§ 18-8.810

Format for application for grant of authorization.

APPLICATION FOR GRANT OF AUTHORIZATION

(a) Name of contractor.

(b) Address of the principal office of the contractor.

(c) Name and location of divisions of the applicant's plant for which authorization requested.

(d) An explanation of the necessity and Justification for the authorization requested.

(e) A full description of applicant's organization for handling terminations, including the names of the officials in charge of processing and settling claims.

(f) The number and dollar amount (estimated if necessary) of uncompleted contracts with Government contracting agencies and the percentage thereof applicable to NASA.

(g) The number and dollar amount (estimated if necessary) of uncompleted subcontracts under Government contracts and the percentage thereof applicable to NASA.

(h) The extent of the applicant's experience in termination matters, including the handling of claims of subcontractors.

(1) The approximate amount and general nature of termination of the applicant currently in process.

(j) A statement that no other such application has been made for any division of the applicant's plant covered by the application; or, if one has been made, a full statement of the facts.

(k) The limits of authorization requested. § 18-8.810-1 Format of letter of au

thorization.

LETTER OF AUTHORIZATION

(a) In consideration of your written request of (Date) and pursuant to paragraph 8.209-4 of the NASA Procurement Regulation, you are authorized, subject to the limitations of the NASA Procurement Regulation and those stated below, to settle with

out further approval of the Government, all subcontracts and purchase orders terminated by you as a result of the NASA contract being modified or terminated for the convenience of the Government, or subcontracts or purchase orders which have been terminated under any other circumstances that may require the Government to bear the cost of their settlement. This authorization does not extend to the disposition of Government-furnished material and completed articles not delivered under the subcontract or purchase order, as these require screening and approval of disposal actions by the Government; except that allocable completed articles may be disposed of without Government approval or screening if the total amount (at subcontract price) when added to the amount of settlement (as computed below) does not exceed $---- (insert limit of authorization being granted).

(b) This authorization is subject to the following conditions and requirements: (i) The amount of such subcontract termination settlement does not exceed $(insert limit of authorization being granted), computed as follows:

(A) credits for retention or other disposal of termination inventory allocated to the claim, and for advance or partial payments, shall not be deducted from the gross claim or settlement; but

(B) amounts payable for completed articles or work at the contract price, or for the settlement or discharge of termination claims of subcontractors (except those settlements which have not been approved by the Government), shall be deducted.

(ii) Any termination inventory involved has been disposed of in accordance with the NASA Procurement Regulation, except that screening and Government approval of scrap and salvage determinations are not required.

(iii) The contracting officer may incorporate specific instructions in each Notice of Termination as to the disposition of specific items of termination inventory, or

the contracting officer may, at any time prior to final settlement, issue such specific instructions. No such instructions, however, will affect any disposal action taken by you or your subcontractors prior to receipt thereof.

(iv) The settlements made by you with your subcontractors and suppliers pursuant to the authorization granted herein, including sales, retention, or other dispositions of property involved in making such settlements, shall thereupon be reimbursable in accordance with Part 8 of the NASA Procurement Regulation and the termination clause of the contract, and will not require approval of the contracting officer or his authorized representative.

(v) Any number of separate settlements of $--- (insert limit of authorization granted) or less may be made with a single subcontractor. Claims which would normally be included in a single settlement proposal. such as those based on a series of separate orders for the same item under one contract, should be consolidated whenever possible and must not be divided in such a way as to bring them within the authorization.

(vi) The authorization to make settlements provided for herein is not to be exercised in the case of a subcontractor or supplier who is affiliated with you. For this purpose, you should consider a contractor to be affiliated with you if you are under common control or there is any common interest between you by reason of stock ownership, or otherwise, which is sufficient to create a reasonable doubt that the bargaining between you is completely at arm's length.

(vii) A representative of this office will, from time to time, review your methods used in negotiating settlements with your subcontractors and make a selective examination of such settlements made by you. Where such a review indicates that you are not adequately protecting the Government's interest, this delegation will be revoked. § 18-8.811 Delinquency notices.

The following are formats of delinquency notices which may be used to satisfy the requirements of § 18-8.602-3. All notices will be sent with proof of delivery requested.

CURE NOTICE 1

You are notified that the Government considers your (specify the Contractor's failure or failures), a condition that is endangering performance of the contract in accordance with its terms. Therefore, unless such condition is cured within ten (10) days after

1 Use only when the delivery schedule has not expired.

The "Cure Notice" is required by the terms of the "Default" clause in the contract and derives its authority therefrom. Before using this notice, it must be ascertained that an amount of time equal to or greater than the period of "cure" remains in the contractually established delivery schedule or any extension thereof. If the time remaining in the contract delivery schedule is not sufficient to permit a realistic “cure” period of ten (10) days or more, the "Cure Notice" should not be issued and the following "Show Cause Notice" may be used, if desired, immediately upon the expiration of the delivery period.

