476 Findings of Fact of the delivery of the demand) as of which the revised prices shall be effective as to the deliveries made thereon and thereafter. This date is hereinafter referred to as "the effective date of the price redetermination." For the purposes of the first negotiation contemplated by this paragraph, the date of execution of this contract shall be deemed to be the effective date of the price redetermination. Any demand under this clause, if made by the Contractor, shall state briefly the ground or grounds therefor and shall be accompanied by the statements and data referred to in paragraph (c) of this clause. If the demand is made by the Government, such statements and data will be furnished by the Contractor within 30 days of the delivery of the demand. (2) In the event all remaining work under this contract, as it may from time to time be amended, shall be terminated pursuant to the clause of this contract entitled "Termination for Convenience of the Government", no demand shall then or thereafter be made and any demand the effective date of which is less than 30 days before the effective date of such termination shall be void and of no effect. (c) Submission of data.-At the time or each of the times specified or provided for in paragraph (b) of this clause the Contractor shall submit (i) a new estimate and breakdown of the unit cost and the proposed prices of the items remaining under this contract after the effective date of the price redetermination, itemized so far as is practicable in the manner prescribed by WD Form 105; (ii) an explanation of the differences between the original (or last preceding) estimate and the new estimate; (iii) such relevant shop and engineering data, cost records, overhead absorption reports and accounting statements as may be of assistance in determining the accuracy and reliability of the new estimate; (iv) a statement of experienced costs of production hereunder to the extent that they are available at the time or times of the negotiation of the revision of prices hereunder; and (v) any other relevant data usually furnished in the case of negotiation of prices under a new contract. The Government may make such examination of the Contractor's accounts, records and books as the Contracting Officer may require and may make such audit thereof as the Contracting Officer may deem necessary. (d) Negotiations. (1) Upon the filing of the statements and data required by paragraph (c) of this clause, the Contractor and the Contracting Officer will negotiate promptly in Findings of Fact 154 Ct. Cl. good faith to agree upon prices for items to be delivered on and after the effective date of the price redetermination. Negotiations for price redetermination under this clause shall be conducted on the same basis, employing the same types of data (including, without limitations, comparative prices, comparative costs, and trends thereof) as in the negotiation of prices under a new contract. (2) After each negotiation the agreement reached will be evidenced by a supplemental agreement stating the redetermined prices to be effective with respect to deliveries on and after the effective date of the price redetermination (or such other later date as the parties may fix in such supplemental agreement). (e) Disagreements. If within 30 days after the date on which the statements and data are required pursuant to paragraph (b) of this clause to be filed (or such further period as may be fixed by written agreement) the Contracting Officer and the Contractor fail to agree to redetermined prices (which term, for the purpose of this clause, shall include direct costs, indirect costs and profit), the failure to agree shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes," and the prices so fixed shall remain in effect for the balance of the contract notwithstanding any other provision of this clause. (f) Payments. Until new prices shall become effective in accordance with this clause, the prices in force at the effective date of the price redetermination shall be paid upon all deliveries, subject to appropriate later redetermination made pursuant to paragraph (d) or (e) or (g) (2) (B) of this clause. The general provisions of contract Ord-242 also contains a provision for the termination for the convenience of the Government, the price redetermination in the event of termination, and a provision for the assignment of claims under this contract by the contractor. 