(3) The Contractor shall submit to the Contracting Officer within ninety (90) days after the close of each rental period a written statement of the use made of the property by the Contractor and the rental due the Government hereunder, and shall make available such records and data as are determined by the Contracting Officer to be necessary to verify the information contained in the statement.

(4) If the Contractor fails to submit the statement within the prescribed ninety (90) day period, the Contractor shall be liable for the full rental for the period in question, subject to the exception stated in subparagraph (5) below.

(5) If the Contractor's failure to submit the statement within the prescribed ninety (90) day period arose out of causes beyond the control and without the fault or negligence of the Contractor, the Contracting Offcer shall grant to the Contractor in writing a reasonable extension of time in which to make such submission.

(c) Unless otherwise directed in writing by the Contracting Officer, the Contractor shall give priority in the use of the property to the performance of contracts and subcontracts of (insert name of Government

agency) and shall not undertake any work involving the use of the property which would interfere with the performance of existing Government contracts or subcontracts.

(d) Concurrently with the submission of the written statement prescribed by paragraph (b)(3) above, the Contractor should pay the rental due the Government under this clause by check made payable to the DHEW organization providing the property. The name of the DHEW organization, to which the check should be made payable, should be indicated in the contract. Each check shall be mailed or delivered to the fiscal office designated in the contract. Receipt and acceptance by the Government of the Contractor's checks pursuant to this paragraph (d) shall constitute an accord and satisfaction of the final amount due the Government hereunder unless the Contractor is notified in writing within one hundred eighty (180) days following such receipt that the amount received is not regarded by the Government as the final amount due.

(e) If the Contractor uses any item of the property without authorization, the Contractor shall be liable for the full monthly rental, without credit, for such item for each month or part thereof in which such unauthorized use occurs. However, the Contracting Officer may waive the Contractor's liability for such unauthorized use if he determines that the Contractor exercised reasonable care to prevent such unauthorized use. In this latter event, the Contractor shall be liable only for the rental that would otherwise be due under this clause. The acceptance of any rental by the Government hereunder shall not be construed as a waiver or relinquishment of any rights it may have against the Contractor growing out of the

Contractor's unauthorized use of the property or any other failure to perform this contract according to its terms.

(b) Rental rates will be established under the "Use and Charges" clause for facilities furnished contractors as follows:

(1) For land and land preparation, buildings, structures, and other facilities a fair and reasonable rental shall be established, based on sound commercial practice.

(2) For personal property and equipment not covered in subparagraph (1) of this paragraph (1), a rental shall be established at not less than the prevailing commercial rate, if any; or, in the absence of such rate, not less than two percent (2%) per month of the market value for electronic test equipment and automotive equipment; and not less than 1 percent per month for all other property and equipment. In those instances when Government-owned production equipment (industrial type) set forth in Appendix A of Defense Mobilization Order 8555.1A, Office of Emergency Preparedness, is involved, the schedule of rental rates set forth in the order shall be used. (See 32A CFR Chapter 1, DMO 8555.1A, OEP Policy Guidance on Government-Owned Production Equip

ment.)

§ 3-56.712 Maintenance clause for facilities contracts.

MAINTENANCE OF GOVERNMENT PROPERTY

(a) Except as otherwise provided in the contract, the Contractor shall perform normal maintenance of the Government property in accordance with sound industrial practice, including protection, preservation, maintenance, and repair of the property, and with respect to equipment, normal parts replacement.

(b) As soon as practicable after the execution of this contract, the Contractor shall submit to the Contracting Officer in writing a proposed normal maintenance program, including an appropriate maintenance records system, in sufficient detail to show its adequacy as a normal maintenance program. To the extent that the Contracting Officer and the Contractor agree upon such a program, it shall become the normal maintenance obligation of the Contractor, and the Contractor shall carry it out in satisfaction of (1) his normal maintenance obligation under paragraph (a) above, and (2) his obligation to maintain records under paragraph (e) below.

(c) The Contracting Officer may at any time specify, by written notice to the Contractor, a reduction in the work required

by the then current normal maintenance obligation of the Contractor. After receipt of such notice, the Contractor shall perform only such work as is specified therein. If any such notice causes a decrease in the cost of performing the normal maintenance obligation, appropriate equitable adjustment may be made in any related procurement contract of the Contractor which so provides and which is affected by any such decrease.

(d) The Contractor shall perform such maintenance work as may be directed by the Contracting Officer in writing. To the extent that such work is in excess of the Contractor's then current normal maintenance obligation under paragraphs (a) through (c) above, such work shall be at Government expense. The Contractor shall notify the Contracting Officer in writing whenever, in accordance with sound industrial practice, the property requires any work in excess of such normal maintenance obligation.

