FORMS CURE NOTICE® You are notified that the Government considers your (specify the Contractor's failure or failures), a condition that is endangering performance of the contract in accordance with its terms. Therefore, unless such condition is cured within ten (10) days after receipt hereof (or such longer time as the Contracting Officer may deem reasonably necessary) the Government may terminate subject contract for default under General Provision No...... (Default). (*Use only when the delivery schedule has not expired.) The "Cure Notice" is required by the terms of the "Default" clause in the contract and derives its authority therefrom. Before using this notice, it must be ascertained that an amount of time equal to or greater than the period of "Cure" remains in the contractually established delivery schedule or any extension thereof. If the time remaining in the contract delivery schedule is not sufficient to permit a realistic "Cure" period of ten (10) days or more, the "Cure Notice" should not be issued and the following "Show Cause Notice" may be used, if desired, immediately upon the expiration of delivery period. SHOW CAUSE NOTICE Since you have failed to (perform Contract No...... within the time required by the terms thereof) (cure the conditions endangering performance under Contract No...... as described to you in the Government's letter of (date) .....), the Government is considering terminating said contract pursuant to General Provision No...... (Default). Pending a final decision in this matter, it will be necessary to determine whether your failure to perform arose out of causes beyond your control and without fault or negligence on your part. Accordingly, you are hereby afforded the opportunity to present, in writing, any facts bearing on the question to the Contracting Officer (insert complete address, including symbol, of activity where the Contracting Officer is located), with copy thereof to the undersigned for information within ten (10) days after receipt of this notice. Your failure to present any excuses within this time may be considered as an admission that none exist. Your attention is invited to the respective rights of the Contractor and the Government under General Provision No...... (Default) and the liabilities that may be invoked in the event a decision is made to terminate for default of the Contractor. (*Delivery schedule in part or in whole has expired.) Any assistance rendered to you on this contract or acceptance by the Government of delinquent goods or services hereunder, will be solely for the purpose of mitigating damages, and is not to be construed as an intention on the part of the Government to condone any delinquency, or as a waiver of any rights the Government may have under subject contract... (**Stop work instructions may be used when it is definitely known that there are no further requirements for the items or services, but an investigation must be conducted to determine whether an actionable default exists in lieu of termination for convenience. In such a situation, the following may be inserted as the final paragraph of the Show Cause Notice:) Pending decision you are instructed to stop all work immediately and to make no further commitments under subject contract. Advise all subcontractors and suppliers to do likewise. NASA PROCUREMENT REGULATION 8.811 9.107 Property Rights in Inventions Made in the Performance of Work Under 9.107-1 General.. 9.107-2 Reserved 9-1:7 9-1:7 9-1:8 9.108 9.109 Patent Rights Under Funding Agreements with Small Business Firms or 9.108-1 Introduction.. 9-1: 14 9-1: 14 9-1: 15 9-1: 16 9-1: 16 9-1:26 9-1:26 9.108-14 Licensing of Background Patent Rights to Third Parties.. Administration of the New Technology and Patent Rights Clauses; Waiver of Rights to Inventions Under 42 U.S.C. 2457 PART 9 PATENTS, DATA, AND COPYRIGHTS Subpart 1-Innovations, Inventions, and Patents 9.000 Scope of Part. This Part sets forth policies and procedures pertaining to innovations, inventions, patents, data, and copyrights in connection with the procurement of supplies and services. 9.100 Scope of Subpart. (a) This Subpart sets forth policies, procedures, and contract clauses with respect to: (i) inventions, discoveries, improvements, and innovations made in the performance of any work under contract of NASA; (ii) patent and copyright infringement liability of the United States resulting from work performed under contracts of NASA; (iii) security requirements covering patent applications containing classified subject matter; and (iv) patent and copyright royalties payable in connection with the performance of contracts of NASA. 9.101 Procurement of Patented Items by NASA. 9.101-1 Purchase of Patented Items When Government is a Licensee. NASA occasionally becomes licensed under privately held patents as a result of infringement claims, direct license proffers, or preprocurement license agreements as set forth in 9.101-2. When it is known that a specific procurement will be covered by a privately held patent and NASA is licensed under the patent prior to award, an amount equal to the royalty which the Government will be required to pay under the license agreement will be added as an evaluation factor to each bid or offer unless the bidder or offeror is licensed under the patent. Before any such royalty payments are considered for evaluation purposes, each bidder or offeror will be given an opportuntiy to show that he is licensed under the patent or that performance of the contract in accordance with his bid or offer will not result in infringement of the patent. 