CONTRACT CLAUSES AND SOLICITATION PROVISIONS special termination costs, as herein defined, to which the Contractor may be entitled in the event this contract is terminated for the convenience of the Government. The Contractor agrees to perform this contract in such a manner that its claim for such special termination costs will not exceed S............. The Government shall have no obligation to pay the Contractor any amount for the special termination costs in excess of this amount. Special termination costs are defined as costs only in the following categories: (i) severance pay as provided in 15-205.39(b)(ii); (ii) reasonable costs continuing after termination as provided in 15-205.42(b); (iii) settlement expenses as provided in 15-205.42(f); (iv) costs of return of field service personnel from sites as provided in 15-205.25, and 15-205.46(d); and (v) costs in categories (i), (ii), (iii), and (iv) above to which subcontractors may be entitled in the event of termination. (b) In the event of termination for the convenience of the Government, this clause shall not be construed as affecting the allowability of special termination costs in any manner other than limiting the maximum amount payable therefor by the Government. (c) This clause shall remain in full force and effect until this contract is fully funded. (End of clause) 7-109 Price Redetermination Clauses. 7-109.1 General. When it is determined, in accordance with 3-404.5 or 3-404.6, to use a fixed-price contract providing for redetermination of price, the applicable clause of those set forth below shall be used. 7-109.2 Prospective Periodic Price Redetermination at Stated Intervals. (a) Description, Applicability, and Limitations. See 3-404.5. (b) Clause. PRICE REDETERMINATION (TYPE A) (1980 FEB) (a) General. The unit prices and the total price set forth in this contract shall be periodically redetermined in accordance with the provisions of this clause.* The prices for supplies delivered and services performed prior to the first effective date of price redetermination shall remain fixed. (See footnotes at end of clause) (b) Price Redetermination Periods. For the purpose of price redetermination the performance of this contract is divided into successive periods. The first period shall extend from the date of the contract to ** and the second and each succeeding period shall extend for (-) months from the end of the last preceding period, except that the final period may be varied by agreement of the parties. The first day of the second and each succeeding period shall be the effective date of price redetermination for the period. (See footnotes at end of clause) (c) Price Redetermination. Not more than ..........*** (See footnotes at end of clause) days nor less than .*** days before the end of each redetermination period, except the last, and as otherwise provided in (iii) below, the Contractor shall submit: (i) proposed prices for supplies which may be delivered or services which may be performed in the next succeeding period under this contract, together with— (A) an estimate and breakdown of the costs of such supplies or services on DD Form (B) sufficient data to support the accuracy and reliability of such estimate; and (ii) a statement of all costs incurred in the performance of this contract through the end (A) supplies delivered and services performed; and 7-109.2 ARMED SERVICES PROCUREMENT REGULATION CONTRACT CLAUSES AND SOLICITATION PROVISIONS (B) inventories of work in process and undelivered contract supplies on hand (estimated to the extent necessary); (iii) supplemental statements of costs incurred subsequent to the date set forth in (ii) above for (A) supplies delivered and services performed; and (B) inventories of work in process and undelivered contract supplies on hand (estimated to the extent necessary); as and to the extent that such information becomes available prior to the conclusion of negotiations on redetermined prices; and (iv) any other relevant data which may reasonably be required by the Contracting Officer. For the purposes of the foregoing submission, “costs" means allowable costs in accordance with Section XV of the Defense Acquisition Regulation as in effect on the date of this contract. Upon receipt of the data required by this paragraph (c), the Contractor and the Contracting Officer shall promptly negotiate to redetermine fair and reasonable contract prices for supplies which may be delivered and services which may be performed in the period following the effective date of price redetermination. Where the Contractor fails to submit the data as required above within the time specified, payments under this contract may be suspended by the Contracting Officer until the data are furnished and if it is later determined that the Government has overpaid the Contractor, the excess shall be repaid to the Government immediately. Unless repaid within thirty (30) days after the end of the data submittal period, the amount of such excess shall bear interest at the rate established in accordance with the Interest clause in DAR 7-104.39. Interest shall be computed for the period from the date the data was due to the date of repayment. (d) Subcontracts. No subcontract placed under this contract shall provide for payment on a cost-plus-a-percentage-of-cost basis. (e) Contract Modifications. Each negotiated redetermination of prices shall be evidenced by a modification to this contract, signed by the Contractor and the Contracting Officer, setting forth the redetermined prices for supplies delivered and services performed hereunder during the applicable price redetermination period. (f) Adjustment or Payments. Pending execution of the contract modification referred to in paragraph (e) above, the Contractor shall submit invoices or vouchers in accordance with billing prices as provided in this paragraph. The billing prices shall be the prices set forth in this contract; provided that, if at any time it appears that the then current billing prices will be substantially greater than the estimated final price in light of information provided by the Contractor in accordance with the provisions of subparagraph (g)(3) below, a reduction in the billing prices shall be negotiated. Similarly, the parties may negotiate an increase in billing prices upon submission of factual data from the Contractor showing that the redetermined price will be substantially greater than the current billing price. Any adjustment of billing prices shall be reflected