[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2002 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
48
Chapter 1 (Parts 52 to 99)
Revised as of October 1, 2002
Federal Acquisition Regulations System
Contains a codification of documents of general applicability
and future effect
As of October 1, 2002
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2002
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area
(202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 1--Federal Acquisition Regulation
(Continued) 3
Finding Aids:
Table of CFR Titles and Chapters........................ 579
Alphabetical List of Agencies Appearing in the CFR...... 597
Table of OMB Control Numbers............................ 607
List of CFR Sections Affected........................... 611
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 52.000 refers
to title 48, part 52,
section 000.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2002), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
[email protected].
SALES
The Government Printing Office (GPO) processes all sales and
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512-1803.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Weekly Compilation of Presidential
Documents and the Privacy Act Compilation are available in electronic
format at www.access.gpo.gov/nara (''GPO Access''). For more
information, contact Electronic Information Dissemination Services, U.S.
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, [email protected].
[[Page vii]]
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA
site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2002.
[[Page ix]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
seven volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and
chapter 29 to end. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2002.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The first volume, containing chapter 1 (parts 1 to 51), includes an
index to the Federal acquisition regulations.
[[Page x]]
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapter 1, parts 52 to 99)
--------------------------------------------------------------------
Part
chapter 1--Federal Acquisition Regulation (Continued)....... 52
[[Page 3]]
CHAPTER 1--FEDERAL ACQUISITION REGULATION (CONTINUED)
--------------------------------------------------------------------
SUBCHAPTER H--CLAUSES AND FORMS
Part Page
52 Solicitation provisions and contract clauses 5
53 Forms....................................... 394
54-99 [Reserved]
[[Page 5]]
SUBCHAPTER H--CLAUSES AND FORMS
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents
Sec.
52.000 Scope of part.
Subpart 52.1--Instructions for Using Provisions and Clauses
52.100 Scope of subpart.
52.101 Using part 52.
52.102 Incorporating provisions and clauses.
52.103 Identification of provisions and clauses.
52.104 Procedures for modifying and completing provisions and clauses.
52.105 Procedures for using alternates.
52.106 [Reserved]
52.107 Provisions and clauses prescribed in subpart 52.1.
Subpart 52.2--Text of Provisions and Clauses
52.200 Scope of subpart.
52.201 [Reserved]
52.202-1 Definitions.
52.203-1 [Reserved]
52.203-2 Certificate of Independent Price Determination.
52.203-3 Gratuities.
52.203-4 [Reserved]
52.203-5 Covenant Against Contingent Fees.
52.203-6 Restrictions on Subcontractor Sales to the Government.
52.203-7 Anti-Kickback Procedures.
52.203-8 Cancellation, Rescission, and Recovery of Funds for Illegal or
Improper Activity.
52.203-9 [Reserved]
52.203-10 Price or Fee Adjustment for Illegal or Improper Activity.
52.203-11 Certification and Disclosure Regarding Payments to Influence
Certain Federal Transactions.
52.203-12 Limitation on Payments to Influence Certain Federal
Transactions.
52.204-1 Approval of Contract.
52.204-2 Security Requirements.
52.204-3 Taxpayer identification.
52.204-4 Printed or Copied Double-Sided on Recycled Paper.
52.204-5 Women-Owned Business (Other Than Small Business).
52.204-6 Data Universal Numbering System (DUNS) Number.
52.205-52.206 [Reserved]
52.207-1 Notice of Cost Comparison (Sealed-Bid).
52.207-2 Notice of Cost Comparison (Negotiated).
52.207-3 Right of First Refusal of Employment.
52.207-4 Economic Purchase Quantity--Supplies.
52.207-5 Option to Purchase Equipment.
52.208-1--52.208-3 [Reserved]
52.208-4 Vehicle Lease Payments.
52.208-5 Condition of Leased Vehicles.
52.208-6 Marking of Leased Vehicles.
52.208-7 Tagging of Leased Vehicles.
52.208-8 Required Sources for Helium and Helium Usage Data.
52.208-9 Probable cause hearing and determination.
52.209-1 Qualification Requirements.
52.209-3 First Article Approval--Contractor Testing.
52.209-4 First Article Approval--Government Testing.
52.209-5 Certification Regarding Debarment, Suspension, Proposed
Debarment, and Other Responsibility Matters.
52.209-6 Protecting the Government's Interest When Subcontracting With
Contractors Debarred, Suspended, or Proposed for Debarment.
52.211-1 Availability of Specifications Listed in the GSA Index of
Federal Specifications, Standards and Commercial Item
Descriptions, FPMR Part 101-29.
52.211-2 Availability of Specifications Listed in the DoD Index of
Specifications and Standards (DoDISS) and descriptions listed
in the Acquisition Management Systems and Data Requirements
Control List, DoD 5010.12-L.
52.211-3 Availability of Specifications Not Listed in the GSA Index of
Federal Specifications, Standards and Commercial Item
Descriptions.
52.211-4 Availability for Examination of Specifications Not Listed in
the GSA Index of Federal Specifications, Standards and
Commercial Item Descriptions.
52.211-5 Material Requirements.
52.211-6 Brand name or equal.
52.211-7 Alternatives to Government-unique standards.
52.211-8 Time of Delivery.
52.211-9 Desired and Required Time of Delivery.
52.211-10 Commencement, Prosecution, and Completion of Work.
52.211-11 Liquidated Damages--Supplies, Services, or Research and
Development.
52.211-12 Liquidated Damages--Construction.
52.211-13 Time Extensions.
52.211-14 Notice of Priority Rating for National Defense Use.
52.211-15 Defense Priority and Allocation Requirements.
52.211-16 Variation in Quantity.
52.211-17 Delivery of Excess Quantities.
52.211-18 Variation in Estimated Quantity.
[[Page 6]]
52.212-1 Instructions to Offerors--Commercial Items.
52.212-2 Evaluation--Commercial Items.
52.212-3 Offeror Representations and Certifications--Commercial Items.
52.212-4 Contract Terms and Conditions--Commercial Items.
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
52.213-1 Fast Payment Procedure.
52.213-2 Invoices.
52.213-3 Notice to Supplier.
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
52.214-1 [Reserved]
52.214-2 [Reserved]
52.214-3 Amendments to Invitations for Bids.
52.214-4 False Statements in Bids.
52.214-5 Submission of Bids.
52.214-6 Explanation to Prospective Bidders.
52.214-7 Late Submissions, Modifications, and Withdrawals of Bids.
52.214-8 [Reserved]
52.214-9 Failure to Submit Bid.
52.214-10 Contract Award--Sealed Bidding.
52.214-11 [Reserved]
52.214-12 Preparation of Bids.
52.214-13 Telegraphic Bids.
52.214-14 Place of Performance--Sealed Bidding.
52.214-15 Period for Acceptance of Bids.
52.214-16 Minimum Bid Acceptance Period.
52.214-17 [Reserved]
52.214-18 Preparation of Bids--Construction.
52.214-19 Contract Award--Sealed Bidding--Construction.
52.214-20 Bid Samples.
52.214-21 Descriptive Literature.
52.214-22 Evaluation of Bids for Multiple Awards.
52.214-23 Late Submissions, Modifications, and Withdrawals of Technical
Proposals Under Two-Step Sealed Bidding.
52.214-24 Multiple Technical Proposals.
52.214-25 Step Two of Two-Step Sealed Bidding.
52.214-26 Audit and Records--Sealed Bidding.
52.214-27 Price Reduction for Defective Cost or Pricing Data--
Modifications--Sealed Bidding.
52.214-28 Subcontractor Cost or Pricing Data--Modifications--Sealed
Bidding.
52.214-29 Order of Precedence--Sealed Bidding.
52.214-30 Annual Representations and Certifications--Sealed Bidding.
52.214-31 Facsimile Bids.
52.214-32 Late Submissions, Modifications, and Withdrawals of Bids
(Overseas).
52.214-33 Late Submissions, Modifications, and Withdrawals of Technical
Proposals Under Two-Step Sealed Bidding (Overseas).
52.214-34 Submission of Offers in the English Language.
52.214-35 Submission of Offers in U.S. Currency.
52.215-1 Instructions to Offerors--Competitive Acquisition.
52.215-2 Audit and Records--Negotiation.
52.215-3 Request for Information or Solicitation for Planning Purposes.
52.215-4 [Reserved]
52.215-5 Facsimile Proposals.
52.215-6 Place of Performance.
52.215-7 Annual Representations and Certifications--Negotiation.
52.215-8 Order of Precedence--Uniform Contract Format.
52.215-9 Changes or Additions to Make-or-Buy Program.
52.215-10 Price Reduction for Defective Cost or Pricing Data.
52.215-11 Price Reduction for Defective Cost or Pricing Data--
Modifications.
52.215-12 Subcontractor Cost or Pricing Data.
52.215-13 Subcontractor Cost or Pricing Data--Modifications.
52.215-14 Integrity of Unit Prices.
52.215-15 Pension adjustments and asset reversions.
52.215-16 Facilities Capital Cost of Money.
52.215-17 Waiver of Facilities Capital Cost of Money.
52.215-18 Reversion or Adjustment of Plans for Postretirement Benefits
(PRB) Other Than Pensions.
52.215-19 Notification of Ownership Changes.
52.215-20 Requirements for Cost or Pricing Data or Information Other
Than Cost or Pricing Data.
52.215-21 Requirements for Cost or Pricing Data or Information Other
Than Cost or Pricing Data--Modifications.
52.215-22--52.215-42 [Reserved]
52.216-1 Type of Contract.
52.216-2 Economic Price Adjustment--Standard Supplies.
52.216-3 Economic Price Adjustment--Semistandard Supplies.
52.216-4 Economic Price Adjustment--Labor and Material.
52.216-5 Price Redetermination--Prospective.
52.216-6 Price Redetermination--Retroactive.
52.216-7 Allowable Cost and Payment.
52.216-8 Fixed Fee.
52.216-9 Fixed Fee--Construction.
52.216-10 Incentive Fee.
52.216-11 Cost Contract--No Fee.
52.216-12 Cost-Sharing Contract--No Fee.
52.216-13 Allowable Cost and Payment--Facilities.
52.216-14 Allowable Cost and Payment--Facilities Use.
52.216-15 Predetermined Indirect Cost Rates.
[[Page 7]]
52.216-16 Incentive Price Revision--Firm Target.
52.216-17 Incentive Price Revision--Successive Targets.
52.216-18 Ordering.
52.216-19 Order Limitations.
52.216-20 Definite Quantity.
52.216-21 Requirements.
52.216-22 Indefinite Quantity.
52.216-23 Execution and Commencement of Work.
52.216-24 Limitation of Government Liability.
52.216-25 Contract Definitization.
52.216-26 Payments of Allowable Costs Before Definitization.
52.216-27 Single or Multiple Awards.
52.216-28 Multiple Awards for Advisory and Assistance Services.
52.217-1 [Reserved]
52.217-2 Cancellation Under Multiyear Contracts.
52.217-3 Evaluation Exclusive of Options.
52.217-4 Evaluation of Option Exercised at Time of Contract Award.
52.217-5 Evaluation of Options.
52.217-6 Option for Increased Quantity.
52.217-7 Option for Increased Quantity--Separately Priced Line Item.
52.217-8 Option to Extend Services.
52.217-9 Option to Extend the Term of the Contract.
52.218 [Reserved]
52.219-1 Small Business Program Representations.
