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cept for the purpose of deciding an appeal under the clause entitled "Disputes."
(b) The term "Contracting Officer" means the person executing this contract on behalf of the Government, and includes his successors or any duly authorized representatives of any such person.
2. Vendor's billing instructions. Vendor's invoices shall contain the following information: Contract or proposal number (if any), order number, and item number, description of supplies or services, sizes, quantities, unit prices, and extended totals. Bill of lading number and weight of shipment will be shown for shipments made on Government bills of lading. If prepaid parcelpost charges are billed, the gross weight and shipping point must be shown on the invoice.
3. Convenant against contingent fees. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty the Government shall have the right to annul this contract without liability, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.
4. Officials not to benefit. No member of or delegate to Congress or resident commissioner this contract or to any benefit that may arise shall be admitted to any share or part of therefrom but this provision shall not be construed to extend to this contract if made with a corporation for its general benefit.
5. Equal opportunity in employment. The Equal Opportunity clause in FPR 1-12.803-2 is incorporated herein by reference and is applicable unless this contract is exempt under the rules and regulations of the Secretary of Labor issued pursuant to Executive Order No. 11246 of September 24, 1965 (30 F.R. 12319, Sept. 28, 1965).
6. Convict Labor. In connection with the performance of work under this contract, the Contractor agrees not to employ any person undergoing sentence of imprisonment at hard labor.
7. Buy American Act. (a) In acquiring end products, the Buy American Act (41 U.S.C. 10a-d) provides that the Government give preference to domestic source end products. For the purpose of this clause:
(i) "Components" means those articles, materials, and supplies, which are directly incorporated in the end products;
(ii) "End products" means those articles, materials, and supplies, which are to be acquired under this contract for public use; and
(111) A "domestic source end product" means (A) an unmanufactured end product which has been mined or produced in the
United States, and (B) an end product manufactured in the United States if the cost of the components thereof which are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. For the purposes of this (a) (iii) (B), components of foreign origin of the same type or kind as the products referred to in (b) (ii) or (iii) of this clause shall be treated as components mined, produced or manufactured in the United States.
(b) The Contractor agrees that there will be delivered under this contract only domestic source end products, except end products: (1) Which are for use outside the United States;
(ii) Which the Government determines are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality;
(iii) As to which the Commission determines the domestic preference to be inconsistent with the public interest; or
(iv) As to which the Commission determines the cost to the Government to be unreasonable.
(The foregoing requirements are administered in accordance with Executive Order No. 10582, dated Dec. 17, 1954.)
8. Discounts. In connection with any discount offered, time will be computed from date of delivery of the supplies to carrier when delivery and acceptance are at point of origin, or from date of delivery at destination or port of embarkation when delivery and acceptance are at either of these points, or from date correct invoice or voucher is received in the office specified by the Government if the latter date is later than the date of delivery. Payment is deemed to be made for the purpose of earning the discount, on the date of mailing of the Government check.
9. Inspection. Except as may be otherwise provided in this contract, final inspection and acceptance will be made at destination. Supplies rejected at destination for nonconformance with specifications shall be removed by the Contractor at his expense promptly after notice of rejection.
10. Contract Work Hours Standards ActOvertime Compensation. This contract, to the extent that it is of a character specified in the Contract Work Hours Standards ActOvertime Compensation (40 U.S.C. 327-330) and is not covered by the Walsh-Healey Public Contracts Act (41 U.S.C. 35-45), is subject to the following provisions and to all other provisions and exceptions of said Contract Work Hours Standards Act.
(a) No contractor or subcontractor contracting for any part of the contract work shall require or permit any laborer or mechanic to be employed on such work in excess of 8 hours in any calendar day or in excess of 40 hours in any workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times his basic rate of pay for all
hours worked in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek, whichever is the greater number of overtime hours.
(b) In the event of any violation of the provisions of paragraph (a), the Contractor and any subcontractor responsible for such violation shall be liable to any affected employee for his unpaid wages. In addition, such Contractor or subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed, with respect to each individual laborer or mechanic employed in violation of the provisions of paragraph (a), in the sum of $10 for each calendar day on which such employee was required or permitted to work in excess of 8 hours or in excess of 40 hours in a workweek without payment of the required overtime wages.
