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(6) List of contracts being performed of materials, inventory spoilage and during the period concerned, showing as obsolescence, cutbacks, terminations, to each:

and quality or performance guarantees (i) Contract number;

(explain extent to which risks were re(ii) Date;

duced or minimized by types of contracts (iii) Total amount of contract;

used); (iv) Brief description of the scope of (iv) Contingencies included in quoted work, service, product, etc.;

prices; (v) Method of procurement (adver (v) Experience as to profits received tised or negotiated, and extent of com by contractor in significant contracts, petition);

especially incentive contracts, with ap(vi) Type of contract;

praisal as to whether or not profits were (vii) Total billings during period, and earned by contractor's efforts (state (viii) Principal place of performance. whether any important contracts were

(7) Brief description of manufacturing negotiated with no profit or at less than techniques and type of work normally normal profit); performed by .contractor (e.g., produc (vi) Significant refunds and voluntary tion, fabrication, assembly) and relative price reductions, with circumstances of complexity of the work. State the per- each; centage of work subcontracted;

(vii) Evaluation of contractor as a (8) Information concerning con- high, average, or low cost producer; tractor performance, including extent to (viii) Partial financing by prompt which:

payments under cost-plus-fixed-fee con(i) The product or service exceeded,

tracts; met, or fell below the contract require (ix) Reasonableness of contractor's ments;

pricing policies; (ii) Delivery schedules were met (in- (x) Return on invested capital (where dicate reasons for failures to meet sched- applicable): ules, and compliance with requests for (xi) Comparison of prices with comearly deliveries, if any);

petitors' prices for same or similar prod(iii) Rejections and spoilage rates ucts or services; were high or low and reasons therefor;

(xii) Reason for cost overruns and (iv) Contractor met targets under in- underruns in cost-reimbursement type centive contracts and reasons therefor;

t; contracts; (v) Contractor was economical in use

(xiii) Assistance given contractor by of materials, facilities, and manpower, NASA technical and engineer personnel and was otherwise effective in controlling which reduces the contractor's risk: production costs;

(10) List of capital funds and facilities (vi) Contractor made effective use of

employed by contractor, with particular his facilities (state whether he expanded

reference to their source, e.g., confacilities to undertake renegotiable busi

tractor's equity capital, borrowed or ness, and if so, was such expansion ex

rented, government-financed, or governcessive); and

ment-furnished; (vii) Strikes, stoppages, or other sig (11) Extent to which the contractor nificant developments in labor manage

has complied with Government policies, ment affected contract performance;

such as the small business program, labor (9) Information concerning reason

surplus area program, competition in ableness of costs and profits, including:

subcontracting, “make-or-buy" program, (i) The basis for use of a particular

and nondiscrimination; type of contract in significant contracts (if an incentive contract, describe also

(12) Full information as to any termithe basis for negotiation of target and

nations for default or for the convenience cost sharing formulae);

of the Government, to include the status (ii) Adequacy and reliability of cost of appeals or claims, if any, and the exinformation furnished by the contractor; tent to which payments were made dur

(iii) Unusual risks assumed by con- ing the period concerned; tractor in particular contracts, e.g., close (13) Status of price revision actions pricing, labor and material cost in- and the basis for any revision completed creases, engineering changes, shortage in the period concerned;

(14) Such pertinent information on in buildings where the Government leases subcontracts, as is available;

office space. (15) Appraisal of contractor's contri

8 18–1.350_2 Use of clause. bution to the aerospace effort, with particular emphasis on work done by him

The following “Facilities Nondiscrimiin development of new material, inven- nation" clause shall be incorporated in all tion of new devices, management of large future leases where (a) the total rental systems contracts as prime or associate

is in excess of $10,000 per year, or (b) contractor;

the total rental under the new lease, (16) A current appraisal of contrac- combined with the total rental under tor's performance and recommendation all other NASA leases of space in the as to reasonableness of contractor's same building, exceeds $10,000 per year. profits and fees for the period under con- FACILITIES NONDISCRIMINATION (AUGUST 1963) sideration under the listed contracts,

(1) As used in this clause, the term "faciland

ity" means stores, shops, restaurants, cafe(17) Such other information as may terlas, restrooms, and any other facility of be particularly requested by the Renego- & public nature in the building in which the tiation Board.

space covered by this lease is located.

