1009.203-51 data. When a value engineering incentive or value engineering program Requirement Clause is included in contract. 1009.203-52 Marketing and identification of technical data. 1009.203-53 Limitation on data requirements. 1009.203-54 Release of restricted data. AUTHORITY: The provisions of this Part 1009 issued under 10 U.S.C. Ch. 137, 10 U.S.C. 8012. SOURCE: The provisions of this Part 1009 appear at 35 F.R. 5035, Mar. 25, 1970, unless otherwise noted. Subpart A-Patents § 1009.110 Reporting of royalties-anticipated or paid. (a) The schedule of Basic Ordering Agreements will contain a provision substantially as follows: REPORTING OF ROYALTIES (SEPTEMBER 1969) Whenever the contractor furnishes a price quotation under this BOA, he shall furnish the royalty information required by § 9.110 of this title. The dollar limitation stated therein shall be deemed to apply to each order. [35 F.R. 5035, Mar. 25, 1970, as amended at 35 F.R. 8230, May 26, 1970] Subpart B-Rights in Technical and Other Data and Copyrights Clause as to rights in § 1009.203-50 technical data. Each contract including a Data Clause will include the following provision: RIGHTS IN DATA (DECEMBER 1967) The rights obtained by the Government in technical data are set forth in the Rights in Technical Data Clause incorporated in the contracts, and nothing elsewhere in this contract or in any documents incorporated by reference in this contract shall be construed as in any way altering such rights except as restricted by the express terms, if any, of this contract as to data called for and furnished for provisioning purposes only. tion of technical data. The following clause will be included in all contracts in which technical data is specified to be delivered: MARKING TECHNICAL DATA (JULY 1964) The Contractor agrees to mark the number of this contract, and the name and address of the Contractor or subcontractor who generated the data, on technical data delivered to the Government pursuant to any requirement of this contract. § 1009.203-53 Limitation on data requirements. In support of the Data Management Policy set forth in AFSCM/AFLCM 310-1, the following clause will be included in all contracts incorporating the DD Form 1423 or other mechanized listing of data requirements: LIMITATIONS ON TECHNICAL DATA REQUIREMENTS (JUNE 1968) All the technical data and reports requirements of this contract are set forth in the Contract Data Requirement List (DD Form 1423) attached thereto and made a part hereof and in the clauses included in this title. In case of difference or conflict between the data requirements list and the clauses included in this title, the latter shall govern. Nothing in any other documents or specifications made a part hereof shall be construed as altering such data and reports requirements in any way. § 1009.203-54 Release of restricted data. (a) Release of data subject to the previous restrictive provisions of Data Clause (Mar. 1, 1963) in § 9.203 of this title outside the Government for procurement or manufacturing purposes may be made without the contractor's permission, to another contractor, only for the purpose of manufacture required in connection with repair or overhaul where an item is not procurable commercially so as to enable the timely performance of the overhaul or repair work. Whenever such data is to be released or disclosed outside the Government for such overhaul or repair purposes, the contracting officer will cause the action specified in paragraph (d) of this section to be taken. (b) Release of data subject to the restrictive provisions of the Rights in Technical Data Clause (August 1969) in § 9.203(b) of this title outside the Government for manufacture or procurement may be made without the written permission of the party named in the contract in which the data was delivered only for emergency repair or overhaul work or for the Government, where the item or process concerned is not otherwise reasonably available to enable timely performance of work. Whenever such data is to be released or disclosed outside the Government for such repair or overhaul work, the contracting officer will cause the action specified in paragraph (d) of this section. (c) The data specified in paragraphs (a) and (b) of this section will not be released until a request therefor has been made by the overhaul or repair contractor, and it has been determined and a finding to that effect made by the contracting officer, approved by the Director of Procurement or his deputy, that the item or process concerned is not otherwise procurable or available to enable timely performance of the work set forth in paragraphs (a) and (b) of this section. (d) (1) Include in the overhaul or repair contract the following clause: Certain data which may be furnished by the Government to the contractor under this contract have been obtained by the Government subject to restriction upon disclosure. Such data or restricted portions are marked with an appropriate legend. Contractor will abide by the restrictions appearing on such data and will not reproduce such data in whole or in part without reproducing such restrictions. (2) Require that the legend authorized by the sections of this title cited in paragraphs (a) and (b) of this