ing small business restricted advertising, but is not applicable if this contract was entered into by means of formal advertising.

(b) The Contractor agrees that the Comptroller General of the United States or any of his duly authorized representatives shail, until the expiration of 3 years after final payment under this contract or such lesser time specified in either Appendix M of the Armed Services Procurement Regulation or the Federal Procurement Regulations Part 1-20, as appropriate, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Contractor involving transactions related to this contract.

(c) The Contractor further agrees to include in all his subcontracts hereunder a provision to the effect that the subcontractor agrees that the Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of 3 years after final payment under the subcontract or such lesser time specified in either Appendix M of the Armed Services Procurement Regulation or the Federal Procurement Regulations Part 1-20, as appropriate, have access to and the right to examine any directly pertinent books, documents, papers, and records of such subcontractor, involving transactions related to the subcontract. The term "subcontract" as used in this clause excludes (1) purchase orders not exceeding $2,500 and (2) subcontractors or purchase orders for public utility services at rates established for uniform applicability to the general public.

(d) The periods of access and examination described in (b) and (c), above, for records which relate to (1) appeals under the "Disputes" clause of this contract, (2) litigation or the settlement of claims arising out of the performance of this contract, or (3) costs and expenses of this contract as to which exception has been taken by the Comptroller General or any of his duly authorized representatives, shall continue until such appeals, litigation, claims, or exceptions have been disposed of.

[29 FR 10192, July 24, 1964, as amended at 40 FR 44140, Sept. 25, 1975]

§ 1-7.103-4 Notice and assistance regarding patent and copyright infringement. The following clause shall be included in all contracts which exceed $10,000:

NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIght InfringEMENT

(a) The Contractor shall report to the Contracting Officer, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based

on the performance of this contract of which the Contractor has knowledge.

(b) In the event of any claim or suit against the Government, on account of any alleged patent or copyright infringement arising out of the performance of this contract or out of the use of any supplies furnished or work or services performed hereunder, the Contractor shall furnish to the Government, when requested by the Contracting Officer, all evidence and information in possession of the Contractor pertaining to such suit or claim. Such evidence and information shall be furnished at the expense of the Government except where the Contractor has agreed to indemnify the Government.

§ 1-7.103-12 Minority business enterprises subcontracting program.

Insert the clause set forth in § 11.1310-2(b) under the conditions and in the manner prescribed therein.

§ 1-7.103-13 Humane slaughter of livestock.

Insert the clause set forth in § 14.605 or in § 1-4.606 under the procedures provided in § 1-4.604.

§ 1-7.103-14 Required source for jewel bearings.

Insert the clause set forth in § 11.319 under the conditions and in the manner prescribed therein.

§ 1-7.103-15 [Reserved]

§ 1-7.103-16 Listing of employment openings.1

Insert the clause set forth in § 112.1102-2 under the conditions and in the manner prescribed therein.

§ 1-7.103-22 Workmen's compensation insurance (Defense Base Act).

Insert the clause set forth in § 110.402 under the conditions described therein.

§ 1-7.103-23 Late offers and modifications or withdrawals.

(a) Insert the provision set forth in § 1-2.201(a)(31) in all formally advertised solicitations.

(b) The provision set forth in § 13.802-1(b) shall be used in all negotiated solicitations except as provided by § 1-3.802-2(a).

(c) The provision set forth in § 13.802-2(b) may be used in negotiated solicitations under the conditions prescribed in § 1-3.802-2(a).

[38 FR 26916, Sept. 27, 1973]

§ 1-7.103-24 Contracts with the Small Business Administration.

(a) Insert the clause set forth in § 11.713-3(d)(1) in contracts with the Small Business Administration awarded pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)).

(b) Insert the clause set forth in § 11.713-3(e) in subcontracts which will be executed by the Small Business Administration and its subcontractors.

§ 1-7.103-25 Supplementary tax clauses.

(a) Insert the supplementary clause set forth in § 1-11.401-3(a) under the conditions contained therein.

(b) Insert the clause set forth in § 111.401-3(b) under the conditions contained therein.

§ 1-7.103-26 Preference for U.S. flag air carriers.

Insert the clause set forth in § 11.323-2 under the conditions prescribed therein.

[39 FR 34665, Sept. 27, 1974]

§ 1-7.103-27 Cost accounting standards.'

(a) National defense procurements. Insert the notices set forth in § 13.1203-3(a) in solicitations of proposals and the appropriate contract clauses set forth in § 1-3.1204-1 in negotiated contracts in accordance with the provisions of Subpart 1-3.12.

(b) Nondefense procurements. Insert the notice set forth in § 1-3.1203-3(b) in solicitations of proposals and the appropriate contract clause set forth in § 1-3.1204-2 in negotiated contracts in accordance with the provisions of Subpart 1-3.12.

[43 FR 14121, Apr. 4, 1978]

§ 1-7.103-28 Subcontracts.

