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§ 1-6.806-1 Restricted solicitation.

(a) In the case of procurements other than those referred to in §§ 1-6.804(a) and 1-6.805, where the domestic cost is estimated to exceed $10,000, cost estimates of United States and foreign end products and services shall be made prior to solicitation (where one agency procures for another agency the requiring agency shall make the cost estimate). If the domestic cost is estimated to exceed the foreign cost by not more than 50 percent of the foreign cost, the solicitation shall be restricted to U.S. end products and services.

(b) If after bid opening, or receipt of proposals or quotations, the contracting officer has knowledge that domestic cost exceeds foreign cost by more than 50 percent of the foreign cost, he shall proceed as follows:

(1) Where the domestic cost is in excess of $10,000, forward the matter to the head of the agency or his designee for determination; or

(2) Where the domestic cost is not in excess of $10,000, award the contract for U.S. end products or services unless the domestic and foreign cost differential is so large as to make the procurement of foreign end products or services clearly desirable. Should the latter be the case, the solicitation shall be canceled and a nonrestricted solicitation issued.

(c) If the agency determines that the foreign end product or service shall be purchased, contracts for such procurements shall provide that the payment in dollars will be limited to the contractor's validated direct dollar costs of the U.S. export content of the procurement where excess or near-excess foreign currency is available and such a limitation on payments in dollars is considered to be practicable.

§ 1-6.806-2 Method of purchase.

Contracts in furtherance of this Subpart 1-6.8 are considered to be negotiated procurements and may be entered into by conventional negotiation or by special method of negotiated procurement knows as "Balance of Payments Restricted Advertising." Within the United States, the latter method shall be used wherever possible. Balance of Payments Restricted Advertising, including awards thereunder, shall be conducted in the same manner as prescribed for formal advertising in Part 1-2 of this chapter, except that bids and awards shall be restricted to U.S. end products and services. Contracts entered into pursuant to conventional negotiation shall cite exceptions (2) through (15) of 41 U.S.C. 252(c), as appropriate. Where such negotiation authority is not applicable or where contracts are entered into pursuant to the Balance of Payments Restricted Advertising method of procurement, 41 U.S.C. 252 (c) (1) shall be cited as negotiation authority. tations for bids and requests for proposals shall clearly designate items being procured pursuant to the Balance of Payments Program.

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Invitations for bids and requests for proposals shall require that each bid or proposal include a certificate substantially as follows:

U.S. PRODUCTS CERTIFICATE (BALANCE OF

PAYMENTS PROGRAM)

To the extent that the Government specifiles that the items being purchased are in Implementation of the Balance of Payments Program, the bidder or offeror hereby certifies that each such item is a U.S. end product or comprises U.S. services (as defined in the contract clause entitled "U.S. Products and Services (Balance of Payments Program)"), and that components of unknown origin have been considered to have been mined. produced, or manufactured outside the United States.

§ 1-6.806-4 Contract clause.

The clause set forth below shall be inserted in contracts resulting from Balance of Payments Program procurements.

U.S. PRODUCTS AND SERVICES (BALANCE OF PAYMENTS PROGRAM)

(a) To the extent that the Government specifies that the items being purchased are in implementation of the Balance of Payments Program, the Contractor agrees that

there will be delivered or performed under this contract only U.S. end products or U.S. services.

(b) For the purpose of this clause:

(1) "Components" means those articles, materials, and supplies which are directly incorporated in the end products;

(2) "End products" means those articles, materials, and supplies which are acquired under this contract for public use;

product

(3) "U.S. end product" means: (1) An unmanufactured end which has been mined or produced in the United States; or

(11) 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 purpose of this subparagraph, components of foreign origin of the same type and kind which the Government determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities and of satisfactory quality shall be treated as components mined, produced, or manufactured in the United States.

(4) "U.S. services" means those that are performed within the United States. In some instances, services provided under a single contract are performed partially in the United States and partially abroad. Such services shall be considered U.S. services if 25 percent or less of the total cost of the services is attributable to services (including incidental supplies used in connection therewith) performed outside the United States.

Subpart 1-6.9-[Reserved]

Subpart 1-6.10-Omission of the Examination of Records Clause From Contracts With Foreign Contractors

SOURCE: The provisions of this Subpart 1-6.10 appear at 34 F.R. 6844, Apr. 24, 1969, unless otherwise noted.

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omitted from negotiated contracts and subcontracts with foreign contractors and foreign subcontractors.

(1) Where the head of the agency determines, with the concurrence of the Comptroller General or his designee, that omission of the clause will serve the best interests of the United States; or

(2) Where (1) the contractor or subcontractor is a foreign government or agency thereof, or is precluded by the laws of the country involved from making its books, documents, papers, or records available for examination; and (ii) the head of the agency determines, after taking into account the price and availability of the property or services from U.S. sources, that the public interest would be best served by the omission of the clause.

(b) A determination by the head of the agency under paragraph (a) (2) of this 1-6.1001 does not require the concurrence of the Comptroller General or his designee. However, where a determination by the head of the agency under paragraph (a) (2) of this § 1-6.1001 is the basis for omission of the Examination of Records clause, the statute requires that a written report be furnished to the Congress. This report, which shall explain the reasons for the determination, shall be prepared and forwarded to the Congress in accordance with agency procedures.

[34 FR 6844, Apr. 24, 1969, as amended at 38 FR 6670, Mar. 12, 1973] § 1-6.1002

Policy.