(c) The Contracting Officer may withhold, or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor, the full amount of wages required by this contract and such sums as may administratively be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for liquidated damages as provided in paragraph (b).
(d) The Contractor shall insert paragraphs (a) through (d) of this clause in all subcontracts, and shall require their inclusion in all subcontracts of any tier.
(e) The Contractor shall maintain payroll records containing the information specified in 29 CFR 516.2(a). Such records shall be preserved for 3 years from the completion of the contract.
11. Federal, State, and local taxes. Except as may be otherwise provided in this contract, the contract price includes all applicable Federal taxes in effect on the date of this contract but does not include any State or local sales, use, or other tax directly applicable to the completed supplies or services covered by this contract nor any other tax from which the Contractor or this transaction is exempt. Upon request of the Contractor, the Government shall furnish a tax exemption certificate or similar evidence of exemption with respect to any such tax not included in the contract price pursuant to this clause. For the purpose of this clause, the term "date of this contract" means the date of the Contractor's quotation or, if no quotation, the date of this purchase order.
12. Renegotiation. If this contract is subject to the Renegotiation Act of 1951, as amended, the contract shall be deemed to contain all the provisions required by section 104 of said Act.
(13) Priorities, Allocations, and Allotments. The Contractor shall follow the provisions of DMS Regulation 1 and all other applicable regulations and orders of the Business and Defense Services Administration in obtaining controlled materials and other products and materials needed to fill this order.
The AEC contract outlines are set forth in this section to show their format, text, and arrangement and to provide a ready source of reference. Clauses may be omitted or added with the approval of Counsel. The Director, Division of Contracts, may from time to time amend this section to provide contract outlines for additional categories of contracts.
§ 9-16.5002-1 Outline of a negotiated fixed-price supply contract.
(1) Appropriate provisions setting forth description of supplies, delivery requirements, shipping instructions, and price.
(2) Standard Form 32: General Provisions (Supply Contract).
(3) AEC additions to Standard Form 32, General Provisions-§ 9-16.104-50.
(4) Examination of records-§ 9-7.5004-10. (5) Priorities, allocations, and allotments § 9-7.5006-52.
§ 9-16.5002-2 Outline of a cost-plus-afixed-fee supply contract (performed by commercial concerns in contractor's facilities).
(1) Definitions-§ 9-7.5005-4.
(4) Obligation of funds, estimates of cost (other than operating contracts)—§ 91.5006-14.
(5) Allowable costs and fixed fee § 97.5006-10.
(6) Payments-§ 9-7.5006-25, or, if appropriate, Payments and advances-§ 9-7.500623.
(7) Accounts, records, and inspection§ 9-7.5006-1.
(8) Drawings, designs, specifications-§ 97.5006-13.
(9) Examination of records-§ 9-7.5004-10. (10) Required bonds and insurance-Exclusive of Government property-§ 9-7.500651.
(15) Security-§ 9-7.5004-11, quired.
(16) Contract Work Hours Standards Act-Overtime Compensation-FPR 1-12.303 with the modification necessary if § 9-12.10351 applies; or Walsh-Healey Public Contracts Act, FPR 1-12.605, if the contract exceeds $10,000.
(17) Notice of labor disputes-§ 9-7.500649.
(18) Buy American Act-8 9-7.5004-16. (19) Termination for default or for convenience of the Government-FPR 1-8.702. (20) Litigation and claims-§ 9-7.5006-50. (21) Renegotiation-§ 9-7.5004-20.
(22) Classification-§ 9-7.5004-21, in all contracts involving classified information.
(23) Disputes-FPR 1-7.101-12, modified by substituting "Commission" for "Secretary." (See § 9-7.5004-3.)
(24) Utilization of small business concerns FPR 1-1.710-3 (a), as required by that section.
(25) Small business subcontracting program--FPR 1-1.710-3(b), as required by that section.
