CONTRACT CLAUSES requirement by certifying to the Contractor the date of such Statement and the address of the Contracting Officer administering the contract. NOTE (2) In any case where a subcontractor determines that the Disclosure Statement information is privileged and confidential and declines to provide it to his contractor or higher tier subcontractor, the Contractor may authorize direct submission of that subcontractor's Disclosure Statement to the same Government offices to which the Contractor was required to make submission of his Disclosure Statement. Such authorization shall in no way relieve the Contractor of liability as provided in paragraph (a)(5) of this clause. In view of the foregoing and since the contract may be subject to adjustment under this clause by reason of any failure to comply with rules, regulations, and Standards of the Cost Accounting Standards Board in connection with covered subcontracts, it is expected that the Contractor may wish to include a clause in each such subcontract requiring the subcontractor to appropriately indemnify the Contractor. However, the inclusion of such a clause and the terms thereof are matters for negotiation and agreement between the Contractor and the subcontractor, provided that they do not conflict with the duties of the Contractor under its contract with the Government. It is also expected that any subcontractor subject to such indemnification will generally require substantially similar indemnification to be submitted by his subcontractors. NOTE (3) If the subcontractor is a business unit which, pursuant to 4 CFR 332 is entitled to elect modified contract coverage and to follow Standards 401 and 402 only, the clause entitled "Disclosure and Consistency of Cost Accounting Practices" set forth in NASA PR 7.104–55(a)(2) shall be inserted in lieu of this clause. (e) The terms defined in Sec. 331.20 of Part 331 of Title 4, Code of Federal Regulations (4 CFR 331.20) shall have the same meanings herein. As there defined, "negotiated subcontract" means any subcontract except a firm fixed-price subcontract made by a Contractor or subcontractor after receiving offers from at least two firms not associated with each other or such Contractor or subcontractor, providing that (1) the solicitation to all competing firms is identical, (2) price is the only consideration in selecting the subcontractor from among the competing firms solicited, and (3) the lowest offer received in compliance with the solicitation from among those solicited is accepted. (2) In accordance with 3.1204-1(b), the following clause shall be inserted in all solicitations likely to result in a negotiated contract exceeding $100,000. If the contractor is eligible under the conditions of 4 CFR 332 to use the following clause and elects to do so pursuant to the instructions in the solicitation notice (3.501(b)(3) Section B (7)(C)), or if the contractor is a foreign concern, the clause shall be inserted in any resulting contract in lieu of the clause set forth in 7.104-55(a)(1) above: DISCLOSURE AND CONSISTENCY OF COST ACCOUNTING PRACTICES (MAY 1978) (a) TheContractor, in connection with this contract, shall: (1) Comply with the requirements of 4 CFR, Parts 401, Consistency in Estimating, Accumulating and Reporting Costs, and 402, Consistency in Allocating Costs Incurred for the Same Purpose, in effect on the date of award of this contract. (2) If it is a business unit of a company required to submit a Disclosure Statement, disclose in writing its cost accounting practices as required by regulations of the Cost Accounting Standards Board. The required disclosures must be made prior to contract award unless the Contracting Officer provides a written notice to the Contractor authorizing post-award submission in accordance with regulations of the Cost Accounting Standards Board. If the Contractor has notified the Contracting Officer that the Disclosure Statement contains trade secrets and commercial or financial information which is privileged and confidential, the Disclosure Statement will be protected and will not be released outside of the Government. NOTE (1) Subcontractors shall be required to submit their Disclosure Statements to the Contractor. However, if a subcontractor has previously submitted his Disclosure Statement to a Government Administrative Contracting Officer (ACO), he may satisfy that requirement by certifying to the Contractor the date of such Statement and the address of the ACO. NOTE (2) In any case where a subcontractor determines that the Disclosure Statement information is privileged and confidential and declines to provide it to his Contractor or higher tier subcontractor, the Contractor may authorize direct submission of that subcontractor's Disclosure Statement to the same Government offices to which the Contractor was required to make submission of his Disclosure Statement. Such authorization shall in no way relieve the Contractor of liability if he or a subcontractor fails to comply with an applicable Cost Accounting Standard or to follow any practice disclosed pursuant to this paragraph and such failure results in any increased costs paid by the United States. In view of the foregoing and since the contract may be subject to adjustment under this clause by reason of any failure to comply with rules, regulations, and Standards of the Cost Accounting Standards Board in connection with covered subcontracts, it is expected that the Contractor may wish to include a clause in each such subcontract requiring the subcontractor to appropriately indemnify the Contractor. However, the inclusion of such a clause and the terms thereof are matters for negotiation and agreement between the