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formed and the Government shall have no obligation to make further payments hereunder.
erence, designating services to be performed or materials to be furnished by the contractor at its expense or without cost to the Government.
§ 14H-70.625 Allowable cost and payment.
ALLOWABLE COST AND PAYMENT (a) For the performance of this contract, the Government shall pay to the contractor (1) the costs thereof (hereinafter referred to as "allowable cost”) determined by the contracting officer to be allowable in accordance with:
(i) Appendix A to 25 CFR 276 as in effect on the date of this contract.
(ii) The terms of this contract.
(b) Once each month (or at more frequent intervals as may be specified elsewhere, or if approved by the contracting officer), the contractor may submit to the contracting officer or his authorized representative, in such form and reasonable detail as may be required, an invoice or public voucher supported by a statement of cost incurred by the contractor in the performance of this contract and claimed to constitute allowable cost.
(c) Promptly after receipt of each invoice or voucher, the Government shall make payment of the allowable costs incurred subject to the provisions of (d) below.
(d) At any time or times prior to final payment under this contract, the contracting officer may cause to be made such audit of the invoices or vouchers and statements of cost as shall be deemed necessary. Each payment made before that time shall be subject to reduction to the extent that amounts included in the related invoice or vouchers and statement of cost are found by the contracting officer not to constitute allowable cost, and shall also be subject to reduction for overpayments or to increase for under payments on preceding invoices or vouchers.
(e) On receipt and approval of the voucher or invoice designated by the contractor as the "completion voucher" or "completion invoice" and statement of cost, which shall be submitted by the contractor as promptly as may be practicable following completion of the work under this contract but no later than six (6) months (or such longer period as the contracting officer may in his discretion, approve in writing) from the date of such completion, and following compliance by the contractor with all provisions of this contract, the Government shall as promptly as may be practicable pay to the contractor any balance of allowable cost.
(f) Any cost incurred by the contractor under the terms of this contract which would constitute allowable cost under the provisions of this clause shall be included in determining the amount payable under this contract, notwithstanding any provisions contained in the specification or other documents incorporated in this contract by ref
$ 14H-70.626 Negotiated overhead rates.
NEGOTIATED OVERHEAD RATES (a) Notwithstanding the provisions of the clause of this contract entitled "Allowable Cost and Payment,” the allowable indirect costs under this contract shall be obtained by applying negotiated overhead rates to bases agreed upon by the parties, as specified below.
(b) The contractor, as soon as possible, but not later than six (6) months after the expiration of each of the contractor's financial years or such other period as may mutually be agreed upon by the Bureau and the contractor, shall submit to the cognizant audit agency, with a copy to the contracting officer, a proposed final overhead rate or rates for that period based on the contractor's costs experience during that period, together with supporting cost data. Negotiation of final overhead rates by the contractor and the cognizant audit agency shall be undertaken as promptly as practicable after receipt of the contractor's proposal.
(c) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with Appendix A of 25 CFR 276, as in effect on the date of this contract.
(d) The results of each negotiation shall be set forth in an amendment to this contract, which shall specify (1) the agreed final rates, (2) the bases to which the rates apply, (3) the periods for which the rates apply, and (4) the specific items treated as direct costs or any changes in the items previously agreed to be direct costs.
(e) Pending establishment of final overhead rates for any period, the contractor shall be reimbursed either at negotiated provisional rates as provided in this contract or at billing rates acceptable to the contracting officer, subject to appropriate adjustment when the final rates for that period are established. To prevent substantial over or under payment, the provisional or billing rates may, at the request of either party, be revised by mutual agreement, either retroactively or prospectively. Any such revision of negotiated provisional rates provided in this contract shall be set forth in an amendment to this contract.
(f) Any failure by the parties to agree on any final rate or rates under this clause shall be considered a dispute concerning a question of fact for decision by the contracting officer within the meaning of the clause of this contract entitled “Disputes."
[40 FR 51332, Nov. 4, 1975, as amended at 43 FR 37450, Aug. 23, 1978]
§ 14H-70.627 Assignment of claims.
ASSIGNMENT OF CLAIMS Pursuant to the provisions of the Assignment of Claims Act of 1940, as amended (31 U.S.C. 203, 41 U.S.C. 15), if this contract provides for payments aggregating $1,000 or more, claims for moneys due or to become due the contractor from the Government under this contract may be assigned to a bank, trust company, or other financing institution, including any Federal lending agency, and may thereafter be further assigned and reassigned to any such institution. Any such assignment shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party, except that any such assignment or reassignment may be made to one party as agent or trustee for two or more parties participating in such financing.