(26) Utilization of concerns in labor surplus areas-FPR 1-1.805-3(a), as required by that section.
(27) Labor surplus area subcontracting program-FPR 1-1.805-3(b), as required by that section.
(28) Changes to make-or-buy program— FPR 1-3.902-3, as required by that section. (29) Covenant against contingent fees§ 9-7.5004-2.
(30) Officials not to benefit-FPR 1-7.101-19.
(31) Equal opportunity-FPR 1-7.101-18. (32) Convict labor-FPR 1-12.203. (33) Assignment-FPR 1-7.101-8 or § 97.5006-46 as appropriate.
(34) Priorities, allocations
(35) Excusable delays-FFR 1-8.708. (36) [Reserved]
(37) Permits-§ 9-7.5006-48.
(38) Price reduction for defective cost or pricing data-FPR 1-3.814-1(a), as required by that section.
(39) Subcontractor cost and pricing dataFPR 1-3.814-3 (a), as required by that section.
(40) Consultant or comparable employment services of contractor employees-§ 97.5006-45(a).
(41) Utilization of minority business enterprises-FPR 1-1.1310-2(a), as required by that section.
(42) Minority business enterprise subcontracting program-FPR 1-1.1310-2(b), as required by that section.
[34 F.R. 15201, Sept. 27, 1969, as amended at 36 F.R. 20874, Oct. 30, 1971]
eral Provisions (Construction Contract)" and any AEC additions thereto which are authorized by this part may be used where the AEC enters directly into a fixed-price construction contract, by competitive proposals or by other means of negotiation.
2. The Standard Forms should be modified in the following respects:
a. Delete the word "publicly" before the word "opened" wherever it appears.
b. Delete the word "bid" or "bids" wherever used and insert the word "proposed" or "proposals."
c. Delete the word "bidder" and insert the word "offeror" wherever it appears.
d. Delete the word "bidding" wherever it appears and insert the word "proposal."
3. Add the following clauses to the Standard forms:
a. Examination of records-§ 9-7.5004-10. b. Priorities, allocations, and allotments$9-7.5006-52.
§ 9-16.5002-4 Outline of a cost-plus-afixed-fee-construction contract.
of day of
This contract, entered into the ... day 19, effective as of the --, 19, between the United States of America (hereinafter called the "Government"), acting through the United States Atomic Energy Commission (hereinafter called the "Commission"), and (hereinafter called the "Contractor"). Witnesseth that:
Whereas, the Commission finds that the common defense and security require that construction of certain facilities, hereinafter more particularly described, that ----and
(A statement of grounds which permit contracting without formal advertising and render a contract on a lump sum or unit price basis impracticable, should be inserted in this recital.)
Whereas, the Contractor is willing to undertake the performance of such construction work on a cost-plus-a-fixed-fee basis; and
Whereas, the Commission finds that the Contractor is best qualified to perform the work, all relevant factors considered; and
Whereas, the Commission certifies that this negotiated contract is authorized by and executed under the Atomic Energy Act of 1954, as amended, in the interest of the common defense and security.
Now therefore, the parties hereto agree as follows:
Article I-Definitions. Insert clause as set forth in § 9-7.5005-4. Article II-Statement of work. Insert contract clause set forth in § 9-7.5006-56. Article III-Changes. Insert contract clause set forth in § 9-7.5006-4.
Article IV-Obligation of funds, estimates of cost (other than operating contracts). Insert contract clause set forth in § 9-7.5006-14.
Article V-Allowable costs and fized fee. Insert contract clause set forth in § 9-7.5006-9.
(Payments for the use of the contractor's own construction plant and equipment are made subject to an appendix to be attached at the time of execution of the construction contract or subsequently added by agreement of the parties. Payment for rental by the prime contractor of construction plant and equipment from third parties is made subject to rental agreements to be approved by the contracting officer. If such rental agreements are modified to include the services of operators, adjustments may be required to avoid conflicts with the labor provisions of the construction contract. See Subpart 9-18.50.)
Article VI-Payments. Insert contract clause set forth in § 9-7.5006-25 using 10 percent in the second sentence of subparagraph (b).
