§ 12-7.5201-25 Department of Labor Safety and Health Regulations for Ship Repairing.

DEPARTMENT OF LABOR SAFETY AND HEALTH

REGULATIONS FOR SHIP REPAIRING

Attention of the contractor is directed to Pub. L. 85-742, approved August 23, 1958 (72 Stat. 835, 33 U.S.C. 941), amending section 41 of the Longshoremen's and Harbor Worker's Compensation Act and to the Safety and Health Regulations for Ship Repairing promulgated thereunder by the Secretary of Labor (29 CFR part 1501). These regulations apply to all ship repair and related work, as defined in the regulations, performed under this contract on the navigable waters of the United States including any drydock or marine railway. Nothing contained in this contract shall be construed as relieving the Contractor from any obligations which it may have for compliance with the aforesaid regulations.

tions and in the manner prescribed in DOTPR 12-1.352.

§ 12-7.5202-5 Guaranty.

(a) The clause set forth below shall be used where general guaranty provisions are deemed desirable by the contracting officer (for modifications see paragraph (b) of this section).

GUARANTY

In case any work done or materials furnished by the Contractor under this contract on or for any vessel or the equipment thereof shall, within 60 days from date of delivery of the vessel by the Contractor, prove defective or deficient, such defects or deficiencies shall, as required by the Government, be corrected and repaired by the Contractor at his expense to the satisfaction of the Contracting Officer: Provided, however, That with respect to any individual work item incomplete at the delivery of the vessel the guarantee period shall run from the date of completion of such item. The Government shall, if and when practicable, afford the Contractor an opportunity to effect such corrections and repairs himself, but when, because of conditions or the location of the vessel or for any other reason, it is impracticable or undesirable to return it to the Contractor, or the Contractor fails to proceed promptly with any such repairs as directed by the Contracting Officer, such corrections and repairs shall be effected at the Contractor's expense at such other locations as the Government may determine. Where corrections and repairs are to be effected by other than the Contractor, due to nonreturn of the vessel to him, the Contractor's liability may be discharged by an equitable deduction in the price of the job. The Contractor's liability under this clause shall, however, in no event extend beyond the correction of such defects or deficiencies or payment for the cost thereof: Provided, however, That nothing in this clause shall be deemed to limit or relieve the Contractor of his responsibilities as set forth in the clause entitled "Liability and Insurance" and the clause entitled "Inspection" of this contract. At the option of the Contracting Officer, defects and deficiencies may be left in their then condition, and an equitable deduction from the Contract price, as agreed by the Contractor and Contracting Officer, shall be made therefor. If the Contractor and Contracting Officer fail to agree upon the equitable deduction from the contract price to be made, the dispute shall be determined as provided in the "Disputes" clause of this contract.

(End of clause)

(b) When inspection and acceptance tests will afford full protection to the Government in ascertaining conformance to specifications and the absence of defects and deficiencies, no guaranty provision for that purpose shall be included in the contract. In certain instances, the Contracting Officer may desire to include a provision in a contract for a guaranty period of more than 60 days. In such instances, where after full inquiry, it has been determined that such longer guaranty period will not involve increased costs the longer guaranty period may be substituted for the 60 days specified in the guaranty clause. Where the full inquiry discloses that such longer guaranty period will involve, or is reasonably expected to involve, increased costs, such fact, and the reason for the need of such longer period shall be set forth in letter form to the Commandant (F), requesting approval for use of a guaranty period in excess of 60 days.

§ 12-7.5202-6 Priorities, allocations, and allotments.

Insert the clause set forth DOTPR 12-7.150-3.

in

Patents are rights in inventions, protected by Federal law in the case of those issued in the United States. A patent is a Government grant that lasts for 17 years. During that time it gives the inventor, or his assignee, the right to exclude anyone else from making, using, or selling the patented invention. The patent holder thus has a property right, which is, in effect, a monopoly. He may sell or assign the patent; he may grant licenses to practice the invention; and, if his patent is infringed, he is protected by law. He may obtain an injunction restraining the infringement, against anyone but the Government or persons acting on behalf of the Government, and he may also receive damages from anyone (including the Government under 28 U.S.C. 1498(a)) for the economic injury already sustained.

§ 12-9.100-50-2 Data.

(a) The term "data" means recorded information, whether or not copyrighted, that may be acquired with a procurement. The term includes graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, magnetic tape, computer memory printouts; and information retained in computer memory. Examples of recorded information include, but are not limited to, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information.

(b) The owner of "data" may have an economic interest in intellectual property rights such as a copyright or a trade secret. If the data is copyrighted, it is protected by law. The owner may restrain copyright infringement by obtaining an injunction against anyone but the Government or persons acting on behalf of the Government, and he may also receive dam

ages from anyone (including the Government under 28 U.S.C. 1498(b)) for the economic injury already sustained. In the case of trade secrets, the owner's rights are governed by the contractual relationship between him and the person to whom he discloses it (28 U.S.C. 1498 does not apply to trade secrets).

§ 12-9.107-350 DOT policy on data, patent rights, and recovery of developmental costs.

