6-6.1003 Scope. Requests for determinations and findings. 6-6.1004 Determinations and findings. 6-6.1050 Comptroller General concurrence. 6-6.1051 Reports to Congress. 6-6.1053 Notice to posts. AUTHORITY: The provisions of this Part 6-6 are issued under sec. 205 (c), 63 Stat. 390, as amended, 40 U.S.C. 486 (c), sec. 4, 63 Stat. 111, 22 U.S.C. 2658. Subpart 6-6.8-Balance of Payments Program SOURCE: The provisions of this Subpart 6-6.8 contained in Dept. Reg. 108.568, 32 F.R. 14695, Oct. 24, 1967, unless otherwise noted. § 6-6.800 Scope. This program applies to procurements for use outside the United States regardless of location of supplier. § 6-6.805 Exceptions. (a) Foreign end products and services may be procured, without regard to §§ 1-6.804 and 1-6.806 of this title, as follows: (1) Where the estimated cost of the product does not exceed $1,000 rather than $2,500 as permitted in § 1-6.805(a) (2) of this title. 1 (2) Service exceptions under 6.805(a) (5) of this title shall include any service for which a determination is made that more than 25 percent of the cost of the service (including incidental supplies used in connection therewith) would be due to performance which could not feasibly be carried out in the United States. (3) The Department has determined that, for procurements where the domestic cost is estimated not to exceed $10,000 and the difference between the domestic cost and the foreign cost is determined to be more than 50 percent of the foreign cost, an exception exists. The Chief, Supply and Transportation Services Division, is designated as the determining official where the domestic cost is estimated to exceed $10,000 and the difference between the domestic cost and foreign cost is determined to be more than 50 percent of the foreign cost. (4) Individually excepted products for procurement from sources outside the United States are: (1) Fuel; (ii) Petroleum products; (iii) Parts for foreign origin equip ment. (b) The determinations required by § 1-6.805 (a) (3), (4), and (5) of this title shall be made: (1) For domestic procurement, by the Chief, Supply and Transportation Services Division, upon the basis of findings, forwarded by the procuring activity; (2) For post local and direct United States procurement, by the Principal Officer or his designee; (3) For third country procurement, by the Principal Officer (or his designee) of the requesting post. § 6-6.806-1 Restricted solicitation. (a) The Chief, Supply and Transportation Services Division, is designated to make the determination required by § 1-6.806-1(b) (1) of this title. (b) The Department has determined that nonrestricted solicitations shall be issued when the domestic cost is not in § 6-6.1003 Requests for determinations and findings. (a) A request by a post for a determinations and findings to omit the Examination of Records clause may be communicated to the Department by any method the post considers necessary in view of the urgency of the procurement. It should be addressed to the Supply and Transportation Division. (b) The facts to be reported with a request shall include the information set forth in § 1-6.1004 (a) through (d) and a recommendation for a determination as provided for in § 1-6.1004(e). § 6-6.1004 Determinations and findings. The Supply and Transportation Division shall prepare and submit determinations and findings for signature in accordance with the provisions of § 6-3.302. § 6-6.1050 Comptroller General currence. con The Supply and Transportation Division shall prepare documents for the signature of the Assistant Secretary for Administration to solicit the concurrence of the Comptroller General for determinations and findings prepared and executed on a "best interest" basis, in accordance with § 1-6.1001(a)(1). [36 F.R. 20513, Oct. 23, 1971] § 6-6.1051 Reports to Congress. Determinations and findings prepared and executed on a "public interest" basis, as provided for in § 1-6.1001 (a) (2), shall be forwarded by the Supply and Transportation Division to the Office of Congressional Relations for submission to Congress. § 6-6.1053 Notice to posts. The Supply and Transportation Division upon receipt of any necessary concurrence of the Comptroller General, shall inform the requesting post by appropriate means of the approval or disapproval of clause omission and forward determinations and findings to the post for inclusion in the contract file. Sec. 6-7.151-14 Price escalation. 6-7.151-15 Government delay of work. 6-7.151-16 6-7.151-17 Indemnification. Commercial warranty. 6-7.151-18 Price warranty. 6-7.151-19 Availability of funds. AUTHORITY: The provisions of this Part 6-7 issued under sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486 (c) sec. 4, 63 Stat. 111, 22 U.S.C. 2658. SOURCE: The provisions of this Part 6-7 contained in Dept. Reg. 108.609, 34 F.R. 17166, Oct. 23, 1969, unless otherwise noted. § 6-7.000 Scope of part. This part sets forth contract clauses for use in connection with the procurement of personal property and nonpersonal services (excluding construction). [38 FR 22895, Aug. 27, 1973] Subpart 6-7.1-Fixed-Price Supply § 6-7.100 Scope of subpart. This subpart sets forth or refers to contract clauses and clause alterations for use, in addition to those set forth or referred to in subpart 1-7.1 of this title, in fixed-price supply and nonpersonal service contracts entered into and performed outside the United States. [38 FR 22895, Aug. 27, 1973] § 6-7.101 Applicability. (a) The use of clauses set forth or referred to in §§ 6-7.102 and 6-7.150 is mandatory, in addition to or, where specified in this subpart, in lieu of those set forth