter code D if the con- ernment. tract was awarded to— (E) Code Z—Other Reason. Enter code (i) The Small Business Administra- Z when an SDB did not receive the tion under Section 8(a) of the Small award for any other reason or when Business Act (see FAR subpart 19.8); or Line B1B is coded B or C and Line B13A (ii) An 8(a) contractor under the di- is coded 5. rect award procedures at 219.811. (iii) LINE D3, REASON NOT (5) Code E—Total SDB Set-Aside. Enter AWARDED TO SB. Enter one of the code E if the action was a total set- following codes when Line D1A is coded aside for small disadvantaged busi- C. Otherwise, leave Line D3 blank. (The nesses. term ‘‘small business’’ includes all cat- (6) Code F—HBCU or MI—Total Set- egories of small businesses.) Aside. Enter code F if the action was a total set-aside for HBCU or MI (see (A) Code A—No Known SB Source. 226.7003). (B) Code B—SB Not Solicited. Enter (7) Code G—HBCU or MI—Partial Set- code B when there was a known small Aside. Enter code G if the action was a business source, but it was not solic- partial set-aside for HBCU or MI under ited. a broad agency announcement (see (C) Code C—SB Solicited and No Offer 235.016). Received. Enter code C when a small (8) Code H—Very Small Business Set- business concern was solicited but it Aside. Enter code H if the action was a did not submit an offer, or its offer was set-aside for very small businesses (see not sufficient to cover the total quan- FAR subpart 19.9). tity requirement so it received a sepa- (9) Code J—Emerging Small Business rate award for the quantity offered. Set-Aside. Enter code J if the action (D) Code D—SB Solicited and Offer Was was an emerging small business set- Not Low. Enter code D when a small aside within a designated industry business offer was not the low or most group under the Small Business Com- advantageous offer or a small business petitiveness Demonstration Program concern was not willing to accept (see FAR subpart 19.10). award of a set-aside portion of an ac- (10) Code K—HUBZone Set-Aside or tion at the price offered by the Govern- Sole Source. Enter code K if the action ment. was— (E) Code Z—Other Reason. Enter code (i) A set-aside for HUBZone small Z when a small business did not receive business concerns (see FAR 19.1305); or the award for any other reason or when (ii) A sole source award to a Line B1B is coded B or C and Line B13A HUBZone small business concern (see is coded 5. FAR 19.1306). (iv) LINE D4, SET-ASIDE OR PREF- (11) Code L—Combination HUBZone ERENCE PROGRAM. and 8(a). Enter code L if the action was (A) LINE D4A, TYPE OF SET-ASIDE. a combination HUBZone set-aside and Enter one of the following codes: 8(a) award.
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(B) LINE D4B, TYPE OF PREF- lated to a Phase II contract in support ERENCE. Enter one of the following of the SBIR Program. codes, even if Line D4A is coded E: (D) Code D—SBIR Program Phase III (1) Code A—None. Enter code A if no Action. Enter code D if the action is re- preference was given. lated to a Phase III contract in support (2) Code B—SDB Price Evaluation Ad- of the SBIR Program. justment—Unrestricted. Enter code B if (vii) LINE D8, SUBCONTRACTING the action was unrestricted but an SDB PLAN—SB, SDB, HBCU, OR MI. Enter received an award as a result of a price one of the following codes: evaluation adjustment (see FAR sub- (A) Code A—Plan Not Included—No part 19.11). Subcontracting Possibilities. Enter code (3) Code C—SDB Preferential Consider- A if a subcontracting plan was not in- ation—Partial SB Set-Aside. Enter code cluded in the contract because subcon- C if the action was a partial set-aside tracting possibilities do not exist (see for small business and preferential con- FAR 19.705–2(c)). sideration resulted in an award to an (B) Code B—Plan Not Required. Enter SDB. code B if no subcontracting plan was (4) Code D—HUBZone Price Evaluation required (e.g., because the action did Preference. Enter code D if the con- not meet the dollar thresholds in FAR tractor received the award as a result 19.702(a)). of a HUBZone price evaluation pref- (C) Code C—Plan Required—Incentive erence (see FAR 19.1307). Not Included. Enter code C if the action (5) Code E—Combination HUBZone includes a subcontracting plan, but Price Evaluation Preference and SDB does not include additional incentives Price Evaluation Adjustment. Enter code (see FAR 19.708(c)). E if the contractor received the award (D) Code D—Plan Required—Incentive as a result of both a HUBZone price Included. Enter code D if the action in- evaluation preference and an SDB price cludes a subcontracting plan and also evaluation adjustment (see FAR includes additional incentives (see 19.1307). FAR 19.708(c) and 219.708(c)). (C) LINE D4C, PREMIUM PERCENT. (viii) LINE D9, SMALL BUSINESS (1) Complete Line D4C if Line B1B is COMPETITIVENESS DEMONSTRA- coded A, and— TION PROGRAM. When Line B13A is (i) Line D4A is coded E, F, or G; or coded 5 or Line B13D is coded B, C, D, (ii) Line D4B is coded B, C, D, or E. E, F, or G and the original action was (2) Otherwise, leave Line D4C blank. awarded before the demonstration pro- (3) Calculate the premium percentage gram began, enter code N on Line D9. per 219.202–5 and enter it as a three- When Line B1B is coded B or C and digit number rounded to the nearest Line B13A is coded 5, enter code N on tenth, e.g., enter 7.55% as 076. If no pre- Line D9. Otherwise, code Line D9 as mium was paid, enter three zeros (000). follows: (v) LINES D5—D6. Reserved. (A) Code Y—Yes. Enter code Y if this (vi) LINE D7, SMALL BUSINESS IN- is an action with a U.S. business con- NOVATION RESEARCH (SBIR) PRO- cern, in either the four designated in- GRAM. Enter one of the following dustry groups or the ten targeted in- codes. When Line B1B is coded B or C dustry categories under the Small and Line B13A is coded 5, leave Line D7 Business Competitiveness Demonstra- blank. tion Program (see FAR subpart 19.10 (A) Code A—Not a SBIR Program Phase and DFARS subpart 219.10), where the I, II, or III. Enter code A if the action principal place of performance is in the is not in support of a Phase I, II, or III United States or outlying areas. SBIR Program. (B) Code N—No. Enter code N if code (B) Code B—SBIR Program Phase I Ac- Y does not apply. tion. Enter code B if the action is re- (ix) LINE D10, SIZE OF SMALL lated to a Phase I contract in support BUSINESS. of the SBIR Program. (A) Complete Line D10 only when (C) Code C—SBIR Program Phase II Ac- Line D9 is coded Y and the contractor tion. Enter code C if the action is re- is a small business (Line D1A is coded
