CONTRACT CLAUSES AND SOLICITATION PROVISIONS discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts; (v) with the approval or ratification of the Contracting Officer, to the extent he may (vi) transfer title (to the extent that title has not already been transferred) and in the (viii) complete performance of such part of the work as shall not have been terminated by (ix) take such action as may be necessary, or as the Contracting Officer may direct, for the protection and preservation of the property related to this contract which is in the possession of Contractor in which the Government has or may acquire an in terest. The Contractor shall proceed immediately with the performance of the above obligations notwithstanding any delay in determining or adjusting the amount of the fee, or any item of reimbursable cost, under this clause. At any time after expiration of the plant clearance period, as defined in Section VIII, Armed Services Procurement Regulation, as it may be amended from time to time, the Contractor may submit to the Contracting Officer a list, certified as to quantity and quality, of any or all items of termination inventory not previously disposed of, exclusive of items the disposition of which has been directed or authorized by the Contracting Officer, and may request the Government to remove such items or enter into a storage agreement covering them. Not later than fifteen (15) days thereafter, the Government will accept such items and remove them or enter into a storage agreement covering the same; provided, that the list submitted shall be subject to verification by the Contracting Officer upon removal of the items, or if the items are stored, within forty-five (45) days from the date of submission of the list, and any necessary adjustment to correct the list as submitted shall be made prior to final settlement. (c) After receipt of a Notice of Termination, the Contractor shall submit to the Contracting Officer his termination claim in the form and with the certification prescribed by the Contracting Officer. Such claim shall be submitted promptly but in no event later than one year from the effective date of termination, unless one or more extensions in writing are granted by the Contracting Officer, upon request of the Contractor made in writing within such one year period or authorized extension thereof. However, if the Contracting Officer determines that the facts justify such action, he may receive and act upon any such termination claim at any time after such one year period or any extension thereof. Upon failure of the Contractor to submit his termination claim within the time allowed, the Contracting Officer may 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. 7-605.26 ARMED SERVICES PROCUREMENT REGULATION CONTRACT CLAUSES AND SOLICITATION PROVISIONS (d) Subject to the provisions of paragraph (c), the Contractor and the Contracting Officer may agree upon the whole or any part of the amount or amounts to be paid (including an allowance for the fee) to the Contractor by reason of the total or partial termination of work pursuant to this clause. The contract shall be amended accordingly, and the Contractor shall be paid the agreed amount. (e) In the event of the failure of the Contractor and the Contracting Officer to agree in whole or in part, as provided in paragraph (d), as to the amounts with respect to costs and fee, or as to the amount of the fee, to be paid to the Contractor in connection with the termination of work pursuant to this clause, the Contracting Officer shall determine, on the basis of information available to him, the amount, if any, due to the Contractor by reason of the termination and shall pay to the Contractor the amount determined as follows: (i) if the settlement includes cost and fee (A) there shall be included therein all costs and expenses reimbursable in accordance with this contract, not previously paid to the Contractor for the performance of this contract prior to the effective date of the Notice of Termination, and such of these costs as may continue for a reasonable time thereafter with the approval of or as directed by the Contracting Officer; provided, however, that the Contractor shall proceed as rapidly as practicable to discontinue such costs; (B) there shall be included therein so far as not included under (A) above, the cost of settling and paying claims arising out of the termination of work under subcontracts or orders, as provided in paragraph (b)(v) above, which are properly chargeable to the terminated portion of the contract; (C) there shall be included therein the reasonable costs of settlement, including accounting, legal, clerical, and other expenses reasonably necessary for the preparation of settlement claims and supporting data with respect to the terminated portion of the contract and for the termination and settlement of subcontracts, thereunder, together with reasonable storage, transportation, and other costs incurred in connection with the protection or disposition of termination inventory; provided, however, that if the termination is for default of the Contractor there shall not be included any