52.219-2 Equal Low Bids.
52.219-3 Notice of total HUBZone set-aside.
52.219-4 Notice of price evaluation preference for HUBZone small
business concerns.
52.219-5 Very small business set-aside.
52.219-6 Notice of Total Small Business Set-Aside.
52.219-7 Notice of Partial Small Business Set-Aside.
52.219-8 Utilization of small business concerns.
52.219-9 Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan.
52.219-10 Incentive Subcontracting Program.
52.219-11 Special 8(a) Contract Conditions.
52.219-12 Special 8(a) Subcontract Conditions.
52.219-13 [Reserved]
52.219-14 Limitations on Subcontracting.
52.219-15 [Reserved]
52.219-16 Liquidated Damages--Subcontracting Plan.
52.219-17 Section 8(a) Award.
52.219-18 Notification of Competition Limited to Eligible 8(a)
Concerns.
52.219-19 Small Business Concern Representation for the Small Business
Competitiveness Demonstration Program.
52.219-20 Notice of Emerging Small Business Set-Aside.
52.219-21 Small Business Size Representation for Targeted Industry
Categories Under the Small Business Competitiveness
Demonstration Program.
52.219-22 Small Disadvantaged Business Status.
52.219-23 Notice of Price Evaluation Adjustment for Small Disadvantaged
Business Concerns.
52.219-24 Small Disadvantaged Business Participation Program--Targets.
52.219-25 Small Disadvantaged Business Participation Program--
Disadvantaged Status and Reporting.
52.219-26 Small Disadvantaged Business Participation Program--Incentive
Subcontracting.
52.221 [Reserved]
52.222-1 Notice to the Government of Labor Disputes.
52.222-2 Payment for Overtime Premiums.
52.222-3 Convict Labor.
52.222-4 Contract Work Hours and Safety Standards Act--Overtime
Compensation.
52.222-5 [Reserved]
52.222-6 Davis-Bacon Act.
52.222-7 Withholding of Funds.
52.222-8 Payrolls and Basic Records.
52.222-9 Apprentices and Trainees.
52.222-10 Compliance With Copeland Act Requirements.
52.222-11 Subcontracts (Labor Standards).
52.222-12 Contract Termination--Debarment.
52.222-13 Compliance With Davis-Bacon and Related Act Regulations.
52.222-14 Disputes Concerning Labor Standards.
52.222-15 Certification of Eligibility.
52.222-16 Approval of Wage Rates.
52.222-17 Labor Standards for Construction Work--Facilities Contracts.
52.222-18 Certification Regarding Knowledge of Child Labor for Listed
End Products.
52.222-19 Child Labor--Cooperation with Authorities and Remedies.
52.222-20 Walsh-Healey Public Contracts Act.
52.222-21 Prohibition of segregated facilities.
52.222-22 Previous Contracts and Compliance Reports.
52.222-23 Notice of Requirement for Affirmative Action to Ensure Equal
Employment Opportunity for Construction.
52.222-24 Preaward On-Site Equal Opportunity Compliance Evaluation.
52.222-25 Affirmative Action Compliance.
52.222-26 Equal Opportunity.
52.222-27 Affirmative Action Compliance Requirements for Construction.
52.222-28 [Reserved]
52.222-29 Notification of visa denial.
[[Page 8]]
52.222-30 Davis-Bacon Act--price adjustment (None or Separately
Specified Method).
52.222-31 Davis-Bacon Act--Price Adjustment (Percentage Method).
52.222-32 Davis-Bacon Act--Price Adjustment (Actual Method).
52.222-33--52.222-34 [Reserved]
52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of
the Vietnam Era, and Other Eligible Veterans.
52.222-36 Affirmative Action for Workers With Disabilities.
52.222-37 Employment Reports on Special Disabled Veterans, Veterans of
the Vietnam Era, and Other Eligible Veterans.
52.222-38 xxx
52.222-39--52.222-40 [Reserved]
52.222-41 Service Contract Act of 1965, as Amended.
52.222-42 Statement of Equivalent Rates for Federal Hires.
52.222-43 Fair Labor Standards Act and Service Contract Act--Price
Adjustment (Multiple Year and Option Contracts).
52.222-44 Fair Labor Standards Act and Service Contract Act--Price
Adjustment.
52.222-45 [Reserved]
52.222-46 Evaluation of Compensation for Professional Employees.
52.222-47 SCA Minimum Wages and Fringe Benefits Applicable to Successor
Contract Pursuant to Predecessor Contractor Collective
Bargaining Agreements (CBA).
52.222-48 Exemption From Application of Service Contract Act Provisions
for Contracts for Maintenance, Calibration, and/or Repair of
Certain Information Technology, Scientific and Medical and/or
Office and Business Equipment--Contractor Certification.
52.222-49 Service Contract Act--Place of Performance Unknown.
52.222-50 [Reserved]
52.223-1--52.223-2 [Reserved]
52.223-3 Hazardous Material Identification and Material Safety Data.
52.223-4 Recovered Material Certification.
52.223-5 Pollution Prevention and Right-to-Know Information.
52.223-6 Drug-Free Workplace.
52.223-7 Notice of radioactive materials.
52.223-8 [Reserved]
52.223-9 Estimate of Percentage of Recovered Material Content for EPA-
Designated Products.
52.223-10 Waste Reduction Program.
52.223-11 Ozone-Depleting Substances.
52.223-12 Refrigeration Equipment and Air Conditioners.
52.223-13 Certification of Toxic Chemical Release Reporting.
52.223-14 Toxic Chemical Release Reporting.
52.224-1 Privacy Act Notification.
52.224-2 Privacy Act.
52.225-1 Buy American Act--Supplies.
52.225-2 Buy American Act Certificate.
52.225-3 Buy American Act--North American Free Trade Agreement--Israeli
Trade Act.
52.225-4 Buy American Act--North American Free Trade Agreement--Israeli
Trade Act Certificate.
52.225-5 Trade Agreements.
52.225-6 Trade Agreements Certificate.
52.225-7 Waiver of Buy American Act for Civil Aircraft and Related
Articles.
52.225-8 Duty-Free Entry.
52.225-9 Buy American Act--Construction Materials.
52.225-10 Notice of Buy American Act Requirement-- Construction
Materials.
52.225-11 Buy American Act--Construction Materials under Trade
Agreements.
52.225-12 Notice of Buy American Act Requirement-- Construction
Materials under Trade Agreements.
52.225-13 Restrictions on Certain Foreign Purchases.
52.225-14 Inconsistency between English Version and Translation of
Contract.
52.225-15 Sanctioned European Union Country End Products.
52.225-16 Sanctioned European Union Country Services.
52.225-17 Evaluation of Foreign Currency Offers.
52.226 [Reserved]
52.226-1 Utilization of Indian Organizations and Indian-Owned Economic
Enterprises.
52.226-2 Historically Black College or University and Minority
Institution Representation.
52.227-1 Authorization and Consent.
52.227-2 Notice and Assistance Regarding Patent and Copyright
Infringement.
52.227-3 Patent Indemnity.
52.227-4 Patent Indemnity--Construction Contracts.
52.227-5 Waiver of Indemnity.
52.227-6 Royalty Information.
52.227-7 Patents--Notice of Government Licensee.
52.227-8 [Reserved]
52.227-9 Refund of Royalties.
52.227-10 Filing of Patent Applications--Classified Subject Matter.
52.227-11 Patent Rights--Retention by the Contractor (Short Form).
52.227-12 Patent Rights--Retention by the Contractor (Long Form).
52.227-13 Patent Rights--Acquisition by the Government.
52.227-14 Rights in Data--General.
52.227-15 Representation of Limited Rights Data and Restricted Computer
Software.
52.227-16 Additional Data Requirements.
52.227-17 Rights in Data--Special Works.
52.227-18 Rights in Data--Existing Works.
52.227-19 Commercial Computer Software--Restricted Rights.
52.227-20 Rights in Data--SBIR Program.
[[Page 9]]
52.227-21 Technical Data Declaration, Revision, and Withholding of
Payment--Major Systems.
52.227-22 Major System--Minimum Rights.
52.227-23 Rights to Proposal Data (Technical).
52.228-1 Bid Guarantee.
52.228-2 Additional Bond Security.
52.228-3 Workers' Compensation Insurance (Defense Base Act).
52.228-4 Workers' Compensation and War-Hazard Insurance Overseas.
52.228-5 Insurance--Work on a Government Installation.
52.228-6 [Reserved]
52.228-7 Insurance--Liability to Third Persons.
52.228-8 Liability and Insurance--Leased Motor Vehicles.
52.228-9 Cargo Insurance.
52.228-10 Vehicular and General Public Liability Insurance.
52.228-11 Pledges of Assets.
52.228-12 Prospective Subcontractor Requests for Bonds.
52.228-13 Alternative Payment Protections.
52.228-14 Irrevocable Letter of Credit.
52.228-15 Performance and Payment Bonds--Construction.
52.228-16 Performance and Payment Bonds--Other Than Construction.
52.229-1 State and Local Taxes.
52.229-2 North Carolina State and Local Sales and Use Tax.
52.229-3 Federal, State, and Local Taxes.
52.229-4 Federal, State, and Local Taxes (Noncompetitive Contract).
52.229-5 Taxes--Contracts Performed in U.S. Possessions or Puerto Rico.
52.229-6 Taxes--Foreign Fixed-Price Contracts.
52.229-7 Taxes--Fixed-Price Contracts With Foreign Governments.
52.229-8 Taxes--Foreign Cost-Reimbursement Contracts.
52.229-9 Taxes--Cost-Reimbursement Contracts With Foreign Governments.
52.229-10 State of New Mexico Gross Receipts and Compensating Tax.
52.230-1 Cost Accounting Standards Notices and Certification.
52.230-2 Cost Accounting Standards.
52.230-3 Disclosure and Consistency of Cost Accounting Practices.
52.230-4 Consistency in Cost Accounting Practices.
52.230-5 Cost Accounting Standards--Educational Institution.
52.230-6 Administration of Cost Accounting Standards.
52.231 [Reserved]
52.232-1 Payments.
52.232-2 Payments Under Fixed-Price Research and Development Contracts.
52.232-3 Payments Under Personal Services Contracts.
52.232-4 Payments Under Transportation Contracts and Transportation-
Related Services Contracts.
52.232-5 Payments Under Fixed-Price Construction Contracts.
52.232-6 Payment Under Communication Service Contracts With Common
Carriers.
52.232-7 Payments Under Time-and-Materials and Labor-Hour Contracts.
52.232-8 Discounts for Prompt Payment.
52.232-9 Limitation on Withholding of Payments.
52.232-10 Payments Under Fixed-Price Architect-Engineer Contracts.
52.232-11 Extras.
52.232-12 Advance Payments.
52.232-13 Notice of Progress Payments.
52.232-14 Notice of Availability of Progress Payments Exclusively for
Small Business Concerns.
52.232-15 Progress Payments Not Included.
52.232-16 Progress Payments.
52.232-17 Interest.
52.232-18 Availability of Funds.
52.232-19 Availability of Funds for the Next Fiscal Year.
52.232-20 Limitation of Cost.
52.232-21 Limitation of Cost (Facilities).
52.232-22 Limitation of Funds.
52.232-23 Assignment of Claims.
52.232-24 Prohibition of Assignment of Claims.
52.232-25 Prompt Payment.
52.232-26 Prompt Payment for Fixed-Price Architect-Engineer Contracts.