SHOW CAUSE NOTICE

Since you have failed to (perform Contract No. within the time required by the terms thereof) (cure the conditions endanunder gering performance Contract No. as described to you in the Government's letter of (date)), the Government is considering terminating said contract pursuant to General Provision No. (Default). Pending a final decision in this matter, it will be necessary to determine whether your failure to perform arose out of causes beyond your control and without fault or negligence on your part. Accordingly, you are hereby afforded the opportunity to present, in writing, any facts bearing on the question to the Contracting Officer (insert complete address, including symbol, of activity where the Contracting Officer is located), with copy thereof to the undersigned for information within ten (10) days after receipt of this notice. Your failure to present any excuses within this time may be considered as an admission that none exist. Your attention is invited to the respective rights of the Contractor and the Government under General Provision No. (Default) and the liabilities that may be invoked in the event a decision is made to terminate for default of the Contractor.

Any assistance rendered to you on this contract or acceptance by the Government of delinquent goods or services hereunder, will be solely for the purpose of mitigating damages, and is not to be construed as an intention on the part of the Government to condone any delinquency, or as a waiver of any

2 Delivery schedule in part or in whole has expired.

rights the Government may have under subject contract.3

3 Stop work instructions may be used when it is definitely known that there are no further requirements for the items or services, but an investigation must be conducted to determine whether an actionable default exists in lieu of termination for convenience. In such a situation, the following may be inserted as the final paragraph of the Show Cause Notice:

Pending decision you are instructed to stop all work immediately and to make no further commitments under subject contract. Advise all subcontractors and suppliers to do likewise.

18-9.203-2

18-9.203-3

18-9.101-1

18-9.101-2

18-9.101-3

Use of new technology clause. Special instructions for waived

18-9.204

18-9.204-1

18-9.101-4

New technology clause.

18-9.101-5

Property rights in inventions

18-9.204-2

clause.

18-9.204-50

18-9.204-51

18-9.204-52 18-9.205

18-9.101-8

18-9.101-9

18-9.102

18-9.102-1

Purchase of patented items when Government is a licensee.

18-9.205-1

18-9.205-2

Rights in data clause for use in supply contracts.

Limited rights in data provision for use in supply contracts.

Contract clauses-Special. Rights in data-Special situations.

Production of motion pictures. Short form clause, fixed-price research contract with educational and other nonprofit institutions.

Short form clause, cost-reimbursement research contract with educational and other nonprofit institutions. Potentially hazardous items. Contracts for acquisition of existing works.

Off-the-shelf purchase of books and similar items.

Purchase of existing motion pictures or television recordings.

Purchase of existing computer

programs or computer program data bases.

Contracts to be performed outside the United States.

AUTHORITY: The provisions of this Part 18-9 issued under 42 U.S.C. 2473 (b)(1).

SOURCE: The provisions of this Part 18-9 appear at 36 F.R. 6383, Apr. 3, 1971, unless otherwise noted.

§ 18-9.000 Scope of part.

This Part 18-9 sets forth policies and procedures pertaining to innovations, inventions, patents, data, and copyrights in connection with the procurement of supplies and services.

Subpart 18-9.1-Innovations,
Inventions, and Patents

§ 18-9.100 Scope of subpart.

(a) This Subpart 18-9.1 prescribes contract clauses and instructions which define and implement the policy of NASA with respect to:

(1) Inventions and innovations made in the performance of work under contract with NASA;

(2) Patent and copyright infringement liability of the United States resulting from work performed under contract with NASA;

covering

(3) Security requirements patent applications containing classified subject matter; and

(4) Patent and copyright royalties payable in connection with the performance of contracts with NASA.

(b) The Office of General Counsel, NASA Headquarters, should be consulted for policies, instructions, and contract clauses concerning innovations, inventions, patents, data, and copyrights for use in contracts which are to be performed outside the United States, its possessions, and Puerto Rico.

§ 18-9.101 Property rights in inventions made in the performance of work under NASA contracts.

§ 18-9.101-1 General.

(a) Except for any invention made in the performance of any work under any contract with NASA, it is the policy of NASA to pay reasonable compensation for the acquisition of rights in any invention covered by a valid patent issuing thereon and enforceable against the Government. Such rights in "background" patents will not be acquired in contracts for supplies and services except by specific negotiation for such rights, unless the patents and the rights thereunder are listed and priced as a separate contract item. Questions of validity, enforceability and infringement of patents will be determined by the Office of the General Counsel, NASA Headquarters.

