CONTRACT CLAUSES cther than a change made under other provisions of this subparagraph (4), provided, however, that no agreement may be made under this provision that will increase costs paid by the United States. (C) When the parties agree to a change to either a disclosed cost accounting practice or an established cost accounting practice, other than a change under (4) (A) above, negotiate an equitable adjustment as provided in the Changes clause of this contract. a (5) Agree to an adjustment of the contract price or cost allowance, as appropriate, if he or subcontractor fails to comply with an applicable cost Accounting Standard or to follow any practice disclosed pursuant to subparagraphs (a) (1) and (a) (2) above and such failure results in any increased costs paid by the United States. Such adjustment shall provide for recovery of the increased costs to the United States together with interest thereon computed at the rate determined by the Secretary of the Treasury pursuant to Public Law 92-41, 85 Stat. 97, or 7 percent per annum, whichever is less, from the time the payment by the United States was made to the time the adjustment is effected. (b) If the parties fail to agree whether the Contractor or a subcontractor has complied with an applicable Cost Accounting Standard, rule or regulation of the Cost Accounting Standards Board and as to any cost adjustment demanded by the United States, such failure to agree shall be a dispute concerning question of fact within the meaning of the Disputes clause of this contract. a (c) The Contractor shall permit any authorized representatives of the head of the agency, of the Cost Accounting Standards Board, or of the Comptroller General of the United States to examine and make copies of any documents, papers, or records relating to compliance with the requirements of this clause. (d) The Contractor shall include in all negotiated subcontracts which he enters into the substance of this clause except paragraph (b), and shall require such inclusion in all other subcontracts of any tier, including the obligation to comply with all Cost Accounting Standards in effect on the date of award of the subcontract or if the subcontractor has submitted cost or pricing data, on the date of final agreement on price as shown on the subcontractor's signed Certificate of Current Cost or Pricing Data. This requirement shall apply only to negotiated subcontracts CFR TITLE 41 CHAPTER 18 CLAUSES FOR FIXED-PRICE SUPPLY CONTRACTS in excess of $100,000 where the price negotiated is not based on: (i) established catalog or market prices of commercial sold in substantial quantities to the general public, or items (ii) prices set by law or regulation and except that the requirement shall not apply to negotiated subcontracts otherwise exempt from the requirement to accept the "Cost Accounting Standards" clause by reason of Section 331.30(b) of Title 4. Code of Federal Regulations (4 CFR 331.30(b)). a NOTE (1) Subcontractors shall be required to submit their Disclosure Statements to the Contractor. However, if subcontractor has previously submitted his Disclosure Statement to a Government Contracting Officer he may satisfy that requirement by certifying to the Contractor the date of such Statement and the address of the Contracting Officer administering the contract. NOTE (2) In any case where a subcontractor determines that the Disclosure Statement information is privileged and confidential and declines to provide it to his contractor or higher tier subcontractor, the Contractor may authorize direct submission of that subcontractor's Disclosure Statement to the same Government offices to which the Contractor was required to make submission of his Disclosure Statement. Such authorization shall in no way relieve the Contractor of liability as provided in paragraph (a)(5) of this clause. In view of the foregoing and since the contract may be subject to adjustment under this clause by reason of any failure to comply with rules, regulations, and Standards of the Cost Accounting Standards Board in connection with covered subcontracts, it is expected that the Contractor may wish to include a clause in each such subcontract requiring the subcontractor to appropriately indemnify the Contractor. However, the inclusion of such a clause and the terms thereof are matters for negotiation and agreement between the Contractor and the subcontractor, provided that they do not conflict with the duties of the Contractor under its contract with the Government. It is also expected that any subcontractor subject to such indemnification will generally require substantially similar indemnification to be submitted by his subcontractors. NOTE (3) If the subcontractor is a business unit which, pursuant to 4 CFR 332 is entitled to elect modified contract coverage and to follow Standards 401 and 402 only, the clause entitled "Disclosure and Consistency of Cost Accounting Practices" set forth in NASA PR 7.104-55(a)(2) shall be inserted in lieu of this clause. (e) The terms defined in Sec. 331.20 of Part 331 of Title 4, Code of Federal Regulations (4 CFR 331.20) shall have the same meanings herein. As there defined, "negotiated subcontract" means any subcontract except a firm fixed-price subcontract made NASA PROCUREMENT REGULATION by CONTRACT CLAUSES a Contractor or subcontractor after receiving offers from at least two firms not associated with each other or such Contractor or subcontractor, providing that (1) the solicitation to all competing firms is identical, (2) price is the only consideration in selecting the subcontractor from among the competing firms solicited, and (3) the lowest offer received in compliance with the solicitation from among those solicited is accepted. (End of clause) (2) In accordance with 3.1204-1(b), the following clause shall be inserted in all solicitations likely to result in a negotiated contract exceeding $100,000. If the contractor is eligible under the conditions of 4 CFR 332 to use the following clause and elects to do so pursuant to the instructions in the solicitation notice (3.501(b)(3) Section B (7)(C)), or if the contractor is a foreign concern, the clause shall be inserted in any resulting contract in lieu of the clause set forth in 7.10455(a)(1) above: DISCLOSURE AND CONSISTENCY OF COST (a) The contractor, in connection with this contract, shall: (1) Comply with the requirements of 4 CFR, Parts 401. Consistency in Estimating, Accumulating and Reporting Costs, and 402. Consistency in Allocating Costs Incurred for the Same Purpose, in effect on the date of award of this contract. (2) If it is a business unit of a company required to submit a Disclosure Statement, disclose in writing its cost accounting practices as required by regulations of the Cost Accounting Standards Board. The required disclosures must be made prior to contract award unless the Contracting Officer provides a written notice to the contractor authorizing post-award