PROCUREMENT FORMS

thereof. Upon failure of the Contractor to submit his termination claim within the time allowed, the Contracting Officer may, subject to any Settlement Review Board approvals required by NASA regulations in effect on the date of the execution of this contract, determine, on the basis of information available to him, the amount, if any, due to the Contractor by reason of the termination, and shall thereupon pay to the Contractor the amount so determined. (e) Subject to the provisions of paragraph (d) hereof, and subject to any Settlement Review Board approvals required by NASA regulations in effect as of the date of execution of this Letter Contract, the Contractor and the Contracting Officer may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of work pursuant to this clause. In the event of any termination pursuant to paragraph (a) or (b)(i) hereof, such amount or amounts shall not include any allowance for fee. In the event of any termination pursuant to paragraph (b)(ii) hereof, such amount or amounts may include a reasonable allowance for fee, but only on work actually done in connection with the terminated portion of this Letter Contract. Any such amount shall not exceed the maximum amount specified in Article IIIa of the Schedule. Any such agreement shall be embodied in an amendment to this Letter Contract and the Contractor shall be paid the agreed amount.

(f) In the event of the failure of the Contractor and the Contracting Officer to agree in whole or in part, as provided in paragraph (e) above, as to the amount or amounts to be paid to the Contractor in connection with the termination of work pursuant to this clause, the Contracting Officer shall, subject to any Settlement Review Board approvals required by NASA regulations in effect as of the date of execution of this Letter Contract, determine, on the basis of information available to him, and in accordance with the applicable cost principles of the NASA Procurement Regulation as in effect on the date of this Letter Contract, the amount, if any, due to the Contractor by reason of the termination and shall pay such amount to the Contractor. In the event of the termination of this Letter Contract pursuant to paragraph (a) or (b)(i) hereof, no allowance for fee shall be included in the amount to be paid the Contractor.

(g) The Contractor shall have the right of appeal, under the clause of this Letter Contract entitled "Disputes," from any determination made by the Contracting Officer under paragraph (d) or (f) above (including any disputes as to whether termination has in fact taken place pursuant to paragraph (a) or (b)(i) hereof), except that if the Contractor has failed to submit a claim within the time provided in paragraph (d) above and has failed to request extension of such time, he shall have no such right of appeal. In any case where the Contracting Officer has made a determination of the amount due under paragraph (d) or (f) above, the Government shall pay to the Contractor the following:

(i) if there is no right of appeal hereunder or if no timely appeal has been taken, the amount so determined by the Contracting Officer; or

(ii) if an appeal has been taken, the amount finally determined on such appeal.

(h) In arriving at the amount due the Contractor under this clause there shall be deducted:

(i) all unliquidated advance or other payments theretofore made to the Contractor, applicable to the terminated portion of this Letter Contract;

(ii) any claim which the Government may have against the Contractor in connection with this Letter Contract; and (iii) the agreed price for, or the proceeds of sale of, any materials, supplies, or other things acquired by the Contractor or sold pursuant to the provisions of this clause and not otherwise recovered by or credited to the Government. (i) The Government may from time to time, under such terms and conditions as it may prescribe, make partial payments and payments on account against costs incurred by the Contractor in connection with the terminated portion of this Letter Contract whenever in the opinion of the Contracting Officer the aggregate of such payments shall be within the amount to which the Contractor will be entitled hereunder. If the total of such payments is in excess of the amount finally agreed or determined to be due under this clause, such excess shall be payable by the Contractor to the Government upon demand, together with interest computed at the rate established by the Secretary of the Treasury pursuant to Public Law 92-41, 85 STAT 97, for the period from the date such excess payment is received by the Contractor to the date on which such excess is repaid to the Government; provided, however, that no interest shall be charged with respect to any such excess payment attributable to a reduction in the Contractor's claim by reason of retention or other disposition of termination inventory until ten days after the date of such retention or disposition, or such later date as determined by the Contracting Officer by reason of the circumstances.