NOTE A. An election is permitted between straight reimbursement for allowable costs incurred and claimed by the Contractor and the system approved by the AEC of advances to the Contractor. A firm agreement should be reached at the outset as to one or the other of these methods of making payment for allowable costs and the appropriate article included in the contract. Payments on account of the fixed fee will in any case be made only as earned and claimed in accordance with contract provisions. (See Part 9-30.)
NOTE B. If it is contemplated that advances will be made to the Contractor, substitute the clause set forth in § 9-7.5006-23 and require special bank account agreement as set forth in § 9-7.5006-24.
Article VII-Assignment. Insert contract clause set forth in § 9-7.5006-46.
Article VIII-Accounts, records, and inspection. Insert contract clause set forth in 9-7.5006-1.
NOTE: The provisions in this clause relating to records and accounts are designed to permit the use of AEC's integrated accounting system whether the reimbursement method
the advances method of payment is employed.
Article IX-Examination of records. Insert contract clause set forth in § 9-7.5004-10. Article X-Workmanship and materials. Insert contract clause as set forth § 9-7.5006-32.
Article XI-Property. Insert contract clause set forth in § 9-7.5006-26.
Article XII-Required bonds and insurance-exclusive of Government property. Insert contract clause set forth in § 9-7.5006-51.
Article XIII-State and local taxes. The Contractor agrees to notify the Contracting Officer of any tax, fee, or charge:
(a) From which exemption is granted by State or local law, or
(b) Which is invalid under any provision of the Constitution of the United States levied or purported to be levied on the Contractor in respect of this Contract and to refrain from paying any such tax, fee, or charge unless otherwise authorized
by the Contracting Officer. The Contractor further agrees to take such steps as may be required by the Contracting Officer to cause any such tax, fee, or charge to be paid under protest and, if so directed by the Contracting Officer, to cause to be assigned to the Government or its designee any and all rights to the abatement or refund of any such tax, fee, or charge, or to permit the Government to Join with the Contractor in any proceedings for the recovery thereof or to sue for recovery in the Contractor's name.
The Government shall save the Contractor harmless from penalties and interest incurred through compliance with this article. Article XIV-Litigation and claims. Insert contract clause set forth in § 9-7.5006-50.
Article XV-Contractor procurement. Insert contract clause set forth in § 9-7.5006-29. Article XVI-Safety, health, and fire protection. Insert contract clause set forth in § 9-7.5006-47.
Article XVII-Contractor's organization. Insert contract clause set forth in $9-7.5006-6.
Article XVIII-Key personnel. Insert contract clause set forth in § 9-7.5007-2.
Article XIX-Patent indemnity. General Provision "15" of Standard Form 23A. NOTE A: Basically, no patent provisions beyond the usual indemnity clause should be included. Alteration of this clause as to specified items is a matter to be dealt with by negotiation, if the question is raised by a prospective contractor. In particular cases involving technical facilities, the inclusion of additional provisions relating to title and rights in inventions and discoveries, with appropriate alteration of the indemnity clause, will be required in the interest of the Government. The patent indemnity clause may be modified by deleting the opening words, "Except as otherwise provided," and by adding at the end of the article an exception set forth in (1) or (2) below under circumstances therein.
(1) Certain construction contracts may call for items or parts thereof which are standard commercial supplies and also for items which require modifications in the course of the performance of the work. In such event the patent idemnity article set forth above may be appropriately modified. To cover such circumstances, the following modification should be added at the end of the patent indemnity article:
except, however, infringement necessarily resulting from the contractor's compliance with written specifications or provisions for other than standard parts or components manufactured or supplied by the contractor or resulting from specific written instructions given by the Commission for the purpose of directing a manner of performance of the contract not normally utilized by the contractor."
(2) In some instances certain specific
items should be excluded from the indemnification, and where such items or parts can be identified as nonstandard commercial
components or parts, the following provision may be added at the end of the patent indemnity article:
"except that this indemnity shall not apply to the following items or parts (specifically identifying and listing the items or parts to be excluded)."