52.232-27 Prompt Payment for Construction Contracts.
52.232-28 Invitation to Propose Performance-Based Payments.
52.232-29 Terms for Financing of Purchases of Commercial Items.
52.232-30 Installment Payments for Commercial Items.
52.232-31 Invitation to Propose Financing Terms.
52.232-32 Performance-Based Payments.
52.232-33 Payment by Electronic Funds Transfer--Central Contractor
Registration.
52.232-34 Payment by Electronic Funds Transfer--Other than Central
Contractor Registration.
52.232-35 Designation of Office for Government Receipt of Electronic
Funds Transfer Information.
52.232-36 Payment by Third Party.
52.232-37 Multiple Payment Arrangements.
52.232-38 Submission of Electronic Funds Transfer Information with
Offer.
52.233-1 Disputes.
52.233-2 Service of Protest.
52.233-3 Protest After Award.
52.234-1 Industrial Resources Developed Under Defense Production Act
Title III.
52.235 [Reserved]
[[Page 10]]
52.236-1 Performance of Work by the Contractor.
52.236-2 Differing Site Conditions.
52.236-3 Site Investigation and Conditions Affecting the Work.
52.236-4 Physical Data.
52.236-5 Material and Workmanship.
52.236-6 Superintendence by the Contractor.
52.236-7 Permits and Responsibilities.
52.236-8 Other Contracts.
52.236-9 Protection of Existing Vegetation, Structures, Equipment,
Utilities, and Improvements.
52.236-10 Operations and Storage Areas.
52.236-11 Use and Possession Prior to Completion.
52.236-12 Cleaning Up.
52.236-13 Accident Prevention.
52.236-14 Availability and Use of Utility Services.
52.236-15 Schedules for Construction Contracts.
52.236-16 Quantity Surveys.
52.236-17 Layout of Work.
52.236-18 Work Oversight in Cost-Reimbursement Construction Contracts.
52.236-19 Organization and Direction of the Work.
52.236-20 [Reserved]
52.236-21 Specifications and Drawings for Construction.
52.236-22 Design Within Funding Limitations.
52.236-23 Responsibility of the Architect-Engineer Contractor.
52.236-24 Work Oversight in Architect-Engineer Contracts.
52.236-25 Requirements for Registration of Designers.
52.236-26 Preconstruction Conference.
52.236-27 Site Visit (Construction).
52.236-28 Preparation of Proposals--Construction.
52.237-1 Site Visit.
52.237-2 Protection of Government Buildings, Equipment, and Vegetation.
52.237-3 Continuity of Services.
52.237-4 Payment by Government to Contractor.
52.237-5 Payment by Contractor to Government.
52.237-6 Incremental Payment by Contractor to Government.
52.237-7 Indemnification and Medical Liability Insurance.
52.237-8 Restriction on Severance Payments to Foreign Nationals.
52.237-9 Waiver of Limitation on Severance Payments to Foreign
Nationals.
52.237-10 Identification of Uncompensated Overtime.
52.238 [Reserved]
52.239-1 Privacy or Security Safeguards.
52.240 [Reserved]
52.241 Utility Services Provisions and Clauses.
52.241-1 Electric Service Territory Compliance Representation.
52.241-2 Order of Precedence--Utilities.
52.241-3 Scope and Duration of Contract.
52.241-4 Change in Class of Service.
52.241-5 Contractor's Facilities.
52.241-6 Service Provisions.
52.241-7 Change in Rates or Terms and Conditions of Service for
Regulated Services.
52.241-8 Change in Rates or Terms and Conditions of Service for
Unregulated Services.
52.241-9 Connection Charge.
52.241-10 Termination Liability.
52.241-11 Multiple Service Locations.
52.241-12 Nonrefundable, Nonrecurring Service Charge.
52.241-13 Capital Credits.
52.242-1 Notice of Intent to Disallow Costs.
52.242-2 Production Progress Reports.
52.242-3 Penalties for Unallowable Costs.
52.242-4 Certification of Final Indirect Costs.
52.242-5--52.242-9 [Reserved]
52.242-10 F.o.b. Origin--Government Bills of Lading or Prepaid Postage.
52.242-11 F.o.b. Origin--Government Bills of Lading or Indicia Mail.
52.242-12 Report of Shipment (REPSHIP).
52.242-13 Bankruptcy.
52.242-14 Suspension of Work.
52.242-15 Stop-Work Order.
52.242-16 Stop-Work Order--Facilities.
52.242-17 Government Delay of Work.
52.243-1 Changes--Fixed-Price.
52.243-2 Changes--Cost-Reimbursement.
52.243-3 Changes--Time-and-Materials or Labor-Hours.
52.243-4 Changes.
52.243-5 Changes and Changed Conditions.
52.243-6 Change Order Accounting.
52.243-7 Notification of Changes.
52.244-1 [Reserved]
52.244-2 Subcontracts.
52.244-3 [Reserved]
52.244-4 Subcontractors and outside associates and consultants
(Architect-engineer services).
52.244-5 Competition in Subcontracting.
52.244-6 Subcontracts for Commercial Items.
52.245-1 Property Records.
52.245-2 Government Property (Fixed-Price Contracts).
52.245-3 Identification of Government-Furnished Property.
52.245-4 Government-Furnished Property (Short Form).
52.245-5 Government Property (Cost-Reimbursement, Time-and-Material, or
Labor-Hour Contracts).
52.245-6 Liability for Government Property (Demolition Services
Contracts).
52.245-7 Government Property (Consolidated Facilities).
52.245-8 Liability for the Facilities.
52.245-9 Use and Charges.
[[Page 11]]
52.245-10 Government Property (Facilities Acquisition).
52.245-11 Government Property (Facilities Use).
52.245-12 Contract Purpose (Nonprofit Educational Institutions).
52.245-13 Accountable Facilities (Nonprofit Educational Institutions).
52.245-14 Use of Government Facilities.
52.245-15 Transfer of Title to the Facilities.
52.245-16 Facilities Equipment Modernization.
52.245-17 Special Tooling.
52.245-18 Special Test Equipment.
52.245-19 Government Property Furnished ``As Is.''
52.246-1 Contractor Inspection Requirements.
52.246-2 Inspection of Supplies--Fixed-Price.
52.246-3 Inspection of Supplies--Cost-Reimbursement.
52.246-4 Inspection of Services--Fixed-Price.
52.246-5 Inspection of Services--Cost-Reimbursement.
52.246-6 Inspection--Time-and-Material and Labor-Hour.
52.246-7 Inspection of Research and Development--Fixed-Price.
52.246-8 Inspection of Research and Development--Cost-Reimbursement.
52.246-9 Inspection of Research and Development (Short Form).
52.246-10 Inspection of Facilities.
52.246-11 Higher-Level Contract Quality Requirement.
52.246-12 Inspection of Construction.
52.246-13 Inspection--Dismantling, Demolition, or Removal of
Improvements.
52.246-14 Inspection of Transportation.
52.246-15 Certificate of Conformance.
52.246-16 Responsibility for Supplies.
52.246-17 Warranty of Supplies of a Noncomplex Nature.
52.246-18 Warranty of Supplies of a Complex Nature.
52.246-19 Warranty of Systems and Equipment under Performance
Specifications or Design Criteria.
52.246-20 Warranty of Services.
52.246-21 Warranty of Construction.
52.246-22 [Reserved]
52.246-23 Limitation of Liability.
52.246-24 Limitation of Liability--High-Value Items.
52.246-25 Limitation of Liability--Services.
52.247-1 Commercial Bill of Lading Notations.
52.247-2 Permits, Authorities, or Franchises.
52.247-3 Capability to Perform a Contract for the Relocation of a
Federal Office.
52.247-4 Inspection of Shipping and Receiving Facilities.
52.247-5 Familiarization With Conditions.
52.247-6 Financial Statement.
52.247-7 Freight Excluded.
52.247-8 Estimated Weights or Quantities Not Guaranteed.
52.247-9 Agreed Weight--General Freight.
52.247-10 Net Weight--General Freight.
52.247-11 Net Weight--Household Goods or Office Furniture.
52.247-12 Supervision, Labor, or Materials.
52.247-13 Accessorial Services--Moving Contracts.
52.247-14 Contractor Responsibility for Receipt of Shipment.
52.247-15 Contractor Responsibility for Loading and Unloading.
52.247-16 Contractor Responsibility for Returning Undelivered Freight.
52.247-17 Charges.
52.247-18 Multiple Shipments.
52.247-19 Stopping in Transit for Partial Unloading.
52.247-20 Estimated Quantities or Weights for Evaluation of Offers.
52.247-21 Contractor Liability for Personal Injury and/or Property
Damage.
52.247-22 Contractor Liability for Loss of and/or Damage to Freight
Other Than Household Goods.
52.247-23 Contractor Liability for Loss of and/or Damage to Household
Goods.
52.247-24 Advance Notification by the Government.
52.247-25 Government-Furnished Equipment With or Without Operators.
52.247-26 Government Direction and Marking.
52.247-27 Contract Not Affected by Oral Agreement.
52.247-28 Contractor's Invoices.
52.247-29 F.o.b. Origin.
52.247-30 F.o.b. Origin, Contractor's Facility.
52.247-31 F.o.b. Origin, Freight Allowed.
52.247-32 F.o.b. Origin, Freight Prepaid.
52.247-33 F.o.b. Origin, With Differentials.
52.247-34 F.o.b. Destination.
52.247-35 F.o.b. Destination, Within Consignee's Premises.
52.247-36 F.a.s. Vessel, Port of Shipment.
52.247-37 F.o.b. Vessel, Port of Shipment.
52.247-38 F.o.b. Inland Carrier, Point of Exportation.
52.247-39 F.o.b. Inland Point, Country of Importation.
52.247-40 Ex Dock, Pier, or Warehouse, Port of Importation.
52.247-41 C.& f. Destination.
52.247-42 C.i.f. Destination.
52.247-43 F.o.b. Designated Air Carrier's Terminal, Point of
Exportation.
52.247-44 F.o.b. Designated Air Carrier's Terminal, Point of
Importation.
52.247-45 F.o.b. Origin and/or F.o.b. Destination Evaluation.
52.247-46 Shipping Point(s) Used in Evaluation of F.o.b. Origin Offers.
52.247-47 Evaluation--F.o.b. Origin.
52.247-48 F.o.b. Destination--Evidence of Shipment.
[[Page 12]]
52.247-49 Destination Unknown.
52.247-50 No Evaluation of Transportation Costs.
52.247-51 Evaluation of Export Offers.
52.247-52 Clearance and Documentation Requirements--Shipments to DOD
Air or Water Terminal Transshipment Points.
52.247-53 Freight Classification Description.
52.247-54 [Reserved]
52.247-55 F.o.b. Point for Delivery of Government-Furnished Property.
52.247-56 Transit Arrangements.
52.247-57 Transportation Transit Privilege Credits.
52.247-58 Loading, Blocking, and Bracing of Freight Car Shipments.
52.247-59 F.o.b. Origin--Carload and Truckload Shipments.
52.247-60 Guaranteed Shipping Characteristics.
52.247-61 F.o.b. Origin--Minimum Size of Shipments.
52.247-62 Specific Quantities Unknown.
52.247-63 Preference for U.S.-Flag Air Carriers.
52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels.
52.247-65 F.o.b. Origin, Prepaid Freight--Small Package Shipments.
52.247-66 Returnable Cylinders.
