CLAUSES FOR COST-TYPE SUPPLY CONTRACTS recorded costs which result, at the time of the request for reimbursement, from payment by cash, check, or other form of actual payment for items or services purchased directly for the contract, together with (when the Contractor is not delinquent in payment of costs of contract performance in the ordinary course of business) costs incurred, but not necessarily paid, for materials which have been issued from the Contractor's stores inventory and placed in the production process for use on the contract, for direct labor, for direct travel, for other direct inhouse costs, and for properly allocable and allowable indirect costs, as is shown by records maintained by the Contractor for purposes of obtaining reimbursement under Government contracts plus the amount of progress payments which have been paid to Contractor's subcontractors under similar cost standards. In addition, when the aforementioned contributions are paid by the Contractor to the pension, profit sharing, or employee stock ownership plan funds less frequently than quarterly, accrued costs therefor shall be excluded from indirect costs for payment purposes until such costs are paid. If such contributions are paid on a quarterly or more frequent basis. accruals therefor may be included in indirect costs for payment purposes provided that they are paid to the fund within thirty (30) days after the close of the period covered. If payments are not made to the fund within such thirty-day period. these contributions shall be excluded from indirect cost for payment purposes until payment has been made. (See NASA Procurement Regulation 15.205-6(f)). The restriction on payment more frequently than bi-weekly and the requirement of prior payment for items or services purchased directly for the contract shall not apply where the Contractor is a small business concern. (c) Promptly after receipt of each invoice or voucher and statement of cost, the Government shall, except as otherwise provided in this contract, subject to the provisions of (d) below, make payment thereon as approved by the Contracting Officer. Payment of fee shall be made to the Contractor as specified in the Schedule; provided, however, that whenever in the opinion of the Contracting Officer, the Contractor's performance or cost then incurred indicates that target fee will not be achieved, payment of fee will be based on such lesser fee, not lower than the minimum fee, as the Contracting Officer may determine to be appropriate. After payment of eighty-five percent (85%) of the applicable fee, the Contracting Officer may withhold further payment of fee until a reserve shall have been set aside in an amount which he considers necessary to protect the interests of the Government, but such reserve shall not exceed fifteen percent (15%) of the total applicable fee or one hundred thousand dollars ($100,000) whichever is less. When the Contracting Officer has ordered that fee payment be reduced in accordance NASA PROCUREMENT REGULATION 7-2:4D CONTRACT CLAUSES 5% # with the foregoing, he may increase the basis for payment to an amount not to exceed the target fee upon an affirmative showing by the Contractor that such action is justified and equitable. (d) At any time or times prior to final payment under this contract, the Contracting Officer may have the invoices or vouchers and statements of cost audited. Each payment theretofore made shall be subject to reduction for amounts included in the related invoice or voucher which are found by e the Contracting Officer, on the basis of such audits, not to constitute allowable cost. Any payment may be reduced for overpayments, or increased for underpayments. on preceding 4 invoices or vouchers. (e) On receipt and approval of the invoice or voucher designated by the Contractor as the "completion invoice" or "completion voucher" and upon compliance by the Contractor with all the provisions of this contract (including, without limitation, the provisions relating to patents and the provisions of (f) below), the Government shall promptly pay to the Contrac ་ གས་ ས་ Next page is 7-2:57 CFR TITLE 41 CHAPTER 18 CLAUSES FOR COST-TYPE SUPPLY CONTRACTS tor any balance of allowable cost, and any part of the fee which has been withheld pursuant to (c) above or otherwise not paid to the Contractor. The completion invoice or voucher shall be submitted by the Contractor promptly following completion of the work under this contract but in no event later than one (1) year (or such longer period as the Contracting Officer may in his discretion approve in writing) from the date of such completion. (f) The Contractor agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Contractor or any assignee under this contract shall be paid by the Contractor to the Government to the extent that they are properly allocable to costs for which the Contractor has been reimbursed by the Government under this contract. Reasonable expenses incurred by the Contractor for the purpose of securing such refunds, rebates, credits, or other amounts shall be allowable costs hereunder when approved by the