ground that each is reasonably comparable with the same standard commercial service. (c) Qualitative requirements.-Section 106 (e) (4) (E)(i) of the act provides that a like service must be of the same or similar kind, must be performed with the same or similar materials, and must have the same or a similar result as a standard commercial service from the performance of which the contractor has receipts or accruals in the fiscal year under review. In determining whether two services meet these requirements, the Board will consider both their generic and their specific characteristics. These requirements may be satisfied without the two services necessarily involving identical operations. shall be filed by every contractor who claims (d) Price limitation.-Section 106 (e) (4) (E) (ii) of the act provides that, to qualify as a like service, the price of such service shall be not in excess of the lowest price at which such service is performed under similar circumstances by the contractor for civilian industrial or commercial purposes. This limitation refers to commercial sales of the service by the contractor reasonably related in time to the sale for which exemption is claimed. (c) Contents.The Application for Commercial Exemption shall contain the information and data prescribed in the following instructions: (1) Description of articles or services.-Set forth a description of the articles or services claimed to be exempt, including representative catalogs or brochures, if available. State clearly whether exemption is being claimed for (i) articles in a standard commercial class or classes of articles; (ii) standard commercial services; or (iii) like services-i.e., services which are reasonably comparable with a standard commercial service or services. If it is desired in a single application to claim exemption for any standard commercial services or like services, as well as for articles in one or more standard commercial classes of articles, a statement in substantially the following form must be included: "The contractor hereby consents and agrees that the 6-month period prescribed in section 106 (e) (3) (B) (ii) of the act shall apply with respect to all the articles (or: all the articles and services) for which exemption is claimed in this application." (e) The 55 percent test.-Section 106(e) (4) 1467.55 Application for commercial ex- (b) Use.-Except as provided in § 1467.43, 12-10-68 (2) Standard commercial classes of articles. With respect to articles in a standard commercial class of articles, identify at least one article in the class which either is customarily maintained in stock by the contractor or is offered for sale in accordance with a price schedule regularly maintained by the contractor, except. that if all the articles in the class are listed in a price schedule furnished with the application, a statement to that effect will suffice; set forth information sufficient to establish that all the articles in the class are of the same kind, are manufactured of the same or substitute materials, and are sold at reasonably comparable prices; include or attach a Certificate of Pricing in substantially the form set forth in § 1467.50 (b); and set forth a schedule of sales 361 If the new durable productive equipment ex- (3) Standard commercial services. With respect to each standard commercial service, state the total amount of sales of such service in the fiscal year under review, and the amount and percent of the nonrenegotiable sales thereof in such fiscal year. Include or attach a Certificate of Pricing in substantially the form set forth in § 1467.50 (b), but modified to replace references to sales of articles for civilian industrial or commercial use with references to sales of services for civilian industrial or commercial purposes (see § 1467.53 (c)). (4) Like services.-With respect to any like service, describe the standard commercial service with which such like service is claimed to be reasonably comparable; set forth information sufficient to establish that such services are of the same or a similar kind, are performed with the same or similar materials, and have the same or a similar result; include or attach a Certificate of Pricing in substantially the form set forth in § 1467.50(b), but modified to replace references to sales of articles for civilian industrial or commercial use with references to sales of services for civilian industrial or commercial purposes (see § 1467.53 (c)); and set forth a schedule of sales showing the following with respect to the fiscal year under review: (d) Time for filing. Except as provided in § 1467.43, every contractor who claims that the exemption provided in paragraph (1)(B) or paragraph (2) of section 106(e) of the act is applicable to any of his receipts or accruals in a fiscal year, under prime contracts with the Departments or subcontracts, shall file an Application for Commercial Exemption as soon as practicable after the close of such fiscal year, but in no event later than the date upon which the contractor is required to file the Standard Form of Contractor's Report with respect to such fiscal year. If the Application for Commercial Exemption is filed on or before the date upon which the contractor is required to file the Standard Form of Contractor's Report with respect to such fiscal year, the contractor shall not be required to file the Standard Form of Contractor's Report until the date prescribed in § 1470.3 (d) of this subchapter for the filing thereof or until the 30th day after the Board sends to the contractor written notice of the action of the Board on the claim for exemption, whichever occurs later. If, as a result of such action of the Board, the renegotiable receipts or accruals of the contractor and all related contractors in such fiscal year aggregate less than the minimum amount for renegotiation prescribed in section 105 (f) (1) of the act, the contractor shall not be required to file the Standard Form of Contractor's Report but shall be entitled, if he elects so to do, to file the Statement of Nonapplicability with respect to such fiscal year. 1467.56 Duty to furnish additional information. The filing of an Application for Commercial Exemption in accordance with the provision of this section will not relieve any prime contractor or subcontractor of the duty to furnish any other information, records or data which are determined by the Board to be necessary to carry out its responsibilities under section 106 (e) of the act. 1467.57 Effect of filing application for commercial exemption.-(a) In general.When an Application for Commercial Exemp tion is filed, it will be considered that the contractor has filed the information and data prescribed in paragraph (3) of section 106 (e) of the act, and the applicable 3-month or 6-month period prescribed in said paragraph will thereupon begin to run, except as provided in the succeeding paragraphs of this section. time after the request therefor, the Board may (d) When material misstatement occurs.- (b) When application is defective.