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(a) The clause below provides a means for the fair and expeditious administrative settlement of claims arising out of certain delays and interruptions in the contract work caused by the acts, or failures to act, of the contracting officer where the contract does not otherwise specifically provide for an equitable adjustment because of such delay or interruption (e.g., Government-furnished property, changes, etc.).
(b) The clause does not authorize the contracting officer to order a suspension, delay or interruption of the work and it shall not be used as the basis for or to justify such an order.
(c) When the contracting officer has notice of an unordered delay or interruption covered by the clause, he will act to end it or take other appropriate action as soon as practicable.
(d) The contracting officer shall retain in the file a record of all negotiations leading to any adjustment made under the clause, including cost or pricing data.
GOVERNMENT DELAY OF WORK
(a) If the performance of all or any part of the work is delayed or interrupted by an act of the Contracting Officer in the administration of this contract, which act is not expressly or impliedly authorized by this contract, or by his failure to act within the time specified in this contract (or within a reasonable time if no time is specified), an adjustment (excluding profit) shall be made for any increase in the cost of performance of this contract caused by such delay or interruption and the contract modified in writing accordingly. Adjustment shall be made also in the delivery or performance dates and any other contractual provision affected by such delay or interruption. However, no adjustment shall be made under this clause for any delay or interruption (1) to the extent that performance would have been delayed or interrupted by any other cause, including the fault or negligence of the Contractor; or (ii) for which an adjustment is provided or excluded under any other provision of this contract.
(b) No claim under this clause shall be allowed (1) for any costs incurred more than twenty (20) days before the Contractor shall have notified the Contracting Officer in writing of the act or failure to act involved; and (11) unless the claim, in an amount stated, is asserted in writing as soon as practicable
after the termination of such delay or interruption, but not later than the date of final payment under the contract.
§ 6-7.151-16 Indemnification.
In view of the established policy that the Government is a self-insurer, as provided in § 1-10.301 of this title, contractors should not ordinarily be required to assume risks which a private buyer would guard against through insurance. There may be occasions, however, when a contractor's assumption of such risks is in the best interest of the Government and the following clause is authorized for use on those occasions. In the determination of it's use, the Contracting Officer should weigh the advantages it provides against the likelihood of resulting increased prices.
The Contractor expressly agrees to indemnify and to save the Government, its officers, agents, servants, and employees harmless from and against any claim, loss, damages, injury, and liability, however caused, resulting from or arising out of the Contractor's fault or negligence in connection with the performance of work under this contract. Further, it is agreed that any negligence or alleged negligence of the Government, its officers, agents, servants and employees, shall not be a bar to a claim for indemnification unless the act or omission of the Government, its officers, agents, servants and employees is the sole, competent, and producing cause of such claim, loss, damages, injury, or liability.
§ 6-7.151-17 Commercial warranty.
The Contractor agrees that the supplies or services furnished under this contract shall be covered by the most favorable commercial warranties the Contractor gives to any customer for such supplies or services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the Government by any other clause of this contract. § 6-7.151-18 Price warranty.
The Contractor warrants that the prices of the items set forth herein do not exceed those charged by the Contractor to any other customer purchasing the same items in like or comparable quantities.
§ 6-7.151-19 Availability of funds.
The following clause is applicable to certain types of contracts whose performance periods cross fiscal years. These contracts are identified in Subpart 6-3.4 of this chapter.
AVAILABILITY OF FUNDS
Funds are not presently available for performance under this contract beyond June 30, 19. The Government's obligation for performance of this contract beyond this date is contingent upon the availability of appropriated funds from which payment for the contract purposes can be made. No legal liability on the part of the Government for payment of any money for performance under this contract beyond June 30, 19--, shall arise unless and until funds are made available to the Contracting Officer for such performance and notice of such availability, to be confirmed in writing by the Contracting Officer, is given to the Contractor.
