Page images
PDF
EPUB

(viii) Any matter which may be heard by the Invention Licensing Appeals Board (10 CFR 781.65 and 781.66); or

(ix) Any other dispute not described in paragraph (d)(2) of this section.

(2) In addition to any right of appeal established by program rule, or by the terms and conditions (not inconsistent with paragraph (d)(1) of this section) of an award, the Board shall have jurisdiction to review;

(i) A DOE determination that the recipient has failed to comply with the applicable requirements of this part, the program statute or rules, or other terms and conditions of the award;

(ii) A DOE decision not to make a continuation award based on any of the determinations described in paragraph (d)(2)(i) of this section;

(iii) Termination of an award for cause, in whole or in part, by DOE;

(iv) A DOE determination that an award is void or invalid;

(v) The application by DOE of an indirect cost rate; and

(vi) DOE disallowance of costs.

(3) In reviewing disputes authorized under paragraph (d)(2) of this section, the Board shall be bound by the applicable law, statutes, and rules, including the requirements of this part, and by the terms and conditions of the award.

(4) The decision of the Board shall be the final decision of the Department.

26.

SUBCONTRACTS UNDER COST-REIMBURSEMENT AND LETTER CONTRACTS 52.244-2

(a) "Subcontract," as used in this clause, includes but is not limited to purchase orders, and changes and modifications to purchase orders. The Contractor shall notify the Contracting Officer reasonably in advance of entering into any subcontract if

(1) The proposed subcontract is of the cost-reimbursement, time-and-materials, or labor-hour type;

(2) The proposed subcontract is fixed-price and exceeds either $25,000 or 5 percent of the total estimated cost of this contract;

)

(3) The proposed subcontract has experimental, developmental, or research work as one of its purposes; or

(4) This contract is not a facilities contract and the proposed subcontract provides for the fabrication, purchase, rental, installation, or other acquisition of special test equipment valued in excess of $10,000 or of any items of industrial facilities.

(b)(1) In the case of a proposed subcontract that (i) is of the cost-reimbursement, time-and-materials, or labor-hour type and is estimated to exceed $10,000, including any fee, (ii) is proposed to exceed $100,000, or (iii) is one of a number of subcontracts with a single subcontractor, under this contract, for the same or related supplies or services that, in the aggregate, are expected to exceed $100,000, the advance notification required by paragraph (a) above shall include the information specified in subparagraph (2) below.

(2) subcontracted.

(i) A description of the supplies or services to be

Identification of the type of subcontract to be used.

(iii) Identification of the proposed subcontractor and an explanation of why and how the proposed subcontractor was selected, including the competition obtained.

(iv) The proposed subcontract price and the Contractor's cost or price analysis.

(v) The subcontractor's current, complete, and accurate cost or pricing data and Certificate of Current Cost or Pricing Data, if required by other contract provisions.

(vi) The subcontractor's Disclosure Statement or Certificate relating to Cost Accounting Standards when such data are required by other provisions of this contract.

(vii) A negotiation memorandum reflecting

(A) The principal elements of the subcontract price

negotiations;

(B) The most significant considerations controlling establishment of initial or revised prices;

(C) The reason cost or pricing data were or were not

required;

(D) The extent, if any, to which the Contractor did not rely on the subcontractor's cost or pricing data in determining the price objective and in negotiating the final price;

(E) The extent to which it was recognized in the negotiation that the subcontractor's cost or pricing data were not accurate complete, or current; the action taken by the Contractor and the subcontractor; and the effect of any such defective data on the total price negotiated;

(F) The reasons for any significant difference between the Contractor's price objective and the price negotiated; and

(G) A complete explanation of the incentive fee or profit plan when incentives are used. The explanation shall identify each critical performance element, management decisions used to quantify each incentive element, reasons for the incentives, and a summary of all trade-off possibilities considered.

(c) The Contractor shall obtain the Contracting Officer's written consent before placing any subcontract for which advance notification is required under paragraph (a) above. However, the Contracting Officer may ratify in writing any such subcontract. Ratification shall constitute the consent of the Contracting Officer.

(d) If the Contractor has an approved purchasing system and the subcontract is within the scope of such approval, the Contractor may enter into the subcontracts described in subparagraphs (a)(1) and (a)(2) above without the consent of the Contracting Officer, unless this contract is for the acquisition of major systems, subsystems, or their components.

[ocr errors]

(e) Even if the Contractor's purchasing system has been approved, the Contractor shall obtain the Contracting Officer's written consent before placing subcontracts that have been selected for special surveillance and identified in the Schedule of this contract.

(f) Unless the consent or approval specifically provides otherwise, neither consent by the Contracting Officer to any subcontract nor approval of the Contractor's purchasing system shall constitute a determination (1) of the acceptability of any subcontract terms or conditions, (2) of the allowability of any cost under this contract, or (3) to relieve the Contractor of any responsibility for performing this contract.