section and appearing on the data is reproduced on the copies of data distributed. Sec. 1011.351 1011.352 1011.353 PART 1011-TAXES Subpart A-[Reserved] Subpart B-[Reserved] Subpart C-State and Local Taxes 1011.354 1011.354-1 Texas sales and use tax-con struction contracts. Nebraska sales and use tax-construction contracts. New York State sales and use Los Angeles City License Tax. AUTHORITY: The provisions of this Part 1011 issued under 10 U.S.C. Ch. 137, 10 U.S.C. 8012. SOURCE: The provisions of this Part 1011 appear at 35 F.R. 4857, Mar. 20, 1970, unless otherwise noted. Subpart A-[Reserved] Subpart B-[Reserved] Subpart C-State and Local Taxes § 1011.351 Texas sales and use taxconstruction contracts. (a) A construction contractor (or subcontractor) may purchase materials exempt from Texas Limited Sales, Excise and Use Tax if his contract (or subcontract) provides separate amounts applicable to the performance of services and furnishing of the materials. (b) Instructions for Preparation of Construction Contracts in Texas. (1) The following statements will be included in Invitations for Bids on fixed price construction contracts to be performed in Texas: The contract to be awarded will be a construction contract which contains separate amounts applicable to the performance of the services and the furnishing of the materials as defined in Article 20.01 (T) (2), Title 122A, Revised Civil Statutes of Texas, and Ruling No. 9, Comptroller of Public Accounts. The bidder awarded the contract, must obtain a Limited Sales, Excise and Use Tax Permit as provided by Texas Law. Exemption from Texas Limited Sales. Excise and Use Tax for materials to be incorporated by the contractor (and his subcontractors) into the structure or improvement of real estate must be secured under the terms of cited law and regulation and bid prices should not include any element for this tax on such materials. The contract will be awarded to bidders on the basis of the total of the amounts bid applicable to material to be incorporated into the structure or improvement and the amounts applicable to the performance of services and other obligations of the construction contract. (2) The following will be printed on the bid form (construction): Materials to be incorporated into the structure or improvement Service and other obligations of Total (3) The contract should include the separate amounts and total price bid and an additional general provision as follows: This contract contains separate amounts applicable to the performance of the services and the furnishing of materials as defined in Article 20.01 (T) (2), Title 122A, Revised Civil Statutes of Texas. The contractor has or will obtain a Limited Sales, Excise or Use Tax Permit, as provided by Texas law and regulation. If the contractor awards any subcontract of $10,000 or more under this contract, such subcontract(s) shall contain separate amounts applicable to the performance of services and the furnishing of materials. Notwithstanding any other provisions of this contract, the contract price does not include any amount for Texas Limited Sales, Excise or Use Tax on Materials to be incorporated by the Contractor (or subcontractors in compliance with the above) into the structure or improvement of real estate. The Government agrees to furnish the contractor, upon request, appropriate tax exemption certificates. In the event the Contractor is required to bear the burden of excluded tax, by reason of failure to furnish exemption certificates, or otherwise, without fault of the Contractor, the price will be correspondingly increased. (4) Modifications of such contracts should, where appropriate, similarly indicate separate amounts applicable to such materials and for services and the exclusion of subject tax. cedures may also be followed in the fixed-price procurement of repairs to personal property where performance will occur in Nebraska and the contracting officer is satisfied that a significant saving will accrue to the Government. (b) The following statement will be included in Invitations for Bids or Requests for Proposals: (1) The contract to be awarded will be a (construction) (repair) contract which separately states amounts applicable to the performance of services and the furnishing of materials as contemplated in section 2(3) of the Nebraska Revenue Act of 1967 and Rule TC-1-17 of the Nebraska State Tax Commission, dated June 1, 1967. Exemption from the Nebraska Sales/Use Tax on materials to be incorporated by the contractor and his subcontractor into the (structure or improvement to real estate) (items to be repaired) may be secured under the terms of the cited law and regulations. Accordingly, bid prices shall not include any amount for this tax on such materials. The person or firm to whom this contract is awarded may execute and deliver a resale certificate to his supplier for such materials. (2) Bidders shall state below the breakdown of their bid prices according to materials and services: Materials to be incorporated into the (structure or im- Services and other obligations $ $. As required by the Nebraska tax law and regulations, the amount stated for materials should not be less than the amount paid by the contractor or subcontractor to his