or referred to in § 1-7.102 of this title under conditions described; Provided, That except as otherwise specified in this subpart, any such clause need not be used if: (1) Its use is prohibited by or inconsistant with local laws; or (2) The supplies or services could not be obtained if the clause were included. (b) Justification for the exclusion of clauses shall be included in the contract file. [38 FR 22895, Aug. 27, 1973] § 6-7.102 Required clauses. [38 FR 22895, Aug. 27, 1973] § 6-7.102-1 Definitions. The following definition shall be added to those contained in § 1-7.102-1 of this title: The term "Government" means the Government of the United States of America. [38 FR 22895, Aug. 27, 1973] § 6-7.102-8 Assignment of claims. (a) A Contracting Officer may in no event authorize a transfer or assignment prohibited by 31 U.S.C. 203 or 41 U.S.C. 15. (b) The following clause may be used in lieu of the clause set forth in § 130.703 of this title, when it is desirable to provide explicitly against an attempted transfer or performance responsibility. ASSIGNMENT OF CLAIMS AND DELEGATIONS OF RESPONSIBILITY The Contractor shall not assign, transfer, pledge, nor make other disposition of this contract, or any part thereof, or of any rights, claims, or obligations of the Contractor arising from this contract, nor shall the Contractor transfer or otherwise delegate the performance of any functions hereunder except with the prior written approval of the Contracting Officer. [38 FR 22895, Aug. 27, 1973] § 6-7.102-10 taxes. Federal, State, and local The following clause is applicable in lieu of the clauses referred to in § 1.7.102-10 of this title. The Contracting Officer shall obtain and make a part of the contract file detailed information concerning the specific taxes, normally applicable to the transaction, for which there is an exemption. TAXES, DUTIES, AND CHARGES FOB DOING (a) As used throughout this clause, the words and terms defined in this paragraph shall have the meanings set forth herein. (1) The term "country concerned” means any country in which expenditures under this contract are made. (ii) The words "tax" and "taxes" include fees and charges for doing business that are levied by the government of the country concerned or by political subdivisions thereof. (iii) The term "contract date" means the date of this contract or, if this is a formally advertised contract, the date set for bid opening; as to additional supplies or services procured by modification to this contract, the term means the date of the modification. (b) Except as may be otherwise provided in this contract, the contract price includes all taxes and duties in effect and applicable to this contract on the contract date, except taxes and duties (1) from which the Government of the United States, the Contractor, any subcontractor, or the transactions or property covered by this contract are exempt under the laws of the country concerned or political subdivision thereof, or (ii) which the Government of the United States and the government of the country concerned have agreed shall not be applicable to expenditures in such country by or on behalf of the United States. (c) (1) If the Contractor is required to pay or bear the burden (i) of any tax or duty which either was not to be included in the contract price pursuant to the requirements of paragraph (b) hereof, or was specifically excluded from the contract price by a provision of this contract; or (ii) of an increase in rate of any tax or duty, whether or not such tax or duty was excluded from the contract price; or (iii) of any interest or penalty on any tax or duty referred to in (i) or (ii) above, the contract price shall be correspondingly increased; provided that the Contractor warrants in writing that no amount of such tax, duty, or increase therein was included in the contract price as a contingency reserve or otherwise; and provided further, that liability for such tax, duty, increase therein, interest or penalty was not incurred through the fault or negligence of the Contractor or his failure to follow instructions of the Contracting Officer or to comply with the provisions of subparagraph (d) (1) below. (2) If the Contractor is not required to pay or bear the burden, or obtains a refund or drawback, in whole or in part, of any tax, duty, increase therein, interest or penalty which (i) was to be included in the contract price pursuant to the requirements of paragraph (b), (ii) was included in the Contract price, or (iii) was the basis of an increase in the contract price, the contract price shall be correspondingly decreased or the amount of such relief, refund, or drawback shall be paid to the Government of the United States, as directed by the Contracting Officer. The contract price also shall be correspondingly decreased if the Contractor, through his fault or negligence or his failure to follow instructions of the Contracting Officer or to comply with the provisions of subparagraph (d) (1) below, is required to pay or bear the burden, or does not obtain a refund or drawback of any such tax, duty, increase therein, interest or penalty. Interest paid or credited to the Contractor incident to a refund of tax or duties shall inure to the benefit of the Government of the United States to the extent that such interest was earned after the Contractor was paid or reimbursed by the Government of the United States for such taxes or duties. (3) If the Contractor obtains a reduction in his tax liability under the United States Internal Revenue Code of 1954, as amended (Title 26, U.S. Code), on account of the payment of any tax or duty