amounts for the preparation of the Contractor's settlement proposal; and (D) there shall be included therein a portion of the fee payable under the contract determined as follows (I) in the event of the termination of this contract for the convenience of the Government and not for the default of the Contractor, there shall be paid a percentage of the fee equivalent to the percentage of the completion of work contemplated by the contract, but exclusive of subcontract effort included in subcontractors' termination claims, less fee payments previously made hereunder; or (II) in the event of the termination of this contract for the default of the Contractor, the total fee payable shall be such proportionate part of the fee as the actual work in place bears to the total work in place required by the contract; if the amount determined under this subparagraph (i) is less than the total payment theretofore made to the Contractor, the Contractor shall repay to the Government the excess amount; or (ii) if the settlement includes only the fee, the amount thereof will be determined in accordance with the subparagraph (i)(D) above. (f) Costs claimed, agreed to, or determined pursuant to (c), (d), and (e) hereof shall be in accordance with the Section XV Contract Cost Principles and Procedures of the Armed Services Procurement Regulation as in effect on the date of this contract. (g) The Contractor shall have the right of appeal, under the clause of this contract entitled "Disputes", from any determination made by the Contracting Officer under paragraphs (c) or (e) above, except that if the Contractor has failed to submit his claim within the time provided in paragraph (c) 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 7-605.26 ARMED SERVICES PROCUREMENT REGULATION CONTRACT CLAUSES AND SOLICITATION PROVISIONS under paragraph (c) or (e) 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 contract; (ii) any claim which the Government may have against the Contractor in connection with this 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 the clause and not otherwise recovered by or credited to the Government. (i) In the event of a partial termination, the portion of the fee which is payable with respect to the work under the continued portion of the contract shall be equitably adjusted by agreement between the Contractor and the Contracting Officer, and such adjustment shall be evidenced by an amendment to this contract. (j) 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 the 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 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 Renegotiation Board, 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 10 days after the date of such retention or disposition, or such later date as determined by the Contracting Officer by reason of the circumstances. (k) The provisions of this clause relating to the fee shall be inapplicable if this contract does not provide for payment of a fee. (End of clause) 7-605.27 Convict Labor. In accordance with 12-203, insert the clause in 7-104.17. 7-605.28 Officials Not To Benefit. In accordance with 7-602.19, insert the clause therein. 7-605.29 Covenant Against Contingent Fees. In accordance with 7-103.20, insert the clause therein. 7-605.30 Gratuities. In accordance with 7-104.16, insert the clause therein. 7-605.31 Assignment of Claims. If the contract is negotiated in contemplation that the contractor may make an assignment, insert the clause in 7-602.8. 7-605.32 Renegotiation. In accordance with 7-103.13, insert the clause therein. 7-605.33 Authorization and Consent. In accordance with 9-102.1 and 18–902, insert the appropriate clause in 7–103.22 or 7-302.21. 7-605.34 Notice and Assistance Regarding Patent and Copyright Infringement. In accordance with 9-104 and 18-904, insert the clause in 7-103.23. 7-605.35 Patent Indemnity. In accordance with 18-903.3, insert the clause in 7-602.16. 7-605.36 Utilization of Small Business Concerns. In accordance with 1-707.3(a) and (c), insert one or both of the clauses in 7-104.14(a) and 7-602.26(b). 7-605.37 Competition in Subcontracting. Insert the clause in 7-104.40. 7-605.37 ARMED SERVICES PROCUREMENT REGULATION CONTRACT CLAUSES AND SOLICITATION PROVISIONS 7-605.38 Definitions. In accordance with 7-602.1, insert the clause therein. 7-605.39 Excusable Delays. In accordance with 8-708(a), insert the clause in 7-203.11 deleting the words "delivery schedule" in the last sentence and substituting the words "completion time." 7-605.40 Rights in Shop Drawings. In accordance with 18–910.1(b), insert the clause in 7-602.47. 7-605.41 Management Systems Requirements. In accordance with 16–827.1, insert the clause in 7-104.50. 7-605.42 Bills of Lading Covering Shipments To or From Contractor's Plant. In accordance with the requirements of 19-217.1(b), insert the clause in 7-203.14. 7-605.43 Equal Opportunity Pre-Award Clearance of Subcontracts. In accordance with 23-201.4, insert the clause in 7-104.22. 7-605.44 Minority Business Enterprises. In accordance with 1-332, insert the appropriate clause or clauses in 7-104.36. 7-605.45 Listing of Employment Openings. Insert the clause in 7-103.27. 