It is DOT policy in negotiating contracts under which the Government pays a part or all of the costs of research or development, to acquire for the benefit of the United States, rights to data and patent rights, based on the criteria set forth in the Presidential Memorandum and Statement of Government Patent Policy, and to recover the Government's contribution toward such research and development through royalties to the Government upon commercial exploitation of the products developed.

§ 12-9.107-450 Patent Rights clauses.

Use of Patent Rights clauses in contracts is governed by FPR 1-9.107 and § 12-9.107-451. Contracting Officers shall consult Patent Counsel for advice and interpretation of these sections.

§ 12-9.107-451 Pre-award Patent Rights Documentation Checklist.

In addition to the procedures of FPR 1-9.107-4, the "Preaward Patent Rights Documentation Checklist" set forth below shall be used in determining the appropriate Patent Rights clause to be incorporated in a request for proposals in procurements involving experimental, developmental, or research work. The Checklist shall be made a part of the contract file.

(Authorized for Local Reproduction) PRE-AWARD PATENT RIGHTS DOCUMENTATION CHECKLIST

Procurement Identification:
Purpose of Proposed Procurement:

1. Is a principal purpose of the proposed contract, either by itself or as one of a series of directly related contracts, to create, develop or improve an end item intended for

If "Yes", identify the end item and cite applicable regulation. (See FPR 1-9.1073(a)(1).)

3. Is a principal purpose of the contract exploration into a field directly concerned with public health, public safety, or public welfare (as distinguished from items predominantly of military concern)? 2 (See FPR 1-9.107-3(a)(2).) Yes -No

If "Yes", identify such principal purpose of the contract and briefly describe its relationship to the public health, or public safety, or public welfare.

4. Is the contract for procurement in a field of science or technology in which there has been little significant experience outside of work funded by the Government? 3 (See FPR 1-9.107-3(a)(3).) Yes - -No

If "Yes", briefly describe such field.

5. Is the contract for procurement in a field of science or technology in which the Government has been the principal developer of the field?3 (See FPR 1-9.107-3(a)(3).) Yes-- No

If "Yes", briefly describe such field.

6. If the answer to either 4 or 5 is "Yes", would the contractor be likely to get a preferred or dominant commercial position in that field if he were permitted to acquire title to inventions made under the contract? (See FPR 1-9.107-3(a)(3).) Yes -No

mental, developmental or research work at that facility? (See FPR 1-9.107-3(a)(4)(i). Yes No

8. Does the contract require the contractor to coordinate and direct the work of others (as distinguished from the normal contractor-subcontractor relationship)

which might result in a potential organizational conflict of interest? (See FPR 19.107-3(a)(4)(ii).) Yes No

If "Yes", explain briefly why such a potential conflict of interest is considered to exist.

(Typed Name, Office and Signature of Person Completing This Form)

The Patent Rights Acquisition by the Government Clause, FPR 1-9.107-5(a), will will not be used in the solicita

tion. (Give reasons for determination.)

(Typed Name and Signature of Contracting Officer or Representative)

§ 12-9.150 Background patents (license). (a) Insert the clause set forth in § 12-7.150-12 in all contracts requiring a "Patents Rights-Acquisition by the Government" or "Patent Rights-Deferred" clause (either long or short form).

(b) Insert the clause in supply contracts when the Department buys the product for test or evaluation purposes and where, as a result of the government's efforts, a commercial market for the product may be created or enhanced.

(c) The clause need not be used in supply contracts:

(1) Where the product to be tested (or evaluated) is substantially complete for the commercial purpose for which it is being tested (or evaluated),

or

(2) Where the prospective contractor's monetary contribution to the program resulting in the development of the hardware is substantially greater than the Government's monetary contribution, or

(3) Where the commercial market for the product existed prior to, or will not be created primarily as a result of, the Government's test or evaluation.

(d) The Contracting Officer may alter the clause to suit a particular situation. However, any such alteration must accord with DOT policy requir

ing, whenever investment of public funds in a program which may create or enhance the market for a product required in the interest of public health, safety, or welfare, that the Government receive assurance that the product will be available at reasonable prices, and in sufficient quantity and quality to meet the public needs. To this end, the contractor must agree to license the manufacture and sale of any such product under any patents under which he has the right to grant such licenses, such license to be restricted to use on products to which the contract relates.clause to the court from which the injunction is sought. § 12-9.151 Authorization and consent.

(a) Under 28 U.S.C. 1498, any suit for infringement of a United States patent based on the manufacture or use by or for the United States of an invention described in and covered by a patent of the United States by a contractor or by a subcontractor (including lower-tier subcontractors) can be maintained only against the Government in the Court of Claims and not against the contractor or subcontractor, in those cases where the Government has authorized or consented to the manufacture or use of the patented invention. Accordingly, to insure that work by a contractor or subcontractor under a Government contract may not be enjoined by reason of patent infringement, authorization and consent shall be given as herein provided. The liability of the Government for damages in any such suit against it may, however, ultimately be borne by the contractor or subcontractor in accordance with the terms of any patent indemnity clause also included in the contract, and an authorization and consent clause does not detract from any patent indemnification commitment by the contractor or subcontractor. Therefore, both a patent indemnity clause and an authorization and consent clause may be included in the same contract.

(b) Contracts shall not include any provision whereby the Government expressly agrees to indemnify the contractor against liability for patent infringement.