which either (i) was to be included in the contract price pursuant to the requirement of paragraph (b) of this clause, (ii) was included in the contract price, or (iii) was the basis of an increase in the contract price, the amount of the reduction shall be paid or credited to the Government of the United States as the Contracting Officer directs. (4) Invoices or vouchers covering any adjustment of the contract price pursuant to this paragraph (c) shall set forth the amount thereof as a separate item and shall identify the particular tax or duty involved. (5) No adjustment in the contract price or payment or credit to the United States is required pursuant to this paragraph (c) if the total amount thereof for the contract period will be less than one hundred dollars ($100). (6) Subparagraphs (1) and (2) of this paragraph (c) shall not be applicable to social security taxes; income and franchise taxes, other than those levied on or measured by (1) sales or receipts from sales, or (ii) the Contractor's possession of, interest in, or use of property, title to which is in the Government; excess profits taxes; capital stock taxes; transportation taxes; unemployment compensation taxes; or property taxes, other than such property taxes, allocable to this contract, as are assessed either on completed supplies covered by this contract, or on the Contractor's possession of, interest in, or use of property, title to which is in the Government. (d) (1) The Contractor shall take all reasonable action to obtain exemption from or refund of any taxes or duties, including interest or penalty, from which the United States Government, the Contractor, any subcontractor, or the transactions or property covered by this contract are exempt under the laws of the country concerned or political subdivisions thereof, or which the Government of the United States and the government of the country concerned have agreed shall not be applicable to expenditures in such country by or on behalf of the United States. (2) The Contractor shall promptly notify the Contracting Officer of all matters pertaining to taxes or duties which reasonably may be expected to result in either an increase or decrease in the contract price. (3) Whenever an increase or decrease in the contract price may be required under this clause, the Contractor shall take action as directed by the Contracting Officer, and the contract price shall be equitably adjusted to cover the cost of such action, including any interest, penalty, and reasonable attorney's fees. [38 FR 22895, Aug. 27, 1973] § 6-7.102-12 Disputes. The following clause shall be used in lieu of the clause set forth in § 1-7.102-12 of this title: DISPUTES (a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to Contracting Officer a written appeal addressed to the Secretary. The decision of the Secretary or his duly authorized representative for the determination of such appeals shall be final and conclusive to the extent permitted by United States law. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of his appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision. (b) This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law. [38 FR 22896, Aug. 27, 1973] § 6-7.102-18 gent fees. Covenant against contin The clause set forth in § 1-1.503 of this title shall not be excluded from any contract. [38 FR 22896, Aug. 27, 1973] § 6-7.102-19 Termination for convenience of the Government. The following clause shall be inserted in lieu of that referred to in § 1-7.102.19 of this title for all contracts for "commercial items" as defined in § 1-3.807-1 (b) (2) (B) of this title: TERMINATION FOR CONVENIENCE OF THE GOVERNMENT The Government shall have the right to terminate this contract at any time by giving written notice to the Contractor not less than 10 days prior to the effective date of termination. Should this contract be terminated pursuant to this clause prior to the date it would otherwise expire, the following shall apply: (a) The Government shall complete all payments which shall then be due; (b) The Contractor shall deliver to the Government all work in process under this contract requested by the Government; (c) The Government shall pay to the Contractor any sum which is determined by the Contracting Officer as equitable for any work in process, which sum shall include any costs incurred by the Contractor in terminating any subcontract. § 6-7.104 Additional clauses. [38 FR 22896, Aug. 27, 1973] § 6-7.104-1 Liquidated damages. The clause set forth in § 1-1.315-3 of this title shall be inserted under the conditions and in the manner prescribed in § 1-1.315 of this title. The clause shall be altered to refer to FS-565 rather than Standard Form 32. [38 FR 22896, Aug. 27, 1973] § 6-7.150 Additional required clauses. § 6-7.150-1 Prohibition against items from certain areas. PROHIBITION AGAINST ITEMS FROM CERTAIN AREAS (a) No supplies, however processed, which are or were located in or transported from or through North Vietnam, North Korea, or Cuba may be used in the performance of this contract. (b) The Contractor agrees to insert the provisions of this clause, including this paragraph (b) in all subcontracts hereunder. [38 FR 22896, Aug. 27, 1973] § 6-7.150-2 U.S. products and services (Balance of Payments Program). The clause set forth in § 1-6.806-4 of this title shall be inserted unless the procurement qualifies as an exception as provided by § 1-6.805 of this title and § 6-6.805 of this chapter. § 6-7.151 Optional clauses. The clauses set forth in this section may be used when applicable to specific procurements, and may be modified when required. |