Page images
PDF
EPUB

CLAUSES

(b) If fixed and agreed liquidated damages are provided in the contract and if the Government so terminates the Contractor's right to proceed, the resulting damage will consist of such liquidated damages until such reasonable time as may be required for final completion of the work together with any increased costs occasioned the Government in completing the work.

(c) If fixed and agreed liquidated damages are provided in the contract and if the Government does not so terminate the Contractor's right to proceed, the resulting damage will consist of such liquidated damages until the work is completed or accepted.

(d) The Contractor's right to proceed shall not be so terminated nor the Contractor charged with resulting damage if:

(i) the delay in the completion of the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God, acts of the public enemy, acts of the Government in either its sovereign or contractual capacity, acts of another contractor in the performance of a contract with the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and such subcontractors or suppliers; and

(ii) the Contractor, within 10 days from the beginning of any such delay (unless the Contracting Officer grants a further period of time before the date of final payment under the contract), notifies the Contracting Officer in writing of the causes of delay.

The Contracting Officer shall ascertain the facts and the extent of the delay and extend the time for completing the work when, in his judgment, the findings of fact justify such an extension, and his findings of fact shall be final and conclusive on the parties, subject only to appeal as provided in the clause of this contract entitled "Disputes."

(e) If, after notice of termination of the Contractor's right to proceed under the provisions of this clause, it is determined for any reason that the Contractor was not in default under the provisions of this clause, or that the delay was excusable under the provisions of this clause, the rights and obligations of the parties shall, if the contract contains a clause providing for termination for convenience of the Government, be the same as if the notice of termination had been issued pursuant to such clause. If, in the foregoing circumstances, this contract does not contain a clause providing for termination for convenience of the Government, the contract shall be equitably adjusted to compensate for such termination and the contract modified accordingly; failure to agree to any such adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes."

(f) 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.

(g) As used in paragraph (d)(i) of this clause, the term "subcontractors" or "suppliers" means subcontractors or suppliers at any tier.

(b) During a period of national emergency, paragraph (d)(i) of the above clause shall be amended by deleting the words “unforeseeable causes" in the two places where they appear and substituting the words "causes, other than normal weather." Where Standard Form 23A is used, the words "the clause of this contract entitled Disputes" in paragraph (d) of the above, clause need not be substituted for "Clause 6 of these General Provisions."

(c) The following clause shall be used in all fixed-price construction contracts not in excess of $10,000.

TERMINATION FOR DEFAULT-DAMAGES FOR DELAY-TIME EXTENSIONS

(SEPTEMBER 1962)

(a) If the Contractor does not prosecute the work so as to insure completion, or fails to complete it, within the time specified, the Government may, by written notice to the Contractor, terminate his right to proceed. Thereafter, the Government may have the work

NASA PROCUREMENT REGULATION

8.709

TERMINATION OF CONTRACTS

completed, and the Contractor shall be liable for any resulting excess cost to the Government. If the Government does not terminate the Contractor's right to proceed, he shall continue the work and shall be liable to the Government for any actual damages occasioned by such delay unless liquidated damages are stipulated.

(b) The Contractor's right to proceed shall not be terminated nor the Contractor charged with actual or liquidated damages under (a) above because of any delays in completion of the work due to causes other than normal weather, beyond his control and without his fault or negligence, including, but not restricted to, acts of God, acts of the public enemy, acts of the Government (in either its sovereign or contractual capacity), acts of another contractor in the performance of a contract with the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, or delays of subcontractors or suppliers due to causes beyond their control and without their fault or negligence; provided, that the Contractor shall, within 10 days from the beginning of any such delay, unless the Contracting Officer shall grant a further period of time prior to the date of final settlement of the contract, notify the Contracting Officer in writing of the causes of delay. The Contracting Officer shall ascertain the facts and the extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension, and his findings of fact shall be final and conclusive on the parties hereto, subject only to appeal as provided in the clause of this contract entitled "Disputes."

(d) When Standard Form 19 is used, the words "the clause of this contract entitled Disputes" in paragraph (b) of the above clause need not be substituted for "Clause 3 hereof."

8.710 Default Clause for Fixed-Price Research and Development Contracts. The following clause shall be used in all fixed-price research and development contracts as defined in 7.301, except contracts with educational or nonprofit institutions which are awarded on the basis of no profit.

