§9-7.000 Scope of part. This part implements FPR Part 1-7 which sets forth contract clauses for use in connection with the procurement of personal property and nonpersonal services (including construction), and supplements, as well as modifies, FPR Part 1-7 by prescribing certain DOE contract clauses to be used in addition to or in place of such FPR clauses. §9-7.050 General policy. It is DOE policy to use the prescribed FPR and DOE contract clauses wherever practicable; uniformity in the use of contract clauses tends to insure impartial treatment of all contractors, expedites negotiation and contract review, and facilitates contract administration. §9-7.051 Deviations. The clauses in Part 9-7 are categorized in the same manner as the clauses in FPR 1-7. There are three categories: required; when applicable; and additional. The deviation procedures which are applicable to each category are as follows: (a) Required clauses. The required clauses in FPR 1-7, and the required DOE-PR clauses and modifications to the FPR required clauses shall be used as prescribed. Textual modification or deletion of any required clause requires approval in accordance with §9-1.009. Minor changes in wording which may become necessary in negotiations are not considered deviations, provided Counsel determines that the change is not prohibited by statute, executive order, or administrative regulation and does not alter the meaning, intent or basic principles expressed in these clauses. (b) When applicable clauses. The clauses in this category shall be used where the circumstances for which the clauses were designed exist. Textual modifications or use of a clause covering the same subject matter which varies from a clause as set forth requires approval in accordance with $9-1009. Minor changes in wording which may become necessary in negotiations are not considered deviations, provided, Counsel determines that the change is not prohibited by statute, executive order, or administrative regulation and does not alter the meaning, intent or basic principles expressed in these clauses. (c) Additional clauses. The additional clauses are provided for guidance and use as decided locally. The clause text may be modified or other clauses substituted as needed without obtaining approval in accordance with §9-1.009. Subpart 9-7.1 Fixed-Price Supply Contracts 89-7.100 Scope of subpart. This subpart supplements FPR 1-7.1. §9-7.102 Required clauses. FPR 1-7.102 sets forth required clauses. This section prescribes certain modifications to those FPR clauses and establishes additional DOE required clauses. §9-7.102-1 Definitions. Add the following paragraph (d) to FPR 1-7.102–1: (d) The term DOE means the U. S. Department of Energy. §9-7.102-19 Termination for convenience of the Government. Modify FPR 1-8.701 paragraph (f) by deleting all after the reference "(41 CFR 1-15)" and inserting the following in lieu thereof: "as supplemented or modified by DOE-PR Part 9-15.2 (41 CFR §9-15.2) in effect on the date of the contract." §9-7.102-20 Pricing of adjustments. FPR 1-7.102-20 is modified by deleting all after "(41 CFR 1-15)” and inserting the following in lieu thereof: "as supplemented or modified by DOE-PR Part 9–15.2 (41 CFR §9-15.2) in effect on the date of this contract." 89-7.102-50 Order of precedence. In the event of an inconsistency between provisions of this contract, the inconsistency §9-7.102-51 (Reserved) §9-7.102-52 Patent indemnity. Insert the appropriate clause set forth in §9-9.103 under the conditions contained in §9-9.103. §9-7.102-53 (Reserved) 89-7.102-54 Reporting of royalties. Insert the clause in §9-9.110 under the conditions set forth therein. 89-7.102-55 Authorization and consent. Insert the clause set forth in Section 9-9.102-1 under the conditions set forth therein. §9-7.102-56 Incentive Price Revision Clause-Firm Target. When a fixed-price incentive contract described in FPR 1-3.404-4(a)(2) is used, the following clause shall be made a part of the contract. As to each item which is subject to incentive price revision, the contract schedule shall set forth the target cost, target profit, and target price. INCENTIVE PRICE REVISION (FIRM TARGET) (a) General. The supplies or services identified in the Schedule as items (Identify) are subject to price revision in accordance with the provisions of this clause; provided, that in no event shall the total final price of such items exceed (Insert Written Amount) dollars ($ Insert Numerical Amount). Any supplies or services which are to be ordered separately under, or otherwise added to, this contract and which are to be subject to price revision in accordance with the provisions of this clause, shall be identified as such in a modification to this contract. (b) Definition of Cost. For the purpose of this clause, "cost" or "costs" means allowable costs in accordance with Part 1-15.2 (41 CFR 1-15.2) of the Federal Procurement Regulations, as supplemented or modified by DOE-PR 9-15.2 (41 CFR 9-15.2), in effect on the date of this contract. (c) Submission of Data. Within (Insert Written Number of Days) (Insert Numerical Number of Days) days after the end of the month in which the Contractor has delivered the last unit of supplies and completed the services called for by those items referred to in paragraph (a) above, the Contractor shall submit, on Optional Form 60 or such other form as the Contracting Officer may require, (i) a detailed statement of all actual cost incurred up to the end of that month in performing all work under such items, (ii) an estimate of costs of such further performance, if any, as may be necessary to complete performance of all work with respect to such items, and (iii) a list of all residual inventory and an estimate of the value thereof (the Contracting Officer will determine whether to reduce the final negotiated cost by the value of the residual inventory or whether the Government will take title to the residual inventory with no reduction to the final negotiated cost for the value of the residual inventory). (d) Price Revision. Upon submission of the data required by paragraph (c) above, the Contractor and Contracting Officer shall promptly establish the total final price in accordance with the following: (1) On the basis of the information required by paragraph (c) above, together with any other pertinent information, there shall be established by negotiation the total final cost incurred or to be incurred for the supplies delivered (or services performed) and accepted by the Government, which are subject to price revision under this clause. (2) The total final price shall be established by adjusting the total final negotiated cost by an amount for profit or loss determined as follows: (3) The total final price of the item(s) referred to in paragraph (a) above shall be evidenced by a modification to this contract signed by the Contractor and the Contracting Officer. Such price shall not be subject to revision notwithstanding any changes in the cost of performing the contract, with the following