§ 14H-70.628 Payment of interest on con
CLAIMS (a) If an appeal is filed by the contractor from a final decision of the contracting officer under the disputes clause of this contract, denying a claim arising under the contract, simple interest on the amount of the claim finally determined owed by the Government shall be payable to the contractor. Such interest shall be at the rate deter mined by the Secretary of the Treasury pursuant to Pub. L. 92-41, 85 Stat. 97, from the date the contractor furnishes to the contracting officer his written appeal under the disputes clause of this contract, to the date of (1) a final judgment by a court of competent jurisdiction, or (2) mailing to the con tractor of a supplemental agreement for execution either confirming completed negoti. ations between the parties or carrying out a decision of a board of contract appeals.
(b) Notwithstanding (a) above, (1) interest shall be applied only from the date payment was due, if such date is later than the filing of appeal, and (2) interest shall not be paid for any period of time that the contracting officer determines the contractor has unduly delayed in pursuing his remedies before a board of contract appeals or a court of competent jurisdiction.
rect costs of whatever nature claimed to have been incurred and anticipated to be incurred for the performance of this contract. The foregoing constitute “records" for the purposes of this clause.
(b) The contractor's facilities, or such part thereof as may be engaged in the performance of this contract, and his records shall be subject at all reasonable times to inspection and audit by the contracting officer or his authorized representatives. In addition, for purpose of verifying that cost or pricing data submitted, in conjunction with the negotiation of this contract or any contract change or other modification involving an amount in excess of $100,000, were accurate, complete and current, the contracting officer, or his authorized representative, shall, until the expiration of 3 years from the date of final payment under this contract, or of the time periods for the particular records specified in Part 1-20 of the Federal Procurement Regulations (41 CFR Part 1-20), whichever expires earlier, have the right to examine those books, records, documents, papers, and other supporting data which involve transactions related to this contract or which will permit adequate evaluation of the cost or pricing data submitted, along with the computations and projections used therein.
(c) The contractor shall preserve and make available his records (1) until the expiration of 3 years from the date of final payment under this contract, or of the time period for the particular records specified in 41 CFR Part 1-20, whichever expires earlier, and (2) for such longer period, if any, as is required by applicable statute, or by other clauses of this contract, or by (c)(2) (i) or (ii) below.
(i) If the contract is completely or partially cancelled the records relating to the work terminated shall be preserved and made available for a period of 3 years from the date of any resulting final settlement.
(ii) Records which relate to (A) appeals under the “Disputes" clause of this contract, (B) litigation or the settlement of claims arising out of the performance of this contract, or (C) costs and expenses of this contract as to which exception has been taken by the contracting officer or any of his duly authorized representatives, shall be retained until such appeals, litigation, claims, or exceptions have been disposed of.
(d)(1) The contractor shall insert the substance of this clause, including the whole of this paragraph (d), in each subcontract hereunder that is not firm-fixed-price or fixed-price with escalation. When so inserted, changes shall be made to designate the higher-tier subcontractor at the level involved in place of the contractor; to add "of the Government prime contract" after "contracting officer"; and to substitute "the
8 14H-70.629 Audit and records.
AUDIT AND RECORDS (a) The contractor shall maintain books, records, documents, and other evidence and accounting procedures and practices, sufficient to reflect properly all direct and indi
Government prime contract” in place of “this contract” in (B) of paragraph (c)(2)(ii) above.
their inclusion in all subcontracts of any tier.
(e) Records. The contractor shall maintain payroll records containing the information specified in 29 CFR 516.2(a). Such records shall be preserved for three years from the completion of the contract.
8 14H-70.631 Price reduction for defective
cost or pricing data. The following clause shall be included in all contracts where cost and pricing data is required in accordance with § 14H-70.407.
$ 14H-70.630 Contract Work Hours and
Safety Standards Act-Overtime Compensation.
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME COMPENSATION
This contract is subject to the Contract Work Hours and Safety Standards Act and to the applicable rules, regulations, and the interpretations of the Secretary of Labor.
(a) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or me. chanics shall require or permit any laborer or mechanic in any work-week in which he is employed on such work to work in excess of eight hours in any calendar day or in excess of forty hours in such work-week on work subject to the provisions of the Contract Work Hours Standards Act unless such laborer or mechanic receives compensation at a rate not less than one and onehalf times his basic rate of pay for all such hours worked in excess of eight hours in any calendar day or in excess of forty hours in such work-week, whichever is the greater number of overtime hours.
