Subpart 6-Clauses for Construction and A-E Contracts 7.600 through 7.606 [Reserved] 7.607 Required Clauses for Fixed-Price Architect-Engineer Contracts. The following clauses shall be inserted in all fixed-price architectengineer contracts. 7.607-1 Definitions. DEFINITIONS (NOVEMBER 1974) (a) The term "head of the agency" or "Secretary" as used herein means the Secretary, or any other 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" as used herein means the person executing this contract on behalf of the Government and includes a duly appointed successor or authorized representative. Additional definitions may be included provided they are not inconsistent with the foregoing clause or the provisions of this Regulation. 7.607-2 Responsibility of the Architect-Engineer. RESPONSIBILITY OF THE ARCHITECT-ENGINEER (NOVEMBER 1974) (a) The Architect-Engineer shall be responsible for the professional quality, technical accuracy and the coordination of all designs, drawings, specifications, and other services furnished by the Architect-Engineer under this contract. The Architect-Engineer shall, without additional compensation, correct or revise any errors or deficiencies in his designs, drawings, specifications, and other services. (b) Neither the Government's review, approval or acceptance of, nor payment for, any of the services required under this contract shall be construed to operate as a waiver of any rights under this contract or of any cause of action arising out of the performance of this contract, and the Architect-Engineer shall be and remain liable to the Government in accordance with applicable law for all damages to the Government caused by the ArchitectEngineer's negligent performance of any of the services furnished under this contract. (c) The rights and remedies of the Government provided for under this contract are in addition to any other rights and remedies provided by law. 7.607-3 Changes. CHANGES (NOVEMBER 1974) (a) The Contracting Officer may, at any time, by written order make changes within the general scope of the contract in the services to be performed. If such changes cause an increase or decrease in the Architect-Engineer's cost of, or time required for, performance of any services under this contract, whether or not changed by any order, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. Any claim of the Architect-Engineer for adjustment under this clause must be asserted in writing within 30 days from the date of receipt by the Architect-Engineer of the notification of change unless the Contracting Officer grants a further period of time before the date of final payment under the contract. (b) No services for which an additional cost or fee will be charged by the Architect-Engineer shall be furnished without the prior written authorization of the Contracting Officer. 7.607-4 Termination. NASA PROCUREMENT REGULATION 7.607-4 CONTRACT CLAUSES TERMINATION (NOVEMBER 1974) (a) The Contracting Officer may, by written notice to the Architect-Engineer, terminate this contract in whole or in part at any time, either for the Government's convenience or because of the failure to the Architect-Engineer to fulfill his contract obligations. Upon receipt of such notice, the Architect-Engineer shall: (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by the Architect-Engineer in performing this contract, whether completed or in process. (b) If the termination is for the convenience of the Government, an equitable adjustment in the contract price shall be made, but no amount shall be allowed for anticipated profit on unperformed services. (c) If the termination is due to the failure of the Architect-Engineer to fulfill his contract obligations, the Government may take over the work and prosecute the same to completion by contract or otherwise. In such case, the Architect-Engineer shall be liable to the Government for any additional cost occasioned to the Government thereby. (d) If, after notice of termination for failure to fulfill contract obligations, it is determined that the Architect-Engineer had not so failed, the termination shall be deemed to have been effected for the convenience of the Government. In such event, adjustment in the contract price shall be made as provided in paragraph (b) of this clause. (e) The rights and remedies of the Government provided in this clause are in addition to any other rights and remedies provided by law or under this contract. 7.607-5 Disputes. (a) Except as provided in (b) below, insert the following clause: DISPUTES (NOVEMBER 1974) (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 Architect-Engineer. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Architect-Engineer mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the head of the agency involved. The decision of the head of the agency or his duly authorized representative for the determination of such appeals shall be final and conclusive. This provision shall not be pleaded in any suit involving a question of fact arising under this contract as limiting judicial review of any such decision to cases where fraud by such official or his representative or board is alleged; Provided, however, that any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Architect-Engineer 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 Architect-Engineer 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, provided, that nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law. (b) In procurements to be performed outside the United States, its possessions and Puerto Rico, where it is anticipated that the architect-engineer will be a foreign firm, the clause provided for in 7.103-12 will be used after, (i) modifying it to insert "United States" before "court of 7.607-5 CFR TITLE 41 CHAPTER 18 CLAUSES FOR CONSTRUCTION AND A-E CONTRACTS competent jurisdiction", and (ii) substituting "Architect-Engineer" for "Contractor." (c) The form in which the contracting officer shall notify the architectengineer of his decision under the Disputes Clause is set forth in 1.314. 