submission in accordance with regulations of the Cost Accounting Standards Board. If the contractor has notified the Contracting Officer that the Disclosure Statement contains trade secrets and commercial or financial information which is privileged and confidential, the Disclosure Statement will be protected and will not be released outside of the Government. NOTE (1) Subcontractors shall be required to submit their Disclosure Statements to the Contractor. However, if a subcontractor has previously submitted his Disclosure Statement to a Government Administrative Contracting Officer (ACO), he may satisfy that requirement by certifying to the Contractor the date of such Statement and the address of the ACO. NOTE (2) In any case where a subcontractor determines that the Disclosure Statement information is privileged and confidential and declines to provide it to his Contractor or higher tier subcontractor, the Contractor may authorize direct submission of that subcontractor's Disclosure Statement to the same Government offices to which the Contractor was required to make submission of his Disclosure Statement. Such authorization CFR TITLE 41 CHAPTER 18 CLAUSES FOR FIXED-PRICE SUPPLY CONTRACTS shall in no way relieve the Contractor of liability if he or a subcontractor fails to comply with an applicable Cost Accounting Standard or to follow any practice disclosed pursuant to this paragraph and such failure results in any increased costs paid by the United States. In view of the foregoing and since the contract may be subject to adjustment under this clause by reason of any failure to comply with rules, regulations, and Standards of the Cost Accounting Standards Board in connection with covered subcontracts, it is expected that the Contractor may wish to include a clause in each such subcontract requiring the subcontractor to appropriately indemnify the Contractor. However, the inclusion of such a clause and the terms thereof are matters for negotiation and agreement between the Contractor and the subcontractor, provided that they do not conflict with the duties of the Contractor under its contract with the Government. It is also expected that any subcontractor subject to such indemnification will generally require substantially similar indemnification to be submitted by his subcontractors. (3) Follow consistently the cost accounting practices disclosed pursuant to (2) above and the established cost accounting practices of the business unit. A change to such practices may be proposed, however, by either the Government or the Contractor, and the Contractor agrees to negotiate with the Contracting Officer the terms and conditions under which a change may be made. After the terms and conditions under which the change is to be made have been agreed to, the change must be applied prospectively to this contract, and the Disclosure Statement if affected must be amended accordingly. No agreement may be made under this provision that will increase costs paid by the United States. (4) Agree to an adjustment of the contract price or cost allowance, as appropriate, if he or a subcontractor fails to comply with the applicable Cost Accounting Standards or to follow any practice disclosed or established pursuant to subparagraph (a)(2) or (a)(3) above and such failure results in any increased costs paid by the United States. Such adjustment shall provide for recovery of the increased costs to the United States together with interest thereon computed at the rate determined by the Secretary of the Treasury pursuant to Public Law 92-41, 85 Stat. 97, or 7 percent per annum, whichever is less, from the time the payment by the United States was made to the time the adjustment is effected. (5) When the parties agree to a change to either a disclosed cost accounting practice or an established cost accounting practice, negotiate an equitable adjustment as provided in the "Changes" clause of this contract. (b) If the parties fail to agree whether the Contractor has complied with an applicable Cost Accounting Standard, rule or regulation of the Cost Accounting Standards Board and as to any cost adjustment demanded by the United States, such failure to NASA PROCUREMENT REGULATION CONTRACT CLAUSES agree shall be a dispute concerning a question of fact within the meaning of the "Disputes" clause of this contract. shall include (c) The Contractor shall permit any authorized representatives of the Head of the agency, of the Cost Accounting Standards Board, or of the Comptroller General of the United States to examine and make copies of any documents, papers, or records relating to compliance with the requirements of this clause. (d) The Contractor in all negotiated subcontracts into which he enters the substance of this clause except paragraph (b) of this section, and shall require such inclusion in all other subcontracts of any tier, except that: (1) If the subcontract is awarded to a business unit which pursuant to Part 331 is required to follow all Cost Assounting Standards, the clause entitled "Cost Accounting Standards" set forth in NASA PR 7.104-55(a)(1) shall be inserted in lieu of this clause; or (2) This requirement shall not apply to negotiated subcontracts where the price negotiated is based on: (i) established catalog or market prices of commercial items sold in substantial quantities to the general public, or (ii) prices set by law or regulation; or (3) The requirement shall not apply to negotiated subcontracts otherwise exempt from the requirement to accept a "Cost Accounting Standards" clause by reason of Section 331.30(b) of the Board's regulation. NOTE The terms defined in Section 331.20 of Part 331 of Title 4, Code of Federal Regulations (4 CFR 331.20) shall have the same meanings herein. As there defined, "negotiated subcontract" means any subcontract except a firm fixed-price subcontract made by a Contractor or subcontractor after receiving offers from at least two firms not associated with each other or such Contractor or subcontractor, providing (1) the solicitation to all competing firms is identical, (2) price is the only consideration in selecting the subcontractor from among the competing firms solicited, and (3) the lowest offer received in compliance with the solicitation from among those solicited is accepted. (b) Administration (End of clause) of In Cost Accounting Standards. following clause in all accordance with 3. 1204, insert the solicitations and contracts requiring insertion of the clause in either 7. 104-55(a)(1) or (2) above: ADMINISTRATION OF COST ACCOUNTING STANDARDS For the purpose of administering Cost Accounting Standards requirements under this contract, the Contractor shall: (a) Submit to the cognizant Contracting Officer a description of the accounting change and the general dollar magnitude of the change to reflect the sum of all increases and the sum of all decreases for all contracts containing the Cost Accounting CFR TITLE 41 CHAPTER 18 |