the delivery schedule in a delivery provision similar to the following.

At the rate of per month to be completed days after the receipt of (insert "written notice of award" or "written notice of award or a fully executed and binding contract," as appropriate).

(2) In negotiated procurements where definitive delivery schedules can be set forth for supplies such as aircraft, engines, etc., the buyers may specify a delivery provision similar to the following:

(i) The contractor shall deliver the supplies called for hereunder to the Government in accordance with the following schedules:

(ii) Buyers will specify in the delivery provision whether or not an accelerated delivery rate will be acceptable to the Government.

(e) In contracts (including contracts on DD Forms 1155) covering MIPR requirements, buyers will include each claimant's portion of like items as a separate contract line item; and buyers will include a separate delivery schedule for each claimant. Where an allocation system is utilized for GFAE items, an allocation schedule will be established for each Requiring Department in lieu of the separate delivery schedule required in paragraph (d) of this section. The delivery schedule will normally be that set forth in the MIPR, if realistic, or as agreed to between the buying activity and the originator of the MIPR. (Existing contracts will not be amended for this purpose.) An example of the delivery schedule contemplated by this paragraph follows:

on or before which delivery is to be made (see § 1016.303-2(b) (4) of this chapter).

[27 F.R. 1603, Feb. 21, 1962, as amended at 29 F.R. 1836, Feb. 7, 1964]

§ 1001.305-50 Maximum delivery schedules.

Appropriations carrying a fiscal year designation as the final year of availability are available for obligation up to and including June 30th of that fiscal year and are available for expenditure for 2 additional years unless otherwise advised. For example, 1961 annual appropriations are available for obligation through June 30, 1961, and for expenditure through June 30, 1963. Accordingly, maximum delivery schedules will be controlled by the foregoing legal requirement for expenditure of appropriated funds. Contracting officers will assure that delivery requirements are in strict accordance with the foregoing and all contract reviewing authorities will assure that strict conformance with the requirements of this section have been

met.

[29 F.R. 1836, Feb. 7, 1964]

§ 1001.305-51 Establishment of delivery schedules on basic ordering

agreements.

(a) The following procedures will be followed when the ACO negotiates delivery schedules for orders issued under BOAS.

(b) The ACO will:

(1) Review the contractor's proposed schedule with production personnel at the CMD or AFPRO, as appropriate.

(2) If the order issued by the PCO indicates that the delivery schedule is required, and if the contractor is unable to meet the required schedule, the ACO will obtain the best delivery schedule possible without the use of overtime and coordinate same with the PCO. The PCO, after coordination with the requirements activity, will either approve the proposed delivery schedule or request further information from the ACO to permit processing a request for overtime necessary to meet the required delivery schedule.

(3) If the order issued by the PCO indicates that the delivery schedule is desired and if the contractor's proposed delivery schedule is within 60 days of the original desired schedule, not coordinate further with the activity issuing the order. If the contractor's proposed delivery schedule is more than 60 days later than the original desired schedule, coordinate with requirements personnel at the activity issuing the order to assure that the revised delivery schedule is consistent with AF needs and requirements.

When necessary, coordinate with the contractor to establish a delivery schedule which is acceptable to both the Government and the contractor. No coordination need be effected with the PCO unless the use of overtime becomes necessary.

[28 F.R. 8142, Aug. 8, 1963]

§ 1001.305-52 Amendment of delivery schedules in supply or research and development contracts.

(Not applicable to base procurement contracts.)

(a) Contracts having unrealistic delivery schedules may be changed if the best interests of the Government will be furthered by such action, and contracts having delinquent delivery schedules may be amended if the best interests of the Government will not be jeopardized by such action. Delinquent delivery schedules will be held to a minimum at all times consistent with the preceding sentence. If the facts surrounding an individual contract warrant such action, the ACO or the procuring contracting officer (PCO), if the contract is administered by the procuring activity, will, immediately upon determination or notification that contractor will not be able to complete deliveries on schedule, take affirmative steps to initiate an amendment of the delivery schedule according to instructions in this paragraph. If the contractor is delinquent, the ACO or the PCO, if the contract is being administered by the procuring activity, may initiate an amendment of the delivery schedule according to instructions in this paragraph, or the ACO or PCO may recommend termination of the contract or issuance of a "delinquency notice" letter according to Subpart F, Part 1008 of this subchapter. Extensions of delivery schedules may be effected without approval from higher Headquarters in the following instances: (for the division of responsibilities between the ACO and PCO see paragraphs (c) and (d) of this section).