(b) It is also the policy of NASA to refer to the NASA Inventions and Contri

Except as provided in § 18-9.101-5, the New Technology clause set forth in § 189.101-4 shall be included in every contract made by or on behalf of NASA, and in every modification of such a contract, where the performance of research, experimental, design, engineering or developmental work is contemplated. Whenever an existing contract is modified by inserting the clause set forth in § 18-9.101-4, see the instruction contained in § 18-9.101-8. As illustrative, but without limitation, contracts for the following purposes are considered to contemplate work of the type described above:

(a) Conduct of basic or applied research;

(b) Design, or development, or manufacture for the first time of any machine, article of manufacture, or composition of matter to satisfy NASA's specifications or special requirements;

(c) Development of any process or technique for attaining a NASA objective not readily attainable through the practice of a previously developed process or technique; or

(d) Testing or experimenting with a machine, process, or technique to determine whether the same is suitable or could be made suitable for a NASA objective.

Architect-Engineer contracts and construction contracts which require only "state of the art" or "brick and mortar" construction need not include the clause in § 18-9.101-4.

§ 18-9.101-3 Special instructions for waived inventions.

(a) The New Technology clause set forth in § 18-9.101-4 contains a section IV pertaining to "Waived Inventions." In appropriate cases the Administrator may grant the request of a prospective contractor or subcontractor and waive title to any invention which may be made under the contract or subcontract (see the NASA Patent Waiver Regulations, 14 CFR § 1245.104; NASA Management Instruction 5109.2A). In such cases the contracting officer will be informed that the waiver has been granted, and when the contract or subcontract is executed, section IV of the New Technology clause shall be made applicable to the contract to implement the waiver by including the following statement in the Schedule of the contract or subcontract:

The Administrator has granted the contractor's request for waiver under 14 CFR § 1245.104, and section IV of the New Technology clause is applicable to this contract.

(b) The contracting officer shall not include the statement set forth in paragraph (a) of this section in any contract, or approve its inclusion in any subcontract, unless at the time of or prior to the execution of the contract or subcontract he has been notified by the Chairman of the Inventions and Contributions Board that the Administrator has granted the contractor's or subcontractor's request for waiver with respect to the contract or subcontract concerned.

(c) The procedures established by these special instructions for waived inventions and 14 CFR § 1245.104 are designed to afford an opportunity to settle questions of the allocation of rights in inventions at the time of contracting in cases where the facts are readily determinable. Petitions for waiver submitted to the contracting officer with respect to contracts or subcontracts which will be awarded shall be referred to the Patent Counsel servicing the installation for analysis and forwarding to the Inventions and Contributions Board at NASA Headquarters.

(d) Upon receipt from Patent Counsel of a petition for waiver at the time of contracting, the Inventions and Contributions Board will promptly review the matter in order to determine if the following six findings can be made (the word "contract" includes "subcontract of any tier").

(1) It is not a principal purpose of the contract to create, develop or improve products, processes, or methods which are intended for commercial use (or which are otherwise intended to be made available for use) by the general public at home or abroad, or which will be required for such use by governmental regulations.

(2) It is not a principal purpose of the contract to explore into fields which directly concern the public health or public welfare.

(3) The contract is not in a field of science or technology in which there has been little significant experience outside of work funded by the Government, or where the Government has been the principal developer of the field, with respect to which the acquisition of exclusive rights at the time of contracting might confer on the contractor a preferred or dominant position.

(4) The contract is not for services of the contractor for (i) the operation of a Government-owned research or production facility; or (ii) coordinating and directing the work of others.

(5) The purpose of the contract is to build upon existing knowledge or technology to develop information, products, processes, or methods for use by the Government.

(6) The work called for by the contract is in a field of technology in which the contractor has required technical competence (demonstrated by factors such as know-how, experience, and patent position) directly related to an area in which the contractor has an established nongovernmental commercial position.

(e) If the findings set forth in paragraph (d) of this section cannot be made without unduly delaying the execution of the contract or subcontract in question, the Inventions and Contributions Board will so notify the contracting officer, who shall notify the contractor or subcontractor concerned. In such cases the statement set forth in paragraph (a) of this section shall not be included in the contract or authorized for inclusion in the subcontract, and the contractor or subcontractor may execute the contract or subcontract and request the Inventions and Contributions Board to consider the matter further under 14 CFR § 1245.105.