DEFAULT (OCTOBER 1969)

(a) The Government may, subject to the provisions of paragraph (c) of this clause, by written Notice of Default to the Contractor terminate the whole or any part of this contract in any one of the following circumstances:

(i) if the Contractor fails to perform the work called for by this contract within the time(s) specified herein or any extension thereof; or

(ii) if the Contractor fails to perform any of the other provisions of this contract, or so fails to prosecute the work as to endanger performance of this contract in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of 10 days (or such longer period as the Contracting Officer may authorize in writing) after receipt of notice from the Contracting Officer specifying such failure.

(b) In the event the Government terminates this contract in whole or in part as provided in paragraph (a) of this clause, the Government may procure, upon such terms and in such manner as the Contracting Officer may deem appropriate, work similar to the work so terminated and the Contractor shall be liable to the Government for any excess costs for such similar work; provided, that the Contractor shall continue the performance of this contract to the extent not terminated under the provisions of this clause.

(c) Except with respect to defaults of subcontractors, the Contractor sha!! not be liable for any excess costs if the failure to perform the contract arises out of causes beyond the control and without the fault or negligence of the Contractor. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either of them, the Contractor shall not be liable for any excess costs

8.710

CFR TITLE 41 CHAPTER 18

CLAUSES

for failure to perform, unless the supplies or service to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Contractor to meet the required delivery schedule or other performance requirements.

(d) If this contract is terminated as provided in paragraph (a) of this clause, the Government, in addition to any other rights provided in this clause, may require the Contractor to transfer title and deliver to the Government, in the manner and to the extent directed by the Contracting Officer any of the completed or partially completed work not theretofore delivered to, and accepted by, the Government and any other property, including contract rights, specifically produced or specifically acquired for the performance of such part of this contract as has been terminated; and the Contractor shall, upon the direction of the Contracting Officer, protect and preserve property in the possession of the Contractor in which the Government has an interest. The Government shall pay to the Contractor the contract price, if separately stated, for completed work accepted by the Government and the amount agreed upon by the Contractor and the Contracting Officer for (i) completed work for which no separate price is stated, (ii) partially completed work, (iii) other property described above which is accepted by the Government, and (iv) the protection and preservation of property. Failure to agree shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes." The Government may withhold from amounts otherwise due the Contractor for such completed supplies or manufacturing materials such sum as the Contracting Officer determines to be necessary to protect the Government against loss because of outstanding liens or claims of former lien holders.

(e) If, after notice of termination of this contract under the provisions of this clause, it is determined for any reason that the Contractor was not in default under the provisions of this clause, or that the default was excusable under the provisions of this clause, the rights and obligations of the parties shall, if the contract contains a clause providing for termination for convenience of the Government, be the same as if the notice of termination had been issued pursuant to such clause. If, after notice of termination of this contract under the provisions of this clause, it is determined for any reason that the Contractor was not in default under the provisions of this clause, and if this contract does not contain a clause providing for termination for convenience of the Government, the contract shall be equitably adjusted to compensate for such termination and the contract modified accordingly; failure to agree to any such adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes."

(f) The rights and remedies of the Government provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

(g) As used in paragraph (c) of this clause, the term "subcontractor" and "subcontractors" means subcontractor(s) at any tier.

8.711 Default Clause for Fixed-Price Architect-Engineer Contracts. The clause set forth in 8.701(c) governs terminations for default in fixedprice architect-engineer contracts.

NASA PROCUREMENT REGULATION

8.711

Subpart 8-Forms

8.800 Scope of Subpart. This Subpart prescribes certain forms related to the termination and settlement of contracts.

8.801 Notice of Termination.

8.801-1 Telegraphic Notice of Termination.

(a) The following form of telegraphic notice is approved for use where a contract is being completely terminated.

DATE:

XYZ CORPORATION
NEW YORK, NEW YORK
YOUR CONTRACT NO. IS HEREBY TERMINATED IN ITS ENTIRETY PUR-
SUANT TO CLAUSE
OF THE CONTRACT EFFECTIVE [Here insert
"IMMEDIATELY" or "On 19....." (Insert the date) or "AS SOON AS YOU HAVE
DELIVERED THEREUNDER INCLUDING PREVIOUS DELIVERIES THE FOL-
LOWING ITEMS" (listing items)].IMMEDIATELY STOP ALL WORK, TERMINATE
SUBCONTRACTS AND PLACE NO FURTHER ORDERS EXCEPT TO EXTENT
(Insert if applicable-NECESSARY TO PERFORM ANY PORTION THEREOF NOT
TERMINATED HEREBY OR) THAT YOU OR A SUBCONTRACTOR WISH TO
RETAIN AND CONTINUE FOR OWN ACCOUNT ANY WORK IN PROCESS OR
OTHER MATERIALS. TELEGRAPH SIMILAR INSTRUCTIONS TO ALL SUBCON-
TRACTORS AND SUPPLIERS. LETTER AND INSTRUCTIONS FOLLOW.