Contracting Officer. Prior to final payment under this contract, the Contractor and each assignee under this contract whose assignment is in effect at the time of final payment under this contract shall execute and deliver (i) an assignment to the Government, in form and substance satisfactory to the Contracting Officer, of refunds, rebates, credits, or other amounts including any interest thereon) properly allocable to costs for which the Contractor has been reimbursed by the Government under this contract; and (ii) a release discharging the Government, its officers, agents, and employees from all liabilities, obligations, and claims arising out of or under this contract, subject only to the following exceptions (A) specified claims in stated amounts or in estimated amounts where the amounts are not susceptible of exact statement by the Contractor; (B) claims together with reasonable expenses incidental thereto, based upon liabilities of the Contractor to third parties arising out of the performance of this contract; provided, that such claims are not known to the Contractor on the date of the execution of the release; and provided further, that the Contractor gives notice of such claims in writing to the Contracting Officer not more than six (6) years after the date of the release or the date of any notice to the Contractor that the Government is prepared to make final payment, whichever is earlier; (C) claims for reimbursement of costs, including reasonable expenses incidental, thereto, incurred by the Contractor under the provisions of this contract relating to patents; and (D) when there is included in this contract a clause entitled “Data Requirements," claims pursuant to such clause when a written request by the Contracting Officer to furnish data is made within the one-year period following final payment. Except as provided in (j) below, payments under the assignment and claims excepted from the release shall be subject to adjustment by reason of the adjustment of fee in accordance with (i) below. (g) Any cost incurred by the Contractor under the terms of this contract which would constitute allowable cost under the provisions of this clause shall be included in determining the amount payable under this contract, notwithstanding any provisions contained in the specifications or other documents incorporated in this contract by reference, designating services to be performed or materials to be furnished by the Contractor at his expense or without cost to the Government. (h) When the work under this contract (including any supplies or services which are ordered separately under, or otherwise added to, this contract) is increased or decreased by contract modification or when any equitable adjustment in the target cost is authorized under any other clause of this contract, equitable adjustments in the target cost, target fee, minimum fee, maximum fee, or any or all of them, as appropriate, shall be set forth in an amendment or supplemental agreement to this contract. (1) The fee payable hereunder shall be the target fee increased by (insert contractor's participation)cents for every dollar by which the total allowable cost is less than the target cost or decreased by (insert contractor's participation)cents for every dollar by which the total allowable cost exceeds the target cost. In no event shall the fee be greater than percent nor less than percent, of the target cost; and, except as provided in (j) below, within these limits such fee shall be subject to adjustment, by reason of increase or decrease of total allowable cost, on account of payments under the assignment required by (f)(i) above, and claims excepted from the release required by (f)(ii) above. If this contract is NASA PROCUREMENT REGULATION 7.203-4 CONTRACT CLAUSES terminated in its entirety, the portion of the target fee payable shall not be subject to an increase or decrease as provided in this paragraph. The terminations shall be otherwise accomplished pursuant to other applicable provisions of this contract. (j) For the purpose of the adjustment of the fee in accordance with (i) above, the term "total allowable cost" shall not include allowable costs arising out of: (i) any of the causes specifically enumerated in the clause hereof entitled "Excusable Delays" to the extent they are without the fault or negligence of the Contractor or any subcontractor; (ii) the taking effect, after the negotiation of the target cost of this contract, of a statute, court decision, written ruling or regulation which results in the Contractor's being required to pay or bear the burden of any tax or duty, or increase in the rate thereof; (iii) any direct cost attributed to the Contractor's assistance or participation in litigation as required by the Contracting Officer pursuant to a provision of this contract, including the furnishing of evidence and information requested pursuant to the clause hereof entitled "Notice and Assistance Regarding Patent and Copyright Infringement"; (iv) the procurement and maintenance of additional insurance not included in the target cost and required by the Contracting