Subpart 9-7.8 Fixed-Price Architect-Engineer Contracts

$9-7.800 Scope of subpart.

This subpart sets forth contract clauses for use in fixed-price architect-engineer contracts.

$9-7.801 Applicability.

The clauses set forth in this subpart shall be used in fixed-price architect-engineer contracts.

§9-7.802 Required clauses.

The clauses set forth in this §9-7.802 shall be inserted, as required, in all fixed-price architectengineer contracts. See also §9-16.703.

89-7.802-1 Definitions.

Insert the clause set forth in §9-7.102-1, and add paragraph (e) as follows:

(e) The term "contractor" as used herein means architect-engineer. This term should be substituted in all of the clauses in which "contractor" appears. Additional definitions may be included provided they are not inconsistent with the clause or the provisions of these regulations.

§9-7.802-2 Responsibility of the architect-engineer.

RESPONSIBILITY OF THE ARCHITECT-ENGINEER

(a) The architect-engineer shall be responsible for the professional quality, technical accuracy and the coordination of all designs, drawings, specifications, and other services furnished by the architect-engineer under this contract. The architectengineer shall, without additional compensation, correct or revise any errors or deficiencies in his designs, drawings, specifications, and other services.

(b) Neither the Government's review, approval or acceptance of, nor payment for, any of the services required under this contract shall be construed to operate as a waiver of any rights under this contract or any cause of action arising out of the performance of this contract, and the architect-engineer shall be and remain liable to the Government in accordance with applicable law for all damages to the Government caused by the architect-engineer's negligent performance of any of the services furnished under this contract.

(c) The rights and remedies of the Government provided for under this contract are in addition to any other rights and remedies provided by law.

§9-7.802-3 Examination of records by Comptroller General.

Insert the clause prescribed by FPR 1-7.103-3, modified as set forth in §9-7.103-3. 89-7.802-4 Termination.

TERMINATION

(a) The contracting officer may, by written notice to the architect-engineer, terminate this contract in whole or in part at any time, either for the Government's convenience or because of the failure of the architect-engineer to fulfill his contract obligations. Upon receipt of such notice, the architect-engineer shall: (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by the architect-engineer in performing this contract, whether completed or in pro

cess.

(b) If the termination is for the convenience of the Government, an equitable adjustment in the contract price shall be made, but no amount shall be allowed for anticipated profit on unperformed services.

(c) If the termination is due to the failure of the architect-engineer to fulfill his contract obligations, the Government may take over the work and prosecute the same to completion by contract or otherwise, In such case, the architectengineer shall be liable to the Government for any additional cost occasioned to the Government thereby.

(d) If, after notice of termination for failure to fulfill contract obligation, it is determined that the architect-engineer had not so failed, the termination shall be deemed to have been effected for the convenience of the Government. In such event, adjustment in the contract prices shall be made as provided in paragraph (b) of this clause.

(e) The rights and remedies of the Government provided in this clause are in addition to any other rights and remedies provided by law or under this contract.

§9-7.802-5 Disputes.

DISPUTES

(a) This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C. 601, et seq.). If a dispute arises relating to the contract, the contractor may submit a claim to the Contracting Officer who shall issue a written decision on the dispute in the manner specified in DAR 1-314 (FPR 1-1.318).

(b) "Claim" means

(1) a written request submitted to the Contracting Officer;

(2) for payment of money, adjustment of contract terms, or other relief; which is in dispute or remains unresolved after a reasonable time for its review and disposition by the Government; and

(4) for which a Contracting Officer's decision is demanded.

(c) In the case of disputed requests or amendments to such requests for payment exceeding $50,000, or with any amendment causing the total request in dispute to exceed $50,000, the Contractor shall certify, at the time of submission as a claim, as follows:

I certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief; and that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable.

(Contractor's Name)

(Title)

(d) The Government shall pay the contractor interest

(1) on the amount found due on claims submitted under this clause; (2) at the rates fixed by the Secretary of the Treasury, under the Renegotiation Act, Public Law 92-41;

(3) from the date the Contracting Officer receives the claim, until the Government makes payment.