(e) The Contractor shall keep records of the work done on the property in performing his obligations under this clause, and shall afford the Government adequate opportunity to inspect all such records. The Contractor shall deliver such records to the Government or to third persons, if so directed by the Contracting Officer, whenever the property to which they relate are disposed of hereunder.

(1) The Contractor's obligation under this clause shall continue, with respect to each item of property, until such item is removed, abandoned, or otherwise disposed of, as authorized or directed in writing by the Contracting Officer, until the expiration of a period of ninety (90) days after the Contractor, in form satisfactory to the Contracting Officer, has accounted for all of the property covered by any notice of termination of the use of property or until the Contractor has discharged his obligations under this contract with respect to such items, whichever last occurs.

83-56.713 Liability clause for facilities

contracts.

LIABILITY FOR GOVERNMENT PROPERTY

(a) The Contractor shall not be liable for any loss of or damage to Government property, or for expenses incidental to such loss or damage, except that the Contractor shall be responsible for any such loss or damage (including expenses incidental thereto) which results from:

(1) Willful misconduct, negligence, or lack of good faith on the part of any one of the Contractor's directors or officers, or on the part of any of his managers, superintendents, or other equivalent representatives, who have supervision or direction of

(1) All or substantially all of the Contractor's business; or

(11) All or substantially all of the Contractor's operations at any one plant or separate location, in which the Government property is installed or located.

(2) A failure, on the part of the Contractor, due to the willful misconduct or lack of good faith on the part of any of his directors, officers, or other representatives mentioned in subparagraph (1) above

(1) To maintain and administer, in accordance with the clause of the contract entitled "Maintenance", a program for maintenance, repair, protection, and preservation of Government property; or

(11) To take all reasonable steps to comply with any appropriate written directions or instructions which the Contracting Officer may prescribe as reasonably necessary for the protection of the Government property.

(3) A risk for which the Contractor is otherwise responsible under the express terms of this contract;

(4) A risk expressly required to be insured pursuant to paragraph (c) of this clause, but only to the extent of the insurance so required to be procured and maintained, or to the extent of insurance actually procured and maintained, whichever is greater; or

(5) A risk which is in fact covered by insurance or for which the Contractor is otherwise reimbursed, but only to the extent of such insurance or reimbursement: Provided, That if more than one of the above exceptions shall be applicable in any case, the Contractor's liability under any one exception shall not be limited by any other exception.

(b) If the Contractor transfers Government property to the possession and control of a subcontractor, the transfer shall not affect the liability of the Contractor for loss or destruction of or damage to the property as set forth above. However, the Contractor shall require the subcontractor to assume the risk of, and be responsible for, any loss or destruction of or damage to the property while in the latter's possession or control, except to the extent that the subcontract, with the prior approval of the Contracting Officer, provides for the relief of the subcontractor from such liability. In the absence of such approval, the subcontract shall contain appropriate provisions requiring the return of all Government property in as good condition as when received, except for reasonable wear and tear or for the utilization of the property in accordance with the provisions of the prime contract.

(c) Unless expressly directed in writing by the Contracting Officer, the Contractor shall not include as an element of price or cost under any contract with the Government any amount on account of the cost of insurance (including self-insurance) against any form of loss or damage to Government property. Any insurance required under this clause shall be in such form, in such amounts, for such periods of time, and with such insurers (including the Contractor as self-insurer in appropriate circumstances, if so approved) as the Contracting Officer shall require or approve. Such insurance shall contain provision for thirty (30) days prior writ

ten notice to the Contracting Officer of cancellation or material change in the policy coverage on the part of the insurer. A certificate of insurance or a certified copy of each policy of insurance taken out hereunder shall be deposited promptly with said Contracting Officer. The Contractor shall, not less than thirty (30) days prior to the expiration of any insurance required by this contract to be carried by the Contractor on the facilities, deliver to said Contracting officer a certificate of insurance or a certified copy of each renewal policy to cover the same risks. The insurance shall be in the names of the United States of America, Department of Health, Education, and Welfare, the Contractor, and such other interested parties as the Contracting Officer shall approve, and shall contain a loss payable clause reading substantially as follows:

"Loss, if any, under this policy shall be adjusted with (Contractor) and the proceeds, at the direction of the Government, shall be paid to (Contractor). Proceeds not paid to (Contractor) shall be paid to the (insert the name of the appropriate DHEW organization, e.g. FDA-DHEW, SRS-DHEW, NIH-DHEW, and so forth)."