(2) The lessor agrees that he will not dis& 18–1.319-4 Procedures for handling

criminate by segregation or otherwise against requests for performance reports. any person or persons because of race, creed, (a) The Renegotiation Board has been color, or national origin in furnishing, or by

refusing to furnish, to such person or persons requested to submit its requests for per

the use of any facility, including any and all formance reports to the Director of Pro

services, privileges, accommodations, and accurement, NASA Headquarters.

tivities provided thereby. Nothing herein (b) Requests for performance reports shall require the furnishing to the general received by the Director of Procurement public of the use of any facility customarily will be forwarded to the installation(s) furnished by the lessor solely to tenants, their concerned. Where only one installation

empioyees, customers, patients, clients,

guests, and invitees. is involved, that installation will be in

(3) It is agreed that the lessor's noncomstructed to submit its report directly to pliance with the provisions of this clause the cognizant regional ofice of the shall constitute a material breach of this Renegotiation Board. A copy of such lease. In the event of such noncompliance, performance report will be forwarded to the Government may take appropriate action the Director of Procurement (Code to enforce compliance, may terminate this KDM).

lease, or may pursue such other remedies as

may be provided by law. In the event of (c) Where more than one installation

termination, the lessor shall be liable for all is involved, such installations will be in

excess costs of the Government in acquiring structed to submit their reports to the substitute space, including but not limited Director of Procurement (Code KDM), to the cost of moving to such space. SubThe Director of Procurement (Code stitute space shall be obtained in as close KOM) will review such reports prior to proximity to the lessor's buildings as Is feasforwarding them to the Renegotiation

ible and moving costs will be limited to the Board to ensure that the reports are con

actual expenses thereof as incurred.

(4) It is agreed that from and after the sistent with each other or that dis

date hereof the lessor will, at such time as crepancies are appropriately explained. any agreement is to be entered into or &

concession is to be permitted to operate, in& 18–1.350 Nondiscrimination clause

clude or require the inclusion of, the foregovernment leases.

going provisions of this clause in every such & 18–1.350_1 Policy.

agreement or concession pursuant to which

any person other than the lessor operates or It is NASA policy to include a "Facili

has the right to operate any facility. Nothties Nondiscrimination" clause in leases

ing herein contained, however, shall be on which NASA is the lessee. This policy

deemed to require the lessor to include or has been adopted because Federal em

require the inclusion of the foregoing proployees belonging to minority groups and

visions of this clause in any existing agreeother members of minority groups doing

ment or concession arrangement or one in business with the Federal Government which the contracting party other than the in some parts of the country have been lessor has the unilateral right to renew or denied the use of public facilities located extend the agreement or arrangement, until

the expiration of the existing agreement or Subpart 18–1.5—Contingent or arrangement and the unilateral right to renew or extend. The lessor also agrees that he

Other Fees will take any and all lawful actions as ex- & 18–1.500 Scope of subpart. peditiously as possible, with respect to any such agreement as NASA may direct as a This subpart sets forth the procedures means of enforcing the intent of this clause, to be followed and prescribes the form including, but not limited to, termination of

to be used for obtaining information conthe agreement or concession and institution

cerning contingent or other fees paid by of court action.

contractors for soliciting or securing $ 18–1.350–3 Lease amendments and contracts. renewals.

§ 18–1.502 Applicability. (a) Prior to executing any amendment This subpart applies to all contracts. to a lease or exercising a lease renewas $ 18–1.503 Covenant against contingent option, where the total rental exceeds

fees clause. $10,000 per year, the lessor shall be re

Every contract, except when Standard quested to enter into a supplemental

Forms 19 and 19A are used for formally agreement to incorporate in the lease, as

advertised construction contracts, shall part of the rental consideration, the

contain the following clause: "Facilities Nondiscrimination" clause set

COVENANT AGAINST CONTINGENT FEES forth in $ 18–1.350-2.

