(5) The commission of an act of bankruptcy; the Government, without limiting any rights which it may otherwise have, may in its discretion and upon written notice to the contractor and bank, withhold further withdrawals from the Special Bank Account and withhold further payments on this con tract. Upon the continuance of any such events of default for a period of 30 days after such written notice to the contractor and bank, the Government may, in its discretion, and without limiting any other rights which the Government may have, take the following additional actions as it may deem appropriate in the circumstances:

(1) Withdraw all or any part of the balance in the Special Bank Account by checks made payable to the Bureau of Indian Affairs, signed solely by an official of the Bureau of Indian Affairs authorized in writing by the contracting officer to take such action, and apply such amounts in reduction of the advance payment(s) then outstanding hereunder and in reduction of any other claims of the Government against the contractor;

(ii) Demand immediate repayment of the unliquidated balance of the advance payment(s) hereunder; or,

(111) Take possession of and, with or without advertisement, sell at public sale at which the Government may be the purchaser, or at a private sale, all or any part of the property on which the Government has a lien under this contract and, after deducting any expenses incident to such sale, apply the net proceeds of such sale in reduction of the unliquidated balance of the advance payment(s) hereunder and in reduction of any other claims of the Government against the contractor.

(1) Prohibition against assignment. Notthis withstanding any other provision of contract, the contractor shall not, while any is unpart of the advance payment(s) liquidated, pledge, or otherwise assign any monies due under this contract, or any claim arising thereunder. to any party or parties, bank, trust company, or other financing institution

the in

contractor.

con

PROPOSED RULES

payment(s) hereunder, and has taken all action to necessary authorize such BCceptance under the terms and conditions of this contract.

(4) None of the assets of the contractor is subject to any lien or encumbrance of any character except for current taxes not delinquent. There has been no assignment of claims under any contract affected by these advance payment provisions, or if there has been any assignment, such assignments have been terminated.

(3) All information furnished by the contractor to the contracting officer in connec tion with the request for an advance payment is true and correct.

(6) These representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of any subsequent request for additional advance paymentis) under this contract.

(q) Subadrances. Subject to the prior written approval of the contracting officer, funds from the Special Bank Account may be used by the contractor to make advance payment(s) or down payments to subcontrac tors and suppliers of material in advance of performance by the subcontractor or sup pliers of material. Such subadvances shall not exceed the subcontract price or estimated cost as the case may be. The subcontractors or suppliers of material to whom such advance payment(s) is made shall furnish adequate security therefor. Unless other security is required by the contracting officer, convenants in subcontracts, expressly made for the benefit of the Government providing for a Special Bank Account for the subadvance with Government llen thereon, and providing for a Government lien, paramount to all other liens, on all property under such subcontract, and imposing upon the subcontractor and the depository bank substantially the same duties and giving the Government substantially the same rights as are provided herein (and in the Agreement for Special Bank Account supplemental hereto) between the Government, the contractor, and the bank may be considered as adequate for such subadvance(s), unless adequate justification is first furnished to and approval obtained by the contracting officer.

(r) Covenants. During the period of time that an advance payment(s) made hereunder remains unliquidated, the contractor shall not, without prior written consent of the contracting officer:

en

(1) Mortgage. pledge, or otherwise cumber, or suffer to be encumbered, any of the assets of the contractor now owned or hereinafter acquired by it, or permit any pre-existing mortgages, liens, or other encumbrances to remain on or attach to any assets of the contractor which are allocated to the performance of this contract and with respect to which the Government has a lien hereunder;

(2) Sell, Ansign, transfer, or otherwise dispose of accounts receivable, notes, or claims for money due or to become due

(3) Declare or pay any dividends, execpt dividends payable in stock of the corpora tion, or make any other distribution on account of any shares of its capital stock, or purchase, redeem, or otherwise acquire for value any such stock, except as required by sinking fund or redemption arrangements reported to the contracting officer incident to the establishment of these advance pay ment(s) provisions;

(4) Sell, convey, or lease all or a substantial part of its assets;

(5) Acquire for value the stock or other securities of any corporation, municipality, or governmental authority, except direct obligations, of the United States.

(6) Make any advance or loan to or incur any liability as guarantor;

41031

(7) Permit a writ of attachment or any similar process to be issued against its properly without procuring release thereof or bonding the same within 30 days after the entry of the writ of attachment or any similar process;

(8) Pay any salaries, commisalons, bonuses, or other remuneration in any form or manner to its directors, ofcers, or key employees in excess of existing rates of payments, or in of rates provided by this contract, or existing agreements, in with connection which notice has been given to the contracting officer; or accrue such excess remuneration without first obtaining an creement subordinating the same to all clains of the Government hereunder.