Contractor and the subcontractor, provided that they do not conflict with the duties of the Contractor under its contract with the Government. It is also expected that any subcontractor subject to such indemnification will generally require substantially similar indemnification to be submitted by his subcontractors. (3) Follow consistently the cost accounting practices disclosed pursuant to (2) above and the established cost accounting practices of the business unit. A change to such practices may be proposed, however, by either the Government or the Contractor, and the Contractor agrees to negotiate with the Contracting Officer the terms and conditions under which a change may be made. After the terms and conditions under which the change is to be made have been agreed to, the change must be applied prospectively to this contract, and the Disclosure Statement if affected 7.104-55 CFR TITLE 41 CHAPTER 18 CLAUSES FOR FIXED-PRICE SUPPLY CONTRACTS must be amended accordingly. No agreement may be made under this provision that will increase costs paid by the United States. (4) Agree to an adjustment of the contract price or cost allowance, as appropriate, if he or a subcontractor fails to comply with the applicable Cost Accounting Standards or to follow any practice disclosed or established pursuant to subparagraph (a)(2) or (a)(3) above and such failure results in any increased costs paid by the United States. Such adjustment shall provide for recovery of the increased costs to the United States together with interest thereon computed at the rate determined by the Secretary of the Treasury pursuant to Public Law 92-41, 85 Stat. 97, or 7 percent per annum, whichever is less, from the time the payment by the United States was made to the time the adjustment is effected. (5) When the parties agree to a change to either a disclosed cost accounting practice or an established cost accounting practice, negotiate an equitable adjustment as provided in the "Changes" clause of this contract. (b) If the parties fail to agree whether the Contractor has complied with an applicable Cost Accounting Standard, rule or regulation of the Cost Accounting Standards Board and as to any cost adjustment demanded by the United States, such failure to agree shall be a dispute concerning a question of fact within the meaning of the "Disputes" clause of this contract. (c) The Contractor shall permit any authorized representatives of the Head of the agency, of the Cost Accounting Standards Board, or of the Comptroller General of the United States to examine and make copies of any documents, papers, or records relating to compliance with the requirements of this clause. (d) The Contractor shall include in all negotiated subcontracts into which he enters the substance of this clause except paragraph (b) of this section, and shall require such inclusion in all other subcontracts of any tier, except that: (1) If the subcontract is awarded to a business unit which pursuant to Part 331 is required to follow all Cost Accounting Standards, the clause entitled "Cost Accounting Standards" set forth in NASA PR 7.104–55(a)(1) shall be inserted in lieu of this clause; or (2) This requirement shall not apply to negotiated subcontracts where the price negotiated is based on: (i) established catalog or market prices of commercial items sold in substantial quantities to the general public, or (ii) Prices set by law or regulation; or (3) The requirement shall not apply to negotiated subcontracts otherwise exempt from the requirement to accept a cost accounting standards clause by reason of Section 331.30(b) of the Board's regulation. NOTE: The terms defined in Section 331.20 of Part 331 of Title 4, Code of Federal Regulations (4 CFR 331.20) shall have the same meanings herein. As there defined, “negotiated subcontract" means any subcontract except a firm fixedprice subcontract made by a Contractor or subcontractor after receiving offers from at least two firms not associated with each other or such Contractor or subcontractor, providing (1) the solicitation to all competing firms is identical, (2) price is the only consideration in selecting the subcontractor from among the competing firms solicited, and (3) the lowest offer received in compliance with the solicitation from among those solicited is accepted. (b) Administration of Cost Accounting Standards. In accordance with 3.1204, insert the following clause in all solicitations and contracts requiring insertion of the clause in either 7.104-55(a)(1) or (2) above: ADMINISTRATION OF COST ACCOUNTING STANDARDS (APRIL 1979) For the purpose of administering Cost Accounting Standards requirements under this contract, the Contractor shall: (a) Submit to the cognizant Contracting Officer a description of the accounting change and the general dollar magnitude of the change to reflect the sum of all increases and the sum of all decreases for all contracts containing the Cost Accounting Standards clause (NASA PR 7.104–55(a)(1)) or the Disclosure and Consistency of Cost Accounting Practices clause (7.104-55(a)(2)). (i) for any change in cost accounting practices required to comply with a new Cost Accounting Standard in accordance with paragraphs (a)(3) and (a)(4)(A) of the clause of this contract entitled "Cost Accounting Standards” within sixty (60) days (or such other date as may be mutually agreed to) after award of a contract requiring such change; (ii) for any change to cost accounting practices proposed in accordance with paragraph (a)(4)(B) or (a)(4)(C) of the clause of this contract entitled "Cost Accounting Standards" or with paragraph (a)(3) or (a)(5) of the clause entitled "Disclosure and Consistency of Cost Accounting