(a) With respect to motor vehicles purchased by the Department of State or the U.S. Information Agency for use by such agencies in foreign countries, the Secretary of the Treasury has granted an exemption from the federal excise tax imposed by 26 U.S.C. 4061(a) provided such vehicles are exported from the United States by such Agencies within a period of 6 months from the date of delivery of such vehicles to the agencies, notwithstanding any use made by such agencies of the vehicles within the United States during the 6-month period. The contract for sale of such vehicles must include a statement to the effect that the sale of the vehicles is made for the exclusive use of the United States and qualifies for the exemption under order of the Secretary of the Treasury dated May 6, 1964 (29 F.R. 6254). The manufacturers must be furnished proof of export within 6 months after the sale.
(b) Taxable articles purchased for presentation abroad as gifts to foreign dignitaries and taxable articles purchased for presentation as gifts to foreign
dignitaries visiting in the United States but which are almost immediately taken out of the United States may be exempt from any retailers or manufacturers excise taxes in accordance with letter of October 18, 1963 from Chief, Excise Tax Branch, Internal Revenue Service on file in Supply and Transportation Services Division.
(c) With respect to purchases from vendors in the United States for export to a Foreign Service Post, the following statement will be included in purchase orders for items subject to excise taxes:
This is to certify that the item(s) covered by this purchase order is/are for export solely for the use of the American Foreign Service post shown above. It is, therefore, requested that the extra signed copy of the purchase order furnished herewith be accepted as evidence of intent to export. Final proof of exportation may be obtained from the U.S. Despatch Agent, handling the shipment; such proof to be accepted in lieu of payment of excise tax.
[31 F.R. 6624, May 4, 1966]
Subpart 6-11.3-State and Local
§ 6-11.301 Applicability.
In certain instances purchases by posts are exempt from various taxes in foreign countries. It is incumbent upon procurement officers to ascertain such exemptions and to take maximum advantage of them.
[29 F.R. 12076, Aug. 25, 1964]
AUTHORITY: The provisions of this Part 6-60 issued under sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486 (c); sec. 4, 63 Stat. 111, 22 U.S.C. 2658.
SOURCE: The provisions of this Part 6-60 contained in Dept. Reg. 108.570, 32 F.R. 15751, Nov. 16, 1967 and 35 F.R. 1238, Jan. 30, 1970, unless otherwise noted.
§ 6-60.0 Scope of part.
This part relates to disputes arising under Department of State contracts (which shall for the purpose of this part include grants) and to the transfer of certain appellate and review functions of the Department of State to the Armed Services Board of Contract Appeals (referred to in this part as the "ASBCA") and the delegation of authority to ASBCA to hear and decide appeals of contractors from final decisions of contracting officers arising under disputes provisions of contracts awarded by the Department of State. § 6-60.1
The Armed Services Board of Contract Appeals is designated the authorized representative of the Secretary of State and the Assistant Secretary for Administration to hear and determine appeals by contractors from final decisions of Contracting Officers on disputed questions arising under Department of State contracts pursuant to provisions of contracts requiring the determination of such appeals by either official or their duly authorized representative.
(a) In acting under this designation, the ASBCA will follow the rules in 32 CFR 30.1 (Appendix A) Part 2, which are hereby adopted and set forth in paragraph (b) of this section, except as amended. Rule 31 is superseded by the date of effectiveness of this part upon publication. Part 1 of Appendix A, containing the Charter of the ASBCA, is not included in this paragraph. References to military departments and Secretaries thereof are amended to refer to the Department of State and either the Secretary of State or the Assistant Secretary for Administration, or their duly authorized representative or Board, as appropriate. Amendments, applicable only to appeals arising from Department of State contracts, concerning other provisions of the Rules are identified by the caption (STATE).
(b) Part 2-Rules:
PREFACE TO RULES OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS
I. SUMMARY OF PERTINENT CHARTER PROVISIONS The Armed Services Board of Contract Appeals is the authorized representative of the Secretary of State, the Assistant Secretary for Administration, in hearing, considering, and determining as fully and finally as might either official:
(a) Appeais by contractors from decisions of contracting officers or their authorized representatives or other authorities on disputed questions, taken pursuant to the provision of contracts requiring the determination of such appeals by the Secretary of State or the Assistant Secretary for Administration or their duly authorized representative or board; or
(b) Appeals by contractors taken pursuant to the provisions of any directive whereby the Secretary of State or the Assistant Secretary for Administration has granted a right of appeal not contained in the contract.
