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best interests of the Government will be furthered by such action, and contracts having delinquent delivery schedules may be amended if the best interests of the Government will not be jeopardized by such action. Delinquent delivery schedules will be held to a minimum at all times consistent with the preceding sentence. If the facts surrounding an individual contract warrant such action, the ACO or the procuring contracting officer (PCO), if the contract is administered by the procuring activity, will, immediately upon determination or notification that a contractor will not be able to complete deliveries on schedule, take affirmative steps to initiate an amendment of the delivery schedule according to instructions in subparagraphs (1) to (4) of this paragraph. If the contractor is delinquent, the ACO or the PCO, if the contract is being administered by the procuring activity, may initiate an amendment of the delivery schedule according to instructions in subparagraphs (1) to (4) of this paragraph, or the ACO or PCO may recommend termination of the contract according to Part 1008 of this chapter. Extensions of delivery schedules may be effected without approval from higher Headquarters in the following instances: (For the division of responsibilities between the ACO and PCO see paragraphs (c) and (d) of this section.)

(1) When the amendment is supported by legal consideration: This occurs when the contractor offers a price reduction or other benefits in consideration for an extension of delivery schedule and the Air Force's or other Armed Services interest will not be prejudiced by such extension.

(2) Pursuant to changed Government requirements: Such a case would be where extension of the delivery schedule is dictated by an authenticated revised delivery requirement of the Air Force or the other armed services. Every effort will be made to obtain from the contractor an agreement whereby the Government will obtain the benefits of any savings to the contractor on account of the revised delivery schedule.

(3) Pursuant to specific, standard ASPR or AFPI contractual clauses: Such clauses include the Changes Clause, the Default Clause, particularly the excusable delay portion, the Government-Furnished Property Clause, the Government Property Clause, and the Excusable Delays Clause.

(4) Pursuant to special contract provisions: These are provisions, other than standard ASPR or AFPI clauses, made a part of a contract and agreed to by the parties thereto.

(b) Prior to issuing a contractual modification, the ACO or PCO, whoever makes the determination to amend the delivery schedule, will effect coordination with his staff judge advocate for legality. In all cases the staff judge advocate will determine whether or not legal consideration exists. The staff judge advocate's determination will be final concerning the existence of legal consideration. The adequacy or amount of consideration will be the responsibility for determination by the ACO and PCO together or by either the ACO or PCO alone.

(c) Responsibilities of the ACO: (1) The ACO, according to the conditions contained herein but without coordination with the PCO or buyer (except where investigation indicates that there may be a basis for default termination), will accomplish and issue contractual modifications to amend only delivery schedules that pertain to:

(i) Approved price spare parts change requests (SPCRS) and approved price exhibits (§ 1007.2606-3 of this chapter), to open contracts covered by Subpart Z, Part 1007 of this chapter.

(ii) Spare parts exhibits (MCP 71673, MCP 71-666, MCP 71-666A, MCP 71-669, and MCP 71-670), special support equipment exhibits (MCP 71-671), training parts exhibits (MCP 71-610), and ground support equipment exhibits (MCP 71-650) whenever the exhibits are made a part of a contract by means of a supplemental agreement signed by the ACO. See Subparts C and D, Part 1055 of this chapter.

(2) When a contractor alleges delinquent performance due to causes beyond his control and without his fault or negligence, the ACO, if he is administering the contract, will investigate the allegations and make a finding of fact as to the conditions found to exist.

(3) Upon determination or notification that a contract under his administration is delinquent or almost delinquent and if he believes that a revision to the delivery schedule is warranted, the ACO will:

(i) When authorized to amend the delivery schedule, forward his findings, recommendations, and other information deemed pertinent to his staff judge

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Aeronautical Systems Center (LMES) (in the case of GFAE) Coordination, a contractual modification revising the delivery schedule.

AMC advocate for a determination of the legality of the proposed revision. Furnish the staff judge advocate with the address, including code, of the production activity at the APD or AFPRO concerned with the contract. The original copy of the staff judge advocate's opinion, either affirmative or negative, will be returned directly to the ACO with a copy to the aforementioned production activity.

(ii) In all other instances, forward his findings, recommendations, and other information deemed pertinent to the PCO. If he is recommending a new, revised delivery schedule, furnish the PCO with the address, including code, of the production activity at the APD or AFPRO concerned with the contract.

(iii) Regardless of whether the preceding subdivision (i) or (ii) of this subparagraph is involved, furnish the appropriate production activity with a copy of the foregoing findings, recommendations, and other pertinent information.