Practices" not less than sixty (60) days (or such other date as may be mutually agreed to) prior to the effective date of the proposed change; or (iii) for any failure to comply with an applicable Cost Accounting Standard or to follow a disclosed practice as contemplated by paragraph (a)(5) of the clause of this contract entitled "Cost Accounting Standards" or with paragraph (a)(4) of the clause entitled "Disclosure and Consistency of Cost Accounting Practices" within sixty (60) days (or such other date as may be mutually agreed to) after the date of agreement of such noncompliance by the Contractor. (b) Submit a cost impact proposal in the form and manner specified by the cognizant Contracting Officer within sixty (60) days (or such other date as may be mutually agreed to) after the date of determination of the adequacy and compliance of a change submitted pursuant to (a)(i), (ii), or (iii) above. (c) Agree to appropriate contract and subcontract amendments to reflect adjustments established in accordance with paragraphs (a)(4) and (a)(5) of the clause of this contract entitled "Cost Accounting Standards," or with paragraphs (a)(3), (a)(4) and (a)(5) of the clause entitled “Disclosure and Consistency of Cost Accounting Practices." (d) When the subcontract is subject to either the clause entitled "Cost Accounting Standards," or the clause entitled "Disclosure and Consistency of Cost Accounting Practices," so state in the body of the subcontract and/or in the letter of award. Self deleting clauses shall not be used. NASA PROCUREMENT REGULATION 7.104-55 CONTRACT CLAUSES (e) Include the substance of this clause in all negotiated subcontracts containing either the clause entitled "Cost Accounting Standards,” or the clause entitled “Disclosure and Consistency of Cost Accounting Practices." In addition, within thirty (30) days after award of such a subcontract, submit the following information to the contract administration office cognizant of the Contractor's facility for transmittal to the contract administration office cognizant of the subcontractor's facility. (1) Subcontractor's name and subcontract number. (2) Dollar amount and date of award. (3) Name of Contractor making the award. (4) A statement as to whether the subcontractor has made or proposes to make any changes to accounting practices that affect prime contracts or subcontracts containing the "Cost Accounting Standards" clause or "Disclosure and Consistency of Cost Accounting Practices" clause because of the award of this subcontract unless such changes have already been reported. If award of the subcontract results in making a Cost Accounting Standard(s) effective for the first time, this shall also be reported. (f) For negotiated subcontracts containing the clause entitled "Cost Accounting Standards," require the subcontractor to comply with all Standards in effect on the date of final agreement on price as shown on the subcontractor's signed certificate of current cost or pricing data or date of award whichever is earlier. (g) In the event an adjustment is required to be made to any subcontract hereunder, notify the Contracting Officer in writing of such adjustment and agree to an adjustment in the price or estimated cost and fee of this contract, as appropriate, based upon the adjustment established under the subcontract. Such notice shall be given within thirty (30) days after receipt of the proposed subcontract adjustment, or such other date as may be mutually agreed to, and shall include a proposal for adjustment to such higher tier subcontract or prime contract as appropriate. (h) When either the Cost Accounting Standards clause or the Disclosure and Consistency of Cost Accounting Practices clause and this clause are included in subcontracts, the term “Contracting Officer" shall be suitably altered to identify the purchaser. 7.104-56 Order of Precedence. The following clause, which may be modified to change the order or to add or delete items to meet the needs of a particular procurement, shall be included in all contracts which are not preceded by a written solicitation (see 2.201-1 Section C (6) and 3.501(b) Section C (44)). ORDER OF PRECEDENCE (NOVEMBER 1965) In the event of an inconsistency in this contract, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) the Schedule; (b) General Provisions; (c) the other provisions of the contract whether incorporated by reference or otherwise; and (d) the Specifications. 7.104-57 Liability for Government Property Furnished for Repair or Other Services. In accordance with the requirements of 13.702(c), insert the clause set forth therein. 7.104-58 Safety and Health. In accordance with the requirements of Part 1, Subpart 52, insert the clause set forth in 1.5204. 7.104-59 [Reserved] 7.104-60 Report on NASA Subcontracts. In accordance with the requirements of 21.500, insert the clause set forth therein. 7.104–61 Rights in Data for Potentially Hazardous Items. In accordance with the requirements of 9.203-6 insert the clause therein. 7.104-62 Potentially Hazardous Items. In accordance with the requirements of 1.351, insert the clause set forth therein. 7.104-63 Required Source for Jewel Bearings and Related Items. In accordance with the requirements of of 1.315, insert the clause set forth therein. 