(FEBRUARY 1962) (b) The “Facilities Nondiscrimination" clause shall also be incorporated when

The Contractor warrants that no person or

selling agency has been employed or retained the total aggregate rental of multiple

to solicit or secure this contract upon an NASA leases in a building is in excess of agreement or understanding for a commis$10,000 per year.

sion, percentage, brokerage, or contingent (c) If agreement cannot be reached,

fee, excepting bona fide employees or bona

fide established commercial or selling agenthe matter shall be submitted to the Di

cies maintained by the Contractor for the rector of Procurement with the recom purpose of securing business. For breach mendations of the Director of the in or violation of this warranty, the Governstallation, at least 30 days prior to the

ment shall have the right to annul this con

tract without liability or in its discretion to date on which the amendment is to be

deduct from the contract price or consideraexecuted or the notice of renewal must

tion, or otherwise recover, the full amount be issued.

of such commission, percentage, brokerage,

or contingent fee. 8 18-1.350–4 Invitation for bids or request for proposals involving leases.

§ 18–1.504 Improper influence.

The term “improper influence” means The "Facilities Nondiscrimination"

influence, direct or indirect, which inclause, as set forth in § 18–1.350–2, shall

duces or tends to induce consideration be preceded by a paragraph substantially or action by any employee or officer of as follows, in all invitations for bids or the United States with respect to any requests for proposals involving leases: Government contract on any basis other If the total rental under this lease exceeds

than the merits of the matter. $10,000 per year, or if the total rental under $ 18–1.505 General principles and this lease combined with the total rental standards applicable to the covenant. under all other NASA leases of space in the

The principles and standards set forth building in which the space covered by this lease is located exceeds $10,000 per year, the

in this subpart are intended to be used lessor agrees to comply with the following

as a guide in the negotiation, award, adprovisions: (AUGUST 1963)

ministration, and enforcement of all

contracts. $ 18–1.350–5 Deviations.

$ 18–1.505-1 Contingent character of Any proposed deletions or changes in the fee. the foregoing provisions required by this Any fee, whether called commission, section shall be processed as deviations percentage, brokerage, or contingent in accordance with $ 18–1.109.

fee, or otherwise denominated, is within

the purview of the covenant if, in fact, to obtain any Government contract or any portion thereof is dependent upon contracts through improper influence. success in obtaining or securing the Gov- si

§ 18–1.505_4 Bona fide established ernment contract or contracts involved.

commercial or selling agency mainThe fact, however, that a fee of a con

tained by the contractor for the purtingent nature is involved does not pre

pose of securing business. clude a relationship which qualifies under the exceptions to the prohibition of

In determining whether an agency is the covenant.

a “bona fide established commercial or

selling agency maintained by the con& 18–1.505–2 Exceptions to the prohibi. tractor for the purpose of securing busition of the covenant.

ness," the factors set forth in paragraphs Excepted from the prohibition of the (a) through (e) of this section shall be covenant are "bona fide employees" and considered. They are necessarily in"bona fide established or selling agencies capable of exact measurement or precise maintained by the contractor for the definition, and it is neither possible nor purpose of securing business."

desirable to prescribe the relative weight

to be given any single factor as against § 18–1.505–3 Bona fide employee.

any other factor or as aganist all other The term “bona fide employee," for factors. The conclusions to be reached the purpose of the exception to the pro in a given case will necessarily depend hibition of the covenant, means an indi- upon a careful evaluation of the agreevidual (including a corporate officer) ment and other attendant facts and ciremployed in good faith by a concern cumstances. to devote his full time to such concern (a) The fees charged should not be . and no other concern and over whom the inequitable and exorbitant in relation to concern has the right to exercise super the services actually rendered. That is, vision and control as to time, place, and the compensation should be commanner of performance of work. It is mensurate with the nature and extent recognized that a concern, especially a of the services and should not be excessmall business concern, may employ an sive as compared with the fees customindividual who represents other con- arily allowed in the trade concerned cerns. The factors set forth in 18

for similar services related to commer1.505-4, except paragraph (d) thereof,

cial (non-Government) business. In shall be applied to determine whether such an individual comes within the

evaluating reasonableness of the fee, the exception to the prohibition of the cove

services of the agent other than actual nant. (However, in applying such fac

solicitation should be considered; for extors, the word "employee" shall be sub

ample, technical, consultant, or manstituted for the word or words "agent” agerial services, and assistance in the and "selling agency" as they appear procurement of essential personnel, throughout $ 18–1.505-4, except para- facilities, equipment, materials, or subgraph (d) thereof.)