(Contracting Officer)

(b) The following form of telegraphic notice is approved where a contract is being partially terminated.

XYZ CORPORATION

DATE:

NEW YORK, NEW YORK
YOUR CONTRACT NO. IS HEREBY partially TERMINATED PURSUANT TO
CLAUSE..... OF THE CONTRACT EFFECTIVE ON 19....., ON WHICH DATE YOU
WILL REDUCE ITS TOTAL NUMBER OF ITEMS TO BE DELIVERED AS FOL-
LOWS (Inserting instructions as to reduced deliveries) IMMEDIATELY STOP ALL
WORK, TERMINATE SUBCONTRACTS AND PLACE NO FURTHER ORDERS EX-
CEPT TO EXTENT NECESSARY TO PERFORM ANY PORTION THEREOF NOT
TERMINATED HEREBY OR THAT YOU OR A SUBCONTRACTOR WISH TO
RETAIN AND CONTINUE FOR OWN ACCOUNT ANY WORK IN PROCESS OR
OTHER MATERIALS. TELEGRAPH SIMILAR INSTRUCTIONS TO ALL SUBCON-
TRACTORS AND SUPPLIERS. LETTER AND INSTRUCTIONS FOLLOW.

(Contracting Officer)

(c) The following form of telegraphic notice is approved for use where a contract for construction is being completely terminated for the convenience of the Government.

DATE:

XYZ CORPORATION

NEW YORK, N.Y.

YOUR CONTRACT NO. FOR CONSTRUCTION Of . IS HEREBY TERMINATED

NASA PROCUREMENT REGULATION

8.801-1

TERMINATION OF CONTRACTS

EFFECTIVE IMMEDIATELY FOR THE CONVENIENCE OF THE GOVERNMENT PURSUANT TO CLAUSE ... OF THE CONTRACT. IMMEDIATELY STOP ALL WORK, TERMINATE SUBCONTRACTS AND PLACE NO FURTHER ORDERS. TELEGRAPH SIMILAR INSTRUCTIONS TO ALL SUBCONTRACTORS AND SUPPLIERS. LETTER AND INSTRUCTIONS FOLLOW.

(Contracting Officer)

(d) The following form of telegraphic notice is approved for use where a contract for construction is being partially terminated for the convenience of the Government:

DATE:

XYZ CORPORATION

NEW YORK, N.Y.

YOUR CONTRACT NO. ........ FOR CONSTRUCTION OF ..... IS HEREBY PARTIALLY TERMINATED EFFECTIVE IMMEDIATELY FOR THE CONVENIENCE OF THE GOVERNMENT PURSUANT TO CLAUSE ..... OF THE CONTRACT TO THE FOLLOWING EXTENT ..... IMMEDIATELY STOP ALL WORK, TERMINATE SUBCONTRACTS AND PLACE NO FURTHER ORDERS EXCEPT TO EXTENT NECESSARY TO PERFORM PORTION THEREOF NOT TERMINATED HEREBY, TELEGRAPH SIMILAR INSTRUCTIONS TO ALL SUBCONTRACTORS AND SUPPLIERS. LETTER AND INSTRUCTIONS FOLLOW.

(Contracting Officer)

8.801-2 Letter Notice of Termination.

(a) The following form of Notice of Termination is approved for use where a prime contract for supplies and services is being terminated. With appropriate modifications, it is suitable for use in terminating sub

contracts.

LETTER NOTICE OF TERMINATION TO PRIME CONTRACTORS

[At the top of the Notice set out all special details relating to the particular termination: e.g., name and address of company, number of prime contract terminated, service involved, appropriation or allotment, etc.]

(Two alternative forms of paragraph No. 1 are set out below. If this written termination notice confirms a telegraphic notice previously sent, use the first of the alternative paragraphs No. 1 below. If no previous telegraphic notice has been sent, use the second.]

1. Effective Date of Termination. This letter will confirm the Government's telegram to you dated 19....., terminating [in part] your Contract No...... (hereinafter referred to as "the contract") for the convenience of the Government, in accordance with the clause thereof entitled "Termination for the Convenience of the Government" [or, in the case of a cost-reimbursement-type contract, “Termination"]. Such termination is effective on the date and in the manner stated in such telegram.

(or)

1. Effective Date of Termination. You are notified that your Contract No. ..... (hereinafter referred to as "the contract") is hereby terminated [in part] for the convenience of the

8.801-2

30-156 0-79——23

CFR TITLE 41 CHAPTER 18

« PreviousContinue »