52.247-67 Submission of Commercial Transportation Bills to the General
Services Administration for Audit.
52.248-1 Value Engineering.
52.248-2 Value Engineering--Architect-Engineer.
52.248-3 Value Engineering--Construction.
52.249-1 Termination for Convenience of the Government (Fixed-Price)
(Short Form).
52.249-2 Termination for Convenience of the Government (Fixed-Price).
52.249-3 Termination for Convenience of the Government (Dismantling,
Demolition, or Removal of Improvements).
52.249-4 Termination for Convenience of the Government (Services)
(Short Form).
52.249-5 Termination for Convenience of the Government (Educational and
Other Nonprofit Institutions).
52.249-6 Termination (Cost-Reimbursement).
52.249-7 Termination (Fixed-Price Architect-Engineer).
52.249-8 Default (Fixed-Price Supply and Service).
52.249-9 Default (Fixed-Price Research and Development).
52.249-10 Default (Fixed-Price Construction).
52.249-11 Termination of Work (Consolidated Facilities or Facilities
Acquisition).
52.249-12 Termination (Personal Services).
52.249-13 Failure to Perform.
52.249-14 Excusable Delays.
52.250-1 Indemnification Under Public Law 85-804.
52.251-1 Government Supply Sources.
52.251-2 Interagency Fleet Management System Vehicles and Related
Services.
52.252-1 Solicitation Provisions Incorporated by Reference.
52.252-2 Clauses Incorporated by Reference.
52.252-3 Alterations in Solicitation.
52.252-4 Alterations in Contract.
52.252-5 Authorized Deviations in Provisions.
52.252-6 Authorized Deviations in Clauses.
52.253-1 Computer Generated Forms.
Subpart 52.3--Provision and Clause Matrix
52.300 Scope of subpart.
52.301 Solicitation provisions and contract clauses (Matrix).
Authority: 40 U.S.C. 486(c); 10 U.S.C. Chapter 137; and 42 U.S.C.
2473(c).
Source: 48 FR 42478, Sept. 19, 1983, unless otherwise noted.
Editorial Note: For a document removing derivation lines wherever
they appeared in part 52, see 60 FR 48218, Sept. 18, 1995.
52.000 Scope of part.
This part (a) gives instructions for using provisions and clauses in
solicitations and/or contracts, (b) sets forth the solicitation
provisions and contract clauses prescribed by this regulation, and (c)
presents a matrix listing the FAR provisions and clauses applicable to
each principal contract type and/or purpose (e.g., fixed-price supply,
cost-reimbursement research and development).
[48 FR 42478, Sept. 19, 1983; 48 FR 43273, Sept. 22, 1983, as amended at
55 FR 3887, Feb. 5, 1990]
Subpart 52.1--Instructions for Using Provisions and Clauses
52.100 Scope of subpart.
This subpart (a) gives instructions for using part 52, including the
explanation and use of provision and clause numbers, prescriptions,
prefaces, and the matrix; (b) prescribes procedures for incorporating,
identifying, and modifying provisions and clauses in solicitations and
contracts, and for using alternates; and (c) describes the derivation of
FAR provisions and clauses.
[48 FR 42478, Sept. 19, 1983; 48 FR 43273, Sept. 22, 1983, as amended at
55 FR 3887, Feb. 5, 1990]
[[Page 13]]
52.101 Using part 52.
(a) Definition.
Modification, as used in this subpart, means a minor change in the
details of a provision or clause that is specifically authorized by the
FAR and does not alter the substance of the provision or clause (see
52.104).
(b) Numbering. (1) FAR provisions and clauses. Subpart 52.2 sets
forth the texts of all FAR provisions and clauses, each in its own
separate subsection. The subpart is arranged by subject matter, in the
same order as, and keyed to, the parts of the FAR. Each FAR provision or
clause is uniquely identified. All FAR provision and clause numbers
begin with ``52.2,'' since the text of all FAR provisions and clauses
appear in subpart 52.2. The next two digits of the provision or clause
number correspond to the number of the FAR subject part in which the
provision or clause is prescribed. The FAR provision or clause number is
then completed by a hyphen and a sequential number assigned within each
section of subpart 52.2. The following example illustrates the makeup of
the FAR provision or clause number:
[GRAPHIC] [TIFF OMITTED] TC01MY91.000
(2) Provisions or clauses that supplement the FAR.
(i) Provisions or clauses that supplement the FAR are--
(A) Prescribed and included in authorized agency acquisition
regulations issued within an agency to satisfy the specific needs of the
agency as a whole;
(B) Prescribed and included in a regulation issued by a
suborganization of an agency to satisfy the needs of that particular
suborganization; or
(C) Developed for use at a suborganizational level of an agency, not
meant for repetitive use, but intended to meet the needs of an
individual acquisiton and, thus, impractical to include in either an
agency or suborganization acquisition regulation. (See 1.301(c).)
(ii) Supplemental provisions or clauses published in agency
acquisition regulations shall be in full text and the prescription for
the use of each shall be included. Supplemental provisions or clauses
published in agency acquisition regulations shall be numbered in the
same manner in which FAR provisions and clauses are numbered except
that--
(A) If it is included in an agency acquisition regulation that is
published in the Federal Register and is codified in Title 48, Code of
Federal Regulations (48 CFR), the number shall be preceded by the
chapter number within 48 CFR assigned by the CFR staff; and
(B) The sequential number shall be ``70'' or a higher number (see
1.303).
(iii) The sequential number at the end of the number of a provision
or clause that supplements the FAR, like its counterpart at the end of
any FAR provision or clause number, indicates the subsection location of
the provision or clause in subpart 52.2 of the agency acquisition
regulation that contains its full text. If, for example, an agency
acquisition regulation contains only one provision followed by only one
clause supplementing the FAR in its section 52.236 (Construction and
Architect-Engineer Contracts), then the sequential numbers would be
``70'' for the provision and ``71'' for the clause.
(c) Prescriptions. Each provision or clause in subpart 52.2 is
prescribed at that place in the FAR text where the subject matter of the
provision or clause receives its primary treatment. The prescription
includes all conditions, requirements, and instructions for using the
provision or clause and its alternates, if any. The provision or clause
may be referred to in other FAR locations.
(d) Introductory text. Within subpart 52.2, the introductory text of
each provision or clause includes a cross-reference to the location in
the FAR subject text that prescribes its use.
(e) Matrix. (1) The matrix in subpart 52.3 contains a column for
each principal type and/or purpose of contract (e.g., fixed-price
supply, cost reimbursement research and development). The matrix lists
the--
(i) Required solicitation provisions;
[[Page 14]]
(ii) Required-when-applicable solicitation provisions;
(iii) Optional solicitation provisions;
(iv) Required contract clauses;
(v) Required-when-applicable contract clauses; and
(vi) Optional contract clauses.
(2) For each provision or clause listed, the matrix provides
information on--
(i) Whether incorporation by reference is or is not authorized (see
52.102);
(ii) The section of the Uniform Contract Format (UCF) in which it is
to be located, if it is used in an acquisition that is subject to the
UCF;
(iii) Its number;
(iv) The citation of the FAR text that prescribes its use; and
(v) Its title.
(3) Since the matrix does not provide sufficient information to
determine the applicability of a provision or clause in the ``required-
when-applicable'' and ``optional'' categories, contracting officers
shall refer to the FAR text (cited in the matrix) that prescribes its
use.
(4) The FAR matrix may be reproduced at agency levels, and at
subordinate levels, for the purpose of supplementing it with agency-
developed provisions and clauses. The resulting consolidated matrices
may be included in agency acquisition regulations.
(f) Dates. Since they are subject to revision from time to time, all
provisions, clauses, and alternates are dated; e.g., (DEC 1983). To
avoid questions concerning which version of any provision, clause, or
alternate is operative in any given solicitation or contract, its date
shall be included whether it is incorporated by reference or in full
text.
[48 FR 42478, Sept. 19, 1983; 48 FR 43273, Sept. 22, 1983, as amended at
55 FR 3887, Feb. 5, 1990; 62 FR 40237, July 25, 1997; 62 FR 64927, Dec.
9, 1997; 65 FR 36016, June 6, 2000; 66 FR 2134, Jan. 10, 2001]
52.102 Incorporating provisions and clauses.
(a) Provisions and clauses should be incorporated by reference to
the maximum practical extent, rather than being incorporated in full
text, even if they--
(1) Are used with one or more alternates or on an optional basis;
(2) Are prescribed on a ``substantially as follows'' or
``substantially the same as'' basis, provided they are used verbatim;
(3) Require modification or the insertion by the Government of fill-
in material (see 52.104); or
(4) Require completion by the offeror or prospective contractor.
This instruction also applies to provisions completed as annual
representations and certifications.
(b) Except for provisions and clauses prescribed in 52.107, any
provision or clause that can be accessed electronically by the offeror
or prospective contractor may be incorporated by reference in
solicitations and/or contracts. However, the contracting officer, upon
request, shall provide the full text of any provision or clause
incorporated by reference.
(c) Agency approved provisions and clauses prescribed in agency
acquisition regulations, and provisions and clauses not authorized by
subpart 52.3 to be incorporated by reference, need not be incorporated
in full text, provided the contracting officer includes in the
solicitation and contract a statement that--
(1) Identifies all provisions and clauses that require completion by
the offeror or prospective contractor;
(2) Specifies that the provisions and clauses must be completed by
the offeror or prospective contractor and must be submitted with the
quotation or offer; and
(3) Identifies to the offeror or prospective contractor at least one
electronic address where the full text may be accessed.
(d) An agency may develop a group listing of provisions and clauses
that apply to a specific category of contracts. An agency group listing
may be incorporated by reference in solicitations and/or contracts in
lieu of citing the provisions and clauses individually, provided the
group listing is made available electronically to offerors and
prospective contractors.
(e) A provision or clause that is not available electronically to
offerors and
[[Page 15]]
prospective contractors shall be incorporated in solicitations and/or
contracts in full text if it is--
(1) A FAR provision or clause that otherwise is not authorized to be
incorporated by reference (see subpart 52.3); or
(2) A provision or clause prescribed for use in an agency
acquisition regulation.
(f) Provisions or clauses may not be incorporated by reference by
being listed in the--
(1) Provision at 52.252-3, Alterations in Solicitations; or
(2) Clause at 52.252-4, Alterations in Contract.
[62 FR 64927, Dec. 9, 1997]
52.103 Identification of provisions and clauses.
(a) Whenever any FAR provision or clause is used without deviation
in a solicitation or contract, whether it is incorporated by reference
or in full text, it shall be identified by number, title, and date. This
identification shall also be used if the FAR provision or clause is used
with an authorized deviation, except that the contracting officer shall
then insert ``(DEVIATION)'' after the date. Solicited firms and
contractors will be advised of the meaning of this insertion through the
use of the (1) provision at 52.252-5, Authorized Deviations in
Provisions, or (2) clause at 52.252-6, Authorized Deviations in Clauses.
The above mentioned provision and clause are prescribed in 52.107 (e)
and (f).
(b) Any provision or clause that supplements the FAR whether it is
incorporated by reference or in full text shall be clearly identified by
number, title, date, and name of the regulation. When a supplemental
provision or clause is used with an authorized deviation, insert
``(DEVIATION)'' after the name of the regulation.
(c) A provision or clause of the type described in
52.101(b)(2)(i)(C) shall be identified by the title, date, and the name
of the agency or suborganization within the agency that developed it.