supplier. (3) If in the statement of work or bid schedule bidders are required to state a combined price for labor and material, the breakdown of such prices in accordance with this provision will be for the sole purpose of complying with the Nebraska Revenue Act of 1967 and shall have no other significance. (c) The Contract Schedule will contain a statement worded substantially as follows: The contract price of $of $------ for material and $_ ices and other obligations. is comprised for serv The blanks in the foregoing statement are to be filled in with information sup plied by the successful bidder prior to contract award, according to the requirements in paragraph (b) of this section. (d) The resulting contract will also contain the following General Provision: NEBRASKA SALES AND USE TAX a. This contract is a (construction) (repair) contract which contains separate amounts applicable to the performance or services and the furnishing of materials as defined in section 2(3) of the Nebraska Revenue Act of 1967. b. Notwithstanding any other provisions of this contract, the contract price does not include any amount for Nebraska Sales/Use Tax on materials to be incorporated by the contractor or any subcontractor. The Government agrees to furnish to the contractor, upon request, appropriate tax exemption certificates. In the event the contractor is required to pay or bear the burden of the excluded tax, by reason of failure to furnish exemption certificates, or otherwise, without fault of the contractor, the contract price will be correspondingly increased. c. If the bids or proposals preceding this contract were initially solicited on a lumpsum basis, the subsequent breakdown of prices according to materials and services will have been for the sole purpose of complying with the Nebraska Revenue Act of 1967 and shall have no other significance. d. Any subcontracts awarded hereunder shall likewise contain separate amounts applicable to the performance of services and the furnishing of materials. (e) Modification of such contracts should, where appropriate, similarly indicate separate amounts applicable to materials and services and the exclusion of the tax. § 1011.353 New York state sales and use tax-fixed price construction contracts. (a) A construction contractor may purchase materials free of New York Sales and Use Tax if his contract (or subcontract) is for repair of real property. If sale of the repairs is made to the Government, such sale, including charges for material and labor, would also constitute an exempt transaction. This is in contrast to a capital improvement contract where the contractor is classified as a taxable consumer of the materials used in construction. Use of the clause in paragraph (c) of this section will assure that bidders do not include inapplicable New York sales or use taxes in their bids on fixed price contracts for repair of real property. (b) Procurement personnel should coordinate with the local staff judge advo cate in determining whether a contemplated construction project is for repair or capital improvement of real property. Repairs are usually incidental to continued use of the structure and intended to keep it in an efficient operating condition, while capital improvements materially add to the value of the real property, materially prolong its life, or adapt it to a new and different use. (c) The following clause will be included in IFB's, RFP's, RFQ's, resultant fixed price contracts for repair projects to be performed in the State of New York: NEW YORK STATE AND LOCAL SALES AND USE TAXES REPAIR PROJECT Work called for by Items of this contract (IFB, RFP, RFQ) is considered to be in the nature of repairs to real property. Since the New York State Sales and Use Tax Law exempts such projects when purchased by the Federal Government (sec. 116(a), New York Sales/Use Tax Law), no sales or use taxes should be paid by the contractor on either materials purchased for incorporation into the project or services rendered in fulfillment thereof. However, the contractor is subject to sales or use taxes on equipment, tools, and supplies rented or purchased for the project but not incorporated therein. The contractor therefore certifies that purchases of the type mentioned in the preceding sentence have been included in the contract price. If, notwithstanding the foregoing, the contractor is required to pay or bear the burden for New York State and local sales or use taxes on materials incorporated or services rendered in fulfillment of this project, including any interest or penalty incurred thereon, the contract price shall be correspondingly adjusted to cover same: Provided, That such taxes, interest or penalty were not incurred through the fault or negligence of the contractor or his failure to follow the instructions of the Contracting Officer. The contract price shall be correspondingly decreased, if following an adjustment under this clause, the contractor obtains a credit, refund or drawback of such taxes, interest or penalty. The contract price shall be similarly decreased if the contractor, through his fault or negligence of failure to follow the instructions of the Contracting Officer does not obtain a refund, credit or drawback of such