CONTRACT CLAUSES

7.608-19 Audit by National Aeronautics and Space Administration. In accordance with 7.104-42(a), insert the clause set forth therein, substituting "Architect-Engineer" for "Contractor."

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CFR TITLE 41 CHAPTER 18

Subpart 7-Clauses for Facilities Contracts

7.701 Applicability. As used throughout this Subpart, the term "facilities contract" means a contract under which Government facilities are provided to a contractor by the Government for use in connection with the performance of a separate contract or contracts for supplies or services. When property other than facilities is provided under a facilities contract, it shall be considered facilities for the purposes of that contract unless otherwise provided in the schedule of the contract. Facilities contracts may take any of the following forms:

(i) consolidated facilities contracts, which provide for both

(A) the acquisition, construction, and installation of facilities; and (B) the use, maintenance, accountability, and disposition of facilities; (ii) facilities acquisition contracts, which provide for the acquisition, construction, and installation of facilities; or

(iii) facilities use contracts, which provide for the use, maintenance, accountability, and disposition of facilities.

7.702 Required Clauses for Consolidated Facilities Contracts. The following clauses shall be inserted in all consolidated facilities contracts. 7.702-1 Definitions.

DEFINITIONS (OCTOBER 1967)

As used throughout this Contract the following terms shall have the meanings set forth below:

(a) The term "Administrator" means the Administrator or Deputy Administrator of the National Aeronautics and Space Administration; and the term "his duly authorized representative" means any person or persons or board (other than the Contracting Officer) authorized to act for the Administrator.

(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.

(d) The term "NASA" means the National Aeronautics and Space Administration.

(e) "Related Procurement Contract" means a Government contract or subcontract thereunder for furnishing supplies or services of any description, for the performance of which the use of the Facilities is or may be authorized.

(f) "Facilities" means, for purposes of this contract, all property provided under this con

tract.

7.702-2 Facilities to be Provided.

FACILITIES TO BE PROVIDED (OCTOBER 1967)

(a) The Contractor, at Government expense and subject to the terms and conditions of this contract, shall acquire, construct, or install the Facilities, and perform the work related thereto, described in the Schedule.

(b) The Government, subject to the terms and conditions of this contract, shall furnish to the Contractor the Facilities identified in the Schedule as Government-furnished Facilities. The Contractor, at Government expense, shall perform such work with respect to these Government-furnished Facilities as may be described in the Schedule.

7.702-3 Late Delivery, Diversion, and Substitution.

NASA PROCUREMENT REGULATION

7.702-3

CONTRACT CLAUSES

LATE DELIVERY, DIVERSION, AND SUBSTITUTION (MARCH 1963)

(a) The Government shall not be liable to the Contractor for breach of contract by reason of nondelivery or of any delay in the delivery of the Facilities to be furnished by the Government hereunder.

(b) The Government may, if it is determined by the Contracting Officer to be in the best interest of the Government, divert the Facilities by directing:

(i) delivery of any or all the Facilities acquired by or furnished to the Contractor hereunder to locations other than those specified in the Schedule; and

(ii) assignment, to the Government or to third parties, of purchase orders or subcontracts of the Contractor for any or all the Facilities hereunder.

The work performed by the Contractor in complying with such direction shall be at Government expense.

(c) The Government may furnish any item of the Facilities, in lieu of the acquisition or construction thereof by the Contractor. In such event, the work performed by the Contractor in connection with the acquisition or construction of such Facilities, including the cost of terminating purchase orders or subcontracts therefor, shall be at Government expense.

(d) Appropriate equitable adjustment may be made in any related procurement contract of the Contractor which so provides and which is affected by any nondelivery, delay, diversion, or substitution under this clause.

7.702-4 Changes.

CHANGES (MARCH 1963)

(a) The Contracting Officer may at any time, by written order and without notice to the sureties, if any, make changes, within the general scope of this contract, in the Facilities or work described in the Schedule. Work performed by the Contractor in complying with any such order shall be at Government expense. If any such change causes an increase or decrease in the estimated cost of this contract, in the time required for its performance, or otherwise affects any other provision of this contract, an equitable adjustment shall be made in the estimated cost, the completion 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 thirty (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. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the "Disputes" clause of this contract. However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.

(b) Appropriate equitable adjustment may be made in any related procurement contract of the Contractor which so provides and which is affected by any such change.

In the foregoing clause, the period of "thirty (30) days" within which any claim for adjustment must be asserted may be varied not to exceed "sixty (60) days."

7.702-5 Representations and Warranties.

REPRESENTATIONS AND WARRANTIES (MARCH 1963)

(a) The Government makes no warranty, express or implied, regarding the condition of fitness for use of any item of the Facilities. To the extent practicable, the Contractor shall be afforded an opportunity to inspect all items of Facilities that are to be furnished by the Government prior to the shipment of such Facilities to the Contractor. In the event that any item of such Facilities is received by the Contractor in a condition not suitable for the intended use the Contractor shall, within thirty (30) days after receipt and installation thereof, notify the Contracting Officer of such fact and, as directed by the Contracting Of-ficer and at Government expense, either (i) return such items or otherwise dispose of it, or (n) effect repairs or modifications.

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CFR TITLE 41 CHAPTER 18

CLAUSES FOR FACILITIES CONTRACTS

(b) Appropriate equitable adjustment may be made in any related procurement contract of the Contractor which so provides and which is affected by the return or disposition, or the repair or modification, of any item of Facilities under paragraph (a) above.

7.702-6 Inspection.