(d) Except for provisions or clauses covered by 52.103(c), the
following hypothetical examples illustrate how a provision or clause
that supplements the FAR shall be identified when it is incorporated in
solicitations and/or contracts by reference or in full text:
(1) If part 14 (Sealed Bidding) of the X Agency Acquisition
Regulation, published in the Federal Register and codified as Chapter 99
in 48 CFR, prescribes the use of a provision entitled ``Bid Envelopes,''
dated October 1983, and that provision is sequentially the first
provision or clause appearing in Section 52.214 of the X Agency
Acquisition Regulation, then the identification of that provision shall
be ``9952.214-70--Bid Envelopes (OCT 1983).''
(2) Assume that Y, a major organizational element of the X Agency,
is authorized to issue the Y Acquisition Regulation, which is not
published in the Federal Register and codified in 48 CFR. If part 36
(Construction and Architect-Engineer Contracts) of the Y Acquisition
Regulation prescribes the use of a clause entitled ``Refrigerated
Display Cases,'' dated March 1983, pertaining to a specialized type of
construction work, and that clause is sequentially the second provision
or clause appearing in Section 52.236 of the Y Acquisition Regulation,
then the identification of that clause shall be ``52.236-71--
Refrigerated Display Cases (MAR 1983)--Y Acquisition Regulation.''
[48 FR 42478, Sept. 19, 1983, as amended at 52 FR 9039, Mar. 20, 1987]
52.104 Procedures for modifying and completing provisions and clauses.
(a) The contracting officer must not modify provisions and clauses
unless the FAR authorizes their modification. For example--
(1) ``The contracting officer may use a period shorter than 60 days
(but not less than 30 days) in paragraph (x) of the clause''; or
(2) ``The contracting officer may substitute the words `task order'
for the word `Schedule' wherever that word appears in the clause.''
(b) When modifying provisions or clauses incorporated by reference,
insert the changed wording directly below the title of the provision or
clause identifying to the lowest level necessary (e.g., paragraph,
sentence, word), to clearly indicate what is being modified.
[[Page 16]]
(c) When modifying provisions or clauses incorporated in full text,
modify the language directly by substituting the changed wording as
permitted.
(d) When completing blanks in provisions or clauses incorporated by
reference, insert the fill-in information directly below the title of
the provision or clause identifying to the lowest level necessary to
clearly indicate the blanks being filled in.
(e) When completing blanks in provisions or clauses incorporated in
full text, insert the fill-in information in the blanks of the provision
or clause.
[48 FR 42478, Sept. 19, 1983, as amended at 65 FR 36016, June 6, 2000]
52.105 Procedures for using alternates.
(a) The FAR accommodates a major variation in a provision or clause
by use of an alternate. The FAR prescribes alternates to a given
provision or clause in the FAR subject text where the provision or
clause is prescribed. The alternates to each provision or clause are
titled ``Alternate I,'' ``Alternate II,'' ``Alternate III,'' etc.
(b) When an alternate is used, its date shall be cited along with
the date of the basic provision or clause; e.g., 52.209-3 FIRST ARTICLE
APPROVAL--CONTRACTOR TESTING (OCT 1983)--ALTERNATE I (DEC 1983).
(c) Under certain circumstances, a provision or clause may be used
with two or more alternates. In these circumstances, each of the
applicable alternates shall be cited, whether incorporated by reference
or in full text; e.g., 52.209-3 FIRST ARTICLE APPROVAL--CONTRACTOR
TESTING (OCT 1983)--ALTERNATE I (DEC 1983) AND ALTERNATE II (FEB 1984).
However, under no circumstances may an alternate to a specific provision
or clause be applied to any other provision or clause.
[48 FR 42478, Sept. 19, 1983, as amended at 65 FR 36016, June 6, 2000]
52.106 [Reserved]
52.107 Provisions and clauses prescribed in subpart 52.1.
(a) The contracting officer shall insert the provision at 52.252-1,
Solicitation Provisions Incorporated by Reference, in solicitations in
order to incorporate provisions by reference.
(b) The contracting officer shall insert the clause at 52.252-2,
Clauses Incorporated by Reference, in solicitations and contracts in
order to incorporate clauses by reference.
(c) The contracting officer shall insert the provision at 52.252-3,
Alterations in Solicitation, in solicitations in order to revise or
supplement, as necessary, other parts of the solicitation that apply to
the solicitation phase only, except for any provision authorized for use
with a deviation.
(d) The contracting officer shall insert the clause at 52.252-4,
Alterations in Contract, in solicitations and contracts in order to
revise or supplement, as necessary, other parts of the contract, or
parts of the solicitations that apply to the contract phase, except for
any clause authorized for use with a deviation.
(e) The contracting officer shall insert the provision at 52.252-5,
Authorized Deviations in Provisions, in solicitations that include any
FAR or supplemental provision with an authorized deviation. Whenever any
FAR or supplemental provision is used with an authorized deviation, the
contracting officer shall identify it by the same number, title, and
date assigned to the provision when it is used without deviation,
include regulation name for any supplemental provision, except that the
contracting officer shall insert ``(DEVIATION)'' after the date of the
provision.
(f) The contracting officer shall insert the clause at 52.252-6,
Authorized Deviations in Clauses, in solicitations and contracts that
include any FAR or supplemental clause with an authorized deviation.
Whenever any FAR or supplemental clause is used with an authorized
deviation, the contracting officer shall identify it by the same number,
title, and date assigned to the clause when it is used without
deviation, include regulation name for any supplemental clause, except
that the contracting officer shall insert ``(DEVIATION)'' after the date
of the clause.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 48990, Nov. 28, 1989]
[[Page 17]]
Subpart 52.2--Text of Provisions and Clauses
52.200 Scope of subpart.
This subpart sets forth the text of all FAR provisions and clauses
(see 52.101(b)(1)) and gives a cross-reference to the location in the
FAR that prescribes the provision or clause.
[65 FR 36016, June 6, 2000]
52.201 [Reserved]
52.202-1 Definitions.
As prescribed in section 2.201, insert the following clause:
Definitions (DEC 2001)
(a) Agency head or head of the agency means the Secretary (Attorney
General, Administrator, Governor, Chairperson, or other chief official,
as appropriate) of the agency, unless otherwise indicated, including any
deputy or assistant chief official of the executive agency.
(b) Commercial component means any component that is a commercial
item.
(c) Commercial item means--
(1) Any item, other than real property, that is of a type
customarily used by the general public or by non-governmental entities
for purposes other than governmental purposes, and that--
(i) Has been sold, leased, or licensed to the general public; or
(ii) Has been offered for sale, lease, or license to the general
public;
(2) Any item that evolved from an item described in paragraph (c)(1)
of this clause through advances in technology or performance and that is
not yet available in the commercial marketplace, but will be available
in the commercial marketplace in time to satisfy the delivery
requirements under a Government solicitation;
(3) Any item that would satisfy a criterion expressed in paragraphs
(c)(1) or (c)(2) of this clause, but for--
(i) Modifications of a type customarily available in the commercial
marketplace; or
(ii) Minor modifications of a type not customarily available in the
commercial marketplace made to meet Federal Government requirements.
Minor modifications means modifications that do not significantly alter
the nongovernmental function or essential physical characteristics of an
item or component, or change the purpose of a process. Factors to be
considered in determining whether a modification is minor include the
value and size of the modification and the comparative value and size of
the final product. Dollar values and percentages may be used as
guideposts, but are not conclusive evidence that a modification is
minor;
(4) Any combination of items meeting the requirements of paragraphs
(c)(1), (2), (3), or (5) of this clause that are of a type customarily
combined and sold in combination to the general public;
(5) Installation services, maintenance services, repair services,
training services, and other services if--
(i) Such services are procured for support of an item referred to in
paragraph (c)(1), (2), (3), or (4) of this definition, regardless of
whether such services are provided by the same source or at the same
time as the item; and
(ii) The source of such services provides similar services
contemporaneously to the general public under terms and conditions
similar to those offered to the Federal Government;
(6) Services of a type offered and sold competitively in substantial
quantities in the commercial marketplace based on established catalog or
market prices for specific tasks performed under standard commercial
terms and conditions. This does not include services that are sold based
on hourly rates without an established catalog or market price for a
specific service performed. For purposes of these services--
(i) Catalog price means a price included in a catalog, price list,
schedule, or other form that is regularly maintained by the manufacturer
or vendor, is either published or otherwise available for inspection by
customers, and states prices at which sales are currently, or were last,
made to a significant number of buyers constituting the general public;
and
(ii) Market prices means current prices that are established in the
course of ordinary trade between buyers and sellers free to bargain and
that can be substantiated through competition or from sources
independent of the offerors.
(7) Any item, combination of items, or service referred to in
subparagraphs (c)(1) through (c)(6), notwithstanding the fact that the
item, combination of items, or service is transferred between or among
separate divisions, subsidiaries, or affiliates of a Contractor; or
(8) A nondevelopmental item, if the procuring agency determines the
item was developed exclusively at private expense and sold in
substantial quantities, on a competitive basis, to multiple State and
local Governments.
(d) Component means any item supplied to the Government as part of
an end item or of another component, except that for use in 52.225-9,
and 52.225-11 see the definitions in 52.225-9(a) and 52.225-11(a).
(e) Contracting Officer means a person with the authority to enter
into, administer, and/
[[Page 18]]
or terminate contracts and make related determinations and findings. The
term includes certain authorized representatives of the Contracting
Officer acting within the limits of their authority as delegated by the
Contracting Officer.
(f) Nondevelopmental item means--
(1) Any previously developed item of supply used exclusively for
governmental purposes by a Federal agency, a State or local government,
or a foreign government with which the United States has a mutual
defense cooperation agreement;
(2) Any item described in paragraph (f)(1) of this definition that
requires only minor modification or modifications of a type customarily
available in the commercial marketplace in order to meet the
requirements of the procuring department or agency; or
(3) Any item of supply being produced that does not meet the
requirements of paragraph (f)(1) or (f)(2) solely because the item is
not yet in use.
(g) Except as otherwise provided in this contract, the term
subcontracts includes, but is not limited to, purchase orders and
changes and modifications to purchase orders under this contract.
(End of clause)
Alternate I (MAY 2001). If the contract is for personal services;
construction; architect-engineer services; or dismantling, demolition,
or removal of improvements, delete paragraph (g) of the basic clause.
[48 FR 42478, Sept. 19, 1983, as amended at 56 FR 41730, 41744, Aug. 22,
1991; 56 FR 67137, Dec. 27, 1991; 60 FR 48250, Sept. 18, 1995; 66 FR
2134, Jan. 10, 2001; 66 FR 53484, Oct. 22, 2001; 67 FR 43520, June 27,
2002]
52.203-1 [Reserved]
52.203-2 Certificate of Independent Price Determination.
As prescribed in 3.103-1, insert the following provision. If the
solicitation is a Request for Quotations, the terms Quotation and Quoter
may be substituted for Offer and Offeror.
Certificate of Independent Price Determination (APR 1985)
(a) The offeror certifies that--
(1) The prices in this offer have been arrived at independently,
without, for the purpose of restricting competition, any consultation,
communication, or agreement with any other offeror or competitor
relating to (i) those prices, (ii) the intention to submit an offer, or
(iii) the methods or factors used to calculate the prices offered;
(2) The prices in this offer have not been and will not be knowingly
disclosed by the offeror, directly or indirectly, to any other offeror
or competitor before bid opening (in the case of a sealed bid
solicitation) or contract award (in the case of a negotiated
solicitation) unless otherwise required by law; and
(3) No attempt has been made or will be made by the offeror to
induce any other concern to submit or not to submit an offer for the
purpose of restricting competition.