7.607-6 Assignment of Claims. ASSIGNMENT OF CLAIMS (NOVEMBER 1974) (a) Pursuant to the provisions of the Assignment of Claims Act of 1940, as amended (31 U.S.C. 203, 41 U.S.C. 15), if this contract provides for payments aggregating $1,000 or more, claims for moneys due or to become due the Architect-Engineer from the Government under this contract may be assigned to a bank, trust company, or other financing institution, including any Federal lending agency, and may thereafter be further assigned and reassigned to any such institution. Any such assignment or reassignment shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party except that any such assignment or reassignment may be made to one party as agent or trustee for two or more parties participating in such financing. Unless otherwise provided in this contract, payments to assignee of any moneys due or to become due under this contract shall not, to the extent provided in said Act, as amended, be subject to reduction or setoff. (The preceding sentence applies only if this contract is made in time of war or national emergency as defined in said Act; and is with the Department of Defense, the General Services Administration, the Atomic Energy Commission, the National Aeronautics and Space Administration, the Federal Aviation Administration, or any other department or agency of the United States designated by the President pursuant to Clause 4 of the proviso of section 1 of the Assignment of Claims Act of 1940, as amended by the Act of May 15, 1951, 65 Stat. 41.). (b) In no event shall copies of this contract or of any plans, specifications, or other similar documents relating to work under this contract, if marked "Top Secret," "Secret," or "Confidential," be furnished to any assignee of any claim arising under this contract or to any other person not entitled to receive the same. However, a copy of any part or all of this contract so marked may be furnished, or any information contained therein may be disclosed, to such assignee upon the prior written authorization of the Contracting Officer. 7.607-7 Architectural Designs and Data-Government Rights. GOVERNMENT RIGHTS (UNLIMITED) (NOVEMBER 1974) The Government shall have unlimited rights, for the benefit of the Government, in all drawings, designs, specifications, notes and other work developed in the performance of this contract, including the right to use same on any other Government work without additional cost to the Government; and with respect thereto the Architect-Engineer agrees to and does hereby grant to the Government a royalty-free license to all such data which he may cover by copyright and to all designs as to which he may assert any rights or establish any claim under the design patent or copyright laws. The Architect-Engineer for a period of three (3) years after completion of the project agrees to furnish and to provide access to the originals or copies of all such materials on the request of the Contracting Officer. (b) Where the purpose of a contract for architect-engineer services is to obtain a unique architectural design or a building, a monument, or construction of similar nature, which for artistic, esthetic or other special reasons the Government does not want duplicated by anyone else, the Government may desire to acquire exclusive control of the data pertaining to such design. In those cases only where the contracting officer determines for the foregoing reasons that it is desirable to maintain exclusive control over the design and data, the "Government Rights NASA PROCUREMENT REGULATION 7.607-7 CONTRACT CLAUSES (Unlimited)" clause in (a) above shall be deleted from Standard Form 253 and the following clause substituted therefor: DRAWINGS AND OTHER DATA TO BECOME PROPERTY OF GOVERNMENT (NOVEMBER 1974) All designs, drawings, specifications, notes, and other work developed in the performance of this contract shall be and remain the sole property of the Government and may be used on any other work without additional compensation to the Architect-Engineer. With respect thereto, the Architect-Engineer agrees not to assert any rights and not to establish any claim under the design patent or copyright laws. The Architect-Engineer for a period of 3 years after completion of the project agrees to furnish and provide access to all retained materials on the request of the Contracting Officer. Unless otherwise provided in this contract, the Architect-Engineer shall have the right to retain copies of all such materials beyond such period. 7.607-8 Examination of Records by Comptroller General. Insert the clause in 7.104-15 substituting "Architect-Engineer" for "Contractor." Where Standard Form 253 is used, it will be necessary to delete Clause 8 and insert the clause in 7.104-15 under "Alterations" clause of the contract. 7.607-9 Covenant Against Contingent Fees. COVENANT AGAINST CONTINGENT FEES (NOVEMBER 1974) The Architect-Engineer 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 Architect-Engineer 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. 7.607-10 Officials Not to Benefit. OFFICIALS NOT TO BENEFIT (NOVEMBER 1974) No member of or delegate to 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. 7.607-11 Contract Work Hours and Safety Standards Act-Overtime Compensation. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME COMPENSATION (NOVEMBER 1974) This contract, to the extent that it is of a character specified in the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), is subject to the following provisions and to all other applicable provisions and exceptions of such Act and the regulations of the Secretary of Labor thereunder. (a) Overtime requirements. No Architect-Engineer or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers dr mechanics shall require or permit any laborer or mechanic in any workweek in which he is 7.607-8 CFR TITLE 41 CHAPTER 18 |