(9) Make any substantial change in management, ownership, or control of the organization with which this contract is made.

(10) Merge or consolidate with any other firm or corporation, change the type of its business, or engage in any transaction outside the ordinary course of its business as presently conducted;

(11) Deposit any of its funds except in a bank or trust company insured by the Federal Deposit Insurance Corporation; or,

(12) Create or incur indebtedness, borrow money or advances other than advances to be made hereunder, except as specified

herein.

(c) The following clause will be used in all contracta in which the advance payment will be made by Letter of Credit:

ADVANCE PAYMENT

At the request of the contractor, and subject to the conditions set forth herein, and to Treasury Fiscal Requirements Manual, Department Circular 1075, the Government shall make advance payments to the contractor by Letter of Credit.

(a) The contractor agrees to comply with all the requirements and conditions set forth in Treasury Fiscal Requirements Manual, Department Circular 1075, a copy of which is attached and made a part of this contract. (b) The contractor agrees to initiate cash draw-downs only when actually needed for its disbursements.

(c) The contractor agrees to report to the contracting officer cash disbursements and balances monthly not later than 15 days after the end of the month covered by the report.

(d) Failure to adhere to the provisions of this clause may cause the unobligated portion of the Letter of Credit to be dissolved by the contracting officer or the Department of the Treasury.

The following clause shall be included in contracts which have a term of more than one year under the conditions set forth in 25 CFR 401.51.

CONTRACT FUNDING AND RENEGOTIATION (a) Punds other than those appropriated during the fiscal year in which the contract commenced, that are included in the contract amount are subject to the Availability of appropriations from Congress and there shall be no legal liability on the part of the Government in regard to such funds unless and until they are appropriated. Funds appropriated during the fiscal year in which the contract commenced that are included in the contract amount but not expended at the end of such fiscal year may be carried over and used for contract purposes in the succeeding fiscal year of the contract's operation, when the contract funds were appropriated pursuant to the Act of November 2, 1921 (42 Stat. 208), except as otherwise specifically provided in appropriatio acta, or may be used to provide addi

41032

tional services upon modification of the contract to include such services therein.

(b) Each succeeding year of the contract may be renegotiated prior to the end of the then current fiscal year in order to reflect changes that have taken place beyond the control of the contractor since the contract was originally negotiated or last renegotiated as is applicable.

§ 14H-70.614

property.

GOVERNMENT FURNISHED PROPERTY

(a) The Government will deliver to the the contractor the property described in Schedule and may, at its option, furnish other supplies or equipment as it may from time to time deem necessary or desirable for use in performing the work under this contract. All property furnished by the Government. together with all property acquired or furnished by the contractor with contract funds. title to which vests in the Government under this article, is subject to the provisions of this clause and is hereinafter collectively referred to as "Government property."

(b) The title of each item of equipment purchased with funds made available under this contract, the cost of which is reimbursable to the contractor under the contract, shall pass to and vest in the Government upon:

(1) Issuance for use of such property and in the performance of this contract; or,

(2) Commencement of processing or use of such property in the performance of this contract, or,

PROPOSED RULES

same in the condition in which received or contract, except for appropriated for the reasonable wear and tear, and except to the extent such property in consumed in the performance of this contract.

§ 14H-70.615 Annual reporting.

ANNUAL REPORTING

(a) Within 90 days of the end of each fiscal year of this contract's term, the Indian tribe that requested the contract shall fur. nish the contracting officer a report that includes but is not limited to an accounting of the amounts and purposes for which the contract funds were expended and information on the conduct of the program or serv ices and the extent to which the goals and objectives of the tribe were accomplished.

(b) When the contractor is the governing body of the Indian tribe that requested the contract, the report shall be submitted directly to the contracting officer

(e) When the contractor is a tribal organization other than the governing body of the tribe. the tribal governing body that requested the contract shall submit the report. However, at the option of the tribe, the contractor shall prepare the report and submit it to the tribe for review and approval prior to the tribe submitting the report to the contracting officer.