(b) Each signature on the offer is considered to be a certification
by the signatory that the signatory--
(1) Is the person in the offeror's organization responsible for
determining the prices being offered in this bid or proposal, and that
the signatory has not participated and will not participate in any
action contrary to subparagraphs (a)(1) through (a)(3) above; or
(2)(i) Has been authorized, in writing, to act as agent for the
following principals in certifying that those principals have not
participated, and will not participate in any action contrary to
subparagraphs (a)(1)
through (a)(3) above____________________________________________________
________________________________________________________________________
[insert full name of person(s) in the offeror's organization responsible
for determining the prices offered in this bid or proposal, and the
title of his or her position in the offeror's organization];
(ii) As an authorized agent, does certify that the principals named
in subdivision (b)(2)(i) above have not participated, and will not
participate, in any action contrary to subparagraphs (a)(1) through
(a)(3) above; and
(iii) As an agent, has not personally participated, and will not
participate, in any action contrary to subparagraphs (a)(1) through
(a)(3) above.
(c) If the offeror deletes or modifies subparagraph (a)(2) above,
the offeror must furnish with its offer a signed statement setting forth
in detail the circumstances of the disclosure.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.203-3 Gratuities.
As prescribed in 3.202, insert the following clause:
Gratuities (APR 1984)
(a) The right of the Contractor to proceed may be terminated by
written notice if, after notice and hearing, the agency head or a
designee determines that the Contractor, its agent, or another
representative--
[[Page 19]]
(1) Offered or gave a gratuity (e.g., an entertainment or gift) to
an officer, official, or employee of the Government; and
(2) Intended, by the gratuity, to obtain a contract or favorable
treatment under a contract.
(b) The facts supporting this determination may be reviewed by any
court having lawful jurisdiction.
(c) If this contract is terminated under paragraph (a) above, the
Government is entitled--
(1) To pursue the same remedies as in a breach of the contract; and
(2) In addition to any other damages provided by law, to exemplary
damages of not less than 3 nor more than 10 times the cost incurred by
the Contractor in giving gratuities to the person concerned, as
determined by the agency head or a designee. (This subparagraph (c)(2)
is applicable only if this contract uses money appropriated to the
Department of Defense.)
(d) The rights and remedies of the Government provided in this
clause shall not be exclusive and are in addition to any other rights
and remedies provided by law or under this contract.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 39200, July 26, 1996]
52.203-4 [Reserved]
52.203-5 Covenant Against Contingent Fees.
As prescribed in 3.404, insert the following clause:
Covenant Against Contingent Fees (APR 1984)
(a) The Contractor warrants that no person or agency has been
employed or retained to solicit or obtain this contract upon an
agreement or understanding for a contingent fee, except a bona fide
employee or agency. For breach or violation of this warranty, the
Government shall have the right to annul this contract without liability
or, in its discretion, to deduct from the contract price or
consideration, or otherwise recover, the full amount of the contingent
fee.
(b) Bona fide agency, as used in this clause, means an established
commercial or selling agency, maintained by a contractor for the purpose
of securing business, that neither exerts nor proposes to exert improper
influence to solicit or obtain Government contracts nor holds itself out
as being able to obtain any Government contract or contracts through
improper influence.
Bona fide employee, as used in this clause, means a person, employed
by a contractor and subject to the contractor's supervision and control
as to time, place, and manner of performance, who neither exerts nor
proposes to exert improper influence to solicit or obtain Government
contracts nor holds out as being able to obtain any Government contract
or contracts through improper influence.
Contingent fee, as used in this clause, means any commission,
percentage, brokerage, or other fee that is contingent upon the success
that a person or concern has in securing a Government contract.
Improper influence, as used in this clause, means any influence that
induces or tends to induce a Government employee or officer to give
consideration or to act regarding a Government contract on any basis
other than the merits of the matter.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 56 FR 41730, Aug. 22, 1991;
61 FR 39189, July 26, 1996]
52.203-6 Restrictions on Subcontractor Sales to the Government.
As prescribed in 3.503-2, insert the following clause:
Restrictions on Subcontractor Sales to the Government (JUL 1995)
(a) Except as provided in (b) below, the Contractor shall not enter
into any agreement with an actual or prospective subcontractor, nor
otherwise act in any manner, which has or may have the effect of
restricting sales by such subcontractors directly to the Government of
any item or process (including computer software) made or furnished by
the subcontractor under this contract or under any follow-on production
contract.
(b) The prohibition in (a) above does not preclude the Contractor
from asserting rights that are otherwise authorized by law or
regulation.
(c) The Contractor agrees to incorporate the substance of this
clause, including this paragraph (c), in all subcontracts under this
contract which exceed $100,000.
(End of clause)
Alternate I (OCT 1995). As prescribed in 3.503-2, substitute the
following paragraph in place of paragraph (b) of the basic clause:
(b) The prohibition in paragraph (a) of this clause does not
preclude the Contractor from asserting rights that are otherwise
authorized by law or regulation. For acquisitions of commercial items,
the prohibition in paragraph (a) applies only to the extent that any
[[Page 20]]
agreement restricting sales by subcontractors results in the Federal
Government being treated differently from any other prospective
purchaser for the sale of the commercial item(s).
[50 FR 35479, Aug. 30, 1985, as amended at 60 FR 34761, July 3, 1995; 60
FR 48251, Sept. 18, 1995; 61 FR 39198, July 26, 1996]
52.203-7 Anti-Kickback Procedures.
As prescribed in 3.502-3, insert the following clause:
Anti-Kickback Procedures (JUL 1995)
(a) Definitions.
Kickback, as used in this clause, means any money, fee, commission,
credit, gift, gratuity, thing of value, or compensation of any kind
which is provided, directly or indirectly, to any prime Contractor,
prime Contractor employee, subcontractor, or subcontractor employee for
the purpose of improperly obtaining or rewarding favorable treatment in
connection with a prime contract or in connection with a subcontract
relating to a prime contract.
Person, as used in this clause, means a corporation, partnership,
business association of any kind, trust, joint-stock company, or
individual.
Prime contract, as used in this clause, means a contract or
contractual action entered into by the United States for the purpose of
obtaining supplies, materials, equipment, or services of any kind.
Prime Contractor, as used in this clause, means a person who has
entered into a prime contract with the United States.
Prime Contractor employee, as used in this clause, means any
officer, partner, employee, or agent of a prime Contractor.
Subcontract, as used in this clause, means a contract or contractual
action entered into by a prime Contractor or subcontractor for the
purpose of obtaining supplies, materials, equipment, or services of any
kind under a prime contract.
Subcontractor, as used in this clause, (1) means any person, other
than the prime Contractor, who offers to furnish or furnishes any
supplies, materials, equipment, or services of any kind under a prime
contract or a subcontract entered into in connection with such prime
contract, and (2) includes any person who offers to furnish or furnishes
general supplies to the prime Contractor or a higher tier subcontractor.
Subcontractor employee, as used in this clause, means any officer,
partner, employee, or agent of a subcontractor.
(b) The Anti-Kickback Act of 1986 (41 U.S.C. 51-58) (the Act),
prohibits any person from--
(1) Providing or attempting to provide or offering to provide any
kickback;
(2) Soliciting, accepting, or attempting to accept any kickback; or
(3) Including, directly or indirectly, the amount of any kickback in
the contract price charged by a prime Contractor to the United States or
in the contract price charged by a subcontractor to a prime Contractor
or higher tier subcontractor.
(c)(1) The Contractor shall have in place and follow reasonable
procedures designed to prevent and detect possible violations described
in paragraph (b) of this clause in its own operations and direct
business relationships.
(2) When the Contractor has reasonable grounds to believe that a
violation described in paragraph (b) of this clause may have occurred,
the Contractor shall promptly report in writing the possible violation.
Such reports shall be made to the inspector general of the contracting
agency, the head of the contracting agency if the agency does not have
an inspector general, or the Department of Justice.
(3) The Contractor shall cooperate fully with any Federal agency
investigating a possible violation described in paragraph (b) of this
clause.
(4) The Contracting Officer may (i) offset the amount of the
kickback against any monies owed by the United States under the prime
contract and/or (ii) direct that the Prime Contractor withhold, from
sums owed a subcontractor under the prime contract, the amount of any
kickback. The Contracting Officer may order the monies withheld under
subdivision (c)(4)(ii) of this clause be paid over to the Government
unless the Government has already offset those monies under subdivision
(c)(4)(i) of this clause. In either case, the Prime Contractor shall
notify the Contracting Officer when the monies are withheld.
(5) The Contractor agrees to incorporate the substance of this
clause, including this subparagraph (c)(5) but excepting subparagraph
(c)(1), in all subcontracts under under this contract which exceed
$100,000.
[52 FR 6122, Feb. 27, 1987, as amended at 53 FR 34228, Sept. 2, 1988; 53
FR 36028, Sept. 16, 1988; 60 FR 34761, July 3, 1995]
52.203-8 Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity.
As prescribed in 3.104-9(a), insert the following clause:
Cancellation, Rescission, and Recovery of Funds for Illegal or Improper
Activity (JAN 1997)
(a) If the Government receives information that a contractor or a
person has engaged in conduct constituting a violation of subsection
(a), (b), (c), or (d) of Section 27 of the
[[Page 21]]
Office of Federal Procurement Policy Act (41 U.S.C. 423) (the Act), as
amended by section 4304 of the National Defense Authorization Act for
Fiscal Year 1996 (Pub. L. 104-106), the Government may--
(1) Cancel the solicitation, if the contract has not yet been
awarded or issued; or
(2) Rescind the contract with respect to which--
(i) The Contractor or someone acting for the Contractor has been
convicted for an offense where the conduct constitutes a violation of
subsection 27 (a) or (b) of the Act for the purpose of either--
(A) Exchanging the information covered by such subsections for
anything of value; or
(B) Obtaining or giving anyone a competitive advantage in the award
of a Federal agency procurement contract; or
(ii) The head of the contracting activity has determined, based upon
a preponderance of the evidence, that the Contractor or someone acting
for the Contractor has engaged in conduct constituting an offense
punishable under subsection 27(e)(1) of the Act.
(b) If the Government rescinds the contract under paragraph (a) of
this clause, the Government is entitled to recover, in addition to any
penalty prescribed by law, the amount expended under the contract.
(c) The rights and remedies of the Government specified herein are
not exclusive, and are in addition to any other rights and remedies
provided by law, regulation, or under this contract.
(End of clause)
[62 FR 233, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997, as amended at 67
FR 13063, Mar. 20, 2002]
52.203-9 [Reserved]
52.203-10 Price or Fee Adjustment for Illegal or Improper Activity.
As prescribed in 3.104-9(b) insert the following clause:
Price or Fee Adjustment for Illegal or Improper Activity (JAN 1997)
(a) The Government, at its election, may reduce the price of a
fixed-price type contract and the total cost and fee under a cost-type
contract by the amount of profit or fee determined as set forth in
paragraph (b) of this clause if the head of the contracting activity or
designee determines that there was a violation of subsection 27 (a),
(b), or (c) of the Office of Federal Procurement Policy Act, as amended
(41 U.S.C. 423), as implemented in section 3.104 of the Federal
Acquisition Regulation.