INSPECTION (OCTOBER 1967)

(a) The Facilities and work called for by this contract shall be subject to inspection and test by the Government, to the extent practicable at all times and places including the period of manufacture. The Contractor shall provide and maintain an inspection system acceptable to the Government covering the Facilities and work called for by this contract. The Government, through any authorized representative, may inspect such Facilities and work at the plant or plants of the Contractor or any of his subcontractors engaged in the performance of this contract. If any inspection or test is made by the Government on the premises of the Contractor or a subcontractor, the Contractor shall provide and shall require subcontractors to provide all reasonable facilities and assistance for the safety and convenience of the Government inspectors in the performance of their duties. All inspections and test by the Government shall be performed in such a manner as will not unduly delay the work to be performed by the Contractor under this contract or any related procurement contract.

(b) The Contracting Officer may at any time require the Contractor to remedy by correction or replacement any Facilities or work which are defective or otherwise not in conformity with the requirements of this contract. Except as otherwise provided in paragraph (c) below, such corrections and replacements shall be carried out at Government expense if under the terms of this contract the Facilities or work thus corrected or replaced were initially provided or required to be performed at Government expense.

(c) The Contracting Officer may at any time require the Contractor, without cost to the Government hereunder or under any of its related procurement contracts or subcontracts, to correct or replace any Facilities or work which are defective or otherwise not in conformity with the requirements of this contract, if such defects or failures are due to:

(i) fraud, lack of good faith, or willful misconduct on the part of any of the Contractor's directors of officers, or on the part of any of his managers, superintendents, or other equivalent representatives who has supervision or direction of

(A) all or substantially all of the Contractor's business;

(B) all or substantially all of the Contractor's operations at any one plant or separate location in which this contract is being performed; or

(C) a separate and complete major industrial operation in connection with the performance of this contract; or

(ii) the conduct of one or more individual employees selected or retained by the Contractor after any of the supervisory personnel described in (i) above has reasonable grounds to believe that any such employee is habitually careless or otherwise unqualified.

(d) Corrected or replaced Facilities or work shall be subject to the provisions of this clause in the same manner and to the same extent as Facilities or work originally completed under this contract.

(e) The Contractor shall make his records of all inspection work available to the Government during the performance of this contract and for such longer periods as may be specified in this contract.

7.702-7 Excusable Delays. Insert the clause set forth in 8.708. 7.702-8. Location of the Facilities.

LOCATION OF THE FACILITIES (MARCH 1963)

The Contractor may use the facilities at any of the locations specified in the Schedule, and, with the prior written approval of the Contracting Officer, at any other location. In granting this approval, the Contracting Officer may prescribe such terms and conditions as he may

NASA PROCUREMENT REGULATION

7.702-7

CONTRACT CLAUSES

deem necessary for the protection of the Government's interest in the Facilities involved. Notwithstanding any inconsistency with the provisions of this contract, such terms and conditions shall prevail.

7.702-9 Government Bills of Lading.

GOVERNMENT BILLS OF LADING (MARCH 1963)

All shipments of the Facilities shall be made on Government bills of lading, unless otherwise authorized by the Contracting Officer. The required number of such Government bills of lading will be furnished to the Contractor by, and the Contractor shall be accountable therefor to, the transportation activity designated by the Contracting Officer.

7.702-10 Allowable Cost and Payment.

(a) Subject to the instructions set forth in (b) below, insert the following clause.

ALLOWABLE COST AND PAYMENT (OCTOBER 1967)

(a) For the performance of any work, duty, or obligation by the Contractor under this contract which is provided herein to be at Government expense, the Government shall pay the Contractor the cost thereof, determined by the Contracting Officer to be allowable in accordance with (i) Part 15, Subpart 5, of the NASA Procurement Regulation as in effect on the date of this contract and (ii) the terms of this contract.

(b) Except as otherwise specifically provided in this contract, the failure of this contract to provide for reimbursement shall not preclude the Contractor from including, as part of the price or cost under any other Government contract or subcontract, an allocable portion of the costs incurred in the performance of any work, duty, or obligation under this contract which are not reimbursable hereunder.

(c) Once each month (or at more frequent intervals, if approved by the Contracting Officer) the Contractor may submit to an authorized representative of the Contracting Officer, in such form and reasonable detail as such representative may require, 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.

(d) Promptly after receipt of each invoice or voucher and statement of cost, the Government shall, except as otherwise provided in this contract, subject to the provisions of paragraph (e) below, make payment thereof as approved by the Contracting Officer.

(e) At any time or times prior to final payment under this contract, the Contracting Officer may have the invoices or vouchers and statements of cost audited. Each payment theretofore made shall be subject to reduction for amounts included in the related invoice or voucher which are found by the Contracting Officer, on the basis of such audit, not to constitute allowable cost. Any payment may be reduced for overpayments, or increased for underpayments, on preceding invoices or vouchers.

(f) The Contractor agrees that any refund, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Contractor or any assignee under this contract shall be paid by the Contractor to the Government, to the extent that they are properly allocable to costs for which the Contractor has been reimbursed by the Government under this contract. Reasonable expenses incurred by the Contractor for the purpose of securing such refunds, rebates, credits, or other amounts shall be allowable costs hereunder when approved by the Contracting Officer. Prior to final payment under this contract, the Contractor and each assignee under this contract whose assignment is in effect at the time of final payment under this contract shall execute and deliver:

(i) an assignment to the Government, in form and substance satisfactory to the Contracting Officer, of refunds, rebates, credits or other amounts (including any interest thereon) properly allocable to costs for which the Contractor has been reimbursed by the Government under this contract; and

7.702-9

CFR TITLE 41 CHAPTER 18