taxes, interest or penalty. Interest paid or credited to the Contractor incident to a refund of such taxes shall inure to the benefit of the Government to the extent that such interest was earned after the Contractor was paid or reimbursed by the Government for such taxes. The contractor shall promptly notify the Contracting Officer of any matter which may result in a price adjustment under this clause, and shall take action as directed by the Contracting Officer. The contract price shall be equitably adjusted to cover the costs of such action, including interest, penalties, and reasonable attorneys' fees. (d) Cost type and time and materials contracts: Under a cost type or time and materials contract, title to direct materials vests in the Government prior to use or consumption by the contractor. The Government's acquisition of title should therefore be treated as an exempt retail sale of such materials, whether or not physically incorporated into the construction. Under such contracts, neither the contractor's purchase of direct materials nor the sale of the construction to the Government, whether in the nature of repairs or capital improvements, would be taxable. § 1011.354 Los Angeles City License Tax. (a) Instructions to contractors. It is the intention of the military departments to challenge the validity of the Los Angeles City License Tax as it is currently being applied to contractors and subcontractors selling manufactured end items directly or indirectly to the Government under fixed-price contracts and cost-type contracts. Test litigation will soon be instituted to accomplish this purpose. A form letter of instructions, see Instructions to Contractors, has been approved by the Armed Services Tax Group (DOD) for issuance to contractors concerned. The letter sets forth the procedures to be followed by Government contractors and subcontractors in the city of Los Angeles during the pendency of the test litigation. Issuance thereof to affected prime contractors (who should, in turn, instruct affected subcontractors) will be accomplished by cognizant ACO's. Reports received from contractors concerning the Los Angeles Tax (see paragraph 6 of the Instructions to Contractors) will be forwarded to AFLC (MCJCO). (b) Special tax clauses. (1) The special clauses in subparagraphs (3) and (4) of this paragraph are intended for use in all contracts containing an ASPR tax clause (usually fixed-price or time and materials contracts), the performance of which will be accomplished either wholly or partially in the city of Los Angeles, Calif. A special clause will be inserted in contracts for services as well as supply contracts since the Los Angeles tax, measured by gross receipts of the preceding year, is normally allo cated and charged through overhead to all contracts of the current year. Thus, a subsequent reduction in the amount of license taxes for a given year is likely to be reflected as a general reduction in overhead for all contracts which shared the original cost or burden for such taxes. (2) Provision will be made in IFB's, RFP's, and RFQ's to allow for the incorporation of a special tax clause in resultant contracts where appropriate. Existing contracts need not be amended to incorporate such a clause, except where new work is added. (3) The following provision will be inserted in affected contracts containing the tax clause in § 11.401-1 of this title. LOS ANGELES CITY LICENSE TAXES Notwithstanding any other provisions of this contract: (a) The contract price includes allocable Los Angeles City License taxes, including those taxes (hereinafter referred to as “additional taxes") resulting from the application of principles expressed by the Los Angeles City Attorney in his opinion dated March 2, 1960. If, after the contract date, the contractor is not required to pay or bear the burden, or obtains a credit or refund of all or a portion of said taxes from the city of Los Angeles, the contract price shall be decreased by the amount of such relief or refund allocable to this contract, or that amount shall be paid to the Government, as the Contracting Officer directs. The contract price shall be similarly decreased if the Contractor, through his fault or negligence or failure to follow instructions of the Contracting Officer as provided in (b) below, is required to pay or bear the burden or does not obtain a refund of any such taxes. Interest paid or credited to the Contractor incident to a refund of these taxes shall insure to the benefit of the Government to the extent that such interest was earned after the Contractor was paid or reimbursed by the Government for these taxes. (b) The Contractor shall comply with the instructions of the Contracting Officer in order to obtain a reduction, credit or refund of Los Angeles City License Taxes, and the contract price shall be equitably adjusted to cover the costs of such compliance, including reasonable attorneys' fees arising therefrom. (c) The Contractor shall maintain accurate records showing the amount of Los Angeles License Taxes, and specifically the amount of additional taxes, included in the contract price. (4) The following provision will be inserted in affected contracts containing the tax clause in § 11.401-2 of this title. |