(b) Violation, liability for unpaid wages, liquidated damages. In the event of any violation of the provisions of paragraph (a), the contractor and any subcontractor responsible therefor shall be liable to any affected employee for his unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the provisions of paragraph (a) in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such work in excess of eight hours or in excess of the standard work-week of forty hours without payment of the overtime wages required by paragraph (a).
(c) Withholding for unpaid wages and liquidated damages. The contracting officer may withhold from the Government prime contractor, from any moneys payable on account of work performed by the contractor or subcontractor, such sums as may administratively be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the provision of paragraph (b).
(d) Subcontracts. The contractor shall insert paragraphs (a) through (d) of this section in all subcontracts, and shall require
PRICE REDUCTION FOR DEFECTIVE COST OR
PRICING DATA (a) If the contracting officer determines that any price negotiated in connection with this contract or any cost reimbursable under this contract was increased by any significant sums because the contractor, or any subcontractor pursuant to the clause of this contract entitled “Subcontractor Cost or Pricing Data” or “Subcontractor Cost or Pricing Data-Price Adjustments," or any subcontract clause therein required, fur. nished incomplete or inaccurate cost or pricing data or data not current as certified in his Contractor'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.
(b) Failure to agree on a reduction shall be a dispute concerning a question of fact within the meaning of the “Disputes" clause of this contract.
(NOTE: Since the contract is subject to reduction under this clause by reason of defective cost or pricing data submitted in connection with certain subcontracts, it is expected that the contractor may wish to include a clause in each such subcontract requiring the subcontractor to appropriately indemnify the contractor. It is also expected that any subcontractor subject to such in. demnification will generally require substantially similar indemnification for defective cost or pricing data required to be submitted by his lower tier subcontractors.)
8 14H-70.632 Subcontractor cost and pric
ing data. The following clause should be included in all contracts, when the subcontracts of the type and size described herein are contemplated.
SUBCONTRACTOR COST AND PRICING DATA (a) The contractor shall require subcon. tractors hereunder to submit in writing cost subcontract change or other modification for which the price adjustment is expected to exceed $100,000, where the price or price adjustment is not 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.
(c) The contractor shall require subcontractors to certify, in substantially the same form as that used in the Certificate by the Prime Contractor to the Government, that, to the best of their knowledge and belief, the cost and pricing data submitted under (b) above are accurate, complete, and current as of the date of the execution, which date shall be as close as possible to the date of agreement on the negotiated price of the contract modification.
(d) The contractor shall insert the substance of this clause including this paragraph (d) in each subcontract hereunder which exceeds $100,000.
§ 14H-70.633 Buy American Act.
or pricing data under the following circumstances:
(1) Prior to award of any cost-reimbursed type, time and material, labor-hour, incentive, or price redeterminable subcontract the price of which is expected to exceed $100,000; and
(2) Prior to the award of any other subcontract, the price of which is expected to exceed $100,000, or to the pricing of any subcontract change or other modification for which the price adjustment is expected to exceed $100,000, where the price or price adjustment is not 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.
(b) The contractor shall require subcontractors to certify, in substantially the same form as that used in the certificate by the Prime Contractor to the Government, that, to the best of their knowledge and belief, the cost and pricing data submitted under (a) above are accurate, complete, and current as of the date of the execution, which date shall be as close as possible to the date of agreement on the negotiated price of the subcontract or subcontract change or modification.
(c) The contractor shall insert the substance of this clause including this paragraph (c) in each of his cost-reimbursement type, time and material, labor-hour, price redeterminable, or incentive subcontracts hereunder, and in any other subcontract hereunder which exceed $100,000 unless the price thereof is 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. In each such excepted subcontract hereunder which exceed $100,000, the contractor shall insert the substance of the following clause: SUBCONTRACTOR COST AND PRICING DATA
PRICE ADJUSTMENTS (a) Paragraphs (b) and (c) of this clause shall become operative only with respect to any change or other modification made pursuant to one or more provisions of this contract which involves a price adjustment in excess of $100,000. The requirements of this clause shall be limited to such price adjustments.
(b) The contractor shall require subcontractors hereunder to submit cost or pricing data under the following circumstances:
(1) Prior to award of any cost-reimbursement type, time and material, labor-hour, incentive, or price redeterminable subcontract, the price of which is expected to exceed $100,000; and
(2) Prior to award of any other subcontract, the price of which is expected to exceed $100,000, or to the pricing of any
BUY AMERICAN ACT (a) The Buy American Act (41 U.S.C. 10ad) requires, with certain exceptions, that in the procurement of supplies and services only domestic source end products shall be acquired for public use.