(1) When the amendment is supported by legal consideration: This occurs when the contractor offers a price reduction or other benefits in consideration for an extension of delivery schedule and the Air Force's or other Armed Services interest will not be prejudiced by such extension.

(2) Pursuant to changed Government requirements: Such a case would be where extension of the delivery schedule

is dictated by an authenticated revised delivery requirement of the Air Force or the other armed services. Every effort will be made to obtain from the contractor an agreement whereby the Government will obtain the benefits of any savings to the contractor on account of the revised delivery schedule.

(3) Pursuant to specific, standard ASPR or AFPI contractual clauses: Such clauses include the Changes Clause, the Default Clause, particularly the excusable delay portion, the Government-Furnished Property Clause, the Government Property Clause, and the Excusable Delays Clause.

(4) Pursuant to special contract provisions: These are provisions, other than standard ASPR or AFPI clauses, made a part of a contract and agreed to by the parties thereto.

(b) Prior to issuing a contractual modification the ACO or PCO, whoever makes the determination to amend the delivery schedule, will effect coordination with his staff judge advocate for legality. In all cases the staff judge advocate will determine whether or not legal consideration exists. The staff judge advocate's determination will be final concerning the existence of legal consideration. The adequacy or amount of consideration will be the responsibility for determination by the ACO and PCO together or by either the ACO or PCO alone.

(c) Responsibilities of the ACO: (1) The ACO, according to the conditions contained herein but without coordination with the PCO or buyer (except where investigation indicates that there may be a basis for default termination), will accomplish and issue contractual modifications to amend only delivery schedules that pertain to:

(i) Approved spare parts change requests (SPCRs) and approved price exhibits (§ 1007.2606-3 of this subchapter) to open contracts covered by Subpart Z, Part 1007 of this subchapter.

(ii) Spare parts, aerospace ground equipment, and training parts exhibits which are made a part of the contract by means of a supplemental agreement signed by the ACO.

(2) When a contractor alleges delinquent performance due to causes beyond his control and without his fault or negligence, the ACO, if he is administering the contract, will investigate the allegations and make a finding of fact as to the conditions found to exist.

(3) Upon determination or notification that a contract under his administration is delinquent or almost delinquent and if he believes that a revision to the delivery schedule is warranted, the ACO will:

(i) When authorized to amend the delivery schedule, forward his findings, recommendations, and other information deemed pertinent to his staff judge advocate for a determination of the legality of the proposed revision. Furnish the staff judge advocate with the address, including code, of the production activity at the CMD or AFPRO concerned with the contract. The original copy of the staff judge advocate's opinion, either affirmative or negative, will be returned directly to the ACO with a copy to the aforementioned production activity.

(ii) In all other instances, forward his findings, recommendations, and other information deemed pertinent to the PCO. If he is recommending a new, revised delivery schedule, furnish the PCO with the address, including code, of the production activity at the CMD or AFPRO concerned with contract.

(iii) Regardless of whether the preceding subdivisions (i) or (ii) of this subparagraph are involved, furnish the appropriate production activity with a copy of the foregoing findings, recommendations and other pertinent information.