7-605.46 Employment of the Handicapped. Insert the clause in 7-103.28. 7-605.47 Clean Air and Water. In accordance with 1-2302.2, insert the clause in 7-103.29. 7-606 Clauses To Be Used When Applicable for Cost-Reimbursement Type Construction Contracts. 7-606.1 Incentive Fee Clause for Cost-Type Construction Contracts. Cost type construction contracts may provide for incentive fee adjustment in accordance with 3-405.4. Incentive fee cost reimbursement construction contracts will be prepared by using the cost-plus-a-fixed-fee construction contract format set forth in 16-402.3, including the clauses in 7-605 and 7–606, modified in the following particulars: (i) change the title of the format to read "Cost-Plus-Incentive-Fee Con- (ii) delete the clause entitled "Allowable Cost, Fixed Fee and Payment;" For the performance of this contract, the Government shall pay to the Contractor (i) The cost thereof (hereinafter referred to as "allowable cost") determined by the Contracting Officer to be allowable in accordance with (A) Section XV, Part 4, of the Armed Services Procurement Regulation as in effect on the date of this contract; and (B) The terms of this contract; and (ii) A fee in the amount of dollars ($.. ..) adjusted as provided in (i) below. (B) Delete paragraph (a)(2) and substitute: dollars ($................) and dollars The target cost and target fee of this contract (.................) respectively shall be subject to adjustment in accordance with (h) and (i) below. As used herein the term 7-606.1 ARMED SERVICES PROCUREMENT REGULATION CONTRACT CLAUSES AND SOLICITATION PROVISIONS (i) "target cost" means the estimated cost, exclusive of the estimated amount of rental for Contractor-owned or controlled equipment, of this contract initially negotiated adjusted in accordance with (h) below; and (ii) "target fee" means the fee which was initially negotiated on the assumption that this contract would be performed for a cost equal to the estimated cost of this contract initially negotiated, adjusted in accordance with (h) below. (C) Delete paragraph (c) and substitute the following: Promptly after receipt of each invoice or voucher and statement of cost the Government shall, except as otherwise provided in this contract, subject to the provisions of (d) below, make payment thereon as approved by the Contracting Officer. Payment of the fee shall be made to the Contractor in installments based upon the percentage of completion of the work as determined from estimates submitted to and approved by the Contracting Officer; provided, however, that after payment of ninety-five percent (95%) of the minimum fee provided for in (i) below, the Contracting Officer may withhold further payment of fee until a reserve shall have been set aside in an amount which he considers necessary to protect the interests of the Government, but such reserve shall not exceed fifteen percent (15%) of the target fee or one hundred thousand dollars ($100,000), whichever is less. (D) Delete subparagraph (i) and substitute: The fee payable hereunder shall be the target fee increased by (insert Contractor's participation), cents for each dollar by which the total allowable cost, exclusive of the total rental paid for Contractor-owned or controlled equipment, is less than the target cost; or decreased by (insert Contractor's participation), cents for each dollar by which the total allowable cost, exclusive of the total rental for Contractor-owned or controlled equipment, exceeds the target cost. In no event shall the fee be greater than ..% or less than .............% of the target cost; and within these limits such fees shall be subject to adjustment by reason of the increase or decrease of the total allowable cost on account of payments under the assignment required by (f)(i) above and claims excepted from the release required by (f)(ii) above. (E) The additional instructions for use of the clause in 7-203.4(c)(1), (2), (5), (6), and (7) apply. 7-606.2 Approval of Wage Rates. Insert the following clause in contracts to be performed in the United States: APPROVAL OF WAGE RATES (1965 JAN) All wage rates in excess of the applicable Davis-Bacon Wage rates for this contract, including compensation for overtime pursuant to paragraph 2 of Standard Form 19-A, for laborers and mechanics engaged in work under this contract shall be approved in writing by the Head of a Procuring Activity or a representative expressly designated by him for this purpose. Any amount paid by the Contractor to any laborer or mechanic in excess of the wage rate approved for such laborer or mechanic by the Head of a Procuring Activity or a representative expressly designated by him for that purpose shall be at the expense of the Contractor and shall not be reimbursed by the Government. (End of clause) 7-606.3 Buy American. In accordance with 7-602.20, insert the clause therein. 7-606.4 Nondomestic Construction Materials. In accordance with 7-602.24, insert the clause therein. 7-606.5 Priorities, Allocations, and Allotments. In accordance with 1-307.2, insert the clause in 7-104.18. 58-110 O 77 - 25 7-606.5 ARMED SERVICES PROCUREMENT REGULATION |