1208.601 1208.602 1208.602-3 General. Termination of fixed-price supply contracts for default. Procedure for default. AUTHORITY: The provisions of this Part 1208 issued under R.S. 161, secs. 2202, 2301, 2314, 70A Stat. 120, 127, sec. 2, 72 Stat. 514, sec. 1, 76 Stat. 528; 5 U.S.C. 171a (c), 301, 10 U.S.C. 2202, 2301-2314; DOD Directive 5105.22, Nov. 6, 1961. SOURCE: The provisions of this Part 1208 appear at 34 F.R. 17284, Oct. 24, 1969, unless otherwise noted. Subpart A [Reserved] 1 Enclose appropriate "boiler plate" forms and applicable instructions or provisions. a (a) The head of the procuring activity shall prescribe procedures under which contracting officers may terminate contracts for the convenience of the Government and in the case of cost-reimbursement type contracts for the default of the contractor. Notwithstanding change in requirements a contract is not to be terminated for convenience (except at no cost to the Government as provided in § 8.602-4 (iii)) of this title if the contractor is in unexcusable default and the Government has a legal right to terminate such contract for default. (b) The settlement of contracts terminated for the convenience of the Government is the responsibility of the cognizant Contract Administration Office (CAS). A contract may be terminated for the convenience of the Government by the procuring contracting officer (PCO) at no cost to the Government and without referral to CAS or the issuance of a notice of termination if the PCO has ascertained that (1) the contractor will accept a no-cost settlement, Government property was not furnished, and (3) there are no outstanding payments, claims or other contractor obligations. In all other cases a notice of termination for the convenience of the Government shall be issued and a copy forwarded to CAS for action as specified in § 8.203(b) of this title. (2) whenever small business guaranteed loans (see § 1-705.6 (c)) of this title, progress payments, or advance payments are involved. § 1208.602 Termination of fixed-price supply contracts for default. § 1208.602-3 Procedure for default. The following procedures, prescribed by the General Services Administration, shall be followed in terminating for default delivery orders placed against Federal Supply Schedule contracts. (a) Ordering office. Before declaring a contractor in default, ordering offices should ordinarily notify the contractor in writing that unless satisfactory performance occurs by a specified date, which should allow a reasonable time for performance, his right to proceed further under the delivery order will be considered terminated and he will be held liable for any excess costs resulting from purchasing the supplies or services elsewhere. This step will not be taken when the default involves an attempted fraud on the United States, or when it obviously would be futile, as for example, when the contractor has already declined to perform. Where excess costs are anticipated, the ordering office may withhold sufficient funds due to contractor as offset security. Ordering offices will endeavor to minimize excess costs to be charged against the contractor and to collect, by check or setoff, excess cost owed. (b) Federal Supply Service. Where ordering offices are notified by the Federal Supply Service that it has declared the contractor in default, ordering offices will thereafter refuse to accept further performance by the contractor or place further delivery orders with it. Ordering offices will thereafter purchase against the account of the contractor from replacing contractors designated by the Federal Supply Service or in such other manner as directed by the Federal Supply Service. (c) Notification. Ordering offices shall furnish to the Purchase Branch, Federal Supply Service, Washington, D.C. 20025, the details concerning all material instances of unsatisfactory performance by the contractor, whether or not properly adjusted and settled. Offering offices also shall report, as may be directed by the Federal Supply Service, all purchases made against the account of a contractor placed in default by the Federal Supply Service. Subpart D-Processing of Licenses, Assignments, and Infringement Claims 1209.401-50 Processing of infringement claims. AUTHORITY: The provisions of this part 1209 issued under R.S. 161, secs. 2202, 2301, 2314, 70A Stat. 120, 127, sec. 2, 72 Stat. 514, sec. 1, 76 Stat. 528; 5 U.S.C. 171a(c), 301, 10 U.S.C. 2202, 2301-2314; DOD Directive 5105.22, Nov. 6, 1961. SOURCE: The provisions of this Part 1209 appear at 34 F.R. 17285, Oct. 24, 1969, unless otherwise noted. § 1209.000 Scope of section. § 1209.000-50 Authority. The Counsel, DSA, is authorized to act for the Director, DSA, on all patent, copyright, proprietary data and trademark matters arising in the DSA. Any question on such matters shall be referred to the Counsel, DSA. § 1209.000-51 Supply of patented components as GFP. Where patented or proprietary components are required in end items purchased by DSA activities, particularly military type items, consideration may be given to furnishing such components as