(4) Upon receipt of a DD Form 375, Monthly Production Progress Report, marked "Action Document," the ACO will indorse thereon his approval or disapproval. If approved and if circumstances indicate that the contractor will not meet the contract schedule within a reasonable period, the action described in subparagraph (3) of this paragraph, will be immediately taken by the ACO. What constitutes a reasonable period requires sound judgment by the ACO and diligence must be exercised so as not to waive the existing contract delivery schedule (see Subpart F, Part 1008 of this subchapter). If disapproval of any proposed schedule change is indicated by the ACO, reasons for such position will be stated on the DD Form 375. The ACO will then sign the reproducible DD Form 375 and forward to the production activity for distribution. Contracts containing liquidated damages clause require extra vigilance. When the ACO has reason to believe that a contract containing a liquidated damages clause will

become delinquent as to deliveries, he will promptly notify the production activity for initiation of a DD Form 375 marked "Action Document." The ACO will process inadequate DD Form 375 reports to the production activity for correction and clarification.

(5) After complying with the requirements specified in this section, the ACO, when authorized, will accomplish and issue, within 30 work days after receiving supply (prime AMA) and/or Aeronautical Systems Division (ASWG) (in the case of GFAE) coordination, a contractual modification revising the delivery schedule.

(6) Where investigation shows that grounds for a default termination may exist, the ACO will proceed according to the appropriate instructions set forth in paragraph (d) of this section and Subpart F, Part 1008, of this subchapter. (d) Responsibilities of the PCO.

(1) Upon determination or notification that a contract under the administration of the PCO is delinquent or almost delinquent and if the PCO believes that a revision to the delivery schedule is warranted, the PCO will try to amend the delivery schedule by obtaining the necessary staff judge advocate and supply (prime AMA) and/or Aeronautical Systems Division (ASWG) (in the case of GFAE) coordination.

(2) Within 5 days after receipt of a DD Form 375 marked "Action Document," the PCO will review the forecast, narrative and recommendations to determine impact on the affected program and will reply to the ACO and the production activity. The reply will indicate concurrence or nonconcurrence of the action recommended on the DD Form 375.

(i) When concurrence is indicated and the administrative offices (production and ACO) have recommended delivery schedule changes, the PCO will, within 10 work days, forward the findings, etc., to the appropriate staff judge advocate for an opinion as to the legality of the proposed amendment. The original of the staff judge advocate's opinion will be returned directly to the PCO with copies to the ACO and to the production activity. When the ACO has recommended default termination or issuance of a "delinquency notice" letter according to Subpart F, Part 1008 of this subchapter, signed copies of the PCO's proposed action will also be forwarded to the

cognizant local readjustment activity and to AFSC (SCKAA). When the ACO has not concurred in proposed action, justification for proposed action by the PCO will be included in notification to the administrative offices and will cover the reasons advanced by the ACO.

(ii) When the PCO does not agree with the action proposed on the DD Form 375 marked "Action Document," he will furnish the administrative offices, local readjustment offices, and AFSC (SCKAA), when default termination or the issuance of a “delinquency notice” letter has been recommended, a statement of reasons for rejecting the recommended action.

(3) After complying with the requirements specified in this section, the PCO will accomplish and issue within 30 work days after receiving prime AMA and/or ASD (ASWG), coordination, and a contractual modification revising the delivery schedule.

(e) End article prime AMA and/or ASD (ASWG), coordination. With the exception of the revision of an unrealistic delivery schedule on a contract, where the originator of the PR-MIPR requirement initiates the request for an extension of delivery schedule, the concurrence of the end article prime AMA or in the case of GFAE, ASD (ASWG), will be obtained in all cases. When other service MIPRS are involved, coordination will be effected with the originator of the other service MIPR.

(f) In all other cases, neither the PCO nor the ACO is authorized to amend the delivery schedule without approval from higher headquarters. If the contractor elects, he may file a claim under Public Law 85-804, as implemented by Executive Order No. 10789. The contractor's claim will be processed according to Part 17 of this title.

(g) Any amendment of contract delivery schedules will conform strictly with the requirements of § 1001.305-50. [27 F.R. 1604, Feb. 21, 1962, as amended at 27 F.R. 9914, Oct. 9, 1962; 27 F.R. 11760, Nov. 29, 1962; 28 F.R. 2791, Mar. 21, 1963; 28 F.R. 14314, Dec. 27, 1963; 29 F.R. 3144, Mar. 7, 1964; 29 F.R. 8168, June 27, 1964] § 1001.310 Liquidated damages.