contractors for performance of the con(a) A person may be a bona fide tract. employee whether his compensation is (b) The selling agency should have on a fixed salary basis or, when cus- adequate knowledge of the products and tomary in the trade, on a percentage, the business of the concern represented, commission, or other contingent basis as well as other qualifications necessary or a combination of the foregoing. to sell the products or services on their

(b) The hiring must contemplate some merits. continuity and it may not be related (c) There should ordinarily be a cononly to the obtaining of one or more tinuity of relationship between the conspecific Government contracts.

tractor and the agency. The fact that (c) An employee is not "bona fide" the agency has represented the conwho seeks to obtain any Government tractor over a considerable period of contract or contracts for his employer time is a factor for favorable considerathrough the use of improper influence tion. It is not intended, however, to disor who holds himself out as being able qualify a newly established contractor

agent relationship where a continuing & 18–1.506 Representation and agreerelationship is contemplated by the ment required from prospective con. parties.

tractors. (d) It should appear that the agency (a) Except as provided in $ 18–1.507-2, is an established concern. The agency

contracting officers shall inquire of and may be either one which has been in secure a written representation from business for a considerable period of prospective contractors as to

prospective contractors as to whether time or a new agency which is a pres they have employed or retained any comently going concern and which is likely pany or person (other than a full-time to continue in business as a commercial employee working solely for the prospecor selling agency in the future. The tive contractor) to solicit or secure the business of the agency should be con

contract, and shall secure a written

agreement to furnish information relatducted in the agency name and char

ing thereto as required by the contractacterized by the customary indications

ing officer. of the conduct of a regular business.

(b) When an invitation for bids is (e) The fact that a selling agency

issued, the requirements of paragraph confines its selling activities to the field

(a) of this section shall be accomplished of Government contracts does not, in by requiring the bidder to check the and of itself, disqualify it under the appropriate boxes in the following statecovenant. The fact, however, that the ment to be included in the invitation or selling agency is employed to secure busi bid form (also, see § 18–1.507–50): ness generally, that is, to represent the Bidder or offeror represents: (a) that he concern in connection with sales to the c has, ( has not, employed or retained Government as well as regular commer

any company or person (other than a full

time bona fide employee working solely for cial sales to non-Government activities,

the bidder or offeror) to solicit or secure is a factor entitled to favorable con

this contract, and (b) that he () has, ( ) sideration in evaluating the case as one has not, paid or agreed to pay to any comcoming within the authorized exception.

pany or person (other than a full-time bona

fide employee working solely for the bidder Arrangements confined, however, to ob

or offeror) any fee, commission, percentage, taining Government contracts, par or brokerage fee, contingent upon or resultticularly those involving a selling agency ing from the award of this contract, and organized immediately prior to or during

agrees to furnish information relating to (a)

and (b) above as requested by the Contractperiods of expanded procurement re

ing Officer. (For interpretation of the repsulting from conditions of national

resentation, including the term "bona fide emergency, must be closely scrutinized. employee,” see Code of Federal Regulations, However, any agency or agent is not Title 44, Part 150.) (January 1964) "bona fide” which seeks to obtain any (c) When a procurement is to be efGovernment contract or contracts for fected by negotiation, the requirements its principals through the use of im- of paragraph (a) of this section will be proper influence or which holds itself accomplished by requiring the offeror out as being able to obtain any Govern either to (1) check the appropriate boxes ment contract or contracts through im

in the above statement, or (2) execute & proper influence.

written representation which substan

tially conforms with the above statement. § 18–1.505–5 Fees for information. This may be accomplished by including

the above statement in the request for Contingent fees paid for information

proposals or quotations or by obtaining leading to obtaining a Government contract or contracts are included in the

an appropriate statement during the

course of negotiations (also see § 18– prohibition and, accordingly, are in breach of the covenant unless the agent

1.507–50). qualifies under the exception as a bona § 18–1.506–1 Interpretation of the repfide employee or a bona fide established resentation. commercial or selling agency maintained (a) For the purpose of the representaby the contractor for the purpose of tion and agreement required from the securing business.

prospective contractor, as described in

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