Government-furnished property. Subpart A-Patents § 1209.103 Patent indemnification of Government by contractor. § 1209.103-4 Waiver of indemnity by the Government. Specific patents may be excluded in accordance with § 9-103.4 of this title only with the prior approval of the Counsel, DSA, or the Patent Counsel, DSA. § 1209.110 Reporting of royalties. Furnishing Copy of Reports. Counsel for the procuring activity concerned will forward to the Counsel, DSA, a copy of each royalty report received in accordance with § 9-110 of this title which indicates that royalties in excess of $250 have been paid or are to be paid to any person or firm. § 1209.112 Adjustment of royalties. The report required by § 9-112 of this title shall be made to counsel for the procuring activity concerned who shall forward the report to the Counsel, DSA, for appropriate action. Subpart B-Rights in Technical and Other Data and Copyrights § 1209.202-50 Reporting of improper use of data or technical data. Any direct or indirect charge of improper use of data or technical data received by any procuring activity, shall be referred to Counsel for the activity who will notify and coordinate all actions on such cases with the Counsel, DSA. Subpart C-Foreign License and Technical Assistance Agreements § 1209.304 Foreign license and technical assistance agreements between a domestic concern and a foreign gov ernment or concern. § 1209.304-2 Review of agreements. Proposed foreign license and technical assistance agreements between domestic concerns and foreign governments or concerns forwarded to the DSA under the provisions of § 9.304-1 of this title, shall be referred to the Counsel, DSA, for action in accordance with § 9.304-2 of this title. Subpart D-Processing of Licenses, Assignments, and Infringement Claims § 1209.401-50 Processing of infringement claims. (a) Any direct or indirect charge or threat of patent, trademark or copyright infringement received by any procuring activity, shall be referred to Counsel for the activity who will notify and coordinate all actions on such cases with the Counsel, DSA. (b) The Counsel, or the Patent Counsel, HQ DSA, are hereby authorized to make acquisitions in accordance with 10 U.S.C. 2386 and to enter into agreements in settlement of claims under the Foreign Assistance Act of 1961 (22 U.S.C. 2356) and 35 U.S.C. 181-188. Coordination with the Departments of the Army, Navy, and Air Force in the processing and final disposition of each claim shall be effected by the Counsel or the Patent Counsel, HQ DSA. PART 1210-BONDS, INSURANCE, AND INDEMNIFICATION § 1210.112 Execution and administration of bonds and consents of surety. All bonds and all consents of surety will be reviewed by counsel of the activity for legal sufficiency. The original signed bond shall subsequently be forwarded, with the original copy of the contract where practical, to the appropriate Finance Center designated to review and file the activity's contracts. Annual bonds will be retained by the Finance Center to which furnished. (R.S. 161, secs. 2202, 2301, 2314, 70A Stat. 120, 127, sec. 2, 72 Stat. 514, sec. 1, 76 Stat. 528; 5 U.S.C. 171a(c), 301, 10 U.S.C. 2202, 23012314; DOD Directive 5105.22, Nov. 6, 1961) [34 F.R. 17285, Oct. 24, 1969] Whenever labor representatives request permission to enter a DSA installation on which private contract employees are engaged in contract work to conduct union business during working hours, the commanding officer may admit such representatives, provided (a) the presence and activities of the labor representatives will not interfere with the progress of the contract work involved, and (b) the entry of such representatives to the installation shall not violate pertinent safety or security regulations. Commanding officers shall take all necessary action to enforce the above policy and facilitate ready access to worksites within military installations. One method which has met with success in appropriate situations is the maintenance by commanding officers of a list of labor representatives, who have been cleared with regard to safety and security considerations and who may be admitted into respective installation to conduct union business. The determination as to who are appropriate labor representatives should be made by the commanding officer on recommendation of the contracting officer after consultation with local union officials. Business offices or desk space for labor organizations for solicitation of membership, collection of dues, or other business of the labor organization, not directly connected with the contract work, shall not be permitted on the installation except for the routine functions of the working steward whose union duties are incidental to his assigned job. In the event that a commanding officer of an installation, or the contracting officer or his representative denies entry to a labor representative for any reason such officer shall notify, through channels, the Labor Advisor, DSA. Such notification shall include the reasons for denial, including names, addresses of representatives denied entry, and union affiliation, if