(d) When the contract benefits more than one tribe, the contractor shall prepare the report and submit it to each of the tribes. Each of the tribes will endorse and make any comments they consider applicable before submitting the report to the contracting

officer

(3) Reimbursement of the cost thereof by the Government, whichever first occurs. A simple record listing all items of equipment purchased with funds made available under this contract showing such property by (11 names, manufacturers, serial number any), and the cost of the equipment, will be furnished to the contracting officer by the § 14H-70.616 Reassumption contractor. Each item of Government property shall be given an identification number, be subject to accountability, and become a part of the Bureau's property inventory, all as provided by the Bureau Manual.

(e) Notwithstanding this requirement for an annual report, the contracting officer may request the contractor to furnish such other reports at such intervals as is deemed necessary.

(e) Title to Government property shall remain in the Government and shall be unaffected by the incorporation or attachment thereof to any property not owned by the Government, nor shall Government property or any part thereof be or become a fixture or lose its identity as personal property by reason of affixation to any reality. Except as otherwise specifically provided in this con

tract, the contractor:

(1) Shall not pledge, assign, or transfer title to any Government property; nor to allow or suffer anything to be done whereby any Government property may be seized, taken in execution, attached, destroyed or injured, and

(2) Shall not remove or otherwise part use by with possession of, or permit the others of, any Government property.

(d) The contractor shall maintain and administer, in accordance with sound industrial practice, a program for the maintenance, repair, protection and preservation of Government property.

(e) Except as may be otherwise provided for herein, Government property shall be used only for the performance of this contract unless written permission is granted by the contracting officer.

(f) Upon completion or termination of the contract, the contractor shall make such disposition of Government property then In his possession or custody as the contracting officer shall direct.

(g) The contractor shall be responsible for the care and safekeeping of Government property, and for the return or delivery of the

grams.

of

REASSUMPTION OF PROGRAMS

pro

(a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the contracting officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the contractor. The decision of the contracting officer shall be final and conclusive unless within thirty (30) days from the date of receipt of such copy, the contractor mails or otherwise furnishes to the contracting officer a written appeal addressed to the Secretary. The dectsion of the Secretary or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the contractor shall be afforded an opportunity to be heard and to offer evidence in support of his appeal. Pending final decision of a dispute hereunder, the contractor shall proceed diligently with the performance of the contract and in accordance with the contracting officer's decision.

(b) This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above. However, nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law. § 14H-70.619 Officials not to benefit.

OFFICIALS NOT TO BENEFIT

No members of Congress, or Resident Commissioner, shall be admitted to any share or part of this contract, or to any benefit that may arise therefrom: but this provision shall not be construed to extend to this contract if made with a corporation for its general benefit.

tract, the matter shall be resolved as prescribed in 25 CFR 401.63, 25 CFR 401.64 and 25 CFR 401.65.

(b) In addition, all cost-reimbursement contracts over $10,000 shall contain the following clause:

FUNDING CHANGES

If for any reason beyond the control of the contracting office, the amount of funds allocated for the program operated under this contract are reduced by an amount or by a a percentage resulting in specific amount, the contract will be modified accordingly after consultation with the contractor. Such modification shall be made without penalty to the Government and shall not constitute basis for a claim under this contract.

§ 14H-70.621

Bid guarantee and bonds. The following clause shall be included in all construction contracts with a tribal organization, in accordance with § 110.103, 1-10.104-1(a) and $1-10.1041(b) of this title, when it is estimated that the amount of the contract will exceed $2,000:

BID GUARANTEE AND BONDS

(a) The contractor shall require a bid guarantee from all (sub) contractors who submit bids (proposals) for performing work under the contract in accordance with the policy set forth in § 1-10.103-1 of the Federal Procurement Regulations (41 CFR 1). When the bid guarantee is in the form of a bid bond, it may be submitted on other than the standard Government form: Provided. that the bond binds the Principal and the Surety (les) in the same manner as they would be bound had the bid (proposal) been submitted to the Government.

(b) The contractor shall require the successful bidder (offerer) to furnish performance and payment bonds in the amounts set forth in the Miller Act (40 U.S.C. 270s-270e) and in accordance with the policies in $ 1-10.104 and 1-10.105 of the Federal Procurement regulations (41 CFR 1) as a condition precedent to the award of the (sub) contract. The bonds may be submitted on other than the standard Government form: Provided, that the form used binds the Principal and the Surety (les) in the same manfer that they would be bound were the (sub) contract with the Government.

§ 14H-70.622 Certificate of nonsegregated facilities.