The following clause may be inserted in fixed-price supply contracts whenever it is likely that subsequent to award major modifications will be initiated pursuant to the Changes clause, or other contract provisions, and that such modifications will result in the placement of additional subcontracts. The pricing arrangements of such subcontracts have an impact upon the final price of the modification; therefore, it is essential that they be made available by the contractor for review by the contracting officer (see §§ 1-3.807-10(b) and 1-3.903).

SUBCONTRACTS

(The provisions of this clause do not apply to firm fixed-price and fixed price with escalation (economic price adjustment) contracts. The clause does apply to new subcontracts or modifications of existing subcontracts which are necessitated because of unpriced contract changes pursuant to the Changes clause or other provisions of this contract.)

(a) As used in this clause, the term "subcontract" includes purchase orders.

(b) The Contractor shall notify the Contracting Officer reasonably in advance of entering into any subcontract if the Contractor's procurement system has not been approved by the Contracting Officer and if the subcontract:

(i) Is to be a cost-reimbursement, time and materials, or labor-hour contract which it is estimated will involve an amount in excess of ten thousand dollars ($10,000) including any fee;

(ii) Is proposed to exceed one hundred thousand dollars ($100,000); or

(iii) Is one of a number of subcontracts, under this contract, with a single subcontractor for the same or related supplies or services which, in the aggregate, are expected to exceed one hundred thousand dollars ($100,000).

(c) The advance notification required by paragraph (b) above shall include:

(i) A description of the supplies or services to be called for by the subcontract;

(ii) Identification of the proposed subcontractor and an explanation of why and how

the proposed subcontractor was selected, including the competition obtained;

(iii) The proposed subcontract price, together with the Contractor's cost or price analysis thereof;

(iv) The subcontractor's current, complete, and accurate cost or pricing data and Certificate of Current Cost of Pricing Data, when such data and certificates are required by other provisions of this contract to be obtained from the subcontractor;

(v) Identification of the type of subcontract to be used;

(vi) A memorandum of negotiation which sets forth the principal elements of the subcontract price negotiations. A copy of this memorandum shall be retained in the Contractor's file for use of Government reviewing authorities. The memorandum shall be in sufficient detail to reflect the most significant considerations controlling the establishment of initial or revised prices. The memorandum should include an explanation of why cost or pricing data was, or was not required, and, if it was not required in the case of any price negotiation in excess of $100,000, a statement of the basis for determining that the price resulted from or was 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. If cost or pricing data was submitted and a certificate of cost or pricing data was required, the memorandum shall reflect the extent to which reliance was not placed upon the factual cost or pricing data submitted and the extent to which this data was not used by the Contractor in determining the total price objective and in negotiating the final price. The memorandum shall also reflect the extent to which it was recognized in the negotiation that any cost or pricing data submitted by the subcontractor was not accurate, complete, or current; the action taken by the Contractor and the subcontractor as a result; and the effect, if any, of such defective data on the total price negotiated. Where the total price negotiated differs significantly from the Contractor's total price objective, the memorandum shall explain this difference;

(vii) When incentives are used, the memorandum of negotiation shall contain an explanation of the incentive fee profit plan identifying each critical performance element, management decisions used to quantify each incentive element, reasons for incentives on particular performance characteristics, and a brief summary of trade-off possibilities considered as to cost, performance, and time; and

(viii) The Subcontractor's Disclosure Statement or Certificate relating to Cost Accounting Standards when such data are required by other provisions of this contract to be obtained from the subcontractor.

(d) The Contractor shall not enter into any subcontract for which advance notification to the Contracting Officer is required by this clause, without the prior written consent of the Contracting Officer; Provided, That the Contracting Officer in his discretion, may ratify in writing any subcontract. Such ratification shall constitute the consent of the Contracting Officer required by this paragraph.

(e) Neither consent by the Contracting Officer to any subcontract or any provisions thereof nor approval of the Contractor's procurement system shall be construed to be a determination of the acceptability of any subcontract price or of any amount paid under any subcontract or to relieve the Contractor of any responsibility for performing this contract, unless such approval or consent specifically provides otherwise.

(f) The Contractor agrees that no subcontract placed under this contract shall provide for payment on a cost-plus-a-percentage-of-cost basis.

[40 FR 11580, Mar. 12, 1975; 40 FR 20818, May 13, 1975]

§1-7.103-29 Privacy Act.

Insert the clause prescribed by § 11.327-5 under the conditions set forth therein.

[40 FR 44504, Sept. 26, 1975]

§1-7.103-30 Clauses for solicitations and contracts for automatic data processing (ADP) equipment, software, maintenance services, and supplies.

Insert the standard clauses set forth in § 1-4.1108 in solicitations and contracts for ADP under the conditions specified in § 1-4.1108. The clauses are: (a) Warranty Exclusion and Limitation of Damages.

(b) Contractor Representation.

(c) Fixed Price Options: Option to Extend the Term of the Contract, Option for Increased Quantity.

[41 FR 43546, Oct. 1, 1976]

supply contracts if it is desired to cover the subject matter thereof.