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A or B). Otherwise, leave Line D10 (B) A humanitarian or peacekeeping blank. operation as defined in 10 U.S.C. 2302(8). (B) Enter one of the following codes (ii) Otherwise, leave Line E1 blank. for the size of the business (number of (2) LINE E2, COST ACCOUNTING employees or average annual gross rev- STANDARDS CLAUSE. Enter code Y enue) as represented by the contractor on Line E2 if the contract includes a in the solicitation provision at FAR Cost Accounting Standards clause (see 52.219–19, Small Business Concern Rep- FAR part 30). Otherwise, leave Line E2 resentation for the Small Business blank. Competitiveness Demonstration Pro- (3) LINE E3, NON-DOD REQUESTING gram: (1) Code A—50 or fewer employees. AGENCY CODE (FIPS 95). If making a (2) Code B—51–100 employees. purchase on behalf of a non-DoD agen- (3) Code C—101–250 employees. cy, enter the four-position code from (4) Code D—251–500 employees. FIPS PUB 95 that identifies the non- (5) Code E—501–750 employees. DoD agency. Otherwise, leave Line E3 (6) Code F—751–1,000 employees. blank. (7) Code G—Over 1,000 employees. (4) LINE E4, REQUESTING ACTIV- (8) Code M—$1 million or less. ITY CODE. If making a purchase on be- (9) Code N—Over $1 million—$2 million. half of a non-DoD agency, enter the (10) Code P—Over $2 million—$3.5 mil- non-DoD agency’s office code. If mak- lion. ing a purchase on behalf of a DoD ac- (11) Code R—Over $3.5 million—$5 mil- tivity, enter the DoDAAC of the activ- lion. ity for whom the purchase was made. (12) Code S—Over $5 million—$10 mil- DoDAACs can be found at: http:// lion. daynt6c.daas.dla.mil/dodaac/ (13) Code T—Over $10 million—$17 mil- dodaac.htm. If multiple requesting ac- lion. tivities are involved, enter the (14) Code U—Over $17 million. DoDAAC of the activity that provided (x) LINE D11, EMERGING SMALL the largest portion of funding for the BUSINESS. action. (A) Complete this line only if Line D9 (5) LINE E5, NUMBER OF ACTIONS. is coded Y and the action is in one of the four designated industry groups, If submitting a consolidated DD Form not one of the targeted industry cat- 350, enter the number of actions in- egories. Otherwise, leave Line D11 cluded in the consolidated report (see blank. 204.670–6(b)). Otherwise, enter 1 on Line (B) Enter one of the following codes: E5. (1) Code Y—Yes. Enter code Y if the (f) Part F of the DD Form 350. Part F contractor represents in the provision identifies the reporting official. at FAR 52.219–19, Small Business Con- (1) LINE F1, NAME OF CON- cern Representation for the Small TRACTING OFFICER OR REP- Business Competitiveness Demonstra- RESENTATIVE. Enter the name (Last, tion Program, that it is an emerging First, Middle Initial) of the con- small business concern. tracting officer or representative. (2) Code N—No. Enter code N if code Y (2) LINE F2, SIGNATURE. The per- does not apply. son identified on Line F1 must sign. (e) Part E of the DD Form 350. Part E (3) LINE F3, TELEPHONE NUMBER. gathers data on specialized items that Enter the telephone number (with area may not become permanent reporting code) for the individual on Line F1. In- elements. stallations with Defense Switched Net- (1) LINE E1, CONTINGENCY, HU- MANITARIAN, OR PEACEKEEPING work (DSN) must enter the DSN num- OPERATION. ber. (i) Enter code Y on Line E1 if the ac- (4) LINE F4, DATE. Enter the date tion exceeds $200,000 and is in support that the DD Form 350 Report is sub- of— mitted. Enter four digits for the year, (A) A contingency operation as de- two digits for the month, and two dig- fined in 10 U.S.C. 101(a)(13); or its for the day. Use 01 through 12 for
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January through December. For exam- (b) Definitions. For purposes of this ple, enter January 2, 2003, as 20030102. subsection’ ‘‘All Other Orders’’ means orders, and modifications of such or- [66 FR 47097, Sept. 11, 2001; 66 FR 48622, Sept. 21, 2001, as amended at 66 FR 50504, Oct. 3, ders, under basic ordering agreements 2001] or indefinite-delivery contracts. GSA Schedule Orders means only or- 253.204–71 DD Form 1057, Monthly ders or calls, and modifications of such Summary of Contracting Actions. orders or calls, under Federal schedules (a) Scope of subsection. Policy on use awarded by GSA. of a DD Form 1057 is in 204.670. This Other Contracting Actions means all subsection contains instructions on actions that do not meet the defini- completion of the DD Form 1057. tions, in this paragraph (b), of an order. (1) Report actions in the month they Other Federal Schedule Orders means are awarded, issued, executed, or only orders, and modifications of such placed, except— orders, under Federal schedules award- (i) When the price of an order or call ed by an agency other than GSA, e.g., cannot be determined when it is placed, awarded by VA or OPM. count the action and its dollars when it Simplified Acquisition Procedures is paid. means purchase orders, calls under (ii) Count the following actions when blanket purchase agreements (BPAs) the voucher is paid (count each vouch- (except BPAs written under Federal er as one action): schedules), and modifications to those (A) Meals and lodging. actions. (B) Automatic deliveries, e.g., bread, (c) Section A, General Information. milk, and ice cream. (1) LINE A1, REPORT MONTH. Enter (iii) The Navy Facilities Engineering four digits for the year and two digits Command will report vouchers it proc- for the month. Use 01 through 12 for esses on Naval shore establishment January through December. For exam- contracts for electricity and gas in ac- ple, enter January 2003 as 200301. cordance with departmental proce- (2) LINE A2, NAME OF CON- dures. TRACTING OFFICE. Enter sufficient (2) Enter all dollar amounts in whole detail to establish the identity of the dollars only. Do not enter cents. If the contracting office submitting the re- net amount is a decrease, enter a port on Lines 2a and b. minus sign (¥) immediately preceding the amount to indicate a credit entry. (3) LINE A3, CONTRACTING OFFICE Do not enter parentheses. CODES. (3) Report actions of $25,000 or less in (i) Line A3a, Reporting Agency FIPS support of a contingency operation as 95 Code. Enter one of the following defined in 10 U.S.C. 101(a)(13), or a hu- codes: 2100 (Army); 1700 (Navy); 5700 manitarian or peacekeeping operation (Air Force); 96CE (Army Civil Works); as defined in 10 U.S.C. 2302(8), in ac- 97AS (DLA); 9700 (all other defense cordance with the instructions in para- agencies). graphs (c) through (j) of this sub- (ii) Line A3b, Contracting Office section. Report actions exceeding Code. Enter the code assigned by the $25,000 but not exceeding $200,000 that departmental data collection point in support a contingency, humanitarian, 204.670–1(c). or peacekeeping operation, and actions (d) Section B, Contracting Actions. exceeding $25,000 but not exceeding (1) LINE B1, TARIFF OR REGU- $200,000 that are placed by a con- LATED ACQUISITIONS. Enter the tracting officer on a Navy vessel, on number and dollar value of contracting the monthly DD Form 1057 as follows: actions (including modifications that (i) Section B; the applicable lines are will also be reported on Line B9) with 5 through 5e and 8 through 8e. tariff or regulated industries (indus- (ii) Section C; the applicable lines are tries with sole source and service rates 1 and 1c, 2 and 2c, and 3 and 3c. that are fixed or adjusted by a Federal, (iii) Sections D, E, and F are not ap- State, or other public regulatory body). plicable. (2) LINE B2, FOREIGN OR INTER- (iv) Section G; complete fully. AGENCY.