(e) The decision of the Contracting Officer shall be final and conclusive and not subject to review by any forum, tribunal, or Government agency unless an appeal or action is timely commenced within the times specified by the Contract Disputes Act of 1978.

(f) The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal or action related to the contract, and comply with any decision of the Contracting Officer.

§9-7.802-6 Assignment of claims.

Insert the clause set forth in FPR 1-30.703 under the conditions prescribed therein, and insert "whose functions are now in the Department of Energy" after the words "Energy Research and Development Administration" in paragraph (a).

89-7.802-7 Changes.

CHANGES

(a) The Contracting Officer may, at any time, by written order, make changes within the general scope of the contract in the services to be performed. If such changes cause an increase or decrease in the architect-engineer's cost of, or time required for, performance of any services under this contract, whether or not changed by any order, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. Any claim of the architect-engineer for adjustment under this clause must be asserted in writing within 30 days from the date of receipt by the architect-engineer of the notification of change unless the Contracting Officer grants a further period of time before the date of final payment under the

contract.

(b) No services for which an additional cost or fee will be charged by the architect-engineer will be furnished without the prior authorization of the Contracting Officer.

$9-7.802-8 Covenant against contingent fees.

Insert the clause set forth in FPR 1-1.503 under the conditions contained in FPR 1-1.501.

89-7.802-9 Clean air and water.

Insert the clause prescribed by FPR 1-1.2302–2 under the conditions set forth therein.

§9-7.802-10 Contract Work Hours and Safety Standards Act - overtime compensation.

This contract, to the extent that it is of a character specified in the Contract Work
Hours and Safety Standards Act (40 U.S.C. 327-333), is subject to the following
provisions and to all other applicable provisions and exceptions of such Act and
the regulations of the Secretary of Labor thereunder.

(a) Overtime requirements. No architect-engineer or subcontractor contract-
ing for any part of the contract work which may require or involve the employment
of laborers, mechanics, apprentices, trainees, watchmen, and guards shall require
or permit any laborer, mechanic, apprentice, trainee, watchman, or guard in any
workweek in which he is employed on such work to work in excess of 8 hours in
any calendar day or in excess of 40 hours in such workweek on work subject to
the provisions of the Contract Work Hours and Safety Standards Act unless such
laborer, mechanic, apprentice, trainee, watchman or guard receives compensation
at a rate not less than one and one-half times his basic rate of pay for all such hours
worked in excess of 8 hours in any calendar day or in excess of 40 hours in such
workweek, whichever is the greater number of overtime hours.

(b) Violation liability for unpaid wages, liquidated damages. In the event of any violation of the provisions of paragraph (a), the architect-engineer and any subcontractor responsible therefor shall be liable to any affected employee for his unpaid wages. In addition, such architect-engineer and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, apprentice, trainee, watchman, or guard employed in violation of the provisions of paragraph (a) in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such work in excess of eight hours or in excess of the standard

work week of forty hours without payment of the overtime wages required by para-
graph (a).

(c) Withholding for unpaid wages and liquidated damages. The Contracting
Officer may withhold from the architect-engineer, from any moneys payable on ac-
count of work performed by the architect-engineer or subcontractor, such sums as
may administratively be determined to be necessary to satisfy any liabilities of such
architect-engineer or subcontractor for unpaid wages and liquidated damages as pro-
vided in the provisions of paragraph (b).

(d) Subcontracts. The architect-engineer shall insert paragraphs (a) through (d) of this clause and the preamble in all subcontracts, and shall require their inclusion in all subcontracts of any tier.

(e) Records. The architect-engineer shall maintain payroll records containing the information specified in 29 CFR 516.2(a). Such records shall be preserved for years from the completion of the contract.

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§9-7.802-11 Convict labor.

Insert the clause set forth in FPR 1-12.204 under the conditions prescribed in FPR 1-12.203.

§9-7.802-12 Equal opportunity.

Insert the clause set forth in FPR 1-16.901-23–A(25) under the conditions contained in FPR 1-12.803.1.

§9-7.802-13 Employment of the handicapped.

Insert the clause set forth in FPR Temporary Regulation 38 under the conditions contained therein.