(4) Upon receipt of a DD Form 375, "Monthly Production Progress Report," marked "Action Document," the ACO will indorse thereon his approval or disapproval. If approved and if circumstances indicate that the contractor will not meet the contract schedule within a reasonable period, the action described in subparagraph (3) of this paragraph, will be immediately taken by the ACO. What constitutes a reasonable period requires sound judgment by the ACO and diligence must be exercised so as not to waive the existing contract delivery schedule (see Part 1008 of this chapter). If disapproval of any proposed schedule change is indicated by the ACO, reasons for such position will be stated on the DD Form 375. The ACO will then sign the reproducible DD Form 375 and forward to the production activity for distribution. Contracts containing liquidated damages clause require extra vigilance. When the ACO has reason to believe that a contract containing a liquidated damages clause will become delinquent as to deliveries, he will promptly notify the production activity for initiation of a DD Form 375. The ACO will process inadequate DD Form 375 reports to the production activity for correction and clarification.

(5) After complying with the requirements specified in this section, the ACO, when authorized, will accomplish and issue, within 30 work days after receiving supply (prime AMA or depot) and/or

(6) Where investigation shows that grounds for a default termination may exist, the ACO will proceed according to the appropriate instructions set forth in paragraph (d) of this section and Subpart F, Part 1008 of this subchapter.

(d) Responsibilities of the PCO: (1) Upon determination or notification that a contract under the administration of the PCO is delinquent or almost delinquent and if the PCO believes that a revision to the delivery schedule is warranted, the PCO will try to amend the delivery schedule by obtaining the necessary staff judge advocate and supply (prime AMA or depot) and/or LMES, AMCASC (in the case of GFAE) coordination.

(2) Within 5 days after receipt of a DD Form 375 marked "Action Document," the PCO will review the forecast, narrative and recommendations to determine impact on the affected program and will reply to the ACO and the production activity. The reply will indicate concurrence or nonconcurrence of the action recommended on the DD Form 375.

(i) When concurrence is indicated and the administrative offices (production and ACO) have recommended delivery schedule changes, the PCO will, within 10 work days, forward the findings, etc., to the AMA staff judge advocate for an opinion as to the legality of the proposed amendment. The original of the staff judge advocate's opinion will be returned directly to the PCO with copies to the ACO and to the production activity. When the ACO has recommended default termination, signed copies of the PCO's proposed action will also be forwarded to the cognizant local readjustment activity and to AMC (MCPK). When the ACO has not concurred in proposed action, justification for proposed action by the PCO will be be included in notification to the administrative offices and will cover the reasons advanced by the ACO.

(ii) When the PCO does not agree with the action proposed on the DD Form 375 marked "Action Document," he will furnish the administrative offices, local readjustment offices and AMC (MCPK), when default termination has been recommended, a statement

of reasons for rejecting the recommended action.

(3) After complying with the requirements specified in this section, the PCO will accomplish and issue, within 30 work days after receiving prime depot and/or LMES, AMCASC, coordination, a contractual modification revising the delivery schedule.

(e) End article prime AMA or depot and/or LMES, AMCASC, coordination: With the exception of the revision of an unrealistic delivery schedule on a contract, where the originator of the PRMIPR requirement initiates the request for an extension of delivery schedule, the concurrence of the end article prime depot or in the case of GFAE, LMES, AMCASC, will be obtained in all cases. When other service MIPRs are involved, coordination will be effected with originator of the other service MIPR.

(f) In all other cases, neither the PCO nor the ACO is authorized to amend the delivery schedule without approval from higher headquarters. If the contractor elects, he may file a claim under Public Law 85-804, as implemented by Executive Order No. 10789. The contractor's claim will be processed according to Part 17 of this title.

(g) Any amendment of contract delivery schedules will conform strictly with the requirements of § 1001.305-50. [27 F.R. 1602, Feb. 21, 1962, as amended at 27 F.R. 9914, Oct. 9, 1962; 27 F.R. 11760, Nov. 29, 1962]

§ 1001.307 Priorities, allocations, and allotments.

See 1001.460 of this subchapter. [27 F.R. 9914, Oct. 9, 1962]

or

§ 1001.309 Solicitations for informational or planning purposes. Requests for quotations (including letter requests) for informational or planning purposes relating to weapon systems, subsystems, components, support equipment, or developments leading to such items, and price and availability studies applicable to Military Assistance Program (Grant Aid only) may be issued only when completely justified to and with the prior approval of the Commander, or his designee, of the cognizant AMC procuring activity, i.e., AMC centers, AMAS and depot. All other requests will be submitted to AMC (MCPP) for prior approval of the Director of Procurement and Production, Hq AMC.