-If, within sixty (60) days after the filing of an Application for Commercial Exemption, the Board sends to the contractor a written notice that such application is in the opinion of the Board incomplete or otherwise defective in any material respect, and that exception has been taken thereto in such respect, the filing of such application will not be considered to be the filing of the information and data prescribed in paragraph (3) of section 106 (e) of the act, sufficient to start the running of the applicable 3-month or 6-month period prescribed in said paragraph and such period will not begin to run until such defect has been corrected by the filing of the information or data specified in the notice of the Board. If the contractor fails to correct the defect within a reasonable time after such notice, the Board may deny the application of the contractor for exemption. 1467.58 Grant of exemption.-If, within the applicable 3-month or 6-month period prescribed in section 106 (e) (3) of the act, computed in accordance with the provisions of § 1467.57, or within any longer period stipulated by mutual agreement, the Board determines that any article or service for which exemption has been claimed by the contractor in the Application for Commercial Exemption is an article or service to which the exemption applies, the Board will give written notice of such determination to the contractor and will advise the contractor that its sales of such article or service in the fiscal year under review are exempt under section 106 (e) of the act. Except as provided in § 1467.57 (d), such exemption shall be fixed and final. (c) When additional information is re- 1467.59 Accrual of exemption by failure of Board to act.-If, within the applicable 3-month or 6-month period prescribed in section 106(e) (3) of the act, computed in accordance with the provisions of § 1467.57, or within any longer period stipulated by mutual agreement, the Board fails to determine that any article or service for which exemption has been claimed by the contractor in the Application for Commercial Exemption is not an article or service to which the exemption applies, the sales of such article or service in the fiscal year under review shall be exempt under section 106 (e) of the act and, except as provided in § 1467.57 (d), such exemption shall be fixed and final, 1467.60 Denial of exemption.-If, within the applicable 3-month or 6-month period prescribed in section 106 (e) (3) of the act, computed in accordance with the provisions of § 1467.57, or within any longer period stipu 363 lated by mutual agreement, the Board determines that any article or service for which exemption has been claimed by the contractor in the Application for Commercial Exemption is not an article or service to which the exemption applies, the Board will give written notice of such determination to the contractor and will advise the contractor that its sales of such article or service in the fiscal year under review are not exempt under section 106 (e) of the act. 1467.61 Exemption not applicable to related subcontracts.-The exemption provided in section 106 (e) of the act is limited to prime contracts and subcontracts meeting the conditions prescribed in said subsection (e). The exemption is not derivative; it does not apply au tomatically to any other subcontract merely because of its relation to a prime contract or higher-tier subcontract that is within the exemption. With respect to any such other subcontract, the exemption, if claimed, must be independently established. Section 106 (a) (7) of the act, which exempts subcontracts under certain exempt prime contracts or subcontracts, does not apply to subcontracts under prime contracts or subcontracts exempted under section 106(e) of the act (see § 1453.6 of this subchapter). Receipts or accruals of a broker or manufacturer's agent are not exempt under section 106 (e) even though such amounts are referable to a prime contract or subcontract which is exempt thereunder (see § 1490.6 (f) of this subchapter) Information Required of Contractors Filing of financial statement. FORMS AND INSTRUCTIONS 1470.90 Standard Form of Contractor's Report. 1470.92 Forms and instructions for filing renegotia- AUTHORITY: Sections 1470.1 to 1470.92 issued under section 109, Pub. Law 9, 82d Cong. Interpret or apply section 105, Pub. Law 9, 82d Cong. 1470.1 Scope of part.-This part deals with the filing of financial statements required of contractors or elected to be filed by contractors, and other information. 1470.2 Statutory provision.-Section 105 (e) (1) of the act provides as follows: ment setting forth such information as the Board may Furnishing of financial statements, etc.-Every person who holds contracts or subcontracts, to which the provisions of this title are applicable, shall, in such form and detail as the Board may by regulations prescribe, file with the Board, on or before the first day of the fifth calendar month following the close of his fiscal year, a financial statement setting forth such information as the Board may by regulations prescribe as necessary to carry out this title. [In addition to the statement required under the preceding sentence, every such person shall at such time or times and in such form and detail as the Board may by regulations prescribe, furnish the Board any information, records, or data which are determined by the Board to be necessary to carry out this title. Any person who willfully fails or refuses to furnish any statement, information, records, or data required of him under this subsection, or who knowingly furnishes any such statement, information, records, or data containing information which is false or misleading in any material respect, shall, upon conviction thereof, be punished by a fine of not more than $10,000 or imprisonment for not more than one year, or both.] The preceding sentence shall not apply to any such person with respect to a fiscal year if the aggregate of the amounts received or accrued under such contracts and subcontracts during such fiscal year by him, and all persons under control of or controlling or under common control with him, is not more than the applicable amount prescribed in subsection (f) (1) or (2) of this section; but any person to whom this sentence applies may, if he so elects, file with the Board for such fiscal year a financial state 12-10-68 1470.3 Filing of financial statement.—(a) When renegotiable sales exceed statutory "floor."-In accordance with the requirements of the first sentence of section 105(e) (1) of the act, the "Standard Form of Contractor's Report" (as set forth in § 1470.90) is hereby prescribed as the form of financial statement required to be filed by every person who holds renegotiable prime contracts or subcontracts when the aggregate renegotiable receipts or accruals of such person and all other persons under control of or controlling or under common control with such person exceed the applicable minimum amount for for renegotiation prescribed in section 105 (f) (1) or (2) of the act. This includes brokers and manufacturers' agents and others whose principal business falls within the definition of subcontracts set forth in section 103(g) (3) of the act. (Next two sentences removed to Appendix.) For fiscal years ending after June 30, 1956, the Standard Form of Contractor's Report is composed of 401 |