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(i) Enter the total number and dollar modifications that will also be re- value of contracting actions (including ported on Line B9) where the— modifications that will also be re- (A) Contractor is a large business ported on Line B9)— concern; and (A) For foreign military sales (FMS) (B) Place of performance is in the or other arrangement where the for- United States and outlying areas. eign government or international orga- (ii) Enter the subtotals for the num- nization is paying all or part of the ber and dollar value of contracting ac- cost of the action. tions (including modifications that will (B) Placed directly with foreign gov- also be reported on Line B9) for— ernments under the terms of an inter- (A) Line B4a, Simplified Acquisition national agreement, e.g., base mainte- Procedures; nance performed with the foreign gov- (B) Line B4b, GSA Schedule Orders; ernment acting as the contractor (any (C) Line B4c, Other Federal Schedule other actions directly with foreign gov- Orders; ernments go on Line B5). (D) Line B4d, All Other Orders; and (C) With another Federal agency or (E) Line B4e, Other Contracting Ac- Government corporation, e.g., Federal tions. Prison Industries (UNICOR). (5) LINE B5, DOMESTIC OR FOR- (ii) Enter the subtotals for the num- EIGN ENTITIES PERFORMING OUT- ber and dollar value of contracting ac- SIDE THE UNITED STATES. tions (including modifications that will (i) Enter the total number and dollar also be reported on Line B9) for— value of contracting actions (including (A) Line B2a, FMS or International modifications that will also be re- Agreements. Enter subtotals for para- ported on Line B9) where the place of graphs (d)(2)(i)(A) and (B) of this sub- performance is outside the United section. States and outlying areas (see 204.670– (B) Line B2b, Actions with UNICOR. 1(c)). This includes actions placed di- Enter subtotal for contracting actions rectly with a foreign government that with UNICOR. are not under international agreements (C) Line B2c, Actions with Other (see paragraph (d)(2)(i)(B) of this sub- Government Agencies. Enter subtotal section). It does not matter whether for actions with government agencies the contractor is domestic or foreign. other than UNICOR. (ii) Enter the subtotals for the num- (3) LINE B3, SMALL BUSINESS. ber and dollar value of contracting ac- (i) Enter the total number and dollar tions (including modifications that will value of contracting actions (including also be reported on Line B9) for— modifications that will also be re- ported on Line B9) where the— (A) Line B5a, Simplified Acquisition (A) Contractor is a small business Procedures; concern; and (B) Line B5b, GSA Schedule Orders; (B) Place of performance is in the (C) Line B5c, Other Federal Schedule United States and outlying areas (see Orders; 204.670–1). (D) Line B5d, All Other Orders; and (ii) Enter the subtotals for the num- (E) Line B5e, Other Contracting Ac- ber and dollar value of contracting ac- tions. tions (including modifications that will (6) LINE B6, EDUCATIONAL. also be reported on Line B9) for— (i) Enter the total number and dollar (A) Line B3a, Simplified Acquisition value of contracting actions with edu- Procedures; cational institutions (including modi- (B) Line B3b, GSA Schedule Orders; fications that will also be reported on (C) Line B3c, Other Federal Schedule Line B9). Orders; (ii) Enter the subtotals for the num- (D) Line B3d, All Other Orders; and ber and dollar value of contracting ac- (E) Line B3e, Other Contracting Ac- tions (including modifications that will tions. also be reported on Line B9) for— (4) LINE B4, LARGE BUSINESS. (A) Line B6a, Simplified Acquisition (i) Enter the total number and dollar Procedures; value of contracting actions (including (B) Line B6b, GSA Schedule Orders;
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(C) Line B6c, Other Federal Schedule (1) LINE C1, COMPETED. Orders; (i) Enter the total number and dollar (D) Line B6d, All Other Orders; and value of contracting actions that were (E) Line B6e, Other Contracting Ac- competed. tions. (A) Include on Line C1— (7) LINE B7, NONPROFIT AND (1) Actions not subject to Competi- OTHER. tion in Contracting Act (CICA) (see (i) Enter the total number and dollar FAR 6.001) when at least two value of contracting actions (including quotations or offers were received; modifications that will also be re- (2) Actions when competitive proce- ported on Line B9) with— dures were used to fulfill the require- (A) Nonprofit organizations as de- ment for full and open competition (see fined in FAR 31.701; FAR Subpart 6.1); (B) Qualified nonprofit agencies em- (3) Actions when full and open com- ploying people who are blind or se- petition was provided for after exclu- verely disabled; and sion of sources, to establish or main- (C) Any other entities not listed on tain alternative sources or to set aside Lines B1 through B6. an acquisition exceeding the micro- (ii) Enter the subtotals for the num- purchase threshold for small business ber and dollar value of contracting ac- (see FAR subpart 6.2); tions (including modifications that will (4) Actions when statutory authori- also be reported on Line B9) for— ties for other than full and open com- (A) Line B7a, Simplified Acquisition petition (see FAR subpart 6.3) were Procedures; used and more than one offer was re- (B) Line B7b, GSA Schedule Orders; ceived, except as provided in para- (C) Line B7c, Other Federal Schedule graphs (e)(1)(i)(B)(2) and (3) of this sub- Orders; section; (D) Line B7d, All Other Orders; and (5) Actions resulting from a contract (E) Line B7e, Other Contracting Ac- awarded competitively before CICA (in- tions. cluding two-step formal advertising); (8) LINE B8, TOTAL CONTRACTING (6) Orders, calls, and modifications ACTIONS. under a Federal schedule; and (i) Add the amounts on Lines B1 (7) Section 8(a) awards competed through B7 and enter the totals on under FAR 6.204. Line B8. (B) Do not include— (ii) If directed by data collection (1) Actions that meet the criteria for point procedures, also enter the sub- Section C, Line C2; totals for the number and dollar value (2) Actions awarded under the au- of contracting actions for— thority of FAR 6.302–5(b)(2) or (4), au- (A) Line B8a, Simplified Acquisition thorized or required by statute (report Procedures, sum of Lines 3a + 4a + 5a + these in Section C, Line C2); or 6a + 7a. (3) Actions reported in Section B, (B) Line B8b, GSA Schedule Orders, Lines B1 and B2, including actions with sum of Lines 3b + 4b + 5b + 6b + 7b. the Federal Prison Industries (C) Line B8c, Other Federal Schedule (UNICOR). These actions are treated as Orders, sum of Lines 3c + 4c + 5c + 6c not available for competition in pub- + 7c. lished competition reports. (D) Line B8d, All Other Orders, sum (ii) Enter the subtotals for the num- of Lines 3d + 4d + 5d + 6d + 7d. ber and dollar value of contracting ac- (E) Line B8e, Other Contracting Ac- tions for— tions, sum of Lines 3e + 4e + 5e + 6e + (A) Line C1a, Small Business Con- 7e. cerns; (9) LINE B9, TOTAL MODIFICA- (B) Line C1b, Large Business Con- TIONS EXCLUDING SIMPLIFIED AC- cerns; QUISITION PROCEDURES. Enter the (C) Line C1c, Domestic or Foreign total number and dollar value of modi- Entities Performing Outside the United fication actions, excluding simplified States; acquisition procedures. (D) Line C1d, Educational; and (e) Section C, Extent Competed. (E) Line C1e, Nonprofit and Other.