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(a) (1) Liquidated damages provisions may be used only after prior approval of the following officials (as applicable) and the respective staff judge advocates: (i) The commanders, AMC centers, (ii) the directors of procurement and production of AMC field procurement activities, (iii) the Director of Procurement, Hq ARDC, and (iv) within the other major air commands, at not below the level of a staff officer responsible for procurement within the headquarters of the first echelon of command immediately subordinate to the major air command. Requests for approval will be made in writing (electrically transmitted messages, or letters). Oral requests (either in person or telephone) will not be accepted. The following information will be furnished: (a) Identification number of the contemplated procurement (PR No., IFB No., and/or contract number); (b) data which will adequately substantiate the need for strict compliance with the delivery schedule and reflect the estimated damage that will result if the delivery schedule is not met; (c) the dollar amount of the contemplated procurement, the amount of competition available, the amount of estimated damages to be assessed, and the formula used to arrive at such estimate; (d) type and form of contract contemplated and the required delivery schedule to be met; (e) the AF technical personnel's written comment relative to the estimate of damages.

(2) The clause set forth below will be placed in the schedule when the clause in § 7.105-5 of this title is used and may be placed in the schedule when the clause in § 8.709 of this title is used:

Liquidated damages will be assessed at the rate of (dollar amount) per day in accordance with the provisions of paragraph f. of the Default Clause.

NOTE: In construction contracts insert the phrase "the Termination for Default-Damages for Delay-Time Extension Clause" in lieu of, "paragraph f. of the Default Clause."

(3) The liquidated damages provision I will not be used where the desired delivery is specified. (See § 1001.305.)

(4) Foreign procurement activities will not use liquidated damages provisions.

(b) To assure that the rate of assessment of liquidated damages is reasonable it is incumbent upon the procuring contracting officer to obtain the advice of

the AF technical personnel concerned with the requirement; e.g., in construction contracts, the civil engineering officer.

(c) If the supplies or services being procured can be reprocured readily from other sources in case of default, and the difference in price would represent the full measure of damages to the Government, liquidated damages provisions will not be used.

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(d) Recommendations concerning remissions will be forwarded by the procuring contracting officer with appropriate documentation through AMC

(MCPP) to Hq USAF (AFMPP-PR) for submission to the Secretary.

§ 1001.312 Voluntary refunds.

(a) Contractors may tender voluntary refunds either by check or credit invoice (memo). Checks will be made payable to the Treasurer of the United States. It is preferred that the voluntary refunds be submitted to the administrative contracting officer. In whatever form the refund is made, it will immediately be forwarded by the recipient to the accounting and finance office. If by check, the accounting and finance officer will furnish the recipient of the check a copy of the collection voucher. If the appropriate account cannot be readily determined, the check will be placed temporarily in a suspense account and immediate steps will be taken to determine the account to be credited.

(b) Voluntary refunds identified with a contract and tendered prior to final payment will be recognized by contractual modification issued by the ACO and credited to the applicable appropriation cited in the contract. Voluntary refunds made in connection with a contract, but after contract completion, will be credited to an applicable appropriation provided that it may be regarded fairly as in the nature of a price reduction. In the latter case, a contracting officer designated by the cognizant administrative office, will, in conjunction with the accounting and finance officer, determine the appropriation to be credited. The contracting officer will, without delay, issue an AFPI Form 23, "Administrative Notice of Removal of Funds." The AFPI Form 23 will reference the contractor's letter of transmittal and the manner of the refund, i.e., check or credit invoice (memo).

(c) Where the specific contract cannot be identified, the refund will be

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The following are examples of refunds and receipts of funds excluded from the definition of voluntary refunds as set forth in § 1.312 of this title and § 1001.312:

(a) Interim refunds made under fixedprice redeterminable and fixed-price incentive contracts (Subpart Z, Part 1054 of this chapter).

(b) Debts owed by contractors and deferred payments (Subpart F, Part 163, Subchapter E of this title and § 1030.5, Part VI of this subchapter).

(c) Adjustment of funds under active AF contracts (Subpart C, Part 1053 of this chapter).

(d) Refund of overpayments disclosed by voluntarily reopened repricing negotiations (Comp. Gen. Dec. B-130534, April 30, 1957).