§9-7.802-14 Payment of interest on architect-engineer claims.

Insert the clause set forth in FPR 1-1.322 under the conditions prescribed therein.

$9-7.802-15 Interest.

Insert the clause set forth in FPR 1-7.203-15 under the conditions prescribed therein.

$9-7.802-16 Patent indemnity.

Insert the clause set forth in §9-9.103-3(b) under the conditions contained in §9-9.103.

§9-7.802-17 Officials not to benefit.

Insert the clause set forth in FPR 1-7.102-17.

§9-7.802-18 Best efforts (Reserved).

$9-7.802-19 (Reserved)

89-7.802-20 Pricing of adjustments.

Insert the clause prescribed by FPR 1-7.102-20, modified as set forth in §9-7.102-20. §9-7.802-21 Suspension of work.

SUSPENSION OF WORK

(a) The Contracting Officer may order the architect-engineer, in writing, to suspend all or any part of the work for such period of time as he may determine to be appropriate for the convenience of the Government.

(b) If the performance of all or any part of the work is, for an unreasonable period of time, suspended or delayed by an act of the Contracting Officer in the administration of this contract, or by his failure to act within the time specified in this contract (or if no time is specified, within a reasonable time), an adjustment shall

be made for any increase in cost of performance of this contract (excluding profit)
necessarily caused by such unreasonable suspension or delay, and the contract modi-
fied in writing accordingly. However, no adjustment shall be made under this clause
for any suspension or delay to the extent (1) that performance would have been sus-
pended or delayed by any other cause, including fault or negligence of the architect-
engineer, or (2) for which an equitable adjustment is provided for or excluded under
any other provision of this contract.

(c) No claim under this clause shall be allowed (1) for any costs incurred
more than 20 days before the architect-engineer shall have notified the Contracting
Officer in writing of the act or failure to act involved (but this requirement shall
not apply as to a claim resulting from a suspension order), and (2) unless the claim,
in an amount stated, is asserted in writing as soon as practicable after the termination
of such suspension or delay, but not later than the date of final payment. No part
of any claim based on the provisions of this clause shall be allowed if not supported
by adequate evidence showing that the cost would not have been incurred but for
a delay within the provisions of this clause.

89-7.802-22 Notice and assistance regarding patent and copyright infringement. Insert the clause prescribed by §9-9.104 under the conditions set forth therein.

§9-7.802-23 Listing of employment openings.

Insert the clause entitled "Disabled Veterans and Veterans of The Vietnam Era" as set forth in FPR Temporary Regulation 39 under the conditions described therein.

§9-7.802-24 Reporting of royalties.

Insert the clause set forth in §9-9.110 under the conditions set forth therein.

§9-7.802-25 Buy American Act.

Insert the clause set forth in FPR 1-6.104-5, under the conditions contained therein.

§9-7.802-26 Payment.

PAYMENT

(a) In consideration of the performance of his undertakings under this contract, pursuant to work orders duly issued by the Contracting Officer, the architectengineer shall be paid the consideration determined in each work order; which consideration shall constitute complete payment for all services furnished in connection with the work required to be performed under this contract and all expenditures which may be made and expenses incurred except as are otherwise expressly provided herein.

(b) The Contractor shall make monthly estimates of the amount and value of the work and services performed by the architect-engineer under this contract, as determined by the Contracting Officer.

(c) Upon approval of such estimate by the Contracting Officer, payment shall be made to the architect-engineer as soon as practicable of 90% of the amount as determined above, less all previous payments.

(d) Upon satisfactory completion by the architect-engineer and acceptance by the Contracting Officer of the work done by the architect-engineer under individual work orders and in accordance with the "Statement of Architect-Engineer Services" of the contract, the architect-engineer will be paid the balance of any money due for the work under said statement and including retained percentages relating to this portion of the work.

(e) Prior to final payment under each work order issued under the contract, or prior to settlement upon termination of the contract, and as a condition precedent thereto, the architect-engineer shall execute and deliver to the Contracting Officer a release of all claims against the Government arising under or by virtue of work orders under this contract, other than such claims, if any, as may be specifically expected by the architect-engineer from the operations of the release in stated amounts