CLAUSES FOR FIXED-PRICE SUPPLY CONTRACTS (4) what adjustments to contract price, schedule, and other provisions affected by the alleged are estimated; and delivery change (vi) the Contractor's estimate of the time by which the Government must respond to the Contractor's notice to minimize cost, delay or disruption of performance. a (c) Continued Performance. Following submission of the notice required by (b) above, the Contractor shall diligently continue performance of this contract to the maximum extent possible in accordance with its terms and conditions as construed by the Contractor, unless such notice reports a direction of the Contracting Officer or a communication from a specifically authorized representative of the Contracting Officer, in either of which events the Contractor shall continue performance in compliance therewith, provided, however, that if the Contractor regards the direction or communication as change as described in (b) above, notice shall be given as therein provided. A11 directions, communications, interpretations, orders and similar actions of such specifically authorized representative shall be reduced to writing promptly and copies thereof furnished to the Contractor and to the Contracting Officer. The Contracting Officer shall promptly countermand any action which exceeds the authority of the specifically authorized representative. (a) Government Response. The promptly, and in any event within calendar days after receipt of writing. In such response the either; Contracting Officer shall ...........** (**to be negotiated) NOTICE, respond thereto in Contracting Officer shall (i) confirm that the conduct of which the Contractor gave notice constitutes a change and when necessary direct the mode of further performance, (ii) countermand any communication regarded as a change, (iii) deny that the conduct of which the Contractor gave notice constitutes a change and when necessary direct the mode of further performance; or (iv) in the event the Contractor's notice information is inadequate to make a decision under (i), (ii), or (iii) above, advise the Contractor what additional information is required, and establish the date by which it should be furnished and the date thereafter by which the Government will respond. (e) Equitable Adjustments. If the Contracting confirms that Government conduct effected a change as Officer alleged by the Contractor, and such conduct causes an increase or decrease in the Contractor's cost of, or the time required for, performance of any part of the work under this contract, whether changed or not changed by such conduct, adjustment shall be made: an equitable (i) in the contract price or delivery schedule or both; and NASA PROCUREMENT REGULATION 7.104-85 CONTRACT CLAUSES (ii) in such other provisions of the contract as may be affected; and the contract shall be modified in writing accordingly. In the case of drawings, designs or specifications which are defective and for which the Government is responsible, the equitable adjustment shall include the cost and time extension for delay reasonably incurred by the Contractor in attempting to comply with defective drawings, such designs or specifications before the Contractor identified, or reasonably should have identified, such defect. When the cost of property made obsolete or excess as a result of a change confirmed by the Contracting Officer pursuant to this clause is included in the equitable adjustment, the Contracting Officer shall have the right to prescribe the manner of disposition of such property. The equitable adjustment shall not include increased costs or time extensions for delay resulting from Contractor's failure to provide notice or to continue performance as provided, respectively, in (b) and (c) above. the NOTE: The phrases "contract price" and "cost" wherever they appear in the foregoing clause, may be appropriately modified to apply to cost-reimbursement or incentive type contracts, or to combinations thereof. 7.104-87 through 7.104-88 Reserved7 7.104-89 Engineering Change Proposals (ECP's). In accordance with 26.205 the following is a sample clause: ENGINEERING CHANGE PROPOSALS (a) The Contracting Officer may at any time; in writing, request the Contractor to prepare and submit an Engineering Change Proposal (ECP), within the scope of this contract, as hereafter set forth. Upon receipt of such request, the Contractor shall submit to the Contracting information specified by, and in the format paragraph 4, of MIL.-STD-480.**** Officer the required by (b) Any Contractor ECP shall set forth a "not to exceed" price and delivery adjustment or a "not less than" price* and delivery adjustment, acceptable to the Contractor if the Government subsequently orders such ECP. If ordered, the equitable increase shall not exceed, nor shall the equitable decrease be less than, such "not to exceed" or "not less than" amounts.** This paragraph does not preclude any revision(s) or correction (s) of an ECP in accordance with paragraph 4.10 and 4.11 of MIL.-STD-480. Concurrently with the submission of any ECP under this contract in which the proposed aggregate cost is $500,000 or greater, the Contractor shall submit to the Contracting Officer a completed DD Form 633 (NASA Edition). At the time of agreement upon the price of the ECP, the 7.104-87 CFR TITLE 41 CHAPTER 18 CLAUSES FOR FIXED-PRICE SUPPLY CONTRACTS Contractor shall submit a signed Certificate of Current Cost or Pricing Data. The contracting officer may include, in the circumstances in 26.205(b), the following paragraph. (c) If the price* adjustment proposed for any Contractor originated ECP (excluding any Government requested ECP or Value Engineering Change Proposal) is*** (percent of contract price*) (or $ ***) or less, such change shall be made at по adjustment of the contract price*. Use term suitable to type of contract. In cost reimbursement type contracts replace this sentence with the following sentence: Change orders issued pursuant to the Change clause of this contract shall not be considered an authorization to the Contractor to exceed the estimated cost set forth in the Schedule in the absence of a statement in the change order, or other contract modification, increasing the estimated cost. *** To be negotiated. Delete references to MIL-STD-480 when desirable and enter local format, if any. 7.104-90 Change Order Accounting. In accordance with 26.205, the following is a sample clause: CHANGE ORDER ACCOUNTING When the Contracting Officer estimates that the cost of a change or series of related changes will exceed $100,000, he may require change order accounting. The Contractor, for each such change or series of related changes, shall maintain separate accounts, by job order or other suitable accounting procedure, of all incurred segregable, direct costs (less allocable credits), of work, both changed and not changed, allocable to the change. Such accounts shall be maintained until the parties agree to an equitable adjustment for the change order. 