§ 1-7.104-1 Liquidated damages provisions.

Insert the provision set forth in § 11.315-3 under the conditions and in the manner prescribed in § 1-1.315.

§ 1-7.104-2 Changes to "make-or-buy" program.

Insert the clause set forth in § 13.902-3 in all contracts containing a "make-or-buy" program.

Subpart 1-7.2-Cost-Reimbursement Type Supply Contracts

SOURCE: 39 FR 1756, Jan. 14, 1974, unless otherwise noted.

§ 1-7.200 Scope of subpart.

This subpart sets forth contract clauses for use in cost-reimbursement type supply contracts.

§ 1-7.201 Applicability.

The clauses set forth in this subpart shall be used in cost-reimbursement type supply contracts.

§ 1-7.202 Required clauses.

The clauses set forth in this § 17.202 shall be inserted in all cost-reimbursement type supply contracts.

§1-7.202-1 Definitions.

Insert the clause set forth in § 17.102-1. Additional definitions may be included provided they are not inconsistent with the clause or the provisions of these regulations.

§ 1-7.202-2 Changes.

CHANGES

(a) The Contracting Officer may at any time, by a written order, and without notice to the sureties, if any, make changes, within the general scope of this contract, in any one or more of the following: (1) Drawings, designs, or specifications, where supplies to be furnished are to be specially manufactured for the Government in accordance therewith; (2) method of shipment or packing; and (3) place of delivery.

(b) If any such change causes an increase or decrease in the estimated cost of, or the time required for, the performance of any part of the work under this contract, wheth

40-104 0-79——26

of

er changed or not changed by any such order, or otherwise affects any other provision of this contract, an equitable adjustment shall be made: (1) In the estimated cost or delivery schedule, or both; (2) in the amount of any fixed-fee to be paid to the contractor; and (3) in such other provisions of the contract as may be affected, and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within 30 days from the date of receipt by the Contractor of the notification change: Provided, however, That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes." However, except as provided in paragraph (c), below, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.

(c) Notwithstanding the provisions of paragraphs (a) and (b), above, the estimated cost of this contract and, if this contract is incrementally funded, the funds allotted for the performance thereof, shall not be increased or deemed to be increased except by specific written modification of the contract indicating the new contract estimated cost and, if this contract is incrementally funded, the new amount allotted to the contract. Until such modification is made, the Contractor shall not be obligated to continue performance or incur costs beyond the point established in the clause of this contract entitled "Limitation of Cost" or "Limitation of Funds."

§ 1-7.202-3 Limitation of cost or funds. (a) Insert the following clause in all fully funded cost-reimbursement type supply contracts:

LIMITATION Of Cost

(a) It is estimated that the total cost to the Government for the performance of this contract, exclusive of any fee, will not exceed the estimated cost set forth in the Schedule, and the Contractor agrees to use his best efforts to perform the work specified in the Schedule and all obligations under this contract within such estimated cost. If, at any time, the Contractor has reason to believe that the costs which he expects to incur in the performance of this contract in the next succeeding 60 days, when added to all costs previously incurred, will exceed 75 percent of the estimated cost then set forth in the Schedule, or if, at any time, the Contractor has reason to believe that the total cost to the Government for

the performance of this contract, exclusive of any fee, will be greater or substantially less than the then estimated cost hereof, the Contractor shall notify the Contracting Officer in writing to that effect, giving the revised estimate of such total cost for the performance of this contract.

(b) Except as required by other provisions of this contract specifically citing and stated to be an exception from this clause, the Government shall not be obligated to reimburse the Contractor for costs incurred in excess of the estimated cost set forth in the Schedule, and the Contractor shall not be obligated to continue performance under the contract (including actions under the Termination clause) or otherwise to incur costs in excess of the estimated cost set forth in the Schedule, unless and until the Contracting Officer shall have notified the Contractor in writing that such estimated cost has been increased and shall have specified in such notice a revised estimated cost which shall thereupon constitute the estimated cost of performance of this contract. No notice, communication, or representation in any other form or from any person other than the Contracting Officer shall affect the estimated cost of this contract. In the absence of the specified notice, the Government shall not be obligated to reimburse the Contractor for any costs in excess of the estimated cost set forth in the Schedule, whether those excess costs were incurred during the course of the contract or as a result of termination. When and to the extent that the estimated cost set forth in the Schedule has been increased, any costs incurred by the Contractor in excess of the estimated cost prior to such increase shall be allowable to the same extent as if such costs had been incurred after the increase; unless the Contracting Officer issues a termination or other notice and directs that the increase is solely for the purpose of covering termination or other specified expenses.

(c) Change orders issued pursuant to the Changes 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.

(d) In the event that this contract is terminated or the estimated cost not increased, the Government and the Contractor shall negotiate an equitable distribution of all property produced or purchased under the contract based upon the share of costs incurred by each.

(b) Insert the following clause in all cost-reimbursement type supply contracts which are to be incrementally funded: