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970.5204-24 except as otherwise directed or approved by DOE.
(d) Purchase or transfer of equipment, materials, supplies, or services from a contractor-affiliated source shall be treated in accordance with DEAR 970.7105.
(e) Proposed awards to firms or individuals on either the GSA Consolidated List of Debarred, Suspended, and Ineligible Contractors or the DOE Consolidated List of Debarred, Suspended, Ineligible, and Voluntarily Excluded Awardees shall be forwarded to DOE for approval notwithstanding any prior purchasing system acceptance.
(f) (Name of Contractor) shall provide advance notice of proposed subcontract awards in accordance with DEAR 970.7109; shall document purchases in writing, and shall establish and maintain subcontract files which present an accurate and adequate record of all purchasing transactions. (53 FR 24231, June 27, 1988; 54 FR 1288, Jan. 12, 1989)
thereof, and granting permission for the Government to join with the contractor in any proceedings for the recovery thereof or to sue for recovery in the name of the contractor. If the contracting officer directs the contractor to institute litigation to enjoin the collection of or recover payment of any such tax, fee, or charge referred to above, or if a claim or suit is filed against the contractor for a tax, fee, or charge it has refrained from paying in accordance with this article, the procedures and requirements of the article entitled “Litigation and Claims" shall apply and the costs and expenses incurred by the contractor shall be allowable items of costs, as provided in this contract, together with the amount of any judgment rendered against the contractor.
(c) The Government shall hold the contractor harmless from penalties and interest incurred through compliance with this clause. All recoveries or credits in respect of the foregoing taxes, fees, and charges (including interest) shall inure to and be for the sole benefit of the Government.
970.5204–24 Subcontractor cost or pricing
SUBCONTRACTOR COST OR PRICING DATA (APR
1984) (a) The following clause shall be inserted in all subcontracts where such subcontracts are over $100,000 and any modification over $100,000 to such subcontracts, even though the original amount of the subcontract is $100,000 or less:
STATE AND LOCAL TAXES (APR 1984) (a) The contractor agrees to notify the contracting officer of any State or local tax, fee, or charge levied or purported to be levied on or collected from the contractor with respect to the contract work, any transaction thereunder, or property in the custody or control of the contractor and constituting an allowable item of cost if due and payable, but which the contractor has reason to believe, or the contracting officer has advised the contractor, is or may be inapplicable or invalid;* and the contractor further agrees to refrain from paying any such tax, fee, or charge unless authorized in writing by the Contracting Officer. Any State or local tax, fee, or charge paid with the approval of the contracting officer or on the basis of advice from the contracting officer that such tax, fee, or charge is applicable and valid, and which would otherwise be an allowable item of cost, shall not be disallowed as an item of cost by reason of any subsequent ruling or determination that such tax, fee, or charge was in fact inapplicable or invalid.
*Requirement for notice may be broadened to include all state and local taxes which may be claimed as allowable costs when considered to be appropriate.
(b) The contractor agrees to take such action as may be required or approved by the contracting officer to cause any State or local tax, fee, or charge which would be an allowable cost to be paid under protest; and to take such action as may be required or approved by the contracting officer to seek recovery of any payments made, including assignment to the Government or its designee of all rights to an abatement or refund
CERTIFIED COST OR PRICING DATA (APR 1984)
(a)(1) The subcontractor shall require under the situations described in (2) below, unless exempted under the exceptions set forth in (3) below, each sub-subcontractor under this subcontract to submit cost or pricing data and to certify that, to the best of his knowledge and belief, such cost or pricing data are accurate, complete and cur. rent.
(2) Except as provided in (3) below, certi. fied cost or pricing data shall be submitted prior to (i) the award of each sub-subcontract, the price of which is expected to exceed $100,000, and (ii) the negotiation of the price of each change or modification to a sub-subcontract under this subcontract for which the price adjustment is expected to exceed $100,000.
(3) Certified cost or pricing data need not be furnished pursuant to this paragraph (a) where (i) the subcontractor has not been required to furnish cost or pricing data; or (ii) the price adjustment is based on adequate price competition, established catalog or market prices of commercial items sold in
substantial quantities to the general public, or the prices are set by law or regulation; and the subcontractor states in writing the basis for applying this exception.
(4) In submitting the cost or pricing data, the sub-subcontractor shall use the form of certificate set forth in paragraph (b) of this section and shall certify that the data are accurate, complete, and current. Such certificate and data (actual or identified, as provided in the certificate prescribed below) shall be submitted by sub-subcontractors to the next higher-tier sub-subcontractor or the subcontractor, as applicable, for retention.
(b) The certificates required by this clause shall be in the form set forth below.
Subcontractor's Certificate of Current Cost
or Pricing Data This is to certify that, to the best of my knowledge and belief, cost or pricing data submitted in writing, or specifically identified in writing if actual submission of the data is impracticable (see FAR 15.804-6(d)), to the contractor in support of are accurate, complete, and current as of
*Identify the proposal, quotation, request for price adjustment, or other submission involved.
**Insert the day, month, and year when price negotiations were concluded and price agreement was reached.
***Insert the day, month, and year of signing, which should be as close as practicable to the date when the price negotiations were concluded and the contract price was agreed to.
(c) For purposes of verifying that certified cost or pricing data submitted in conjunction with the negotiation of this subcontract change or other modification involving an amount in excess of $100,000 were accurate, complete, and current, DOE shall, until the expiration of 3 years from the date of final payment under this subcontract, have the right to examine those books, records, documents, papers, and other supporting data which involve transactions related to this subcontract or which will permit adequate evaluation of the cost or pricing data submitted, along with the computations and projections used therein.
(d) If the original price of this subcontract exceeds $100,000 or the price of any change or other modification to this subcontract is expected to exceed $100,000, the subcontractor agrees to furnish the contractor certified cost or pricing data, using the certificate set forth in paragraph (b) above, unless the price is based on adequate price compe
tition, established catalog or market prices of commercial items sold in substantial quantities to the general public, or prices set by law or regulation.
(e) The requirement for submission of cer. tified cost or pricing data with respect to any change or other modification does not apply to any sub-subcontract change or other modification, at any tier, where the subcontract is firm fixed-price or fixed-price with escalation unless such change or other modification result from a change or modification to the subcontract, nor does it apply to a sub-subcontract change or modification, at any tier, where the subcontract is not firm fixed-price or fixed-price with escalation unless the price for such change or other modification becomes reimbursable under the subcontract.
(f) The subcontractor agrees to insert paragraph (c) without change and the substance of paragraphs (a), (b), (d), (e), and (f) of this clause in each sub-subcontract hereunder in excess of $100,000 and in each subsubcontract of $100,000 or less, at the time of making a change or other modification thereto in excess of $100,000.
(g) If the prime contractor determines that any price, including profit or fee, negotiated in connection with this subcontract or any cost reimbursable under this subcontract was increased by any significant sums because the subcontractor, or any sub-subcontractor pursuant to this clause or any sub-subcontract clause herein required, furnished incomplete or inaccurate cost or pricing data or data not current as certified in the subcontractor's certificate of current cost or pricing data, then such price or cost shall be reduced accordingly and the contract shall be modified in writing to reflect such reduction.
(h) Failure of the contractor and the subcontractor to agree on any of the matters in paragraph (g) of this section shall be a dispute concerning a question of fact subject to the Disputes provisions of this subcontract.
NOTE: Since the subcontract is subject to reduction under this clause by reason of defective cost or pricing data submitted in connection with certain sub-subcontracts, it is expected that the subcontractor may wish to include a clause in each such sub-subcontract requiring the sub-subcontractor to appropriately indemnify the subcontractor. It is also exp that any sub-subcontractor subject to such indemnification will generally require substantially similar indemnification for defective cost or pricing data required to be submitted by its lower-tier subsubcontractors.
(b) This clause may also be used for subcontracts of $100,000 or less for which a certificate of cost or pricing data is obtained and, if so used, the $100,000 amount stated
in the clause should be appropriately modified.
(c) The Head of a Contracting Activity, for contracts estimated to be within the limits of delegated authority, may, without power of redelegation, approve the waiver cited in FAR 15.804-3(i). (49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984, as amended at 50 FR 12185, Mar. 27, 1985)
970.5204-25 Workmanship and materials.
WORKMANSHIP AND MATERIALS (APR 1984)
(a) Grade of workmanship and materials. Unless otherwise directed by the contracting officer or expressly provided for by specifications issued under this contract:
(1) All workmanship shall be first class; and
(2) All articles, equipment and materials incorporated in the work are to be:
(i) New and of the most suitable grade of their respective kinds for the purpose;
(ii) In accordance with any applicable drawings and specifications; and
(iii) Installed to the satisfaction and with the approval of the contracting officer. Where equipment, materials, or articles are referred to in the specifications as “equal to” any particular standard, the contracting officer shall decide the question of equality.
(b) Samples and test results. If the contracting officer so requires, the contractor shall submit for approval samples of or test results on any materials proposed to be incorporated in the work before making any commitment for the purchase of such materials.
change which represents a significant devi. ation from the procedures, equipment, or analyses described in the safety analysis reports or other hazards summary reports for that facility, the contractor shall:
(i) Prepare a safety analysis report and de. tailed plans and procedures designed to assure the safe operations and maintenance of the facility in accordance with applicable DOE regulations and directives. For nuclear reactors and critical facilities, technical specifications shall also be provided.
(2) Establish nuclear safety control procedures to be used within the contractor's organization to insure competent independent review and internal approval of the safety analysis report and the detailed plans and procedures specified in (1) above.
(3) Submit to the contracting officer for his approval such procedures relating to nuclear safety as may be designated by him.
(4) Carry out a program of initial training and periodic requalification designed to assure that all personnel who will be engaged in nuclear operations or maintenance understand the approved plans and procedures for nuclear safety and are qualified to perform their assigned functions; and
(5) Obtain the approval of the contracting officer prior to start-up of the facility.
(d) In the operation and maintenance of any nuclear facility under this contract, the contractor shall:
(1) Use all reasonable efforts to assure that all operational and maintenance activi. ties are performed by qualified and adequately trained personnel, and except as otherwise agreed in writing, are conducted under the supervision of personnel who are qualified and authorized to evaluate any emergency condition and take prompt effective action with respect thereto.
(2) Operate the facility within the techni. cal specifications or operational safety requirements which are approved by the contracting officer.
(3) Follow strictly the procedures relating to nuclear safety approved by the contracting officer in paragraph (c)(3) of this section, and submit to the contracting officer for his approval, any proposed changes in such procedures.
(4) Establish an auditable, well-defined, internal safety review and inspection system approved by the contracting officer (including review and inspection reports by competent technical personnel) that will: (i) Provide frequent and periodic checks of facility performance and of the qualifications and training of operating and maintenance personnel, and (ii) provide for investigation of any unusual or unpredicted conditions that might affect safe operation.
(5) Report promptly to the contracting of. ficer any change in the physical condition of the facility or its operating characteris
970.5204-26 Nuclear facility safety.
In accordance with the provisions at 970.2303 insert the clause below in management and operating contracts.
NUCLEAR SAFETY (APR 1984) (a) The activities under this contract include the operation of nuclear facilities. The contractor recognizes that such operation involves the risk of a nuclear incident which, while the chances are remote, could adversely affect the public health and safety as well as the environment. Therefore, the contractor will exercise a degree of care commensurate with the risk involved.
(b) The contractor shall comply with all applicable regulations of DOE concerning nuclear safety and with those requirements (including reporting requirements and instructions) of DOE concerning nuclear safety of which it is notified in writing by the contracting officer.
(c) Prior to the initial startup of any nuclear facility under this contract and prior to any subsequent startup following a
for others. The contractor shall transmit to the contracting officer all information obtained from such disclosures. The contractor will require any employee who will be employed full-time on the contract to agree, as a condition of his participation in such work, that he will not perform consultant or other comparable employment services for another DOE contractor under its contract with DOE, except with the prior approval of the contractor.
(b) The following clause shall be included in all contracts identified in 970.2272(b)(4).
tics that might, in the judgment of the contractor, affect the safe operation of the facility.
(6) Terminate operations at the facility immediately whenever so instructed by the contracting officer, or whenever, in the judgment of the contractor, the risk of a nuclear incident endangering persons or property warrants such action.
(7) Prepare, in cooperation with other services and facilities available at the site and with the approval of the contracting officer, a plan for minimizing the effects of a nuclear incident upon the health and safety of all persons of the site; participate as directed in the integration of the contractor's and contracting officer's emergency plans with the responsible state and local government's emergency plans for protection of the public off-site; instruct its personnel as to their participation in such plans and any personal risk to such personnel that may be involved; and participate in such practice exercises as may be desirable to assure the effectiveness of such plans.
(8) At an appropriate time as determined by the contracting officer, prepare and submit to the contracting officer for his approval, shutdown, decommissioning, decontamination and property management plans leading to orderly and safe program disposition of the nuclear facility and any associated nuclear wastes or other hazardous material.
(9) In the event that the contractor fails to comply with said standards and requirements of DOE, the contracting officer may, without prejudice to any other legal or contractual rights of DOE, issue an order stopping all or any part of the work; thereafter a start order for resumption of the work may be issued at the discretion of the contracting officer. The contractor shall make no claim for an extension of time or for compensation or damages by reason of or in connection with such work stoppage.