(b) The provisions of Part 1-6 of the Federal Procurement Regulations (41 CFR Part 1-6) deals with the Buy American Act and its application to Government contracts.
(c) The provisions of Part 1-6 of the Federal Procurement Regulations (41 CFR Part 1-6) are applicable to this contract and any subcontracts entered into under the contract. Questions concerning the Buy American Act and its applicability in specific circumstances should be directed to the contracting officer.
8 14H-70.634 Anti-Kickback Act.
ANTI-KICKBACK ACT (a) Pub. L. 86-695, September 2, 1960 (41 U.S.C. 51-54) among other things, prohibits the payment, directly or indirectly, by or on behalf of a subcontractor in any tier under any Government negotiated contract of any fee, gift, or gratuity to the prime contractor or any higher tier subcontractor or any officer, agent, partner or employee thereof, as an inducement or acknowledgement for the award of a subcontract or order.
(b) The provisions of Pub. L. 86-695, are set forth in more detail in § 1-1.320 of the Federal Procurement Regulations (41 CFR Part 1-1) and are applicable to this contract and any subcontracts entered into under the contract.
8 14H-70.635 Privacy Act requirements.
PRIVACY ACT REQUIREMENTS The contractor agrees to comply with all the requirements and provisions of Subpart D of 43 CFR Part 2 which implements the Privacy Act (5 U.S.C. 552a).
clause shall be used to enlarge or diminish the Government's rights in that subcontractor Subject Data.
(g) Deferred ordering and delivery of data. The Government shall have the right to order, at any time during the performance of this contract, or within 2 years from either acceptance of all items (other than data) to be delivered under this contract or termination of this contract, whichever is later, any Subject Data and any data not called for in the schedule of this contract but generated in performance of the contract, and the contractor shall promptly prepare and deliver such data as is ordered. If the principal investigator is no longer associated with the contractor, the contractor shall exercise its best efforts to prepare and deliver such data as is ordered. The Government's right to use data delivered pursuant to this paragraph (g) shall be the same as the rights in Subject Data as provided in (b) above. The contractor shall be relieved of the obligation to furnish data pertaining to an item obtained from a subcontractor upon the expiration of 2 years from the date he accepts such items. When data, other than Subject Data, is delivered pursuant to this paragraph (g), payment shall be made, by equitable adjustment or otherwise, for converting the data into the prescribed form, reproducing it or preparing it for delivery.
8 14H-70.637 Printing.
§ 14H-70.636 Rights in data.
RIGHTS IN DATA (a) Subject data. As used in this clause, the term "Subject Data" means writings, sound recordings, pictorial reproductions, drawings, designs or other graphic representations, procedural manuals, forms, diagrams, workflow charts, equipment descriptions, data files and data processing or computer programs, and words of any similar nature (whether or not copyrighted or copyrightable) which are specified to be delivered under this contract. The term does not include financial reports, cost analyses, and similar information incidental to contract administration.
(b) Government rights. Subject only to the provision of (c) below, the Government may use, duplicate or disclose for government purposes, all subject data delivered under this contract.
(c) License to copyrighted data. In addition to the Government rights as provided in (b) above, with respect to any Subject Data which may be copyrighted the Contractor agrees to and does hereby grant to the Government a royalty-free, nonexclusive and irrevocable license to use, or duplicate such data for government purposes: Provided, That such license shall be only to the extent that the Contractor now has, or prior to completion of final settlement of this contract may acquire, the right to grant such license without becoming liable to pay compensation to others solely because of such grant.
(d) Relation to patents. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.
(e) Marking and identification. The contractor shall mark all Subject Data with the number of this contract and the name and address of the contractor or subcontractor who generated the data. The contractor shall not affix any restrictive markings upon any Subject Data, and if such markings are affixed, the Government shall have the right at any time to modify, remove, obliterate, or ignore any such markings.
(f) Subcontractor data. Whenever any Subject Data is to be obtained from a subcontractor under this contract, the contractor shall use this same clause in the subcontract, without alteration, and no other
PRINTING Unless otherwise specified in this contract, the contractor shall not engage in, nor subcontract for, any printing (as that term is defined in title I of the Government Printing and Binding Regulations in effect on the effective date of this contract) in connection with the performance of work under this contract: Provided, however, That performance of a requirement under this contract involving the reproduction of less than 5,000 production units of any one page or less than 25,000 production units in the aggregate of multiple pages, will not be deemed to be printing. A production unit is defined as one sheet, size 8 by 10% inches, one side only, one color.