The Examination of Records clause shall be included where possible. Omission of the clause should be allowed only after the contracting agency has made all reasonable efforts to include the clause and has considered such factors as alternate sources of supply, additional cost, and time of delivery. "Foreign contractor" for the purposes of this Subpart 1-6.10 is defined as "one that is organized or existing under the laws of a country other than the United States" (see § 1-6.101 (c)).

§ 1-6.1003 Requests for determinations and findings.

A request for a determination and findings to omit the Examination of Records clause (see § 1-3.302) ordinarily will be initiated by the contracting officer. The request shall consist of a letter submitted through normal procurement channels, addressed to the head of

the agency, setting forth all the facts necessary to arrive at an appropriate determination and findings. The power of the agency head to make such a determination is not delegable (see § 1-3.303). § 1-6.1004 Determinations and findings. The determinations and findings by the head of an agency authorizing the omission of the Examination of Records clause from a contract with a foreign contractor or foreign subcontractor

shall:

(a) Identify the contract or subcontract and its purpose, and state that it is a contract or subcontract with a foreign contractor or foreign subcontractor, or that the contractor or subcontractor is a foreign government or agency thereof;

(b) Describe the efforts that have been made to include the clause in the contract or subcontract;

(c) State the reasons for the contractor's or subcontractor's refusal to include the clause;

(d) Describe the price and availability of the property or services from United States and other sources; and

(e) Determine, as appropriate, (1) that the omission of the clause will serve the best interests of the United States, or (ii) that the public interest would be best served by the omission of the clause, pursuant to the provisions of section 304 (c) of the Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. 254(c)), (see § 1-6.1001).

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1-7,102-10 Federal, State, and local taxes.

1-7.102-11 Default.

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20-126 0-74. -16

contract forms.

Differing site conditions.
Suspension of work.

Additional standardized clauses. Late bids and modifications or withdrawals.

Termination for convenience of the Government, in contracte estimated to exceed $10,000. Termination for convenience of the Government, in contracts estimated not to exceed $10,000.

Price reduction for defective cost or pricing data.

Audit and records.

Subcontractor cost and pricing data.

Examination of records by Comp

troller General.

Advance payments.

Workmen's compensation insur

ance (Defense Base Act). Federal, State, and local taxes.

1-7.602-11 Listing of employment openings. 1-7.602-12 Pricing of adjustments.

Payment of interest on contractor's claims.

Subpart 1-7.7-Transportation Contracts

1-7.702

1-7.703

1-7.703-1

Scope of subpart.

Solicitation of offers for trans

portation services.

Preparation of solicitations.

Representations,

and acknowledgments in trans

portation contracts.

Solicitation instructions and conditions for transportation contracts.

Required clauses in transportation contracts. Definitions.

certifications,

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Appendix-Background and nature of revisions to contract clauses.

AUTHORITY: The provisions of this Part 1-7 issued under sec. 205 (c), 63 Stat. 390; 40 U.S.C. 486 (c).

SOURCE: The provisions of this Part 1-7 appear at 29 FR 10192, July 24, 1964, unless otherwise noted.

§ 1-7.000 Scope of part.

This part sets forth contract clauses for use in connection with the procurement of personal property and nonpersonal services (including construction). Subpart 1-7.1-Fixed-Price Supply Contracts

SOURCE: 38 FR 6670, Mar. 12, 1978, unless otherwise noted.

§ 1-7.100 Scope of subpart.

This subpart sets forth contract clauses for use in fixed-price supply contracts. § 1-7.101 Applicability.

The clauses set forth in this subpart shall be used in fixed-price supply contracts entered into either by formal advertising or by negotiation (other than for small purchases as defined in Subpart 1-3.6).

§ 1-7.102 Required clauses.

The clauses set forth in this § 1-7.102 shall be inserted in all fixed-price supply contracts.

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As used throughout this contract, the following terms shall have the meaning set forth below:

(a) The term "head of the agency" or "Secretary" as used herein means the Secretary, the Under Secretary, any Assistant Secretary, or any other head or assistant head of the executive or military department or other Federal agency; and the term "his duly authorized representative" means any person or persons or board (other than the Contracting Officer) authorized to act for the head of the agency or the Secretary.

(b) The term "Contracting Officer" means the person executing this contract on behalf of the Government, and any other officer or civilian employee who is a properly designated Contracting Officer; and the term includes, except as otherwise provided in this contract, the authorized representative of a Contracting Officer acting within the limits of his authority.

(c) Except as otherwise provided in this contract, the term "subcontracts" includes purchase orders under this contract.

Additional definitions may be included provided they are not inconsistent with the clause or the provisions of these regulations. § 1-7.102-2

Changes. CHANGES

The Contracting Officer may at any time, by a written order, and without notice to the sureties, make changes, within the general scope of this contract, in any one or more of the following: (1) Drawings, designs, or specifications, where the supplies to be furnished are to be specially manufactured for the Government in accordance therewith; (ii) method of shipment or packing; and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this contract, whether changed or not changed by any such order, an equitable adjustment shall be made in the contract price or delivery schedule, or both, and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within 30 days from the date of receipt by the Contractor of the notification of change: Provided, however, That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Where the cost of property made obsolete or excess as a result of a change is included in the Contractor's claim for adjustment, the Contracting Officer shall have the right to prescribe the manner of disposition of such property. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this

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