(e) Other contractual provisions or agreements between the contracting parties requiring such refunds (tax refunds, rebates, etc.).

[27 F.R. 1602, Feb. 21, 1962, as amended at 27 F.R. 9914, Oct. 9, 1962]

§ 1001.313 Procurement of parts. [27 F.R. 11760, Nov. 29, 1962]

§ 1001.313-50 Initial procurement.

Initial quantities of spare parts, with the exception of military, industry, and contractor standard items, will normally be procured from the end item manufacturer. These parts may be procured through provisioning procedures, when appropriate, utilizing authorized spare parts provisioning documents (Part 1055 of this chapter). Any deviations to established contractual provisioning documents must be coordinated with the Management Concept Branch (MCSRO), Hq AMC, prior to obtaining approval of Hq AMC, MCPC.

[27 F.R. 1602, Feb. 21, 1962, as amended at 27 F.R. 9914, Oct. 9, 1962]

§ 1001.313-51 Replenishment procure

ment.

Spare parts required for stock replenishment purposes will normally be procured from the commodity industry. Competition will be secured to the maximum extent practicable. It is very im

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Spare parts will be procured using the DO or DX rating (§ 1001.460) assigned to the end item being supported.

§ 1001.314 Contracting officer's decision under the disputes clause.

This section deals with preparing decisions and processing appeals under the Disputes clause by contracting officers. The application of the following instructions are limited to cases where the Disputes clause contained in § 7.103-12 of this title is used. Where the Disputes clause of § 1007.4205-8 of this chapter is used, the oversea command staff judge advocate rather than the Staff Judge Advocate, Hq AMC, will be the source of advice regarding proposed decisions and I will be the channel for forwarding data relating to appeals (also see the instructions preceding the clause in § 1007.42058 of this chapter).

Where

(a) Preparation of decision. mutual agreement on a question of fact proves impossible, a findings and decision must be prepared by the contracting officer. This single document in the format set forth in §§ 1001.314-54 and 1001.314-55 should contain a simple and concise statement of: (1) The claim, (2) the decision, (3) the findings of fact which support the decision, and (4) the reference to the Disputes clause contained in the format. The factual determination must be relevant to the issues and supported by documents or oral statements.

(b) Legal advice by Staff Judge Advocate, Hq AMC. All written findings and decisions, except termination for defaults and assessment of excess costs, will, prior to transmittal to the contractor, be referred for comment to the Staff Judge Advocate, Hq AMC, together with pertinent documents and summaries of anticipated testimony of all Government witnesses. Default and excess costs findings and decisions will be submitted to the appropriate field staff judge advocate. When referrals to the staff judge advocate are made, the accompanying file will be complete in all respects. The file should contain: (1) Copy of the contract, and all applicable amendments, specifications and drawings; (2) com

munications relative to the subject mat ter of the dispute; and (3) any additiona information.

(c) Transmittal to contractor. Afte the referral described in paragraph (b of this section has been accomplishe the findings and decisions will be re examined by the contracting officer i the light of the advice and comment proffered by the appropriate staff judg advocate. If, in the judgment of th contracting officer, re-examination re veals the propriety of modifications o additions, he will make the appropriat changes. After such re-examination and changes if appropriate, he will trans mit the findings and decision to the con tractor in person, obtaining a receip therefor, or by certified mail, retur receipt requested.

(d) Amendment after transmittal to contractor. After a timely appeal has been taken to the Armed Services Board of Contract Appeals, the contracting officer who has rendered findings and a decision, or his successor, may for good cause recommend that the findings and decision be corrected or amended. Such recommendation will be forwarded to the Staff Judge Advocate, Hq AMC, together with the file required by paragraph (b) of this section as supplemented to support the recommended correction ΟΙ amendment.

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(a) When a notice of appeal in any form has been received by the contracting officer from whose findings and decision the appeal is taken, he will comply with Rule 4, Part II, Appendix A, § 30.1 of this title. The envelope in which the notice of appeal was received will be promptly forwarded with the original copy of the notice, to the Board. As soon as practical thereafter he will send the Staff Judge Advocate (MCJ), Hq AMC, a copy of the notice and other pertinent documents (in duplicate) as required by Rule 4. The Staff Judge Advocate should in all cases be advised of the postmark on the envelope or date of receipt of the notice of appeal if otherwise transmitted.

(b) If AF personnel other than the contracting officer involved receive the notice of appeal, they will:

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