6. Contract Ord-242 was increased to $2,054,342.99 by changes and supplementary agreements, of which $555,510.15 became payable under title I for rebuilding the 750 engines and $1,498,832.84 consistuted reimbursement of costs under title II of this contract. Eleven changes and supplemental agreements were issued and constituted part of contract Ord-242. The contract price was changed under the following supplemental agreements: 476 Findings of Fact (a) On September 5, 1952, supplemental agreement No. 4 was issued providing for an estimated increase of reimbursables of $932,716.63 under title II of the contract from $600,000 to an estimated $1,532,716.63. (b) On November 21, 1952, supplemental agreement No. 6 was issued providing for the reimbursement to plaintiff under title II for the packing, marking and shipping of Government furnished property (GFP) constituting engine parts in excess of requirements. It provided for the reimbursement of plaintiff's actual cost of materials and labor plus an allowance of 180 percent of direct labor as plant overhead and general and administrative expenses in the performance of this work after November 1, 1952, but not to exceed $25,000, and without any increase in the total estimate for reimbursables under the contract. It was later determined that the cost of packing, marking and shipping of the excess GFP would exceed the maximum allowance of $25,000, and by supplemental agreement No. 8, January 10, 1953, the maximum was increased to $25,900. (c) On December 8, 1952, supplemental agreement No. 7 was issued providing for an increase of $8 per engine from $605.61 to $613.61, thereby increasing the fixed price under title I to $460,207.50, by reason of an increase for the dynamometer run-in tests of the engines from about 41⁄2 hours to 5 hours 40 minutes, in conformance with the Army Technical Bulletin TB-ORD-215, dated April 20, 1951, specified in change order No. 2 dated April 1, 1952. This supplemental agreement also provided for a deduction from the final payment of $718.10 because of additional equipment furnished by the Government under schedules B-1 and B-2 to supplemental agreements Nos. 2 and 3 of a separate facilities contract hereinafter described, for plaintiff's use in the performance of contract Ord-242. Supplement No. 7 also increased the maximum amount of $500,000 in article 33, Price Redetermination, to a maximum of $506,228.25. (d) On July 15, 1953, by supplemental agreement No. 10, contract Ord-242 was increased by $46,020.75 under Article 33, Price Redetermination, as amended by supplement Findings of Fact 154 Ct. Cl. No. 7, to the maximum of $506,228.25, for rebuilding engines under title I. (e) By supplement No. 11, issued March 22, 1955, the maximum amount stipulated for redetermination of price under article 33, was increased from $506,228.25 to $556,228.25, and the plaintiff was awarded an additional $50,000 as an equitable adjustment of the contract in settlement of an unnumbered change order dated April 5, 1952, copy of which was attached to this supplemental agreement, which reads: Engines being rebuilt under subject contract are acceptable for Field Service with .020 undersize crankshafts. All engines must be equipped with new style oil pan and pump. Contract Ord-242 was increased by supplement No. 11 in the net amount of only $16,116.21. Paragraph 4 states in part: The parties hereto recognize that the $16,116.21 is a net figure resulting from a $50,000 increase in the contract amount for the purpose of settling an unnumbered contract change order and a decrease of $33,883.79 in the estimated amount of direct cost reimbursement. Thus contract Ord-242, as amended in the foregoing supplemental agreements, provided for payments under title I of $556,228.25 less $718.10 for facilities furnished by the Government, or the net sum of $555,510.15, and for the payments of $1,498,832.84 for reimbursables under title II, including $25,900 for the packing, marking and shipping of parts in excess of contract requirements specified under supplement No. 8. 7. All deliveries of rebuilt engines under title I of contract Ord-242 were completed by the end of October 1952. There were no vouchers, nor any tabulation of payments made under title I, for the fixed price portion of this contract. However, it is reasonable to conclude that such payments were made within 30 days after the completion of deliveries at the contract price in effect. A summary of all payments for reimbursable costs was filed as defendant's exhibit 32. A summary of payments under contract Ord242 follows: 8. The plaintiff was paid $1,498,832.84 for reimbursable costs under title II of contract Ord-242. By deducting the cost of $25,900 under supplemental agreements 6 and 8 for packing, marking and shipping parts in excess of requirements, there remain reimbursable costs of $1,472,932.84 for the procurement of new parts, gasoline, oil and cleaning compounds, and the cost of repairing shipping containers. Thus the average amount reimbursed was $1,963.91 for each engine rebuilt, or 2.45 times the contract estimate for reimbursables of $800 for each engine. Following the completion of rebuilding the 750 engines the plaintiff returned to the Government approximately $478,821.47 of unused parts and supplies. However, the plaintiff received 830 unserviceable engines that were torn down and "cannibalized" for usable parts in the 750 rebuilt engines. New parts were classified as condition 1 for use in rebuilding engines whereas the old parts from the unserviceable engines or otherwise supplied by the Government were classified as condition 7, or scrapped when determined 670-595-63-33 |