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(2) LINE C2, NOT AVAILABLE FOR (B) Line C3b, Large Business Con- COMPETITION. cerns; (i) Enter the total number and dollar (C) Line C3c, Domestic or Foreign value of contracting actions that were Entities Performing Outside the United not available for competition. States; (A) Include on Line C2— (D) Line C3d, Educational; and (1) Actions for brand name commer- (E) Line C3e, Nonprofit and Other. cial products for authorized resale; (f) Section D, RDT&E Actions. Do not (2) Actions authorized or required by include actions for supplies or services statute to be awarded to a specific in support of research, development, source or through another agency in test, and evaluation (RDT&E) work accordance with FAR 6.302–5(b)(2) or that do not require the contractor to (4); e.g., actions with qualified non- perform RDT&E. profit agencies employing people who (1) LINE D1, SMALL BUSINESS. are blind or severely disabled, and non- Enter the total number and dollar val- competitive 8(a) actions; ues of RDT&E actions with small busi- (3) Actions (including modifications) ness concerns. at or below the micro-purchase thresh- (2) LINE D2, LARGE BUSINESS. old at FAR 2.101; and Enter the total number and dollar (4) Other contracting actions when value of RDT&E actions with large the Director of Defense Procurement business concerns. has determined that there is no oppor- (3) LINE D3, DOMESTIC OR FOR- tunity for competition. EIGN ENTITIES PERFORMING OUT- (B) Do not include any actions re- SIDE THE UNITED STATES. Enter ported in Section B, Line B1 or B2 (e.g., the total number and dollar value of actions with regulated monopolies, ac- RDT&E actions where the principal tions under foreign military sales or place of performance is outside the international agreements, and actions United States and outlying areas (see with another Federal agency or Gov- 204.670–1). ernment corporation). These actions are treated as not available for com- (4) LINE D4, HISTORICALLY BLACK petition in published competition re- COLLEGES AND UNIVERSITIES ports. (HBCU). Enter the total number and (ii) Enter the subtotals for the num- dollar value of RDT&E actions with ber and dollar value of contracting ac- HBCUs. tions for— (5) LINE D5, MINORITY INSTITU- (A) Line C2a, Small Business Con- TIONS (MI). Enter the total number cerns; and dollar value of RDT&E actions (B) Line C2b, Large Business Con- with MIs. cerns; (6) LINE D6, OTHER EDUCATIONAL. (C) Line C2c, Domestic or Foreign Enter the total number and dollar Entities Performing Outside the United value of RDT&E actions with edu- States; cational institutions other than HBCUs (D) Line C2d, Educational; and or MIs. (E) Line C2e, Nonprofit and Other. (7) LINE D7, OTHER ENTITIES. (3) LINE C3, NOT COMPETED. Enter the total number and dollar (i) Enter the total number and dollar value of RDT&E actions that were not value of contracting actions that were reported on Lines D1 through D6. not competed, i.e., any actions not re- (g) Section E, Selected Socioeconomic ported on Line B1 or B2. Do not include Statistics. actions reported in Section B, Line B1 (1) LINE E1, SMALL BUSINESS (SB) or B2. These actions are treated as not SET-ASIDE. available for competition in published (i) Enter the total number and dollar competition reports. value of contracting actions that were (ii) Enter the subtotals for the num- small business set-aside actions, in- ber and dollar value of contracting ac- cluding awards to SDBs reported on tions for— Lines E2c and E2d. Do not include or- (A) Line C3a, Small Business Con- ders under Federal schedules that are cerns; reported on Line E3 or E5.
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(ii) If the action is an emerging small actions with women-owned small busi- business set-aside (see FAR 19.1006(c)), nesses (see FAR 19.001). Do not include use the most appropriate line. orders under Federal schedules that are (iii) Enter the subtotals for the num- reported on Line E5. ber and dollar value of contracting ac- (5) LINE E5, WOMEN-OWNED tions for— SMALL BUSINESS FEDERAL SCHED- (A) Line E1a, SB Set-Aside Using ULE ORDERS. Enter the total number Simplified Acquisition Procedures. and dollar value of contracting actions Enter actions pursuant to FAR that were orders under Federal sched- 13.003(b)(1). ules with women-owned small busi- (B) Line E1b, SB Set-Aside. Enter ac- nesses. tions pursuant to FAR 19.502. (6) LINE E6, HBCU. Enter the total (C) Line E1c, Reserved. number and dollar value of contracting (2) LINE E2, SMALL DISADVAN- actions with HBCUs pursuant to sub- TAGED BUSINESS (SDB) ACTIONS. part 226.70. (i) Enter the total number and dollar (7) LINE E7, MI. Enter the total num- value of contracting actions that were ber and dollar value of contracting ac- SDB actions. Do not include orders tions with MIs pursuant to subpart under Federal schedules that are re- 226.70. ported on Line E3 or E5. (8) LINE E8, JWOD PARTICIPATING (ii) Enter the subtotals for the num- NONPROFIT AGENCIES. Enter the ber and dollar value of contracting ac- total number and dollar value of con- tions for— tracting actions with qualified non- (A) Line E2a, Through SBA—Section profit agencies employing people who 8(a). Enter actions with the Small are blind or severely disabled for sup- Business Administration pursuant to plies or services from the Procurement Section 8(a) of the Small Business Act List pursuant to FAR subpart 8.7. (see FAR subpart 19.8) or under the 8(a) (9) LINE E9, EXEMPT FROM SMALL direct award procedures at 219.811. BUSINESS ACT REQUIREMENTS. (B) Line E2b, SDB Set-Aside, SDB Enter the total number and dollar Preference, or SDB Evaluation Adjust- value of contracting actions exempt ment. Enter actions resulting from— from the set-aside requirements of the (1) A set-aside for SDB concerns; Small Business Act (see FAR 19.502–1). (2) Application of an SDB price pref- (10) LINE E10, HUBZONE. erence or evaluation adjustment (see (i) Enter the total number and dollar FAR subpart 19.11); or value of contracting actions that were (3) SDB preferential consideration. awarded to HUBZone small business (C) Line E2c, SB Set-Aside Using concerns. Simplified Acquisition Procedures. Enter actions pursuant to FAR (ii) Enter the subtotals for the num- 13.003(b)(1) when award is to an SDB, ber and dollar value of contracting ac- but a preference or evaluation adjust- tions for— ment was not applied. (A) Line E10a, HUBZone Set-Aside; (D) Line E2d, SB Set-Aside. Enter ac- (B) Line E10b, HUBZone Price Eval- tions under FAR 19.502 when award is uation Preference; to an SDB, but a preference or evalua- (C) Line E10c, HUBZone Sole Source; tion adjustment was not applied nor and was preferential consideration given. (D) Line E10d, HUBZone Concern— (E) Line E2e, Other. Enter awards to Other. Use this category when the SDB concerns that are not reported on award is to a HUBZone small business Lines E2a through E2d. concern and Lines E10a, E10b, and E10c (3) LINE E3, SDB FEDERAL SCHED- do not apply. ULE ORDERS. Enter the total number (11) LINE E11, SERVICE-RELATED and dollar value of contracting actions DISABLED VETERAN-OWNED that were orders under Federal sched- SMALL BUSINESS. Enter the total ules with SDBs. number and dollar value of contracting (4) LINE E4, WOMEN-OWNED actions that were awarded to service- SMALL BUSINESS. Enter the total disabled veteran-owned small business number and dollar value of contracting concerns.