9.101-2 Procurement License Agreements. (a) Upon timely written notice by a patent owner, hereinafter interpreted to mean any party legally entitled to license the patent, that a proposed NASA procurement, either formally advertised or negotiated, will infringe his privately owned U.S. patent, and upon a determination by patent counsel that the procurement will infringe the patent, NASA may enter into a license agreement with the patent owner prior to the procurement using NASA Form 1333, Patent License Agreement. This procedure shall be applicable only in those solicitations where bids or offers are received from both licensed and unlicensed sources, where the following conditions are satisfied: (1) The pertinent claim or claims of the patent have not been held invalid by a final determination of a court of competent jurisdiction, or determined to be unenforceable against the Government by any department or agency in an administrative claim procedure, or form the basis of an unresolved administrative claim against any Government department or agency; (2) The patent owner demonstrates that his patent is respected commercially as evidenced by one or more royalty-bearing commercial licenses under the patent, or the patent owner shows that his patent has been held valid by a final determination of a court of competent jurisdiction; (3) The patent owner agrees to license NASA for the proposed procurement at a rate which is reasonable under the circumstances. Generally, such a rate should not exceed the lowest rate at which the patent owner has licensed a private concern. If the contracting officer agrees to a higher rate, he shall document the reasons for such agreement. (4) The contracting officer, in consultation with NASA patent counsel, determines that entering into the license agreement will not unduly delay the procurement. (b) If the conditions of paragraph (a) are satisfied and a preprocurement license agreement is entered into, royalties which will be payable to the patent owner under the agreement, if a contract is awarded to an unlicensed supplier, will be considered by the contracting officer as a factor in determining which bid or proposal is most advantageous to the Government. The NASA PROCUREMENT REGULATION 9.101-2 PATENTS, DATA, AND COPYRIGHTS preprocurement license agreement will apply only to contracts to be awarded under the proposed procurement, and under the agreement, royalties will be payable to the patent owner only if the patented items are procured from an unlicensed source, and only upon acceptance by NASA of the patented item. (c) Notice that a proposed NASA procurement will infringe a privately owned patent and an offer by the patent owner to enter into a preprocurement license agreement with NASA will be considered by the contracting officer only if the patent owner: (i) gives timely notice to the contracting officer in writing of the alleged infringement, identifying the proposed procurement or those portions thereof which he believes will infringed his patent; (ii) submit a copy of his patent to the contracting officer together with a brief explanation outlining the claim or claims of his patent which he believes will be infringed by the proposed procurement; (iii) submits evidence showing that his patent is respected commercially including applicable royalty rates, or that it has been held to be valid by a final determination of a court of competent jurisdiction; (iv) establishes his interest in the patent and that he has the right to enter into a license agreement with NASA; and (v) specifies the terms, including the royalty, upon which he will license NASA for the proposed procurement. (d) If the contracting officer, in consultation with patent counsel, determines that entering into a preprocurement license agreement would not unduly delay the procurement, he shall refer the matter to patent counsel who shall determine whether the proposed procurement would infringe the patent. If the determination is affirmative, patent counsel shall negotiate the terms of such agreement at a royalty rate which is considered reasonable under the circumstances. Negotiations regarding the terms of such an agreement shall be coordinated with the Office of General Counsel, NASA Headquarters, and in the case of formally advertised procurements, a mutually acceptable royalty rate must be established prior to bid opening. Each nonlicensed bidder or offeror shall have an opportunity to demonstrate that his performance of the contract will not infringe the asserted patent. Preprocurement licenses will be binding upon NASA only upon execution thereof by the General Counsel of NASA. (e) When the date for bid opening is imminent and there does not appear to be sufficient time to evaluate a preprocurement license request, the contracting officer may delay bid opening for a specified period of time to allow evaluation of the request. In the event of such delay, all bidders will be notified, by amending the invitation for bid (see 2.207), and will be advised of the reason therefor. If the contracting officer determines that it is not in the best interests of the Government to delay bid opening, he shall document his reasons for such determination. (f) Solicitation Provisions. (1) Formal Advertising. In order to notify prospective bidders in formally advertised procurements that royalties payable to a patent owner may be a factor in evaluating their bids, the following "Patent Royalties" notification shall be inserted in all invitations for bids; except (i) when each contract to be awarded is not likely to exceed $2,500; (ii) when the invitation calls for nonpersonal services. PATENT ROYALTIES (FORMAL ADVERTISING) (NOVEMBER 1970) I. Purchase of Patented Items When Government is a Licensee. Award of a contract shall not be refused to a bidder merely because he is not the owner or a licensee under any patent involved in the procurement. If, at the time an invitation for bids is issued, the Government is obligated to pay royalties applicable to the proposed procurement because of a pre-existing license agreement between the Government and a patent owner, an amount equal to the royalty which the Government will be required to pay under the license agreement will be added as an evaluation factor to each bid unless the bidder is licensed under the patent. Before any such royalty payments are considered for evaluation purposes, each bidder will be given an opportunity to show that he is licensed under the patent or that performance of the contract in accordance with his bid will not result in infringement of the patent. 9.101-2 CFR TITLE 41 CHAPTER 18 |