in a modification to this contract, and shall not affect the redetermination of prices under this clause. After execution of the contract modification referred to in paragraph (e) above, the total amount paid or to be paid on all invoices or vouchers shall be adjusted to reflect the agreed prices, and any additional payments, refunds, or credits, resulting therefrom shall be promptly made. (g) Quarterly Limitation on Payments Statement. (1) This paragraph (g) shall apply only during a period for which firm prices have not been established. (2) Within forty-five (45) days after the end of each quarter of the Contractor's fiscal year, beginning for the quarter in which a delivery is first made (or services are first performed) and accepted by the Government under this contract, and as of the end of each quarter, the Contractor shall submit to the Contract Administration Office, with a copy to the purchasing activity and the cognizant contract auditor, ***** (See Footnotes at end of clause) a statement cumulative from the inception of the contract, setting forth: (i) the total contract price of all supplies delivered (or services performed) and accepted by the Government for which final prices have been established; (ii) the total costs (estimated to the extent necessary) reasonably incurred for and properly allocable solely to the supplies delivered (or services performed) and accepted by the Government for which final prices have not been established; 7-109.2 ARMED SERVICES PROCUREMENT REGULATION CONTRACT CLAUSES AND SOLICITATION PROVISIONS (iii) that portion of the total interim profit (used in establishing the initial contract price or agreed to for the purpose of this paragraph (g), Limitation on Payments), which is in direct proportion to the supplies delivered (or services performed) and accepted by the Government for which final prices have not been established; and (iv) the total amount of all invoices or vouchers for supplies delivered (or services performed) and accepted by the Government (including amounts applied or to be ap plied to liquidate progress payments); provided, that such stâtement need not be submitted for any quarter for which either no costs are to be reported under (ii) above or revised billing prices have been established in accordance with paragraph (g) above and do not exceed the existing contract price, the Contractor's priceredetermination offer, or a price based on the most recent quarterly statement, whichever is least. (3) Notwithstanding any provision of this contract authorizing greater payments, if on any quarterly statement the amount of (2)(iv) above exceeds the sum of (2) (i), (ii), and (iii) above, the Contractor shall immediately refund or credit to the Government against existing unpaid invoices or vouchers covered by such statement the amount of such excess less (i) the cumulative total of any previous refunds or credits under this clause (exclusive of any applicable tax credits under Section 1481 of the Internal Revenue Code of 1954) and (ii) any applicable tax credits under Section 1481 of the Internal Revenue Code of 1954. If any portion of such excess has been applied to the liquidation of progress payments, such amount (less all tax credits under the Internal Revenue Code) may be added or restored to the unliquidated progress payment account, to the extent consistent with the progress payments clause of this contract, instead of direct refund thereof. (4) When the Contractor fails to submit the quarterly statement within forty-five (45) days after the end of each quarter and it is later determined that the Government has overpaid the Contractor, the excess shall be repaid to the Government immediately. Unless repaid within thirty (30) days after the end of the statement submittal period, the amount of such excess shall bear interest at the rate established in accordance with the Interest clause in DAR 7-104.39. Interest shall be computed for the period from the date the quarterly statement was due to the date of repayment. (5) The Contractor shall (i) insert in each price redetermination or incentive price revision subcontract hereunder the substance of this "Limitation on Payments" provision, including this subparagraph (5), modified to omit mention of the Government and reflect the position of the Contractor as purchaser and of the subcontractor as vendor, and to omit that portion of subparagraph (3) relating to tax credits, and (ii) include in each cost-reimbursement type subcontract hereunder a requirement that each price redetermination and incentive price revision subcontract thereunder will contain the substance of this “Limitation on Payments" provision, including this subparagraph (5), modified as outlined in (i) above. (h) Disagreements. If the Contractor and the Contracting Officer fail to agree upon redetermined prices for any price redetermination period within sixty (60)****** days after the date on which the data required by (c) above is to be filed, or within such further time as may be agreed upon by the parties, the failure to agree upon redetermined prices shall be deemed to be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes," and the Contracting Officer shall promptly issue a decision thereunder. For the purpose of (e), (f), and (g) above, and pending final settlement of the disagreement on appeal, or by failure to appeal, or by agreement, such a decision shall be treated as an executed contract modification. Pending such final settlement, price redetermination for subsequent periods, if any, shall continue to be negotiated as hereinbefore provided. (i) Termination. If this contract is terminated, prices shall continue to be established pursuant to this clause (i) for completed supplies accepted by the Government and services performed and accepted by the Government, and (ii) in the event of a partial termination, for supplies and services which are not terminated. All other elements of the termination shall be resolved pursuant to other applicable provisions of this contract. (End of clause) •Where a ceiling is applicable, the following proviso shall be added: "provided, that in no event shall the total amount paid under this con 7-109.2 ARMED SERVICES PROCUREMENT REGULATION 7-109.3 Retroactive Price Redetermination After Completion. PRICE REDETERMINATION (TYPE E) (1980 FEB) (a) General. The unit prices and the total price set forth in this contract shall be redetermined in accordance with the provisions of this clause: provided, that in no