Officer or claims for reimbursement for liabilities to third persons pursuant to the clause hereof entitled “Insurance-Liability to Third Persons"; (v) any claim, loss or damage resulting from a risk for which the Contractor has been relieved of liability pursuant to the clause hereof entitled “Government Property." Except as otherwise specifically provided in this contract, all other allowable costs shall be included in the term “total allowable cost” for the purpose of the adjustment of the fee in accordance with (i) above. (k) The total allowable cost and the adjusted fee determined as provided in this clause shall be evidenced by a modification of this contract signed by the Contractor and the Contracting Officer. In the event the contracts call for spare parts or other supplies and services which are to be ordered under a provisioning document or Government option, the following provision (1) shall be included: (1) Compensation for supplies (including spare parts) and services which are to be furnished under this contract pursuant to a provisioning document or Government option shall be determined in accordance with the provisions of this clause notwithstanding any inconsistent provision in such provisioning document or Government option. (c) Additional Instructions. (1) Whenever, pursuant to paragraph (c) of the clauses set forth in paragraphs (a) and (b) above, vouchers or invoices which are submitted for approval include amounts for progress payments made to fixed-price type subcontractors, the payment to the prime contractor may include the full amount of the progress payment made to the subcontractor. (2) In paragraph (f)(ii)(B) of the foregoing clauses, the period of years may be increased to correspond with any statutory period of limitation applicable to claims of third parties against the contractor; provided, that a corresponding increase is made in the period of retention of records required in paragraph (d) of the clause set forth in 7.104-15. (3) The detailed arrangements for adjustment of base fee in award fee contracts shall be set forth in the contract Schedule. (4) Paragraph (c) of the clause set forth in paragraph (b) above states that payment of fee shall be made to the contractor as specified in the Schedule. Generally the Schedule should provide that payment of fee will be based on target fee. (5) In the case of cost-sharing contracts and cost-reimbursement type contracts without fee, use the clause set forth in paragraph (a) above modified as follows: (i) change the title of the clause to read “Allowable Cost and Payment.” 7.203-4 CFR TITLE 41 CHAPTER 18 CLAUSES FOR COST-TYPE SUPPLY CONTRACTS (ii) insert the following sentence in lieu of the second sentence of paragraph (c) of the clause. "After payment of an amount equal to eighty percent (80%) of (Government's share of) the total estimated cost of performance of this contract set forth in the Schedule. further payment on account of allowable cost shall be withheld until a reserve of either one percent (1%) of (the Government's share of) such total estimated cost, or one hundred thousand dollars ($100,000), whichever is less, shall have been set aside." If the contract does not provide for cost-sharing, delete the parenthetical reference to the Government's share from the above sentence. (iii) delete the words "and any part of the fixed fee" from paragraph (e); and (iv) delete paragraph (a)(11). (6) In the case of cost-plus-award-fee contracts. clause set forth in paragraph (a), modified as follows: use the (1) substitute the words "base fee and award fee" for "fixed-fee" wherever they appear except in (a)(ii); and (ii) change (a)(ii) to read as follows: "such base fee, if any, and such additional fee as may be awarded, as provided for in the Schedule." (7) The contracting officer shall determine to his satisfaction that the estimated cost of the contract initially negotiated does not include amounts for the contingencies identified in paragraph (j) of the clause set forth in paragraph (b) above. "one hundred in (8) In contracts without fee with nonprofit institutions (including educational institutions), the sentence set forth (5)(11) above may be amended by substituting "ten thousand dollars ($10,000)" for thousand dollars ($100,000). " Further, whenever the contracting officer deems it to be in the best interest of the Government, the sentence of (5)(11) may be deleted in its entirety. If the sentence of (5)(ii) is SO omitted, delete from the first sentence of paragraph (e) the words "and any part of the fixed fee, which has been withheld pursuant to (c) or otherwise. (9) In contracts without fee with educational institutions, change "Subpart 2" to read "Subpart 3" in paragraph (a)(i)(A) in (a) above. 7.203-5 Inspection of Supplies and Correction of Defects. INSPECTION OF SUPPLIES AND CORRECTION OF (a) A11 supplies (which term throughout this clause includes without limitation raw materials, components, intermediate assemblies, and end products) shall be subject to inspection and test by the Government, to the extent practicable at all times NASA PROCUREMENT REGULATION |