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(12) LINE E12, OTHER VETERAN- cember. For example, enter January 2, OWNED SMALL BUSINESS. Enter the 2003, as 20030102. total number and dollar value of con- [65 FR 39718, June 27, 2000, as amended at 66 tracting actions that were awarded to FR 47107, Sept. 11, 2001] veteran-owned small business concerns, other than those reported on Line E11. 253.208 Required sources of supplies (h) Section F, Simplified Acquisition and services. Procedures—Ranges. Enter in each of 253.208–1 DD Form 448, Military Inter- the dollar ranges the total number and departmental Purchase Request. dollar value of contracting actions that (a) Use the DD Form 448 as prescribed used simplified acquisition procedures in subpart 208.70. (FAR part 13). The total of Section F is (b) Prepare MIPR information in uni- normally the sum of Lines B3a, B4a, form contract format when possible. B5a, B6a, and B7a. Overprint of fixed repetitive informa- (i) Section G, Contingency Actions. tion is authorized. LINE G1, TOTAL ACTIONS. (c) Instructions for completion of DD (1) Enter the total number and dollar Form 448. (1) BLOCK 5—MIPR Number. value of contracting actions that were Number the MIPR by using— awarded in support of a contingency (i) The requiring department identi- operation as defined in 10 U.S.C. fication code as prescribed in DoD 101(a)(13) or a humanitarian or peace- 4000.25–6–M, Department of Defense Ac- keeping operation as defined in 10 tivity Address Directory (DoDAAD); U.S.C. 2302(8). The numbers entered (ii) The last digit of the fiscal year; here are a breakout of the numbers al- and ready entered in Sections B and C. (iii) The number of the particular (2) Enter the subtotals based on the MIPR (numbered consecutively by the instructions for completion of Section requiring activity). C for the number and dollar value of (2) Block 6—Amend No. Assign a suf- contracting actions for— fix number. Assign amendments of the same MIPR consecutive suffix num- (i) Line G1a, Competed; bers. (ii) Line G1b, Not Available for Com- (3) Block 9. (i) Conduct interdepart- petition; and mental screening of items in accord- (iii) Line G1c, Not Competed. ance with FAR 8.001. Requisition items (j) Section H, Remarks and Authentica- which are available from stocks of tion. other departments as follows: (1) LINE H1, REMARKS. Enter any (A) Obtain items within the scope of remarks applicable to this report. MILSTRIP (see DoD 4000.25–1–M, Mili- (2) LINE H2, CONTRACTING OFFI- tary Standard Requisitioning and Issue CER. Procedures (MILSTRIP)) by use of DD (i) Line H2a, Name. Enter the name Form 1348 (Single Line Item Requisi- (last, first, middle initial) of the con- tion System Document (Manual), tracting officer or representative. DoD))/1348M (Single Line Item Requisi- (ii) Line H2b, Signature. The person tion System Document, DoD (Mechan- identified on Line H2a must sign. ical)). (B) Obtain items not covered by (iii) Line H2c, Telephone Number. MILSTRIP using DD Form 1149, Req- Enter the telephone number (with area uisition and Invoice/Shipping Docu- code) of the person identified on Line ment. H2a. Installations with Defense (C) If, after receipt of a MIPR, it is Switched Network (DSN) must enter determined the requested items are their DSN number. available from stock, the acquiring de- (3) LINE H3, DATE REPORT SUB- partment shall use the MIPR to obtain MITTED. Enter the date that the DD the item. Form 1057 is submitted. Enter four dig- (ii) Normally restrict a MIPR to one its for the year, two digits for the major end item, including its required month, and two digits for the day. Use spare parts, ground support equipment, 01 through 12 for January through De- and similar related items. For other
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than major end items, limit MIPRs to (A) The resulting contract is not to items within a single Federal supply be paid by the Defense Finance and Ac- class when possible. counting Service; and (4) Block 10—(i) Delivery Schedules. (A) (B) The office to receive invoices and The requiring department must clearly make payment is known at the time of state the required time of delivery or preparation of the MIPR. performance in each MIPR, taking into (ii) If payment is to be made by an of- consideration the normal administra- fice designated to receive invoices, also tive lead time of the particular com- enter the DoDAAD code of that office. modity. Delivery and performance (iii) If payment is to be made by an schedules on MIPRs must be realistic office other than the office to which (see FAR 12.1). If the acquiring depart- the invoice is to be mailed, include the name, address, and DoDAAD code of ment cannot accept the delivery sched- the payment office as an attachment to ule in the MIPR, the acquiring depart- the MIPR. ment will note that on DD Form 448–2, (iv) If multiple offices are to receive Acceptance of MIPR. Changes in the invoices and make payment, include requested delivery schedule must be the names and addresses of those of- made by MIPR amendment. fices as an attachment to the MIPR. (B) When a short delivery schedule is Also include the DoDAAD code of each mandatory, the requiring department payment office. shall mark the MIPR ‘‘URGENT’’ in (v) Whenever the payment office is bold letters and provide justification included in an attachment, include a for the marking. reference to the attachment in this (ii) Requiring activities must provide block. MILSTRIP requisition data prescribed (vi) If the names and addresses of in appendix B of the MILSTRIP Man- invoicing and payment offices are pro- ual for each line item which is to be de- vided the acquiring department after livered to each ‘‘ship to’’ address. Re- submission of the MIPR, the requiring petitive data applicable to all lines on department also must provide the the MIPR may be overprinted. DoDAAD code for each payment office. (iii) The requiring activity will fur- (7) Block 14. Enter allotment data for nish estimated weight, cube, and di- the acquisition of supplies. Enter each mensions for each line item or a state- citation in Item 14 in the appropriate ment explaining why these data are space as follows— not available. (i) Accounting classification reference (iv) The requiring activity shall in- number (ACRN). If the ACRN proce- clude the name and telephone number dures of 204.7108 are used in the MIPR of an individual who is thoroughly fa- to relate allotment data to the MIPR miliar with the MIPR, its attachments, item or delivery, enter the ACRN for and technical requirements. each fund citation. (The acquiring de- partment, when preparing the con- (v) Prepare attachments to MIPRs in tract, is not required to use the ACRN sufficient numbers so that each copy of assigned to a fund citation in the a MIPR submitted to the acquiring de- MIPR.) partment is complete with a copy of all (ii) Appropriation. Enter the ten posi- attachments. ‘‘Ship To and Mark For’’ tions as follows: addresses in shipping instructions must (A) First and second—Treasury De- include the clear text identification partment number identifying the de- and DoDAAD code if assigned. partment or agency to which the ap- (5) Block 12—transportation allotment. propriation applies or has been trans- Enter allotment data for transpor- ferred. tation of supplies at Government ex- (B) Third and fourth—Treasury De- pense if appropriate. partment number identifying the de- (6) Block 13—mail invoices to. Use this partment or agency from which an ap- block to identify the name and address propriation has been transferred; leave of the office to receive invoices and blank if no transfer is involved. make payment. (C) Fifth and sixth—Identify the ap- (i) Complete the block only if— propriation fiscal year. For multiple-