(b) The price or fee reduction referred to in paragraph (a) of this
clause shall be--
(1) For cost-plus-fixed-fee contracts, the amount of the fee
specified in the contract at the time of award;
(2) For cost-plus-incentive-fee conrtracts, the target fee specified
in the contract at the time of award, notwithstanding any minimum fee or
``fee floor'' specified in the contract.
(3) For cost-plus-award-fee contracts--
(i) The base fee established in the contract at the time of contract
award;
(ii) If no base fee is specified in the contract, 30 percent of the
amount of each award fee otherwise payable to the Contractor for each
award fee evaluation period or at each award fee determination point.
(4) For fixed-price-incentive contracts, the Government may--
(i) Reduce the contract target price and contract target profit both
by an amount equal to the initial target profit specified in the
contract at the time of contract award; or
(ii) If an immediate adjustment to the contract target price and
contract target profit would have a significant adverse impact on the
incentive price revision relationship under the contract, or adversely
affect the contract financing provisions, the Contracting Officer may
defer such adjustment until establishment of the total final price of
the contract. The total final price established in accordance with the
incentive price revision provisions of the contract shall be reduced by
an amount equal to the initial target profit specified in the contract
at the time of contract award and such reduced price shall be the total
final contract price.
(5) For firm-fixed-price contracts, by 10 percent of the initial
contract price or a profit amount determined by the Contracting Officer
from records or documents in existence prior to the date of the contract
award.
(c) The Government may, at its election, reduce a prime contractor's
price or fee in accordance with the procedures of paragraph (b) of this
clause for violations of the Act by its subcontractors by an amount not
to exceed the amount of profit or fee reflected in the subcontract at
the time the subcontract was first definitively priced.
(d) In addition to the remedies in paragraphs (a) and (c) of this
clause, the Government may terminate this contract for default. The
rights and remedies of the Government specified herein are not
exclusive, and are in addition to any other rights and remedies provided
by law or under this contract.
(End of clause)
[55 FR 36797, Sept. 6, 1990, as amended at 62 FR 233, Jan. 2, 1997]
[[Page 22]]
52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions.
As prescribed in 3.808, insert the following provision:
Certification and Disclosure Regarding Payments to Influence Certain
Federal Transactions (APR 1991)
(a) The definitions and prohibitions contained in the clause, at FAR
52.203-12, Limitation on Payments to Influence Certain Federal
Transactions, included in this solicitation, are hereby incorporated by
reference in paragraph (b) of this certification.
(b) The offeror, by signing its offer, hereby certifies to the best
of his or her knowledge and belief that on or after December 23, 1989--
(1) No Federal appropriated funds have been paid or will be paid to
any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress on his or her behalf in
connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment or modification of any Federal contract, grant, loan, or
cooperative agreement;
(2) If any funds other than Federal appropriated funds (including
profit or fee received under a covered Federal transaction) have been
paid, or will be paid, to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
on his or her behalf in connection with this solicitation, the offeror
shall complete and submit, with its offer, OMB standard form LLL,
Disclosure of Lobbying Activities, to the Contracting Officer; and
(3) He or she will include the language of this certification in all
subcontract awards at any tier and require that all recipients of
subcontract awards in excess of $100,000 shall certify and disclose
accordingly.
(c) Submission of this certification and disclosure is a
prerequisite for making or entering into this contract imposed by
section 1352, title 31, United States Code. Any person who makes an
expenditure prohibited under this provision or who fails to file or
amend the disclosure form to be filed or amended by this provision,
shall be subject to a civil penalty of not less than $10,000, and not
more than $100,000, for each such failure.
(End of provision)
[55 FR 3193, Jan. 30, 1990, as amended at 56 FR 15155, Apr. 15, 1991; 62
FR 40237, July 25, 1997]
52.203-12 Limitation on Payments to Influence Certain Federal Transactions.
As prescribed in 3.808, insert the following clause:
Limitation on Payments to Influence Certain Federal Transactions (JUN
1997)
(a) Definitions.
Agency, as used in this clause, means executive agency as defined in
2.101.
Covered Federal action, as used in this clause, means any of the
following Federal actions:
(1) The awarding of any Federal contract.
(2) The making of any Federal grant.
(3) The making of any Federal loan.
(4) The entering into of any cooperative agreement.
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Indian tribe and tribal organization, as used in this clause, have
the meaning provided in section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450B) and include Alaskan Natives.
Influencing or attempting to influence, as used in this clause,
means making, with the intent to influence, any communication to or
appearance before an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with any covered Federal action.
Local government, as used in this clause, means a unit of government
in a State and, if chartered, established, or otherwise recognized by a
State for the performance of a governmental duty, including a local
public authority, a special district, an intrastate district, a council
of governments, a sponsor group representative organization, and any
other instrumentality of a local government.
Officer or employee of an agency, as used in this clause, includes
the following individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, United States Code, including a position under a
temporary appointment.
(2) A member of the uniformed services, as defined in subsection
101(3), title 37, United States Code.
(3) A special Government employee, as defined in section 202, title
18, United States Code.
(4) An individual who is a member of a Federal advisory committee,
as defined by the
[[Page 23]]
Federal Advisory Committee Act, title 5, United States Code, appendix 2.
Person, as used in this clause, means an individual, corporation,
company, association, authority, firm, partnership, society, State, and
local government, regardless of whether such entity is operated for
profit, or not for profit. This term excludes an Indian tribe, tribal
organization, or any other Indian organization with respect to
expenditures specifically permitted by other Federal law.
Reasonable compensation, as used in this clause, means, with respect
to a regularly employed officer or employee of any person, compensation
that is consistent with the normal compensation for such officer or
employee for work that is not furnished to, not funded by, or not
furnished in cooperation with the Federal Government.
Reasonable payment, as used in this clause, means, with respect to
professional and other technical services, a payment in an amount that
is consistent with the amount normally paid for such services in the
private sector.
Recipient, as used in this clause, includes the Contractor and all
subcontractors. This term excludes an Indian tribe, tribal organization,
or any other Indian organization with respect to expenditures
specifically permitted by other Federal law.
Regularly employed, as used in this clause, means, with respect to
an officer or employee of a person requesting or receiving a Federal
contract, an officer or employee who is employed by such person for at
least 130 working days within 1 year immediately preceding the date of
the submission that initiates agency consideration of such person for
receipt of such contract. An officer or employee who is employed by such
person for less than 130 working days within 1 year immediately
preceding the date of the submission that initiates agency consideration
of such person shall be considered to be regularly employed as soon as
he or she is employed by such person for 130 working days.
State, as used in this clause, means a State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, a territory
or possession of the United States, an agency or instrumentality of a
State, and multi-State, regional, or interstate entity having
governmental duties and powers.
(b) Prohibitions. (1) Section 1352 of title 31, United States Code,
among other things, prohibits a recipient of a Federal contract, grant,
loan, or cooperative agreement from using appropriated funds to pay any
person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with any of the
following covered Federal actions: the awarding of any Federal contract;
the making of any Federal grant; the making of any Federal loan; the
entering into of any cooperative agreement; or the modification of any
Federal contract, grant, loan, or cooperative agreement.
(2) The Act also requires Contractors to furnish a disclosure if any
funds other than Federal appropriated funds (including profit or fee
received under a covered Federal transaction) have been paid, or will be
paid, to any person for influencing or attempting to influence an
officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with a Federal contract, grant, loan, or cooperative
agreement.
(3) The prohibitions of the Act do not apply under the following
conditions:
(i) Agency and legislative liaison by own employees. (A) The
prohibition on the use of appropriated funds, in subparagraph (b)(1) of
this clause, does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a covered Federal action if the payment is for agency and
legislative liaison activities not directly related to a covered Federal
action.
(B) For purposes of subdivision (b)(3)(i)(A) of this clause,
providing any information specifically requested by an agency or
Congress is permitted at any time.
(C) The following agency and legislative liaison activities are
permitted at any time where they are not related to a specific
solicitation for any covered Federal action:
(1) Discussing with an agency the qualities and characteristics
(including individual demonstrations) of the person's products or
services, conditions or terms of sale, and service capabilities.
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(D) The following agency and legislative liaison activities are
permitted where they are prior to formal solicitation of any covered
Federal action--
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Pub. L. 95-507, and subsequent amendments.
(E) Only those services expressly authorized by subdivison
(b)(3)(i)(A) of this clause are permitted under this clause.
(ii) Professional and technical services. (A) The prohibition on the
use of appropriated funds, in subparagraph (b)(1) of this clause, does
not apply in the case of--
[[Page 24]]
(1) A payment of reasonable compensation made to an officer or
employee of a person requesting or receiving a covered Federal action or
an extension, continuation, renewal, amendment, or modification of a
covered Federal action, if payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal action
or for meeting requirements imposed by or pursuant to law as a condition
for receiving that Federal action.
(2) Any reasonable payment to a person, other than an officer or
employee of a person requesting or receiving a covered Federal action or
an extension, continuation, renewal, amendment, or modification of a
covered Federal action if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal action
or for meeting requirements imposed by or pursuant to law as a condition
for receiving that Federal action. Persons other than officers or
employees of a person requesting or receiving a covered Federal action
include consultants and trade associations.
(B) For purposes of subdivision (b)(3)(ii)(A) of this clause,
professional and technical services shall be limited to advice and
analysis directly applying any professional or technical discipline. For
example, drafting of a legal document accompanying a bid or proposal by
a lawyer is allowable.
Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her clients's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(C) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation and any other requirements in the actual award documents.
(D) Only those services expressly authorized by subdivisions
(b)(3)(ii)(A) (1) and (2) of this clause are permitted under this
clause.
(E) The reporting requirements of FAR 3.803(a) shall not apply with
respect to payments of reasonable compensation made to regularly
employed officers or employees of a person.
(c) Disclosure. (1) The Contractor who requests or receives from an
agency a Federal contract shall file with that agency a disclosure form,
OMB standard form LLL, Disclosure of Lobbying Activities, if such person
has made or has agreed to make any payment using nonappropriated funds
(to include profits from any covered Federal action), which would be
prohibited under subparagraph (b)(1) of this clause, if paid for with
appropriated funds.
(2) The Contractor shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that materially affects
the accuracy of the information contained in any disclosure form
previously filed by such person under subparagraph (c)(1) of this
clause. An event that materially affects the accuracy of the information
reported includes--
(i) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(ii) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or
(iii) A change in the officer(s), employee(s), or Member(s)
contacted to influence or attempt to influence a covered Federal action.
(3) The Contractor shall require the submittal of a certification,
and if required, a disclosure form by any person who requests or
received any subcontract exceeding $100,000 under the Federal contract.
(4) All subcontractor disclosure forms (but not certifications)
shall be forwarded from tier to tier until received by the prime
Contractor. The prime Contractor shall submit all disclosures to the
Contracting Officer at the end of the calendar quarter in which the
disclosure form is submitted by the subcontractor. Each subcontractor
certification shall be retained in the subcontract file of the awarding
Contractor.
(d) Agreement. The Contractor agrees not to make any payment
prohibited by this clause.
(e) Penalties. (1) Any person who makes an expenditure prohibited
under paragraph (a) of this clause or who fails to file or amend the
disclosure form to be filed or amended by paragraph (b) of this clause
shall be subject to civil penalties as provided for by 31 U.S.C. 1352.
An imposition of a civil penalty does
[[Page 25]]
not prevent the Government from seeking any other remedy that may be
applicable.