known, of such representatives. § 1212.101-3 Reporting of labor disputes. The report of labor disputes on DD Form 1507, Work Stoppage Report, in accordance with § 12.101-3(b) (4) of this title, is assigned Reports Control Symbol DD-DSA (AR) 111(P). § 1212.101-4 Impact of labor disputes on defense programs. In addition to the information required by § 12.101-4(b) of this title, the head of the procuring activity shall include in each impact report the following: (a) Description of military program, project or service. Identify item, project, or service which will be or is being affected by the work stoppage, describing its normal use and current functions in combat, support, or deterrent operation. For components or raw materials identify the end item(s) for which used. (b) Requirements and assets. State requirements and assets in appropriate detail in terms commonly used by the DOD component. (1) For production programs include requirements for each using Military Service. Where applicable, state in detail production schedules, inventory objectives, assets against these objectives, and critical shortages. For spare and highly expendable items show average quarterly demands and assets. For components, include requirements for spares. (2) For projects describe the potential adverse effects of a delay in meeeting schedules and explain how a security disadvantage would result from such a delay. (3) For services, describe how a loss or interruption affects ability to support defense operations in terms of traffic requirements, assets, testing programs, etc. (c) Possible measures to minimize strike impact. Describe: (1) Capabilities, if any, to substitute items. (Note how many other facilities are available and the relative capabilities of such facilities in meeting total requirements.) (2) How much time would be required to replace the loss of the faculty or service affected by a work stoppage. (d) Conclusion: impact on operations of a 15-30, of a 30-60, 60-90 day work stoppage. Degree of criticality of a program, project or service resulting from a work stoppage will be projected on a calendar basis, indicating the increased impact, if any, as the stoppage lengthens. Criticality is measured by the time re quired for the work stoppage to have an effect on operational capability. This time must be stated in terms of days. Reports Control Symbol DD-DSA (AR) (111) (P) applies to this reporting requirement. Subparts B-E [Reserved] § 1212.650 Exception not stated in the publications furnished contracting officers. Certain of the exceptions stated in the publications furnished contracting officers which contain no specific expiration date may have been rescinded by the Secretary of Labor since date of publication. In case of doubt, inquiry may be directed to the appropriate Regional Director, Wage and Hour and Public of Contracts Divisions, Department Labor indicated in § 12.607 of this title. Subpart G-Fair Labor Standards Act of 1938 § 1212.702 Suits against contractors. Government Subparts A-B [Reserved] Subpart C-Providing Government Production and Research Property to Contractors § 1213.301 Providing facilities. (a) (1) Requests for new facilities will be forwarded to HQ DSA, Attention: DSAH-P for approval. Sufficient documentation will be provided with the request to show that the need for supplies or services cannot be met by any other practical means or that the furnishing of facilities will be in the public interest. Commanders of Defense Supply Centers, DIPEC, DDMT, DDOU and DDTC are authorized to provide existing facilities under the conditions set forth in § 13.301 of this title. (2) A copy of the contractor's written statement, expressing his unwillingness or financial inability to acquire the necessary facilities with his resources, will be included as a part of requests for new facilities. A copy of the written statement obtained in connection with provision of existing facilities will be furnished DSAH-PR within 15 days after receipt from contractor. (b) When determination is made that solicitations should include an offer to furnish existing Government facilities because adequate price competition cannot be otherwise obtained, the case will be fully documented to indicate the basis for such determination. Referral to DSAH-P is not required prior to inclusion of an offer to provide existing facilities except for ASOD Approved Packages. Requests for use of equipment included in such packages will be processed in accordance with procedures set forth in paragraph 10-703, DSAM 4005.1. Subpart D [Reserved] Subpart E-Competitive Advantage § 1213.501 Policy. It is DOD policy to eliminate the competitive advantage that might otherwise arise from acquisition or use of Government production and research property. This is accomplished by charging rental or by use of rental equivalents in evaluating bids and proposals. Within the Defense Supply Agency, the more desirable procedure is to develop an evaluation factor equal to the rent (§ 13.502-2 of this title), obtain the necessary approvals to authorize rent-free use of the Government property and |