7.104-91 through 7.104-94 Reserved 7.104-95 Preference for United States Flag Air Carriers. In accordance with 1.336-1 (b), insert the following clause. PREFERENCE FOR UNITED STATES FLAG AIR CARRIERS (a) Public Law 93-623 requires that all Federal agencies and Government Contractors and subcontractors will use U.S. flag air carriers for international air transportation of personnel (and their personal effects) or property to the extent service by such carriers is available. It further provides that the NASA PROCUREMENT REGULATION 7.104-95 CONTRACT CLAUSES Comptroller General of the United States shall disallow expenditure from appropriated funds for international transportation on other than a U.S. flag air carrier in absence of satisfactory proof of the necessity therefor. any air the (b) The Contractor agrees to utilize U.S. flag air carriers for international air transportation of personnel (and their personal effects) or property to the extent service by such carriers is available. for (c) In the event that the Contractor selects a carrier other than a U.S. flag air carrier international air transportation, he will include a certification on Vouchers involving such transportation which is essentially as follows: CERTIFICATION OF UNAVAILABILITY OF U.S. FLAG I hereby certify that transportation service for personnel (and their personal effects) or property by certificated air carrier was unavailable for the following reasons: (state reasons) (a) The terms used in this clause have the following meanings: "International air means (i) transportation" transportation of persons (and their personal effects) or property by air between a place in the United States and a place outside thereof or between two places both of which are outside the United States. (ii) "U.S. flag air carrier" means one of a class of air carriers holding a certificate of public convenience and necessity issued by the Civil Aeronautics Board, approved by the President, authorizing operations between the United States and/or its territories and one or more foreign countries. (iii) The term "United States" includes the fifty states, Commonwealth of Puerto Rico, possessions of the United States and the District of Columbia. (e) The Contractor shall include the substance of this clause, including this paragraph (e) in each subcontract or purchase hereunder which may involve international air transportation. 7.104-96 Notice of Intent to Disallow or Not Recognize Costs. Insert the clause in 7.203-30 in all fixedprice incentive contracts and contracts providing for price redetermination. 7.104-97 through 7.104-102 Reserved 7.104-103 Delivery of Excess Quantities of $100 or Less. The following clause may be inserted in contracts for supplies: DELIVERY OF EXCESS QUANTITIES OF $100 OR LESS (MARCH 1982) 7.104-96 CFR TITLE 41 CHAPTER 18 CLAUSES FOR FIXED-PRICE SUPPLY CONTRACTS The Contractor is responsible for the delivery of each item quantity within allowable variations, if any. If the Contractor delivers and the Government receives quantities of any item in excess of the quantity called for (after considering any allowable variation in quantity), such excess quantities will be treated as being delivered for the convenience of the Contractor. The Government may retain such excess quantities up to $100 in value without compensating the Contractor therefor, and the Contractor waives all right, title, or interests therein. Quantities in excess of $100 will, at the option of the Government, either be returned at the Contractor's expense or retained and paid for by the Government at the contract unit price. 7.105 Additional Clauses. The following clauses shall be inserted in fixed-price supply contracts if it is desired to cover the subject matter thereof. 7.105-1 Alterations in Contract. Alterations in contract provisions may be made only in accordance with the provisions of 1.109. When alterations are necessary, they shall be set forth either in the Schedule or on an Attachment Sheet, preceded by the following clause: of The following alterations have been made in the provisions this contract. 7.105-2 through 7.105-4 Reserved 7.105-5 Liquidated Damages. In accordance with 1.310, where a liquidated damages provision is to be used, the following provision shall be inserted as paragraph (f) of the "Default" clause (see 8.707) and the present paragraphs (f) and (g) of that clause redesignated (g) and (h). (f) If the Contractor fails to deliver the supplies or perform the services within the time specified in this contract, or any extension thereof, the actual damage to the Government for the delay will be difficult or impossible to determine. Therefore in lieu of actual damages the Contractor shall pay to the Government as fixed, agreed, and liquidated damages for each calendar day of delay, the amount set forth elsewhere in this contract. Alternatively, the Government may terminate this contract in whole or in part as provided in paragraph (a) of this clause, and in that event the Contractor shall be liable, in addition to the excess costs provided in paragraph (b) above, for such liquidated damages accruing until such time as the Government may reasonably obtain delivery or performance of similar supplies or services. The Contractor shall not be charged with liquidated damages when NASA PROCUREMENT REGULATION 7.105-5 |