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year appropriations, the fifth position cable blocks.) (1) Block 6. Check the shall be the last digit of the first year specific terms under which the MIPR is of availability, and the sixth position being accepted. shall be the last digit of the final year (2) Block 7. If any one of the MIPR of availability. For annual appropria- line items is not accepted, check Block tions, the fifth position shall be blank, 7 and record the affected MIPR line and the sixth position shall be the last item number and reason in Block 13. digit of the fiscal year. For no-year (3) Blocks 8 and 9. Use Blocks 8 and 9 (continuing) appropriations, the fifth only— position shall be blank, and the sixth (i) When Block 6c acceptance is indi- position shall be ‘‘X.’’ cated (indicate the MIPR line item (D) Seventh through tenth—Treasury numbers that will be provided under Department appropriation serial num- each method of financing in Blocks 8a ber. and 9a, respectively); or (iii) Limit/Subhead. Up to four char- (ii) If quantities or estimated costs acters; if less than four characters, cited in a MIPR require adjustment leave empty spaces blank. (list the affected MIPR line item num- (iv) Supplemental accounting classifica- bers together with the adjusted quan- tion data. Not to exceed 36 characters. tities or estimated costs in the col- Enter in accordance with departmental umns provided under Blocks 8 and 9, as or agency regulations. appropriate). (v) Accounting station. Enter the six (4) Block 10. Whenever a MIPR is ac- character DoDAAD code of the ac- cepted in part or in total under Cat- counting station (not used with Navy egory II funding, forecast the esti- and Marine Corps funds). mated date of contract award. (vi) Amount. Enter the amount for each fund citation if more than one al- (5) Block 11. Enter the total amount lotment is cited. of funds required to fund the MIPR (vii) Additional citations. If space is items, as accepted. required for additional fund citations, (6) Block 12. (i) Complete this block include as an attachment and reference only in those cases where the amount the attachment on the form. recorded in Block 11 is not in agree- (d) When preparing a MIPR amend- ment with the amount recorded in ment, always fill out the basic infor- Block 5. This will serve either— mation in Blocks 1 through 8. Fill out (A) As a request to the requiring de- only those other blocks which vary partment to issue a MIPR amendment from the data shown on the basic MIPR to provide the additional funds; or or a prior amendment. Insert ‘‘n/c’’ in (B) Authority for the requiring de- items where there is no change. partment to withdraw the available ex- (e) Change of a disbursing office cited cess funds. on a DoD funded MIPR does not require (ii) When funds of two or more appro- a MIPR amendment when the resultant priations are involved, provide proper contract is assigned for administration breakdown information in Block 13. to the Defense Contract Management (7) Block 13. Use this block to Agency. The administrative con- record— tracting office may issue an adminis- (i) Justification, by MIPR line item, trative change order, copies of which for any additional funds required; will be provided to the contracting offi- (ii) Explanation for rejection of cer for transmittal to the requiring ac- MIPR whether in part or in total; tivity. (iii) Appropriation and subhead data [56 FR 36554, July 31, 1991, as amended at 65 cited on the MIPR; and FR 52953, Aug. 31, 2000] (iv) Other pertinent data. (c) Complete a DD Form 448–2 for all 253.208–2 DD Form 448–2, Acceptance MIPR amendments involving an ad- of MIPR. justment of funds or delivery schedule, (a) Use the DD Form 448–2 as pre- or if requested by the requiring depart- scribed in subpart 208.70. ment. (b) Instructions for completion of DD (d) Unless otherwise agreed, provide Form 448–2. (Complete only the appli- the requiring department an original
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and three copies of each DD Form 448– (ii) The factors in section III, Block 2. 20, generally mean— (A) Government property control. An 253.209 Contractor qualifications. assessment of the prospective contrac- tor’s capability to manage and control 253.209–1 Responsible prospective Government property. contractors. (B) Transportation. An assessment of (a) SF 1403, Preaward Survey of Pro- the prospective contractor’s capability spective Contractor (General). (i) The fac- to follow the laws and regulations ap- tors in Section III, Block 19, generally plicable to the movement of Govern- mean— ment material, or overweight, over- (A) Technical capability. An assess- sized, hazardous cargo, etc. ment of the prospective contractor’s (C) Packaging. An assessment of the key management personnel to deter- prospective contractor’s ability to mine if they have the basic technical meet all contractual packaging re- knowledge, experience, and under- quirements including preservation, standing of the requirements necessary unit pack, packing, marking, and unit- to produce the required product or pro- izing for shipment. vide the required service. (D) Security clearance. A determina- (B) Production capability. An evalua- tion that the prospective contractor’s tion of the prospective contractor’s facility security clearance is adequate ability to plan, control, and integrate and current. (When checked, the sur- manpower, facilities, and other re- veying activity will refer this factor to sources necessary for successful con- the Defense Security Service (DSS)). tract completion. This includes— (E) Plant safety. An assessment of the (1) An assessment of the prospective prospective contractor’s ability to contractor’s possession of, or the abil- meet the safety requirements in the so- ity to acquire, the necessary facilities, licitation. material, equipment, and labor; and (F) Environmental/energy consider- (2) A determination that the prospec- ation. An evaluation of the prospective tive contractor’s system provides for contractor’s ability to meet specific timely placement of orders and for ven- environmental and energy require- dor follow-up and control. ments in the solicitation. (C) Quality assurance capability. An (G) Flight operations and flight safety. assessment of the prospective contrac- An evaluation of the prospective con- tor’s capability to meet the quality as- tractor’s ability to meet flight oper- surance requirements of the proposed ation and flight safety requirements on contract. It may involve an evaluation solicitations involving the overhaul of the prospective contractor’s quality and repair of aircraft. assurance system, personnel, facilities, (H) Other. If the contracting officer and equipment. wants an assessment of other than (D) Financial capability. A determina- major factors A–E and other factors A– tion that the prospective contractor G, check this factor. Explain the de- has or can get adequate financial re- sired information in the Remarks sec- sources to obtain needed facilities, tions. equipment, materials, etc. [56 FR 36554, July 31, 1991, as amended at 60 (E) Accounting system and related in- FR 29504, June 5, 1995; 64 FR 51077, Sept. 21, ternal controls. An assessment by the 1999] auditor of the adequacy of the prospec- tive contractor’s accounting system 253.213 Simplified acquisition proce- and related internal controls as defined dures (SF’s 18, 30, 44, 1165, 1449, in 242.7501, Definition. Normally, a con- and OF’s 336, 347, and 348). tracting officer will request an ac- (f) DoD uses the DD Form 1155, Order counting system review when soliciting for Supplies or Services, instead of OF and awarding cost-reimbursement or 347; and OF 336, Continuation Sheet, in- incentive type contracts, or contracts stead of OF 348. which provide for progress payments (i) Use the DD Form 1155 as pre- based on costs or on a percentage or scribed in 213.307(b)(i) and in accord- stage of completion. ance with the instructions at 253.213–70.
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(ii) Use the OF 336, or a sheet of contracts, purchase orders, and agreements paper, as a continuation sheet for the as prescribed in Subpart 204.70. DD Form 1155. Continuation sheets 2 Delivery Order/Call No.— may be printed on the reverse of the DD Form 1155. Enter the PII number for delivery orders/ (iii) DD Form 1155c–1, Order for Sup- calls, when applicable, as prescribed in Sub- part 204.70. plies or Services (Commissary Continu- ation Sheet) may be used for com- 3 Date of Order/Call— missary acquisitions. Enter the four position numeric year, [56 FR 36554, July 31, 1991, as amended at 64 three position alpha month, and two position FR 2599, Jan. 15, 1999] numeric day.
