§ 1-7.403-1 Clauses for cost-reimbursement type research and development contracts involving construction. (a) Insert the clauses set forth in § 118.703-1 in cost-reimbursement type research and development contracts under the conditions prescribed in § 118.701-1. The clauses set forth in § 118.703-1 are listed for convenience as follows: Davis-Bacon Act (40 U.S.C. 276a-276a-7). Contract Work Hours and Safety Standards Act-Overtime Compensation (40 U.S.C. 327-333). Apprentices and Trainees Payrolls and Payroll Records Compliance with Copeland Regulations § 1-7.403-50 Cost accounting standards.1 (a) National defense procurements. Insert the notices set forth in § 13.1203-3(a) in solicitations of proposals and the appropriate contract clauses set forth in § 1-3.1204-1 in negotiated contracts in accordance with the provisions of Subpart 1-3.12. (b) Nondefense procurements. Insert the notice set forth in § 1-3.1203-3(b) in solicitations of proposals and the appropriate contract clause set forth in § 1-3.1204-2 in negotiated contracts in accordance with the provisions of Subpart 1-3.12. [43 FR 14122, Apr. 4, 1978] 1 See Temporary Regulation 44 published at 43 FR 14108, April 4, 1978, for temporary changes to § 1-7.403-50. § 1-7.404-3 Date of incurrence of costs. Insert the clause set forth in § 17.204-3. § 1-7.404-4 Notice regarding late delivery. Insert the clause set forth in § 17.204-4. § 1-7.404-5 Changes. CHANGES (a) The Contracting Officer may at any time, by a written order, and without notice to the sureties, if any, make changes, within the general scope of this contract, in any one or more of the following: (i) Drawings, designs, or specifications; (ii) Method of shipment or packing; and (iii) Place of inspection, delivery, or acceptance. (b) If any such change causes an increase or decrease in the estimated cost of, or the time required for the performance of any part of the work under this contract, whether changed or not changed by any such order, or otherwise affects any other provision of this contract, an equitable adjustment shall be made: (i) In the estimated cost or delivery schedule, or both; (ii) In the amount of any fixed fee to be paid to the Contractor; and (iii) In such other provisions of the contract as may be affected, and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within thirty (30) days from the date of receipt by the Contractor of the notification of change; Provided, however, That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes." However, except as provided in paragraph (c) below, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed. (c) Notwithstanding the provisions of paragraphs (a) and (b) above, the estimated cost of this contract and, if this contract is incrementally funded, the funds allotted for the performance thereof, shall not be increased or deemed to be increased except by specific written modification of the contract indicating the new contract estimated cost and, if this contract is incrementally funded, the new amount allotted to the contract. Until such modification is made, the Contractor shall not be obligated to continue performance or incur costs beyond the § 1-7.404-9 Insurance-liability to third persons. (a) Insert the clause set forth in § 17.204-5 under the conditions prescribed therein. If the contractor claims partial immunity from tort liability as a State agency or as a charitable institution (as where work may be performed under the contract in a place or under conditions where the contractor is not immune from tort liability), the following may be added to the clause set forth in § 1-7.204-5: (e) Notwithstanding paragraphs (a) and (c) of this clause, (1) the Government does not assume any liability to third persons, nor will the Government reimburse the Contractor for his liability to third persons, with respect to loss due to death, bodily injury, or damage to property resulting in any way from the performance of this contract or any subcontract hereunder, and (2) the Contractor need not procure or maintain insurance coverage as provided in paragraph (a) of this clause; Provided, the Contractor may obtain any insurance coverage he deems necessary subject to approval by the Contracting Officer as to form, amount, and duration, in which event the Contractor shall be reimbursed (i) for the cost of such insurance and (ii) to the extent provided in paragraph (c) above, for liabilities to third persons for which the Contractor has obtained insurance coverage as provided in this paragraph, but for which such coverage is insufficient in amount. (b) If the contractor claims total immunity from tort liability as a State agency or as a charitable institution, the following clause may be used in lieu of the clause in § 1-7.204-5. LIABILITY TO THIRD PERSONS (a) The Government does not assume any liability to third persons, nor will the Government reimburse the Contractor for his liability to third persons, with respect to loss due to death, bodily injury, or damage to property resulting in any way from the performance of this contract or any subcontract hereunder. (b) The Contractor shall give the Government or its representatives immediate notice of any suit or action filed, or prompt notice of any claim made, against the Contractor arising out of the perforinance of this contract, the cost and expense of