(Local reproduction is authorized)

16.860 Processing Payments Under Contracts with Cost-Reimbursement Provisions. The following forms are authorized for processing payments under contracts with cost-reimbursement provisions (see 3.809(c)(1)):

(i) NASA Form 456, Notice of Contract Costs Suspended and/or Disapproved;

(ii) NASA Form 456-1, Notice of Contract Costs Suspended and/or Disapproved Continuation Sheet;

(iii) Standard Form 1034, Public Voucher for Purchases and Services Other than Personal; (iv) Standard Form 1034a, Public Voucher for Purchases and Services Other than PersonalMemorandum Copy;

(v) Standard Form 1035, Public Voucher for Purchases and Services Other than Personal Continuation Sheet; and

(vi) Standard Form 1035a, Public Voucher for Purchases and Services Other than Personal Continuation Sheet-Memorandum.

16.861 Withholdings Under Davis-Bacon Act (Standard Form 1093). Standard Form 1093, Schedule of Withholdings Under the Davis-Bacon Act, shall be used in accordance with 12.4049.

16.860

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MISCELLANEOUS FORMS

16.862 Unitary Plan Wind Tunnel Facilities (NASA Form 362). NASA Form 362, Agreement for Use of NASA Unitary Plan Wind Tunnel Facilities, shall be used in connection with the use of the NASA unitary plan wind tunnel facilities for company projects. The form shall be executed by authorized representatives of NASA and the company on all company projects, as defined in NASA Financial Management Manual, Appendix 9080-4A. The symbol "NAS (UP)” shall be placed on each agreement, followed by the numerical designation of the field installation, and consecutive numbers assigned (for example, "NAS (UP)-1”). Billings shall be rendered by and payments made to the NASA installation concerned in accordance with applicable fiscal regulations.

16.863 [Reserved]

16.864 Procurement Plan Contents Checklist (NASA Form 1168). NASA Form 1168, Procurement Plan Contents Checklist shall be used in accordance with 3.852-3.

16.865 Report of Government-Owned/Contractor-Held Property. (NASA Form 1018). The Report of Government-Owned/Contractor-Held Property (NASA Form 1018) shall be used in accordance with the provisions of paragraph B.311 of Appendix B and paragraph C.311 of Appendix C.

16.866 Material Inspection and Receiving Report Forms (DD Form 250, and DD Form 250c). The Material Inspection and Receiving Report Form (DD Form 250) shall be used in accordance with Appendix I. DD Form 250c is the Continuation Sheet.

16.867 DOD Property Record (DD Form 1342). The DOD Property Record (DD Form 1342) shall be used in accordance with the provisions of paragraph B.306-1 of Appendix B and paragraph C.306-1 of Appendix C.

16.868 Letters of Delegation. The forms set forth in this paragraph are prescribed for use, in accordance with the provisions of Part 20, Subpart 6, in requesting contract administration, audit, and other related support functions from another NASA installation or Government agency. 16.868-1 Letter of Contract Administration Delegation, General (NASA Form 1430). NASA Form 1430 shall be used for the delegation and redelegation of contract administration functions to other Government agencies and NASA installations.

16.868-2 Letter of Contract Administration Delegation, Special Instructions (NASA Form 1430A). NASA Form 1430A shall be used to provide special instructions to NASA Forms 1430 and 1432, when necessary. (See 20.604(g).)

16.868-3 Letter of Acceptance of Contract Administration Delegation (NASA Form 1431). NASA Form 1431 shall accompany NASA Form 1430 for use by the recipient contract administration office in evidencing acceptance of the delegation.

16.868-4 Letter of Contract Administration Delegation

Termination (NASA Form 1432). NASA Form 1432 shall be used to delegate certain contract termination functions to the cognizant contract administration office when the NASA contracting officer has issued a Notice of Termination.

16.868-5 Letter of Audit Delegation (NASA Form 1433). NASA Form 1433 shall be used to delegate contract audit functions to other Government audit agencies. (See 20.609(c).)