(a) (1) Liquidated damages provisions may be used only after prior approval of the following officials (as applicable) and the respective staff judge advocates: (i) Director of Procurement, Hq AFSC, and commanders of divisions and centers

with power of redelegation to not below the level of the Deputy Chief of Staff/Procurement and Production (or comparable level), (ii) Director of Procurement and Production, Hq AFLC, his assistant or deputies, (iii) Directors of Procurement and Production of AFLC procurement activities, and (iv) within the other major air commands, at not below the level of a staff officer responsible for procurement within the headquarters of the first echelon of command immediately subordinate to the major air command. Requests for approval will be made in writing (electrically transmitted messages, or letters). Oral requests (either in person or telephone) will not be accepted. The following information will be furnished: (a) Identification number of the contemplated procurement (PR No., IFB No., and/or contract number); (b) data which will adequately substantiate the need for strict compliance with the delivery schedule and reflect the estimated damage that will result if the delivery schedule is not met; (c) the dollar amount of the contemplated procurement, the amount of competition available, the amount of estimated damages to be assessed, and the formula used to arrive at such estimate; (d) type and form of contract contemplated and the required delivery schedule to be met; (e) the AF technical personnel's written comment relative to the estimate of damages.

(2) The clause set forth below will be placed in the schedule when the clause in § 7.105-5 of this title is used and may be placed in the schedule when the clause in § 8.709 of this title is used:

Liquidated damages will be assessed at the rate of (dollar amount) per day in accordance with the provisions of paragraph f. of the Default Clause.

NOTE: In construction contracts insert the phrase "the Termination for Default-Damages for Delay-Time Extension Clause" in lieu of, "paragraph f. of the Default Clause."

(3) The liquidated damages provision will not be used where the desired delivery is specified. (See § 1001.305.)

(4) Foreign procurement activities will not use liquidated damages provisions.

(b) To assure that the rate of assessment of liquidated damages is reasonable it is incumbent upon the procuring contracting officer to obtain the advice of the AF technical personnel concerned

with the requirement; e.g., in construction contracts, the civil engineering officer.

(c) If the supplies or services being procured can be reprocured readily from other sources in case of default, and the difference in price would represent the full measure of damages to the Government, liquidated damages provisions will not be used.

(d) Recommendations concerning remissions will be forwarded by the procuring contracting officer with appropriate documentation through AFLC (MCPP) or AFSC (SCMKP) as appropriate to Hq USAF (AFSPM-CP-1) for submission to the Secretary.

[27 F.R. 1605, Feb. 21, 1962, as amended at 28 F.R. 2792, Mar. 21, 1963]

§ 1001.312 Voluntary refunds.

(a) Contractors may tender voluntary refunds either by check or credit invoice (memo). Checks will be made payable to the Treasurer of the United States. It is preferred that the voluntary refunds be submitted to the administrative contracting officer. In whatever form the refund is made, it will immediately be forwarded by the recipient to the accounting and finance officer. If by check, the accounting and finance officer will furnish the recipient of the check a copy of the collection voucher. If the appropriate account cannot be readily determined, the check will be placed temporarily in a suspense account and immediate steps will be taken to determine the account to be credited.

(b) Voluntary refunds identified with a contract and tendered prior to final payment will be recognized by contractual modification issued by the ACO and credited to the applicable appropriation cited in the contract. Voluntary refunds made in connection with a contract, but after contract completion, will be credited to an applicable appropriation provided that it may be regarded fairly as in the nature of a price reduction. In the latter case, a contracting officer designated by the cognizant administrative office, will, in conjunction with the accounting and finance officer, determine the appropriation to be credited. The contracting officer will, without delay, issue an AFPI Form 23, "Administrative Notice of Removal of Funds." The AFPI Form 23 will reference the contractor's letter of transmittal and the manner of the refund, i.e., check or credit invoice (memo).