NOTE B: The alterations of the indemnity clause should be made upon the advice of the Field Patent Group or, in the absence of such group, on the advice of the Office of the Assistant General Counsel for Patents. Article XX-Security. Insert contract clause set forth in § 9-7.5004-11.
NOTE: The security clause includes a provision under which the contractor agrees to conform to all security regulations and requirements of the AEC. This provision will support security actions which are not expressly mentioned in the security article but are required by the AEC, whether in the form of general rules or "one-time" requirements. Examples are actions to promote physical security and control of classified matter.
Article XXI-Disputes. Insert contract clause as set forth in § 9-7.5004-3.
(a) Davis-Bacon Act (Act of Mar. 3, 1931, as amended; 40 U.S.C. 276a and following) — Insert contract clause set forth in Standard Form 19A with the modification necessary § 9-12.103-51 applies.
NOTE: This clause includes provisions required by regulations of the Department of Labor. Part 3, Title 29, Subtitle A, Code of Federal Regulations (7 F.R. 687 as amended) and Part 5, Title 29, Subtitle A, Code of Federal Regulations (16 F.R. 4430) as amended.
(b) Contract Work Hours Standards ActOvertime Compensation. Insert contract clause set forth in Standard Form 19A with the modification necessary if § 9-12.103-51 applies.
(c) Apprentices-Insert set forth in Standard Form 19A. (d) Payrolls and payroll records. Insert contract clause set forth in Standard Form 19A.
(e) Compliance with Copeland Regulations. Insert contract clause set forth in Standard Form 19A.
(1) Withholding of funds. Insert contract clause set forth in standard Form 19A.
(g) Subcontracts. Insert contract clause set forth in Standard Form 19A.
(h) Equal opportunity. Insert contract clause set forth in FPR 1-7.101-18.
(1) Convict labor. Insert contract clause set forth in FPR 1-12.203.
(1) Contract termination-Debarment. Insert contract clause set forth in Standard Form 19A.
Article XXIII-Notice of labor disputes. Insert contract clause set forth in § 97.5006-49.
Article XXIV-Covenant against contingent fees. Insert contract clause as set forth in § 9-7.5004-2.
NOTE: In the event a contractor is unwilling to include a covenant against contingent fees in subcontracts and purchase orders, or if the contracting officer ceems such inclusion inadvisable, the matter shall be brought to the attention of the Director, Division of Contracts with a statement of the reasons.
Article XXV-Officials not to benefit. Insert contract clause as set forth in § 97.5004-5.
Article XXVI-Buy American Act. Insert contract clause as set forth in § 97.5004-17.
Article XXVII-Termination for default or for convenience of the Government. Insert contract clause set forth in FPR 1-8.702 with the modification required by FPR 18.700-2(a) (3).
Article XXVIII—Drawing, designs, specifications. Insert contract clause set forth in § 9-7.5006-13.
Article XXIX-Permits. Insert contract clause set forth in § 9-7.5006-48.
Article XXX-Renegotiation. Insert contract clause set forth in § 9-7.5004-20, if the contract is subject to the Renegotiation Act of 1951, as amended.
Article XXXI-Alterations and additions. Insert contract clause set forth in § 97.5006-2.
Article XXXII-Utilization of small business concerns. Insert contract clause set forth in FPR 1-1.710-3(a) under the conditions and in the manner prescribed in that section.
Article XXXIII-Small business subcontracting program. Insert the clause set forth in FPR 1-1.710-3 (b) under the conditions and in the manner prescribed in that section.
Article XXXIV—Utilization of minority business enterprises. Insert the clause set forth in FPR 1-1.1310-2(a) under the conditions and in the manner prescribed in that section.
Article XXXV-Minority business enterprises subcontracting program. Insert the clause set forth in FPR 1-1310-2(b) under the conditions and in the manner prescribed in that section.
Article XXXVI-Priorities, allocations, and allotments. Insert contract clause set forth in § 9-7.5006-52:
In witness whereof, the parties hereto have executed this contract as of the day and year above written:
UNITED STATES OF AMERICA By