(g) No subcontract placed under this contract shall provide for payment on a cost-plus-a-percentage-of-cost basis, and any fee payable under cost-reimbursement type subcontracts shall not exceed the fee limitations in subsection 16.301-4 of the Federal Acquisition Regulation (FAR).

(h) The Contractor shall give the Contracting Officer immediate written notice of any action or suit filed and prompt notice of any claim made against the Contractor by any subcontractor or vendor that, in the opinion of the Contractor, may result in litigation related in any way to this contract, with respect to which the Contractor may be entitled to reimbursement from the Government.

(i)(1) The Contractor shall insert in each price redetermination or incentive price revision subcontract under this contract the substance of the paragraph "Quarterly limitation on payments statement" of the clause at 52.216-5, Price Redetermination-Prospective, 52.216-6, Price Redetermination-Retroactive, 52.216-16, Incentive Price Revision-Firm Target, or 52.216-17 Incentive Price Revision-Successive Targets, as appropriate, modified in accordance with the paragraph entitled "Subcontracts" of that clause.

(2) Additionally, the Contractor shall include in each cost-reimbursement subcontract under this contract a requirement that the subcontractor insert the substance of the appropriate modified subparagraph referred to in subparagraph (1) above in each Tower tier price redetermination or incentive price revision subcontract under that subcontract.

(j) To facilitate small business participation in subcontracting, the Contractor agrees to provide progress payments on subcontracts under this contract that are fixed-price subcontracts with small business concerns in conformity with the standards for customary progress payments stated in FAR 32.502-1 and 32.504(f), as in effect on the date of this contract. The Contractor further agrees that the need for such progress payments will not be considered a handicap or adverse factor in the award of subcontracts.

(k) The Government reserves the right to review the Contractor's purchasing system as set forth in FAR Subpart 443.3.

27. GOVERNMENT PROPERTY 10 CFR 600.117

(a) Definitions. (1) "Acquired with DOE grant funds" means that all or a portion of the acquisition cost of an item of property is a direct charge to DOE grant funds (whether the cost is incurred under the grant, a subgrant, or a cost-reimbursement contract) or all or a portion of the acquisition cost is a direct cost being used to meet a cost sharing requirement.

(2) "Acquisition costs of an item of purchased equipment means the net invoice unit price of the equipment, including the cost of modifications, attachments, accessories, or auxilliary apparatus necessary to make the equipment usable for the purpose for which it was acquired. Other charges such as the cost of installation, transportation taxes, duty, or protective in-transit insurance, shall be included or excluded from the unit acquisition cost in accordance with the grantee's regular accounting practices.

(3) "Acquisition of property" means the purchase, construction, or fabrication of property but does not include rental of property or minor alteration or renovation of real property;

(4) "Allowable cost of the project" means, when used for purposes of determining the amount of reimbursement due under this section, the DOE (or non-Federal) share of the allowable cost which were either chargeable to DOE grant funds or counted toward meeting a cost sharing requirement of the grant during the project period. For property acquired by a subgrantee, the DOE share of the grantee's costs shall be multiplied by the grantee's share of the subgrantee's costs to determine the DOE share of the subgrantee's costs.

(5) "Equipment" means an article of tangible personal property that has a useful life of more than two years and an acquisition cost of $500 or more. A grantee or or subgrantee may use its own definition of equipment provided the definition would include all articles of equipment as defined in this paragraph.

(6) "Exempt property" means equipment and supplies acquired with DOE grant funds for which the grantee or subgrantee is not required to account to DOE except as provided in paragraph (d)(2) of this section. The exempt status must be authorized by a Federal statute.

(7) "Federally owned property" means any real or tangible personnel property (equipment or supplies) owned by DOE which is furnished by DOE to a grantee for use during the project period, and any such property acquired under a grant which DOE is required by statute or by a determination made in accordance with this part to own.,

(8) "Nonexempt property" means equipment and supplies acquired with DOE grant funds which are subject to the conditions for use, management and disposition under paragraphs (d) and (e) of this section. For purposes of this section, nonexempt property includes excess personal property which has been made available to a grantee under authority of the Federal Property and Administrative Services Act, as amended by 40 U.S.C. 483, and the implementing Federal Property Management Regulations (41 CFR 101-43.320).

(9) "Real property" means land, land improvements, structures and anything attached to these so as to become a part of them. This term does not include movable machinery and other types of equipment.

(10) "Supply" means any tangible personal property other than equipment.

(b) Applicability. (1) Except as provided in paragraphs (b)(2) and (b)(3), this section applies to real property equipment, and supplies acquired with DOE grant funds, and to real property, equipment, and supplies furnished by DOE under a grant.

(2) The requirements of this section apply to grantees and subgrantees. The requirements of this section apply to equipment and supplies acquired by a contractor under a grant or subgrant only when the contract requires ownership of the property to remain with the grantee, subgrantee, or DOE.

(3) The requirements of this section do not apply to:

« PreviousContinue »