When an appeal is taken pursuant to a Disputes clause in a contract which limits appeals to disputes concerning questions of fact, the Board may in its discretion hear, consider, and decide all questions of law necessary for the complete adjudication of the issue. In the consideration of an appeal, should it appear that a claim is involved which is not cognizable under the terms of the contract, the Board may make findings of fact with respect to such a claim without expressing an opinion on the question of liability.
When a contract requires the Secretary of State or the Assistant Secretary for Administration, personally to render a decision on the matter in dispute, the Armed Services Board of Contract Appeals makes and submits findings and recommendation to the appropriate official with respect thereto.
There are a number of divisions of the Armed Services Board of Contract Appeals established by the Chairman of the Board in such manner as to provide for the most effective and expeditious handling of appeals. Appeals are assigned to the divisions for decision without regard to the procuring authority which entered into the contract involved. Hearing may be held by a designated member, or by a duly authorized examiner. The decision of a majority of a division constitutes the decision of the Board provided that the Chairman and two Vice Chairmen jointly signify their approval of the decision. If a majority of the members of a division is unable to agree on a decision, or if the Chairman or one or more of the Vice Chairmen does not signify approval of the decision, determination of the appeal is by the Chairman and Vice Chairmen. A decision by a majority of those individuals then constitutes the decision of the Board.
On request of the appellant, an appeal involving $5,000 or less is decided as provided in the Optional Accelerated Procedure set forth in Rule 12 of the Board.
II. STATEMENT OF PURPOSE
Emphasis is placed upon the sound administration of these rules in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. These rules will be interpreted so as to secure just and inexpensive determination of appeals without unnecessary delay.
Preliminary procedures are available to encourage full disclosure of relevant and material facts and to discourage unwarranted surprise.
All time limitations specified for various procedural actions are computed as maximums, and are not to be fully exhausted if the action described can be accomplished in a lesser period. These time limitations are similarly eligible for extension in appropriate circumstances, on good cause shown. Whenever reference is made to contractor, appellant, contracting officer, respondent and parties, this shall include respective counsel
for the parties, as soon as appropriate Notices of Appearance have been filled with the Board.
1. Appeals, how taken. Notice of an appeal must be in writing, and the original, together with two copies, may be filed with the contracting officer from whose decision the appeal is taken. The notice of appeal must be mailed or otherwise filed within the time specified therefor in the contract or allowed by applicable provision of directive or law. 2. Notice of appeal, contents of. A notice of appeal should indicate that an appeal is thereby intended and should identify the contract (by number), the department and agency or bureau cognizant of the dispute, and the decision from which the appeal is taken. The notice of appeal should be signed personally by the appellant (the contractor making the appeal), or by an officer of the appellant corporation or member of the appellant firm, or by the contractor's duly authorized representative or attorney. The complaint referred to in Rule 6 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as 8 complaint, if it otherwise fulfills the requirements of a complaint.
3. Forwarding of appeals (STATE). When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days shall forward said notice of appeal to the Board, with copies to the Supply and Transportation Services Division and the Legal Adviser of the Department of State. Following receipt by the Board of the original notice of an appeal (whether through the contracting officer or otherwise), the contractor, the contracting officer, the Supply and Transportation Services Division and the Legal Adviser of the Department of State will promptly be advised of its receipt, and the contractor will be furnished a copy of these rules.
4. Duties of the contracting officer (STATE). Following receipt of a notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly. and in any event within 30 days, compile and transmit to the Supply and Transportation Services Division copies of all documents pertinent to the appeal, including the following:
(a) The findings of fact and the decision from which the appeal is taken, and the letter or letters or other documents of claim in response to which the decision was issued; (b) The contract, and pertinent plans, specifications, amendments, and change orders;
(c) Correspondence between the parties and other data pertinent to the appeal;
(d) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the
matter in dispute made prior to the filing of the notice of appeal with the Board;
(e) Such additional information as may be considered material.