253.213–70 Instructions for completion 4 Requisition/Purch Request No.— of DD Form 1155. Enter the number authorizing the pur- (a) These instructions are mandatory chase. When the number differs by line item, if— list it in the schedule and annotate this block, ‘‘see schedule.’’ (1) Contract administration has been assigned outside the purchasing office; 5 Priority— or Enter the appropriate Program Identifica- (2) The contractor is located in the tion Code as identified in Schedule I to the continental United States or Canada. Defense Priorities and Allocations System (b) The entity codes (address codes) Regulation. referenced in this subsection are codes published in— 6 Issued by— (1) DoD Activity Address Directory Enter the name and address of the issuing (DODAAD), DoD 4000.25–6–M. office. In the code block, enter the DODAAD (2) Military Assistance Program Address code for the issuing office. Directly below Directory System (MAPAD), DoD 4000.25– the address, enter: Buyer/Symbol: followed by the buyer’s name and routing symbol. Di- 8–M. rectly below the buyer/symbol, enter: Phone: (3) Commercial and Government Entity followed by the buyer’s phone number and (CAGE) Codes Handbook H4/H8. extension. (c) For orders requiring payment in Canadian currency— 7 Administered by— (1) State the contract price in terms Enter the name and address of the contract of Canadian dollars, followed by the administration activity. On purchase orders initials CN; e.g., $1,647.23CN. retained by purchasing offices for adminis- (2) Indicate on the face of the order— tration, mark this block, ‘‘see block 6.’’ (i) The U.S./Canadian conversion rate Enter in the code block the DODAAD code of the contract administration activity. In the in effect at the time of the award; and lower right or left-hand corner, enter the (ii) The U.S. dollar equivalent of the criticality designator code from FAR 42.1105. Canadian dollar amount. (d) When the DD Form 1155 includes 8 Delivery FOB— FMS requirements, clearly mark FMS Check the applicable box. requirement on its face. Specify within the order each FMS case identifier 9 Contractor— code by line or subline item number. (i) Enter the full business name and ad- (e) Instructions for DD Form 1155 en- dress of the contractor. Enter in the first tries. (Instructions apply to purchase code block, the CAGE code of the contractor. orders, delivery orders, and calls, ex- (ii) If it is known that all the work covered cept Block 2, which applies only to de- by the order is to be performed at an address different from the address represented by the livery orders and calls, and Block 12, contractor’s code, and any contract adminis- which applies only to purchase orders.) tration function will be required at that fa- cility, enter in the facility code block the or- BLOCK ganizational entity code for that facility, i.e., H8–1/H8–2 code for a non-Government en- 1 Contract/Purch Order/Agreement No.— tity or DODAAD code for a Government enti- Enter the Procurement Instrument Identi- ty. (Use DODAAD codes only to indicate fication (PII) number and, when applicable, ‘‘performed at’’ locations for orders speci- the supplementary identification number for fying services at a Government location.) If
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it is known that multiple facilities are in- BLOCK volved, enter the codes for all facilities at which work is to be performed, including the 18 Item No.— contractor’s code if work is performed at Enter an item number for each item of sup- that address, in the Optional Form 336 Con- ply or service in accordance with subpart tinuation Sheet and mark the facility code 204.71. block with ‘‘see schedule.’’ 19 Schedule of Supplies/Services— 10 Deliver to FOB Point by (Date)— The schedule contains several elements of If a single date of delivery applies to the data. The order and arrangement of data in entire order, enter date in this block. List the schedule is mandatory for purchase and multiple delivery dates in the schedule and delivery orders assigned to the Defense Con- mark this block ‘‘see schedule.’’ tract Management Agency or the military departments for administration and is en- 11 Mark if Business— couraged for all orders. Check all applicable blocks. (1) National Stock Number (NSN)— Total item quantity for the line or subline 12 Discount Terms— item number followed by the appropriate na- tional stock number or the word ‘‘none’’ if Enter the discount for prompt payment in an NSN has not been assigned. On the same terms of percentages and corresponding line and adjacent to NSN, enter the words days. Express the percentages in whole num- ‘‘Total Item Quantity.’’ This phrase is used bers and decimals, e.g., 3.25%—10 days; in conjunction with the total quantity, unit 0.50%—20 days. of issue, unit price, and dollar amount of the stock number or item cited (see entries for 13 Mail Invoices to the Address in Block— Blocks 20, 21, 22, and 23). Enter a reference to the block number con- (2) Item Identification— taining the address to which invoices are to Enter first the most descriptive noun or be mailed. When not in Block 6, 7, 14, or 15, verb of the supplies or services to be fur- insert in Block 13, ‘‘see schedule.’’ nished, supplemented by additional descrip- tion as prescribed in FAR part 10. If multiple 14 Ship to— accounting classifications apply to the con- tract, enter the accounting classification If a single ship-to point applies to the en- reference number. tire order, enter the name and address of (3) Quantity Variance— that point in this block and a DODAAD code Enter the quantity variance permitted for in the code block. For FMS shipments, enter the line item in terms of percentages, indi- the MAPAD code in the code block and an cating whether the percentage is plus or instruction for the contractor to contact the minus and if applicable to each destination. transportation office of the administering (4) Inspection/Acceptance— activity to obtain a name and shipping ad- Enter the point at which inspection/accept- dress. Enter multiple ship-to points in the ance will take place. schedule and mark this block, ‘‘See Sched- (5) Preservation and Packaging— ule.’’ Enter the preservation requirements for the item described. These requirements may 15 Payment Will be Made by— be expressed in terms of MIL–STD–2073–1, Enter the name and address of the activity DoD Material Procedures for Development making payment. Enter in the code block, and Application of Packaging Requirements, the DODAAD code of the paying activity. and MIL–STD–2073–2, Packaging Require- ments, codes. They may also be expressed by 16 Type of Order— reference to applicable specifications. (6) Packing— Check the appropriate box. If a purchase When required, enter the packing level des- order: ignator and specification, standard, or docu- (i) Identify the type of quotation, i.e., oral, ment in which the requirements are stated letter or TWX, on which the order is based. or state the specific requirements. (ii) Check the box when acceptance of the (7) Unitization— purchase order is required and enter the When desired by the requiring activity, a number of copies of the order to be returned requirement for cargo unitization for a par- to the issuing office. ticular destination should be specified for 17 Accounting and Appropriation Data/ shipments involving two or more shipping Local Use— containers having an aggregate total of not less than 20 cubic feet or 200 pounds. Enter the accounting classification and the (8) Ship To— accounting classification reference num- Enter the DODAAD or MILSCAP H8–1/H8– ber(s) in accordance with 204.7107. 2 (cage) as appropriate for the entity code of
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the ship-to point on the first line and the funding status (e.g., amounts obli- corresponding name and address on suc- gated). ceeding lines. If multiple accounting classi- (2) Express all dollar values to the fications apply to the same line or subline item, enter the accounting classification ref- nearest whole value (e.g., erence number. When several items are to be $200,008.55=$200,009). shipped to the same point, the code will be (3) Express all percentages to the listed; but it will not be necessary to repeat nearest hundredth or thousandth as ap- the address. propriate (e.g., interest rate—8.25% or (9) Delivery Date— When multiple delivery dates apply, enter 8.257%). the required date of delivery on the same (4) If the contracting office is exempt line with ship-to code. from reporting to the DoD manage- (10) Mark For— ment information system on profit and Enter the DODAAD or MILSCAP H8–1/H8– fee statistics (see 215.404–76), do not 2 (cage) as appropriate for the entity code on complete Block 1, 4, 5, 6, 7, 8, 9, 10, 11, the first line and name and address of the ul- timate recipient of the supplies and services or 12. on succeeding lines. (5) Report an option amount for addi- tional quantities as a separate contract 20 Quantity Ordered/Accepted— action when exercised. Enter the total quantity ordered for the (6) Even though fixed-price type con- line item. If applicable, enter the breakdown tract actions are negotiated on the on quantities for each ship-to point within basis of total price, prepare the nego- the line item. tiation summary portion of the DD 21 Unit— Form 1547 showing the contracting offi- cer’s best estimates of cost and profit. Enter the unit of measure applicable to the line item. (7) For indefinite-delivery type con- tracts, prepare a consolidated DD Form 22 Unit Price— 1547 for annual requirements expected Enter the unit price applicable to the line to exceed the cost or pricing data item. threshold. 23 Amount— (8) Prepare a consolidated DD Form 1547, if possible, when multiple profit Enter the extended dollar amount (quan- rates apply to a single negotiation. tity x unit price) for each line item. (c) Specific instructions for completion 24 Contracting/Ordering Officer— of DD Form 1547—(1) Block 1—report no. Enter the contracting/ordering officer’s Enter the four-digit local control num- signature. ber followed by a dash and the last two digits of the fiscal year (e.g., 0004–90 for 25 Total Amount— 4th action in fiscal year 1990). Each Enter the total dollar amount for all line field contracting office participating in items on the order. profit reporting shall establish a con- trol system for consecutively num- 26 thru 42 These blocks are used in the re- ceiving and payment functions. Procedures bering completed DD Forms 1547. Al- for making entries are prescribed by the ways start with 0001 at the beginning of respective departments. each fiscal year and always use four digits. This number will identify the [56 FR 36554, July 31, 1991, as amended at 61 specific DD Form 1547 in DoD’s man- FR 7751, Feb. 29, 1996; 64 FR 2600, Jan. 15, agement information system and will 1999; 65 FR 39707, June 27, 2000; 65 FR 52953, be used for follow-up actions. Aug. 31, 2000] (2) Block 2—basic procurement instru- 253.215 Contracting by negotiation. ment identification no. Enter the identi- fying contract number assigned per 253.215–70 DD Form 1547, Record of 204.70 (Block B1A of the DD 350). Weighted Guidelines Application. (3) Block 3—SPIIN. Enter the supple- (a) Use the DD Form 1547 as pre- mental procurement instrument iden- scribed in 215.404–70. tification number for supplemental (b) General instructions. (1) Report agreements or other modifications, as- amounts as they relate to the price of signed per 204.70, (Block B2 of the DD the contract action without regard to 350).