exceptions: (i) insofar as the parties may agree in writing, prior to the determination of the total final price, (A) to exclude any specific elements of cost from the total final price and (B) to adopt a procedure covering subsequent disposition of such elements; and (ii) to the extent any adjustment or credit is expressly permitted or required by this or any other clause of this contract. (e) Subcontracts. No subcontract placed under this contract shall provide for payment on a cost-plus-a-percentage-of-cost basis. (f) Adjustment of Payments. Pending execution of the contract modification referred to in subparagraph (d)(3) above, the Contractor shall submit invoices or vouchers in accordance with billing prices as provided in this paragraph. The billing prices shall be the target 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 provisions of subparagraph (g)(2) below, a reduction in the billing prices shall be negotiated. Similarly, the parties may negotiate an increase in billing prices by any or all of the difference between the target price and the ceiling price upon submission of factual data from the Contractor showing that final cost under this contract will be substantially greater than target cost. Any adjustment of billing prices shall be reflected in a modification to this contract, and shall not affect the determination of the total final price under paragraph (d) above. After execution of the contract modification referred to in subparagraph (d)(3) above, the total amount paid or to be paid on all invoices or vouchers shall be adjusted to reflect the total final price and any additional payments, refunds, or credits, resulting therefrom shall be promptly made. (g) Limitation on Payments. (1) This paragraph (g) shall not apply after final price revision. (2) Within forty-five (45) days after the end of each quarter of the Contractor's fiscal year, beginning with 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 subsequent quarter the Contractor shall submit to the Contracting Officer a cumulative statement 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 cost (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 target profit which is in direct proportion to the supplies delivered (or services performed) and accepted by the Government for which prices have not been established, increased or decreased in accordance with the incentive profit formula set forth in (d)(2) above when the amount of cost stated under (ii) above differs form the aggregate target cost of such supplies or services; and (iv) The total amount of all invoices or vouchers for supplies delivered (or services performed) and accepted by the Government (including amount applied or to be applied to liquidate progress payments). (3) Notwithstanding any provision of this contract authorizing greater payment, 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 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) The Contractor shall (i) insert in each price redetermination or incentive price revision subcontract hereunder the substance of this paragraph (g), including this subparagraph (4), 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 subcontract hereunder a requirement that each price redetermination and incentive price revision subcontract thereunder will contain the substance of this paragraph (g), including this subparagraph (4) modified as provided in (i) above. (h) Disagreements. If the Contractor and the Contracting Officer fail to agree upon the total final price within 60 days after the date on which the data required by (c) above are to be submitted, or within such further time as may be specified by the Contracting Officer, such failure to agree shall be deemed to be a dispute concerning a question of fact within the meaning of the "Disputes" clause of this contract and the Contracting Officer shall promptly issue a decision thereunder. (i) Termination. If this contract is terminated prior to establishment of the total price, prices of supplies or services subject to price revision under this clause shall be established pursuant to this clause for (i) completed supplies accepted by the Government, and services performed and accepted by the Government, and (ii) in the event of a partial termination, supplies and services which are not terminated. The termination shall be otherwise accomplished pursuant to other applicable provisions of this contract. (j) Equitable Adjustment Under Other Clauses. If an equitable adjustment in contract price is made under any other clause of this contract before the total final price is established, the adjustment shall be made in the total target cost and may be made in the maximum dollar limit on the total final price, the total target profit or both. If such an adjustment is made after the total final price is established, adjustment shall be made only in the total final price. (k) Exclusion from Target Price and Total Final Price. Whenever any clause of this contract provides that the contract price does not or will not include an amount (1) Separate Reimbursement. The cost of performance of an obligation that (m) Taxes. As used in the "Federal, State, and Local Taxes" clause of this contract or any other clause of this contract that provides for certain taxes or duties to be included in, or excluded from, the contract price, the term "contract price" includes the total target price, or if it has been established, the total final price. When a provision in such clause or clauses requires that the contract price be increased or decreased as a result of changes in the obligation of the Contractor to pay or bear the burden of certain taxes or duties, such increase or decrease shall be made in the total target price or, if it has been established in the total final price, so as not to affect the contractor's profit or loss on this contract. OMB CONTROL No.: 1901-0021. §9-7.103 Clauses to be used when applicable. This section prescribes modifications to certain clauses in FPR 1-7.103 and provides DOE clauses which shall be used when applicable in addition to or in place of counter part clauses in FPR 1-7.103. 89-7.103-3 Examination of records by Comptroller General. Modify FPR 1-7.103-3 as follows: Add the following as paragraph (e): "Nothing in this contract shall be deemed to preclude an audit by the General §9-7.103-4 Notice and assistance regarding patent and copyright infringement. 89-7.103-28 Subcontracts. Modify FPR 1-7.103-28, paragraph (c)(v), to read as follows: "Identification of the type of subcontract to be used, and a copy of the proposed subcontract if it either exceeds $100,000 or is otherwise required by the Contracting Officer." 89-7.103-50 Classification. The following clause shall be included in all contracts which involve classified information: CLASSIFICATION In the performance of the work under this contract, the contractor shall ensure that 89-7.103-51 Government Property. Insert the applicable Government property clause set forth in FPR 1-7.303-7 modified as set forth in 89-7.303-7. |