CONSULTANT OR OTHER COMPARABLE
EMPLOYMENT SERVICES (MAY 1989) The contractor shall require all employees who are employed full-time (an individual who performs work under the cost-type contract on a full-time annual basis) or parttime (50 percent or more of regular annual compensation received under terms of a contract with DOE) on the contract work to disclose to the contractor all consultant or other comparable employment services which the employees propose to undertake for others. The contractor shall transmit to the contracting officer all information obtained from such disclosures. The contractor will require any employee who will be employed full-time on the contract work to agree, as a condition of his participation in such work, that he will not perform consultant or other comparable employment services for another DOE contractor in the same or related energy field or another organization except with the prior approval of the contractor. If the contractor believes, with respect to any employee who is employed full-time on the contract work, that any proposed consultant or other comparable employment service may involve: (1) A rate of remuneration significantly in excess of the employee's regular rate of remuneration; (2) a significant question concerning possible conflict with DOE's policies regarding conduct of employees of DOE's contractors; (3) the contractor's responsibility to report fully and promptly to DOE all significant research and development information; or (4) the patent provisions of the contractor's contract with DOE, the contractor shall obtain the prior approval of the contracting officer for such consultant or other comparable employment service. [49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984; 54 FR 27649, June 30, 1989)
970.5204-27 Consultant or other compara
ble employment services of contractor
employees. (a) The following clause shall be included in all cost-reimbursement type contracts identified in 970.2272(b)(3).
CONSULTANT OR OTHER COMPARABLE
EMPLOYMENT SERVICES (APR 1984) The contractor shall require all employees who are employed full-time (an individual who performs work under the cost-type contract on a full-time annual basis) or parttime (50 percent or more of regular annual compensation received under terms of a contract with DOE) on the contract work to disclose to the contractor all consultant or other comparable employment services which the employees propose to undertake
ASSIGNMENT (APR 1984) Neither this contract nor any interest therein nor claim thereunder shall be as
signed or transferred by the contractor except as expressly authorized in writing by the contracting officer. 970.5204-29 Permits or licenses.
PERMITS OR LICENSES (APR 1984) Except as otherwise directed by the contracting officer, the contractor shall procure all necessary permits or licenses and abide by all applicable laws, regulations, and ordinances of the United States and of the state, territory, and political subdivision in which the work under this contract is performed.
authorize representatives of the Government to settle or defend any such action or claim and to represent the contractor in, or to take charge of, any action. If the settlement or defense of an action or claim against the contractor is undertaken by the Government, the contractor shall furnish all reasonable assistance in effecting a settlement or asserting a defense. Where an action against the contractor is not covered by a policy of insurance, the contractor shall, with the approval of the contracting officer, proceed with the defense of the action in good faith and in such event the defense of the action shall be at the expense of the Government, provided, however, that the Government shall not be liable for such expense to the extent that it would have been compensated for by insurance which was required by law or by the written direction of the contracting officer, but which the contractor failed to secure or maintain through its own fault or negligence. (49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984)
970.5204-30 Notice of labor disputes.
NOTICE OF LABOR DISPUTES (APR 1984) Whenever an actual or potential labor dispute is delaying or threatening the performance of the work, the contractor shall immediately notify the contracting officer in writing. Such notice shall include all relevant information concerning the dispute and its background.
970.5204-32 Required bonds and insur
ance-exclusive of Government property (cost-type contracts).
REQUIRED BONDS AND INSURANCE-EXCLUSIVE
OF GOVERNMENT PROPERTY (COST-TYPE
The contractor shall procure and maintain such bonds and insurance as are required by law or by the written direction of the contracting officer. The terms and conditions of any such bonds and insurance shall conform to the directions of the contracting officer. In view of the provisions of the article entitled “Property” the contractor shall not procure or maintain for its own protection any insurance covering loss or destruction of or damage to Governmentowned property.
970.5204-31 Litigation and claims.
LITIGATION AND CLAIMS (APR 1984) (a) Initiation of litigation. The contractor may, with the prior written authorization of the contracting officer, and shall, upon the request of the Government, initiate litigation against third parties, including proceedings before administrative agencies, in connection with this contract. The contractor shall proceed with such litigation in good faith and as directed from time to time by the contracting officer.
(b) Defense and settlement of claims. The contractor shall give the contracting officer immediate notice in writing (1) of any action, including any proceeding before an administrative agency, filed against the contractor arising out of the performance of this contract, and (2) of any claim against the contractor, the cost and expense of which is allowable under the clause entitled “Allowable Costs and Fixed-Fee." Except as otherwise directed by the contracting officer, in writing, the contractor shall furnish immediately to the contracting officer copies of all pertinent papers received by the contractor with respect to such action or claim. To the extent not in conflict with any applicable policy of insurance, the contractor may with the contracting officer's approval, settle any such action or claim, shall effect at the contracting officer's request an assignment and subrogation in favor of the Government or all of the contractor's rights and claims (except those against the Government) arising out of such action or claim against the contractor, and if required by the contracting officer, shall
970.5204-33 Priorities and allocations.
(a) The following clause shall be used in management and operating contracts for military and atomic energy construction, operations and other directly related activity, where the programs have been authorized pursuant to the Atomic Energy Act of 1954, as amended.
PRIORITIES AND ALLOCATIONS (JUNE 1987)
The contractor shall follow the rules and procedures of the Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 350) in obtaining controlled materials and other products and materials needed for contract performance.