16.868-6 Letter of Request for Pricing-Audit Technical Evaluation Services (NASA Form 1434). NASA Form 1434 shall be used to request specific one-time services or information from other Government agencies when NASA Forms 1430, 1432, and 1433 are not appropriate. (See 20.614.) 16.869 Contract File Documentation and Closeout Forms. The forms set forth below are prescribed for use, in accordance with Supplement 2 of this Regulation, in documenting and closing the files of completed contracts:

(i) Contract Administration Completion Record (DD Form 1593);

Contract Completion Statement (DD Form 1594 - NASA Edition); and (iii) Contract Closeout Checklist (DD Form 1597 - NASA Edition).

16.870 Report of Federal Cash Transactions (Standard Form 272 and 272A). This report is required to be submitted quarterly on any contract with a non-profit educational institution and other non-profit organizations which receive advance funding by the Letter of Credit procedure. (See 1.358).

16.871 Post Award Conference Record (DD Form 1484). DD Form 1484, Post Award Conference Record shall be used in accordance with instructions contained in Part 1, Subpart 18.

NASA PROCUREMENT REGULATION

16.871

PART 17

EXTRAORDINARY CONTRACTUAL ADJUSTMENT PROCEDURES

Subpart 1-Standards and Procedures

17.000 Scope of Part. This Part establishes standards and procedures for the disposition of requests for extraordinary contractual adjustments by contractors of the National Aeronautics and Space Administration (hereinafter referred to as "NASA" or the "Administration") pursuant to the Act of August 28, 1958 (Public Law 85-804; 50 U.S.C. 1431-35) (hereinafter referred to as "the Act"), and Executive Order No. 10789, dated November 14, 1958 (23 F.R. 8897) (hereinafter referred to as "the Executive Order"). It does not extend to advance payments or the so-called "residual powers" under the Act.

17.101 Authority.

(a) The Act empowers the President to authorize Departments and agencies exercising functions in connection with the national defense to enter into contracts or into amendments or modifications of contracts and to make advance payments, without regard to other provisions of law relating to the making, performance, amendment, or modification of contracts, whenever he deems that such action would facilitate the national defense.

(b) The Executive Order authorizes the Administrator of NASA (hereinafter referred to as "the Administrator"), to exercise the authority conferred by the Act, and to prescribe regulations for the carrying out of such authority.

(c) NASA Management Instruction 1152.5, "Contract Adjustment Board," establishes the Contract Adjustment Board (hereinafter referred to as "the Board") to consider and dispose of requests for extraordinary_contractual adjustments by NASA contractors.

17.102 General Policy. The authority conferred by the Act shall be utilized primarily as an aid to procurement but shall not be utilized so as to encourage carelessness and laxity on the part of contractors or NASA personnel, nor be relied upon by NASA where other adequate legal authority exists. The actions authorized under the Act shall be processed as expeditiously as practicable but with the care, restraint, and sound judgment appropriate to the exercise of such extraordinary authority.

17.103 Standards for Deciding Cases.

17.103-1 General. The mere fact that losses occur under a Government contract is not, by itself, a sufficient basis for the exercise of the authority conferred by the Act. Whether, in a particular case, appropriate action (such as amendment without consideration, correction of a mistake or ambiguity in a contract, or formalization of an informal commitment) will facilitate the national defense is a matter of sound judgment to be made on the basis of all of the facts of the case. Although it is obviously impossible to predict or enumerate all types of cases with respect to which action may be appropriate, examples of cases or types of cases where action may be proper are set forth in paragraphs 17.103-2, 17.103-3, and 17.103-4 below. Even if all of the factors contained in any of the examples are present, other factors or considerations in a particular case may result in a denial of the request. These examples are not intended to exclude other cases where the Board determines that the circumstances warrant action. 17.103-2 Amendments Without Consideration.

(a) Where an actual or threatened loss under a Government contract, however caused, will impair the productive ability of a contractor whose continued operation as a source of supply is found to be essential to the national defense, the contract may be adjusted, but only to the extent necessary to avoid such impairment to the contractor's productive ability.