which may be reimbursable to the Contractor under the provisions of this contract. The Contractor shall furnish immediately to the Government copies of all pertinent papers received by the Contractor. The Contractor shall, if required by the Government, authorize representatives of the Government to settle or defend any such claim and to represent the Contractor in or take charge of any litigation in connection therewith. The Contractor may, at his own expense, be associated with the representatives of the Government in the settlement or defense of any such claim or litigation. [40 FR 17566, Apr. 21, 1975. Redesignated and amended at 41 FR 22817, June 7, 1976] (b) For construction, alteration, or repair of vessels; and (c) For construction, alteration or repair work in foreign countries. § 1-7.602 Required clauses. Subject to the exceptions in § 17.601, the following clauses shall be inserted in all advertised and negotiated fixed-price construction contracts. For convenience many of the required clauses have been included on standard forms which are prescribed for use in construction contracts by Subpart 1-16.4 of this chapter. § 1-7.602-1 Definitions. DEFINITIONS (a) The term "head of the agency" or "Secretary" as used herein means the Secretary, the Under Secretary, any Assistant Secretary, or any other head or assistant head of the executive or military department or other Federal agency; and the term "his duly authorized representative" means any person or persons or board (other than the Contracting Officer) authorized to act for the head of the agency or the Secretary. (b) The term "Contracting Officer" as used herein means the person executing this contract on behalf of the Government and includes a duly appointed successor or authorized representative. Additional definitions may be included provided they are not inconsistent with the clause or provisions of these regulations. § 1-7.602-2 Specifications and drawings. SPECIFICATIONS AND DRAWINGS The Contractor shall keep on the work a copy of the drawings and specifications and shall at all times give the Contracting Officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a determination shall be at his own risk and expense. The Contracting Officer shall furnish from time to time such detail drawings and other information as he may consider necessary, unless otherwise provided. § 1-7.602-3 Changes. CHANGES (a) The Contracting Officer may, at any time, without notice to the sureties, by written order designated or indicated to be a change order, make any change in the work within the general scope of the contract, including but not limited to, changes: (1) In the specifications (including drawings and designs); (2) In the method or manner of performance of the work; (3) In the Government-furnished facilities, equipment, materials, services, or site; or (4) Directing acceleration in the performance of the work. (b) Any other written order or an oral order (which terms as used in this paragraph (b) shall include direction, instruction, interpretation, or determination) from the Contracting Officer, which causes any such change, shall be treated as a change order under this clause, provided that the Contractor gives the Contracting Officer written notice stating the date, circumstances, and source of the order and that the Contractor regards the order as change order. a (c) Except as herein provided, no order, statement, or conduct of the Contracting Officer shall be treated as a change under this clause or entitle the Contractor to an equitable adjustment hereunder. (d) If any change under this clause causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any order, an equitable adjustment shall be made and the contract modified in writing accordingly: Provided, however, That except for claims based on defective specifications, no claim for any change under (b) above shall be allowed for any costs incurred more than 20 days before the Contractor gives written notice as therein required: And provided further, That in the case of defective specifications for which the Government is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with such defective specifications. (e) If the Contractor intends to assert a claim for an equitable adjustment under this clause, he must, within 30 days after reIceipt of a written change order under (a) above or the furnishing of a written notice under (b) above, submit to the Contracting Officer a written statement setting forth the general nature and monetary extent of such claim, unless this period is extended by the Government. The statement of claim hereunder may be included in the notice under (b) above. (f) No claim by the Contractor for an equitable adjustment hereunder shall be allowed if asserted after final payment under this contract. § 1-7.602-4 Differing site conditions. DIFFERING SITE CONDITIONS (a) The Contractor shall promptly, and before such conditions are disturbed, notify the Contracting Officer in writing of: (1) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The Contracting Officer shall promptly investigate the conditions, and if he finds that such conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performance of any part of the work under this contract, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the contract modified in writing accordingly. |