The Supply and Transportation Services Division shall compile an appeal file from such documents, which file must contain the items enumerated in paragraphs (a)-(e) of this rule, and shall promptly, and in any event within 65 days after the appeal is docketed by the Board (except that this period shall not exceed 40 days if the contracting officer is located, and necessary documentation is substantially available, within the United States) transmit the appeal file to the Board. The Supply and Transportation Services Division shall notify the appellant when it has transmitted the appeal file to the Board, will provide him with a listing of its contents, and will afford him an opportunity to examine the complete file at the office of the contracting officer or at the office of the Board for the purpose of satisfying himself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. Following receipt of the foregoing file, as it may be augmented at the time of receipt, the Board will promptly advise the parties.
5. Dismissal for lack of jurisdiction. Any motion addressed to the jurisdiction of the Board shall be promptly filed. Hearing on the motion shall be afforded on application of either party, unless the Board determines that its decision on the motion will be deferred pending hearing on both the merits and the motion. The Board shall have the right at any time and on its own motion to raise the issue of its jurisdiction to proceed with a particular case, and shall do so by an appropriate order, affording the parties an opportunity to be heard thereon.
6. Pleadings. (a) Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise, and direct statements of each of his claims, alleging the basis, with appropriate reference to contract provisions, for each claim, and the dollar amount claimed. This pleading shall fulfill. the generally recognized requirements of a complaint, although no particular form or formality is required. Upon receipt thereof, the Recorder of the Board shall serve a copy upon the respondent. Should the complaint not be received within 30 days, appellant's claim and appeal may, if in the opinion of the Board the issues before the Board are sufficiently defined, be deemed to set forth his complaint and the respondent shall be so notified.
(b) Within 30 days from receipt of said complaint, or the aforesaid notice from the Recorder of the Board, respondent shall prepare and file with the Board an original and two copies of an answer thereto, setting forth simple, concise, and direct statements of respondent's defenses to each claim asserted
by appellant. This pleading shall fulfill the generally recognized requirements of an answer, and shall set forth any affirmative defenses or counterclaims, as appropriate. Upon receipt thereof, the Recorder shall serve a copy upon the appellant. Should the answer not be received within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the appellant shall so be notified.
7. Amendments of pleadings or record. The Board upon its own initiative or upon application by a party may, in its discretion, order a party to make a more definite statement of the complaint or answer, or to reply to an answer. The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend his pleading upon conditions just to both parties. When issues within the proper scope of the appeal, but not raised by the pleadings or the documentation described in Rule 4, are tried by express or implied consent of the parties, or by permission of the Board, they shall be treated in all respects as if they had been raised therein. In such instances, motions to amend the pleadings to conform to the proof may be entered, but are not required. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings or the Rule 4 documentation (which shall be deemed part of the pleadings for this purpose), it may be admitted within the proper scope of the appeal: Provided, however, That the objecting party may be granted a continuance if necessary to enable him to meet such evidence.
8. Upon receipt of respondent's answer or the notice referred in the last sentence of Rule 6(b), above, appellant shall advise whether he desires a hearing, as prescribed in Rules 17 through 25, or whether in the alternative he elects to submit his case on the record without a hearing, as prescribed in Rule 11. In appropriate cases, the appellant shall also elect whether he desires the optional accelerated procedure prescribed in Rule 12.
9. Prehearing briefs. Based on an examination of the documentation described in Rule 4, the pleadings, and a determination of whether the arguments and authorities addressed to the issues are adequately set forth therein, the Board may in its discretion require the parties to submit prehearing briefs in any case in which a hearing has been elected pursuant to Rule 8. In the absence of a Board requirement therefor, either party may in its discretion, and upon appropriate and sufficient notice to the other party, furnish a prehearing brief to the Board. In any case where a prehearing brief is submitted, it shall be furnished so as to be received by the Board at least 15 days prior to the date set for hearing, and a copy shall simultaneously be furnished to the other party as previously arranged.
10. Prehearing or presubmission conference. Whether the case is to be submitted pursuant to Rule 11, or heard pursuant to