(d) Upon the happening of any loss or destruction of or any damage to the property: (1) The Contractor shall immediately notify the Contracting Officer thereof, and with the assistance of the Contracting Offcer shall take all reasonable steps to protect the property from further damage, separate the damaged and undamaged property, arrange for inspection, and promptly furnish to the Contracting Officer (and in any event within thirty (30) days after the Contractor has determined that loss or destruction of, or damage to the property has occurred) the following:

(1) A list of the lost, destroyed, and damaged property;

(11) The time and origin of the loss, destruction, or damage;

(111) All known interests in commingled property of which the Government property is a part; and

(iv) The insurance, if any, covering any part of or interest in such commingled property.

(2) The Contractor shall make such repairs, replacements, and renovations of the lost, destroyed, or damaged Government property, or take such other actions as the Contracting Officer may direct in writing. The Contractor shall perform its obligations under this paragraph (d) at Government expense, except to the extent that the Contractor is responsible for such damage, loss, or destruction under the terms of this clause, and except as any damage, loss, or destruction is compensated by insurance.

(e) The Government is not obliged to replace or repair Government property which has been lost, destroyed, or damaged. In

such event the right of the parties to an equitable adjustment in delivery or performance dates, or price, or both, and in any other contractual condition of the related procurement contracts affected thereby shall be governed by the terms and conditions of such contracts.

(f) Except to the extent of any loss or destruction of or damage to Government property for which the Contractor is relieved of liability, the property shall be returned to the Government or otherwise disposed of under the terms of this contract in as good condition as when received by the Contractor, as subsequently improved or as they should have been subsequently improved or maintained under the terms of this contract, less ordinary wear and tear.

(g) In the event the Contractor is indemnified, reimbursed, or otherwise compensated (excepting any portion of the proceeds, from use and occupancy or business interruption insurance, which represents indemnity for loss or profit, since the insurance premium for such indemnity is not to be borne directly or indirectly by the Government) for any loss or destruction of, or damage to, Government property, he, to the extent and as directed by the Contracting Officer shall:

(1) Use the proceeds to repair, renovate, or replace the property involved; or

(2) Pay such proceeds to the Government. (h) The Contractor shall do nothing to prejudice the Government's right to recover against third parties for any loss or destruction of, or damage to, Government property, and upon the request of the Contracting Officer shall furnish to the Government, at Government expense, all reasonable assistance and cooperation (inciuding the prosecution of suit and the execution of instruments of assignment in favor of the Government) in obtaining recovery.

§ 3-56.714

Examination of records. Insert the following clause in all facilities contracts:

The Contractor agrees to maintain books, records, documents, and other evidence pertaining to the costs and expenses of this contract and to the use of and charges for the use of Government property thereinafter collectively called "the records" to the extent and in such detail as will properly reflect all net costs, direct and indirect, of labor, materials, equipment, supplies, and services, and other costs and expenses of whatever nature, for which reimbursement is claimed under the provisions of this contract, and all use of the property, and all charges to be made for the use of the property. The Contracting Officer or his representative shall have access to such records at all times.

Subpart 3-75.4-Alcohol and Controlled
Substances

8-75.400 Scope of subpart.

3-75.401 Authority delegated.

3-75.402 Redelegation.

Subpart 3-75.5-Establishment of Blood
Donation Compensation Rates

8-75.500 Scope of subpart.
3-75.501 Authority delegated.

3-75.502 Redelegation.

AUTHORITY: 5 U.S.C. 301, 40 U.S.C. 486(c).

§ 3-75.000 Scope of part.

This part delegates the authority of the Secretary to make purchases and contracts for property and services and to perform other actions relating to procurement.

[35 FR 16924, Nov. 3, 1970]

§ 3-75.001 Redelegations.

Redelegations of the authority conferred by this part, as well as revisions thereof, shall be in writing over the signature of the person vested with redelegation authority; shall specify the authority delegated; and shall conform with Chapter 8-75 of the DHEW General Administration Manual.

[35 FR 16924, Nov. 8, 1970]

Subpart 3-75.1-Procurement

Authority

SOURCE: 37 FR 15862, Aug. 5, 1972, unless otherwise noted.

§ 3-75.100 Scope of subpart.

This subpart delegates the authority of the Secretary to make purchases and contracts for property and services, to appoint contracting officers, and to establish departmental procurement policy. § 3-75.101 Head of the procuring activity.

In addition to the heads of the operating agencies, the following officials are designated "Head of the procuring activity":

(a) Directors, Regional Offices;

(b) Director of Procurement and Material Management, OASAM;

(c) Director, Office of Administrative Services, OS; and

(d) Director, Facilities Engineering and Construction Agency, OASAM. [38 FR 2214, Jan. 23, 1973]

§ 3-75.102 Authority delegated.