7.104-64 Contractor-Furnished Returnable Gas Cylinders and Other Containers. Insert the following clause in contracts involving the purchase of gas in contractor-furnished returnable cylinders where the contractor retains title to the cylinders. The clause may be used, with appropriate modification, in contracts for other supplies involving reels, spools, drums, carboys, liquid petroleum gas containers, or other reusable containers, where the contractor is to retain title to the containers. RETURNABLE GAS CYLINDERS (MARCH 1980) (a) Cylinders shall remain the property of the Contractor but will be loaned without charge to the Government for a period of thirty (30) days* after the date of delivery of the cylinders to the f.o.b. point specified in the contract. Beginning with the first day after the expiration of the thirty (30) day loan period to and including the day the cylinders are delivered to the Contractor where the original delivery was f.o.b. origin, or to and including the date the cylinders are delivered or are made available for delivery to the Contractor's designated carrier in the case where the original 7.104-56 CFR TITLE 41 CHAPTER 18 CONTRACT CLAUSES by the Prime Contractor to the Government, that to the best of their knowledge and belief, the cost and pricing data submitted under (a) above is accurate, complete, and current as of the date of agreement on the negotiated price of the subcontract of subcontract change or modification. (c) The Contractor shall insert the substance of this clause including this paragraph (c) in each subcontract hereunder into except where the price competition, | which exceeds $500,000 when entered price thereof is based on adequate established catalog or market prices of commercial items sold in substantial quantities to the general public, or prices set by law or regulation. In each such excepted subcontract | hereunder in excess of $500,000, the Contractor shall insert the substance of the following clause: SUBCONTRACTOR COST OR PRICING DATA (၁) (a) Paragraphs (b) and of this clause shall become operative only with respect to any modification made pursuant to one or more provisions of this contract which involves aggregate increases and/or decreases in costs plus applicable | profits expected to exceed $500,000. The requirements of this clause shall be limited to such contract modifications. to (b) The Contractor shall require subcontractors hereunder submit, actually or by specific identification in writing, cost or pricing data under the following circumstances: (i) prior to award of any subcontract, the amount of which is | expected to exceed $500,000 when entered into; (ii) prior to the pricing of any subcontract modification which involves aggregate increases and/or decreases in costs plus applicable | profits expected to exceed $500,000; except where the price is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the regulation. general public, or prices set by law or (c) The Contractor shall require subcontractors to certify, in substantially the same form as that used in the certificate by the Prime Contractor to the Government, that to the best of their knowledge and belief the cost and pricing data submitted under (b) above is accurate, complete, and current as of the date of agreement on the negotiated price of the subcontract or subcontract change or modification. (d) the Contractor shall insert the substance of this clause including this paragraph (d) in each subcontract hereunder | which exceeds $500,000 when entered into. (b) Insert the following clause in all contracts, both | formally advertised and negotiated, which exceed $500,000 other than those described in (a) above: 7.104-43 CFR TITLE 41 CHAPTER 18 CLAUSES FOR FIXED-PRICE SUPPLY CONTRACTS to (a) Paragraphs (b) and (c) of this clause shall become operative only with respect to any modification made pursuant one or more provisions of this contract which involves aggregate increases and/or decreases in costs plus applicable profits expected to exceed $500,000. The requirements of this | clause shall be limited to such modifications. (b) The Contractor shall require subcontractors hereunder to submit cost or pricing data under the following circumstances: (i) prior to the award of any subcontract the amount of which is expected to exceed $500,000 when entered into; (ii) prior | to the pricing of any subcontract modification which involves aggregate increases and/or decreases in costs plus applicable profits expected to exceed $500,000; except where the price is | based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the general public, or prices set by law or regulation. (c) The Contractor shall require subcontractors to certify that to the best of their knowledge and belief the cost and pricing data submitted under (b) above is accurate, complete, and current as of the date of agreement on the negotiated price of the subcontract change or modification. subcontract or (a) The Contractor shall insert the substance of this clause including this paraphraph (a) in each subcontract which exceeds $500,000. (c) The requirement for inclusion of the above clauses in contracts with foreign governments or agencies thereof may be waived in exceptional cases by the Assistant Administrator for Procurement, who shall state in writing the reasons for such determination. 7.104-44 Reserved 7.104-45 Limitation of Liability. (a) In accordance with 1.330, insert the following clause. LIMITATION OF LIABILITY (JUNE 1978) (a) Except for remedies expressly provided elsewhere in this contract, the Contractor shall not be liable for loss of or damage to property of the Government (excluding the supplies delivered under this contract) occurring after acceptance of the supplies delivered under this contract and resulting from any defects or deficiencies in such supplies. (b) The foregoing limitations shall not apply when the defects or deficiencies in such supplies or the Government acceptance of such supplies resulted from willful misconduct or lack of good faith on the part of any of the Contractor's 13-139 0-83--7 NASA PROCUREMENT REGULATION 7.104-45 |