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(4) Block 4—date of action—(i) Year. (14) Blocks 21 through 29—weighted Enter the last two digits of the year guidelines profit factors. Enter the the action was negotiated (e.g., 90 for amounts determined in 215.404–71 or 1990). 215.404–72. This section is not required (ii) Month. Enter the two digit num- to be completed when using an alter- ber for the month the action was nego- nate structured approach (215.404–73). tiated (e.g., 09 for September). (15) Block 30—total profit objective. (5) Block 5—contracting office code. Enter the total of Blocks 24, 25, 26, 28, Enter the code assigned the con- and 29. This section is not required to tracting office per DoD Procurement be completed when using an alternate Coding Manual, Volume III, (Block A3 structured approach (215.404–73). of the DD 350). (16) Blocks 31 through 35—negotiation (6) Block 6—name of contractor. Enter summary. Complete as indicated on the the contractor’s name (including divi- form. For fixed-price type contracts sion name), (Block B5D of the DD 350). negotiated on a total price basis, enter (7) Block 7—DUNS number. Enter the the contracting officer’s best estimates contractor establishment code number, of cost and profit. When using an alter- (Block B5A of the DD 350). nate structured approach, see 215.404– (8) Block 8—federal supply code. Enter 73(b)(2) for offsets. the code used in Block B12A of the DD (17) Blocks 36 through 39—contracting 350. officer approval. The contracting officer (9) Block 9—DOD claimant program. shall sign the form. Include a complete Enter the code used in Block B12B of (with area code) commercial telephone the DD 350. number to facilitate any follow-up ac- (10) Block 10—contract type code. Enter tions. the appropriate code— (18) Blocks 96 through 99—optional use. Complete in accordance with depart- Description Code ment/agency procedures, if any. FPR (all types) ...... A NOTE: Department of Defense Acquisition FPI (all types) ...... L Forms are not published in the FEDERAL FFP ...... J REGISTER or the Code of Federal Regula- FP(E) ...... K tions. For the convenience of the user, the CPFF ...... U list set forth below includes section num- CPIF (all types) ...... V bers, form numbers, and titles. (11) Block 11—type effort. Enter the 253.303–250 Material Inspection and Receiv- ing Report. appropriate code— 253.303–250c Material Inspection and Receiv- ing Report-Continuation Sheet. Description Code 253.303–250–1 Tanker/Barge Material Inspec- Manufacturing ...... 1 tion and Receiving Report. Research and Development ...... 2 253.303–350 Individual Contracting Action Services ...... 3 Report. 253.303–416 Purchase Request for Coal, Coke (12) Block 12—use code. Enter the ap- or Briquettes. propriate code for use of the weighted 253.303–428 Communication Service Author- guidelines method— ization. 253.303–448 Military Interdepartmental Pur- Description Code chase Request. 253.303–448–2 Acceptance of MIPR. Standard weighted guidelines method (215.404–71) ... 2 253.303–879 Statement of Compliance. Alternate performance risk, no facilities employed 253.303–882 Report of Inventions and Sub- (215.404–71–2(c)(2)) ...... 1 contracts. Alternate facilities capital employed (215.404–71– 4(c)(2)) ...... 3 253.303–1057 Monthly Summary of Con- Alternate structure approach (215.404–73) ...... 4 tracting Actions. Modified weighted guidelines approach, (215.404–72) 5 253.303–1114 Instructions for Use of Contract Termination Settlement and Inventory (13) Blocks 13 through 20—cost category Schedule Forms. objective. Enter the prenegotiation ob- 253.303–1131 Cash Collection Voucher. jectives. Include contractor inde- 253.303–1149 Requisition and Invoice/Ship- ping Document. pendent research and development/bid 253.303–1155 Order for Supplies or Services. and proposal in the general and admin- 253.303–1155c–1 Order for Supplies or Serv- istrative expenses in Block 19. ices (Commissary Continuation Sheet).
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253.303–1342 Property Record. 253.303–1640 Request for Plant Clearance. 253.303–1348 Single Line Item Requisition 253.303–1641 Disposal Determination Ap- System Document (Manual). proval. 253.303–1348m Single Line Item Requisition 253.303–1653 Transportation Data for Solici- System Document (Mechanical). tations. 253.303–1348–1A Issue Release/Receipt Docu- 253.303–1654 Evaluation of Transportation ment. Cost Factors. 253.303–1348–2 Issue Release/Receipt Docu- 253.303–1659 Application for U.S. Govern- ment with Address Label. ment Shipping Documentation/Instruc- 253.303–1384 Transportation Control and tions. Movement Document. 253.303–1662 Property in the Custody of Con- 253.303–1391 FY lll Military Construction tractors. Project Data. 253.303–1664 Data Item Description. 253.303–1391c FY lll Military Construction 253.303–1707 Information to Offerors or Project Data (continuation). Quoters. 253.303–1419 Industrial Plant Equipment 253.303–1861 Contract Facilities Capital Cost Requisition. of Money. 253.303–1423 Contract Data Requirements 253.303–1921 Cost Data Summary Report. List. 253.303–1921–1 Functional Cost-Hour Report. 253.303–1423–1 Contract Data Requirements 253.303–2025 Packaging Change Rec- List (1 Data Item). ommendation/Approval. 253.303–1423–2 Contract Data Requirements 253.303–2051 Request for Assignment of a List (2 Data Items). Commercial and Government Entity 253.303–1484 Post-Award Conference Record. (CAGE) Code. 253.303–1547 Record of Weighted Guidelines 253.303–2051–1 Request for Information/ Application. Verification of Commercial and Govern- 253.303–1568 Labor Standards Investigation ment Entity (CAGE) Code. Summary Sheet. 253.303–2139 Report of Contract Performance 253.303–1592 Contract Cross Reference Data. Outside the United States. 253.303–1593 Contract Administration Com- 253.303–2579 Small Business Coordination pletion Record. Record. 253.303–1594 Contract Completion State- 253.303–2626 Performance Evaluation (Con- ment. struction). 253.303–1597 Contract Closeout Check-List. 253.303–2631 Performance Evaluation (Archi- 253.303–1598 Contract Termination Status tect-Engineer). Report. [56 FR 36554, July 31, 1991] 253.303–1635 Plant Clearance Case Register. 253.303–1637 Notice of Acceptance of Inven- EDITORIAL NOTE: For FEDERAL REGISTER ci- tory Schedules. tations affecting section 253.215–70, see the 253.303–1638 Report of Disposition of Con- List of CFR Sections Affected, which appears tractor Inventory. in the Finding Aids section of the printed 253.303–1639 Scrap Warranty. volume and on GPO Access.
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