event shall the total amount paid under this contract exceed dollars ($..........). (b) Price Redetermination. Within .......... (-) days after delivery of all supplies to be delivered and completion of all services to be performed under this contract, the Contractor shall submit (i) proposed prices, (ii) a statement of all costs incurred in the performance of this contract, allowable in accordance with Section XV of the Defense Acquisition Regulation as in effect on the date of this contract, on DD Form 633 or any other form on which the parties may agree, and (iii) any other relevant data which may reasonably be required by the Contracting Officer. Upon receipt of the required data, the Contractor and the Contracting Officer shall promptly negotiate to redetermine fair and reasonable contract prices for supplies delivered and services performed by the Contractor under this contract. Where the Contractor fails to submit the required data within the time specified, payment of all invoices may be suspended by the Contracting Officer until the data are furnished and if it is later determined that the Government has overpaid the Contractor, the excess shall be repaid to the Government immediately. Unless repaid within thirty (30) days after the end of the data submittal period, the amount of such excess shall bear interest at the rate established in accordance with the Interest clause in DAR 7-104.39. Interest shall be computed for the period from the date the data was due to the date of repayment. (c) Subcontracts. No subcontract under this contract shall provide for payment on a cost-plusa-percentage-of-cost basis. 7-109.3 ARMED SERVICES PROCUREMENT REGULATION CONTRACT CLAUSES AND SOLICITATION PROVISIONS 7:168-A (d) Contract Modification. The negotiated redetermination of price shall be evidenced by a modification to this contract, signed by the Contractor and the Contracting Officer, setting forth the redetermined prices which shall apply to supplies delivered and to services performed by the Contractor hereunder. (e) Adjustment of Payments. Pending execution of the contract modification referred to in paragraph (d) above, the Contractor shall submit invoices or vouchers in accordance with billing prices as provided in this paragraph. The billing prices shall be the prices set forth in this contract; provided that, if at any time it appears that the then current billing prices will be substantially greater than the estimated final price in light of information provided by the Contractor in accordance with the provisions of subparagraph (f)(3) below, a reduction in the billing prices shall be negotiated. Similarly, the parties may negotiate an increase in billing prices upon submission of factual data from the Contractor showing that the redetermined price will be substantially greater than the current billing price. Any adjustment of billing prices shall be reflected in a modification to this contract, and shall not affect the redetermination of prices under this clause. After execution of the contract modification referred to in paragraph (d) above, the total amount paid or to be paid on all invoices or vouchers shall be adjusted to reflect the agreed prices, and any additional payments, refunds, or credits, resulting therefrom shall be promptly made. (f) Quarterly Limitation on Payments Statement. (1) This paragraph (f) shall apply until final price redetermination to the full extent permitted by this contract. (2) Within forty-five (45) days after the end of each quarter of the Contractor's fiscal year. beginning for the quarter in which a delivery is first made (or services are first performed) and accepted by the Government under this contract, and as of the end of each quarter, the Contractor shall submit to the Contract Administration Office, with a copy to the purchasing activity and the cognizant contract auditor, * (see footnotes at end of clause) a statement cumulative from the inception of the contract, setting forth: (i) the total contract price of all supplies delivered (or services performed) and accepted by the Government for which final prices have been established; (ii) the total costs (estimated to the extent necessary) reasonably incurred for and properly allocable solely to the supplies delivered (or services performed) and accepted by the Government for which final prices have not been established; (iii) that portion of the total interim profit (used in establishing the initial contract price or agreed to for the purpose of this paragraph (f), Limitation on Payments), which is in direct proportion to the supplies delivered (or services performed) and accepted by the Government for which final prices have not been established; and (iv) the total amount of all invoices or vouchers for supplies delivered (or services performed) and accepted by the Government (including amounts applied or to be applied to liquidate progress payments). (3) Notwithstanding any provision of this contract authorizing greater payments, if on any quarterly statement the amount of (2)(iv) above exceeds the sum of (2)(i), (ii), and (iii) above, the Contractor shall immediately refund or credit to the Government against existing unpaid invoices or vouchers covered by such statement the amount of such excess less (i) the cumulative total of any previous refunds or credits under this clause (exclusive of any applicable tax credits under Section 1481 of the Internal Revenue Code of 1954) and (ii) any applicable tax credits under Section 1481 of the Internal Revenue Code of 1954. If any portion of such excess has been applied to the liquidation of progress payments, such amount (less all tax credits under the Internal Revenue Code) may be added or restored to the unliquidated progress payment account, to the extent consistent with the progress payments clause of this contract, instead of direct refund thereof. (4) When the Contractor fails to submit the quarterly statement within forty-five (45) days after the end of each quarter, and it is later determined that the Government has overpaid the Contractor, the excess shall be repaid to the Government immediately. Unless repaid within thirty (30) days after the end of the statement submittal period, the amount of such excess shall bear interest at the rate established in accordance with the Interest clause in ASPR 7-104.39. Interest shall be computed for the period from the date the quarterly statement was due to the date of repayment. 7-109.3 ARMED SERVICES PROCUREMENT REGULATION |