CERTIFICATE OF NONSEGREGATED FACILITIES

By signing the contract, the contractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. He certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The contractor agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certification, the term "segregated facilities means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit di

NOTICE TO PROSPECTIVE SUBCONTRACTORS OP REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES

A certification of nonsegregated facilities must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause. The certification may be submitted either for each subcontract or for all subcontracts during a period (1.e., quarterly, semiannually, or annually).

§ 14H-70.623 Convict labor.

CONVICT LABOR

In connection with the performance of work under this contract, the contractor agrees not to employ any person undergoing sentence of imprisonment except as provided by Public Law 80-176, September 10, 1965 (18 USC. 4083 (c) (2)) and Executive Order 11755, December 29, 1973.

§ 1411-70.624

Limitation of costs.
LIMITATION OF COSTS

(a) It is estimated that the total costs to the Government for the performance of the work specified in this contract, will not exceed the estimated costs set forth in the Schedule. The contractor agrees to use its best efforts to perform this contract within the estimated total amount so specified, but neither the Government nor the contractor guarantees the accuracy of such estimate. If at any time the contractor has reason to believe that the costs which it expects to incur in the performance of this contract in the next succeeding thirty (30) days, when added to all costs previously incurred, will exceed eighty-five percent (85%) of the estimated costs then set forth in the Schedule, or if at any time the contractor has reason to believe that the total costs for the performance of this contract, will be greater or substantially less than the then estimated cost thereof. the contractor shall notify the contracting officer in writing to that effect, giving the revised estimate of such total cost for the performance of this contract.

(b) The Government shall not be obliged to reimburse the contractor for costs incurred in excess of the estimated costs set forth in the Schedule, and the contractor shall not be obliged to continue performance under the contract or to incur costs in excess of such estimate, unless and until the contracting officer has notified the contractor in writing that such estimated cost has been increased, and has specified in such notice a revised estimated cost, which shall thereupon constitute the estimated cost of performance of this contract. When, and to the extent that, the estimated cost has been increased, any costs previously incurred by the contractor in excess of such estimated cost shall be allowable to the same extent as if such costs are incident to and necessary for the performance of work specifically authorized under this contract at the time incurred.

ment.

ALLOWABLE COST AND PAYMENT

(a) For the performance of this contract, the Government shall pay to the contractor (1) the costs thereof (hereinafter referred to as "allowable cost") determined by the contracting officer to be allowable in accordance

with:

(1) Appendix A to 25 CFR 406 as in effect on the date of this contract.

(1) The terms of this contract. (b) Once each month (or at more frequent intervals as may be specified else where, or if approved by the contracting officer), the contractor may submit to the contracting officer or his authorized representative, in such form and reasonable detail as may be required, an invoice or public voucher supported by a statement of cost incurred by the contractor in the performance of this contract and claimed to constitute allowable cost.

(c) Promptly after receipt of each involee or voucher, the Government shall make payment of the allowable costa incurred subJect to the provisions of (d) below.

(d) At any time or times prior to final payment under this contract, the contracting officer may cause to be made such audit of the invoices or vouchers and statements of cost as shall be deemed necessary Each payment made before that time shall be subject to reduction to the extent that amounts included in the related invoice or vouchers and statement of cost are found by the contracting officer not to constitute allowable cost, and shall also be subject to reduction for overpayments or to increase for underpayments on preceding invoices or Vouchers.

(e) On receipt and approval of the voucher or invoice designated by the contractor 85 the "completion voucher" or "completion invoice" and statement of cost, which shall be submitted by the contractor as promptly as may be practicable following completion of the work under this contract but no later than six (6) months (or such longer period as the contracting officer may in his discretion, approve in writing) from the date of such completion, and following compliance by the contractor with all provisions of this contract, the Government shall as promptly as may be practicable pay to the contractor any balance of allowable

cost.

(f) Any cost incurred by the contractor under the terms of this contract which would constitute allowable cost under the provisions of this clause shall be included in determining the amount payable under this contract. notwithstanding any provisions contained in the specification or other documents incorporated in this contract by ref erence, designating services to be performed or materials to be furnished by the contractor at its expense or without cost to the Government.

§ 14H-70.626 Negotiated overhead rates. NEGOTIATED OVERHEAD RATES

(a) Notwithstanding the provisions of the clause of this contract entitled "Allowable Cost and Payment," the allowable Indirect costs under this contract shall be obtained by applying negotiated overhead rates to