Heads of procuring activities are authorized to: (a) Enter into, modify, administer and terminate contracts for property and services, and to make related determinations and findings; (b) settle termination claims; (c) appoint contracting officers; and (d) promulgate procurement directives in conformance with the stated policy of this Department.

[38 FR 2214, Jan. 23, 1973]

§ 3-75.103 Redelegation.

(a) Heads of procuring activities may redelegate, with or without power of redelegation, the authority delegated by §3-75.102 subject to limitations stipulated in the Federal Procurement Regulations, and regulations of this Department.

(b) Personnel delegated responsibility for procurement functions must possess a level of experience, training, and ability commensurate with the complexity and magnitude of procurement actions involved.

(c) Copies of redelegations by the heads of the procuring activities shall be provided to the Office of Procurement and Materiel Management, OASAM. § 3-75.104 Limitations. § 3-75.104-1

ings.

Determinations and find

(a) Determinations and findings required by § 1-3.211 of this title for con

tracts in excess of $25,000 and by §§ 13.212, 1-3.213, 1-6.103-3, and 1-6.1004 of this title, shall be made by the Assistant Secretary for Health and Scientific Affairs (when health programs are involved), the Assistant Secretary for Education (when education programs are involved), and the Assistant Secretary for Administration and Management (where other programs are involved). Such determinations and findings shall be prepared and submitted as prescribed in Subpart 3-3.3 of Part 3-3 of this chapter.

(b) Determinations with respect to the application of the provisions of 10 U.S.C. 2353 (b) (3) and 10 U.S.C. 2354 shall be made by the Assistant Secretary for Health and Scientific Affairs. Such determinations and findings shall be prepared and submitted as prescribed in Subpart 3-3.3 of Part 3-3 of this chapter.

(c) Determinations and findings required by § 1-3.302(d) of this title for advance payments shall be made by the Director of Procurement and Materiel Management. Such determinations and findings shall be prepared in accordance with Subpart 1-30.4 of Part 1-30 of this title and Subpart 3-30.4 or Part 3-3 of this chapter. (Also see § 3-3.306 of this chapter.)

(d) All other required determinations and findings shall be made by the head of the procuring activity or his designee(s) subject to and in accordance with Subpart 3-3.3 of Part 3-3 of this chapter.

Proposed fees under cost-plus-a-fixedfee contracts which exceed the following shall be approved only by the head of the procuring activity or his designee. A designee for making these determinations must be at least one organizational level above the contracting officer:

(a) Ten percent of the estimated cost, exclusive of fee, of any cost-plus-afixed-fee contract for experimental, developmental, or research work.

(b) Seven percent of the estimated cost, exclusive of fee, of any other costplus-a-fixed-fee contract.

[38 FR 2214, Jan. 23, 1973]

§ 3-75.104-3 Review and approval of

contracts.

Preaward contract reviews shall be conducted by those officials designated in § 3-50.101 of this chapter.

[38 FR 2214, Jan. 23, 1973]

§ 3-75.104-4 Mistakes in bids.

(a) Authority is delegated to the Director of Procurement and Materiel Management, OASAM, to make the determinations specified in §§ 1-2.406-3 and 1-2.406-4 of this title in connection with mistakes in bids.

(b) This delegation of authority cannot be redelegated.

(c) Each proposed determination shall be approved by the Assistant General Counsel, Division of Business and Administrative Law, Office of General Counsel.

§ 3-75.104-5 Establishment of departmental procurement policy.

The Director of Procurement and Materiel Management, OASAM, shall establish procurement policy and publish procurement regulations in conformance with: (a) title III, Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. 251, et seq.); (b) implementing regulations of the Administrator, General Services Administration; (c) other applicable laws and Executive orders. This authority shall not be redelegated.

§ 3-75.105 Special and limited delegations.

[37 FR 1041, Jan. 22, 1972]

§ 3-75.105-1 Issuance of U.S. Government bills of lading for transportation of household goods.

When a member of the Public Health Service Commissioned Corps is authorized travel at Government expense, including the shipment of household goods, and it is determined by Commissioned Personnel Operations Division, Office of Personnel and Training, that the shipment cannot be arranged by a designated household goods shipping officer, such member is delegated authority to issue and sign as "Issuing Officer," Government bill (s) of lading to accomplish such shipment. The Government bill(s) of lading will be prepared in accordance with instructions provided with personnel orders.

[37 FR 1041, Jan. 22, 1972]

Subpart 3-75.2-[Reserved]

Subpart 3-75.3-Publication of Advertisements, Notices, or Proposals SOURCE: 35 FR 16924, Nov. 3, 1970, unless otherwise noted.