(b) Where a contractor suffers a loss (not merely a diminution of anticipated profits) on a Government contract as a result of Government action, the character of the Government action will generally determine whether any adjustment in the contract will be made and its extent. Where the Government action is directed primarily at the contractor and is taken by the Government in its capacity as the other contracting party, the contract may be adjusted if fairness so requires; thus, where such Government action, although not creating any liability on the part of the Government, increases the cost of performance, considerations of fairness may make some adjustment in the contract appropriate.

NASA PROCUREMENT REGULATION

17.103-2

EXTRAORDINARY CONTRACTUAL ADJUSTMENT PROCEDURES

17.103-3 Mistakes. A contract may be amended or modified to correct or mitigate the effect of a mistake. Examples of cases where such action may be appropriate include the following: (i) a mistake or ambiguity which consists of the failure to express or to express clearly in a written contract the agreement as both parties understood it;

(ii) a mistake on the part of the contractor which is so obvious that it was or should have been apparent to the contracting officer; and

(iii) a mutual mistake as to a material fact.

Amending contracts to correct mistakes with the least possible delay normally will facilitate the national defense by expediting the procurement program and by giving contractors proper assurance that such mistakes will be corrected expeditiously and fairly.

17.103-4 Informal Commitments. Informal commitments may be formalized under certain circumstances to permit payment to persons who have taken action without a formal contract; for example, where any person, pursuant to written or oral instructions from an official of NASA and relying in good faith upon the apparent authority of the official to issue such instructions, has arranged to furnish or has furnished property or services to NASA or to a Government contractor or subcontractor without formal contractual coverage for such property or services. Formalization of commitments under such circumstances normally will facilitate the national defense by assuring such persons that they will be treated fairly and paid expeditiously. 17.104 Limitations Upon Deciding Cases.

(a) The Act is not authority for:

(i) the use of the cost-plus-a-percentage-of-cost system of contracting;

(ii) the execution of any contract in violation of existing law relating to limitation of profit or fees;

(iii) the negotiation of purchases of or contracts for property or services required by law to be procured by formal advertising and competitive bidding;

(iv) the waiver of any bid, payment, performance, or other bond required by law;

(v) the amendment of a contract negotiated under 10 U.S.C. 2304(a)(15) to increase the contract price to an amount higher than the lowest rejected bid of any responsible bidder; or (vi) the formalization of an informal commitment, unless it is found that at the time the commitment was made it was impracticable to use normal procurement procedures.

(b) No contract, amendment, or modification shall be entered into under the authority of the Act:

(i) unless a finding is made that the action will facilitate the national defense;

(ii) unless other legal authority in the administration is deemed to be lacking or inadequate; (iii) unless the request therefor has been filed before all obligations have been discharged and final payment made; and

(iv) except within the limits of the amounts appropriated and the statutory contract authorization.

17.105 Procedures for Filing Requests.

17.105-1 Filing Requests. Any person or company seeking an adjustment under the standards set forth in 17.103 (hereinafter called the "contractor") may file a request in duplicate with the cognizant contracting officer or his duly authorized representative. If such filing is impracticable, requests will be deemed to be properly filed if filed with the Board or the Administrator for forwarding to the cognizant contracting officer.

17.105-2 Form of Requests. The contractor's request shall normally consist of a statement, dated and signed by the contractor, containing as a minimum the following information:

(i) a chronological narrative of the essential facts, showing in detail the chain of events leading up to the request;

(ii) the contractor's conclusions based on such facts, showing in terms of the standards set forth in 17.103 and the limitations set forth in 17.104 why the contractor considers himself entitled to the adjustment requested;

(iii) the precise adjustment requested, showing how it was formulated or computed and the consequences of granting or denying the request, including whether any proceeds from the request, if granted, will be subject to any assignment or other transfer, and to whom;

17.103-3

CFR TITLE 41 CHAPTER 18