(2) Contractors may rely without liability on the representation
made by their subcontractors in the certification and disclosure form.
(f) Cost allowability. Nothing in this clause makes allowable or
reasonable any costs which would otherwise be unallowable or
unreasonable. Conversely, costs made specifically unallowable by the
requirements in this clause will not be made allowable under any other
provision.
(End of clause)
[55 FR 3193, Jan. 30, 1990, as amended at 55 FR 38517, Sept. 18, 1990;
62 FR 40237, July 25, 1997]
52.204-1 Approval of Contract.
As prescribed in 4.103, insert the following clause:
Approval of Contract (DEC 1989)
This contract is subject to the written approval of . . . . .
[identify title of designated agency official here] and shall not be
binding until so approved.
(End of clause)
[54 FR 5058, Jan. 31, 1989, as amended at 54 FR 48990, Nov. 28, 1989]
52.204-2 Security Requirements.
As prescribed in 4.404(a), insert the following clauses:
Security Requirements (AUG 1996)
(a) This clause applies to the extent that this contract involves
access to information classified Confidential, Secret, or Top Secret.
(b) The Contractor shall comply with (1) the Security Agreement (DD
Form 441), including the National Industrial Security Program Operating
Manual (DOD 5220.22-M), and (2) any revisions to that manual, notice of
which has been furnished to the Contractor.
(c) If, subsequent to the date of this contract, the security
classification or security requirements under this contract are changed
by the Government and if the changes cause an increase or decrease in
security costs or otherwise affect any other term or condition of this
contract, the contract shall be subject to an equitable adjustment as if
the changes were directed under the Changes clause of this contract.
(d) The Contractor agrees to insert terms that conform substantially
to the language of this clause, including this paragraph (d) but
excluding any reference to the Changes clause of this contract, in all
subcontracts under this contract that involve access to classified
information.
(End of clause)
Alternate I (APR 1984). If a cost contract for research and
development with an educational institution is contemplated, add the
following paragraphs (e), (f), and (g) to the basic clause:
(e) If a change in security requirements, as provided in paragraphs
(b) and (c), results (1) in a change in the security classification of
this contract or any of its elements from an unclassified status or a
lower classification to a higher classification, or (2) in more
restrictive area controls than previously required, the Contractor shall
exert every reasonable effort compatible with the Contractor's
established policies to continue the performance of work under the
contract in compliance with the change in security classification or
requirements. If, despite reasonable efforts, the Contractor determines
that the continuation of work under this contract is not practicable
because of the change in security classification or requirements, the
Contractor shall notify the Contracting Officer in writing. Until
resolution of the problem is made by the Contracting Officer, the
Contractor shall continue safeguarding all classified material as
required by this contract.
(f) After receiving the written notification, the Contracting
Officer shall explore the circumstances surrounding the proposed change
in security classification or requirements, and shall endeavor to work
out a mutually satisfactory method whereby the Contractor can continue
performance of the work under this contract.
(g) If, 15 days after receipt by the Contracting Officer of the
notification of the Contractor's stated inability to proceed, (1) the
application to this contract of the change in security classification or
requirements has not been withdrawn or (2) a mutually satisfactory
method for continuing performance of work under this contract has not
been agreed upon, the Contractor may request the Contracting Officer to
terminate the contract in whole or in part. The Contracting Officer
shall terminate the contract in whole or in part, as may be appropriate,
and the termination shall be deemed a termination under the terms of the
Termination for the Convenience of the Government clause.
Alternate II (APR 1984). If employee identification is required for
security or other reasons in a construction contract or architect-
engineer contract,
[[Page 26]]
add the following paragraph (e) to the basic clause:
(e) The Contractor shall be responsible for furnishing to each
employee and for requiring each employee engaged on the work to display
such identification as may be approved and directed by the Contracting
Officer. All prescribed identification shall immediately be delivered to
the Contracting Officer, for cancellation upon the release of any
employee. When required by the Contracting Officer, the Contractor shall
obtain and submit fingerprints of all persons employed or to be employed
on the project.
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996]
52.204-3 Taxpayer identification.
As prescribed in 4.905, insert the following provision:
Taxpayer Identification (OCT 1998)
(a) Definitions.
Common parent, as used in this provision, means that corporate
entity that owns or controls an affiliated group of corporations that
files its Federal income tax returns on a consolidated basis, and of
which the offeror is a member.
Taxpayer Identification Number (TIN), as used in this provision,
means the number required by the Internal Revenue Service (IRS) to be
used by the offeror in reporting income tax and other returns. The TIN
may be either a Social Security Number or an Employer Identification
Number.
(b) All offerors must submit the information required in paragraphs
(d) through (f) of this provision to comply with debt collection
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by
the IRS. If the resulting contract is subject to the payment reporting
requirements described in Federal Acquisition Regulation (FAR) 4.904,
the failure or refusal by the offeror to furnish the information may
result in a 31 percent reduction of payments otherwise due under the
contract.
(c) The TIN may be used by the Government to collect and report on
any delinquent amounts arising out of the offeror's relationship with
the Government (31 U.S.C. 7701(c)(3)). If the resulting contract is
subject to the payment reporting requirements described in FAR 4.904,
the TIN provided hereunder may be matched with IRS records to verify the
accuracy of the offeror's TIN.
(d) Taxpayer Identification Number (TIN).
[squ] TIN:______________________________________________________________
[squ] TIN has been applied for.
[squ] TIN is not required because:
[squ] Offeror is a nonresident alien, foreign corporation, or
foreign partnership that does not have income effectively connected with
the conduct of a trade or business in the United States and does not
have an office or place of business or a fiscal paying agent in the
United States;
[squ] Offeror is an agency or instrumentality of a foreign
government;
[squ] Offeror is an agency or instrumentality of the Federal
Government.
(e) Type of organization.
[squ] Sole proprietorship;
[squ] Partnership;
[squ] Corporate entity (not tax-exempt);
[squ] Corporate entity (tax-exempt);
[squ] Government entity (Federal, State, or local);
[squ] Foreign government;
[squ] International organization per 26 CFR 1.6049-4;
[squ] Other_____________________________________________________________
(f) Common parent.
[squ] Offeror is not owned or controlled by a common parent as
defined in paragraph (a) of this provision.
[squ] Name and TIN of common parent:
Name____________________________________________________________________
TIN_____________________________________________________________________
(End of provision)
[63 FR 58589, Oct. 30, 1998]
52.204-4 Printed or Copied Double-Sided on Recycled Paper.
As prescribed in 4.303, insert the following clause:
Printed or Copied Double-Sided on Recycled Paper (AUG 2000)
(a) Definitions. As used in this clause--
Postconsumer material means a material or finished product that has
served its intended use and has been discarded for disposal or recovery,
having completed its life as a consumer item. Postconsumer material is a
part of the broader category of ``recovered material.'' For paper and
paper products, postconsumer material means ``postconsumer fiber''
defined by the U.S. Environmental Protection Agency (EPA) as--
(1) Paper, paperboard, and fibrous materials from retail stores,
office buildings, homes, and so forth, after they have passed through
their end-usage as a consumer item, including: used corrugated boxes;
old newspapers; old magazines; mixed waste paper; tabulating cards; and
used cordage; or
(2) All paper, paperboard, and fibrous materials that enter and are
collected from municipal solid waste; but not
(3) Fiber derived from printers' over-runs, converters' scrap, and
over-issue publications.
Printed or copied double-sided means printing or reproducing a
document so that information is on both sides of a sheet of paper.
[[Page 27]]
Recovered material, for paper and paper products, is defined by EPA
in its Comprehensive Procurement Guideline as ``recovered fiber'' and
means the following materials:
(1) Postconsumer fiber; and
(2) Manufacturing wastes such as--
(i) Dry paper and paperboard waste generated after completion of the
papermaking process (that is, those manufacturing operations up to and
including the cutting and trimming of the paper machine reel into
smaller rolls or rough sheets) including: envelope cuttings, bindery
trimmings, and other paper and paperboard waste resulting from printing,
cutting, forming, and other converting operations; bag, box, and carton
manufacturing wastes; and butt rolls, mill wrappers, and rejected unused
stock; and
(ii) Repulped finished paper and paperboard from obsolete
inventories of paper and paperboard manufacturers, merchants,
wholesalers, dealers, printers, converters, or others.
(b) In accordance with Section 101 of Executive Order 13101 of
September 14, 1998, Greening the Government through Waste Prevention,
Recycling, and Federal Acquisition, the Contractor is encouraged to
submit paper documents, such as offers, letters, or reports, that are
printed or copied double-sided on recycled paper that meet minimum
content standards specified in Section 505 of Executive Order 13101,
when not using electronic commerce methods to submit information or data
to the Government.
(c) If the Contractor cannot purchase high-speed copier paper,
offset paper, forms bond, computer printout paper, carbonless paper,
file folders, white wove envelopes, writing and office paper, book
paper, cotton fiber paper, and cover stock meeting the 30 percent
postconsumer material standard for use in submitting paper documents to
the Government, it should use paper containing no less than 20 percent
postconsumer material. This lesser standard should be used only when
paper meeting the 30 percent postconsumer material standard is not
obtainable at a reasonable price or does not meet reasonable performance
standards.
(End of clause)
[65 FR 36020, June 6, 2000]
52.204-5 Women-Owned Business (Other Than Small Business).
As prescribed in 4.603(b), insert the following provision:
Women-Owned Business (Other Than Small Business) (MAY 1999)
(a) Definition. Women-owned business concern, as used in this
provision, means a concern that is at least 51 percent owned by one or
more women; or in the case of any publicly owned business, at least 51
percent of its stock is owned by one or more women; and whose management
and daily business operations are controlled by one or more women.
(b) Representation. [Complete only if the offeror is a women-owned
business concern and has not represented itself as a small business
concern in paragraph (b)(1) of FAR 52.219-1, Small Business Program
Representations, of this solicitation.] The offeror represents that it
[squ] is a women-owned business concern.
(End of provision)
[64 FR 10533, Mar. 4, 1999; 64 FR 30103, June 4, 1999]
52.204-6 Data Universal Numbering System (DUNS) Number.
As prescribed in 4.603(a), insert the following provision:
Data Universal Numbering System (DUNS) Number (JUN 1999)
(a) The offeror shall enter, in the block with its name and address
on the cover page of its offer, the annotation ``DUNS'' followed by the
DUNS number that identifies the offeror's name and address exactly as
stated in the offer. The DUNS number is a nine-digit number assigned by
Dun and Bradstreet Information Services.
(b) If the offeror does not have a DUNS number, it should contact
Dun and Bradstreet directly to obtain one. A DUNS number will be
provided immediately by telephone at no charge to the offeror. For
information on obtaining a DUNS number, the offeror, if located within
the United States, should call Dun and Bradstreet at 1-800-333-0505. The
offeror should be prepared to provide the following information:
(1) Company name.
(2) Company address.
(3) Company telephone number.
(4) Line of business.
(5) Chief executive officer/key manager.
(6) Date the company was started.
(7) Number of people employed by the company.
(8) Company affiliation.
(c) Offerors located outside the United States may obtain the
location and phone number of the local Dun and Bradstreet Information
Services office from the Internet home page at http://
[email protected]. If an offeror is unable to locate a local
service center, it may send an e-mail to Dun and Bradstreet at
[email protected].
[[Page 28]]
(End of provision)
[61 FR 67413, Dec. 20, 1996, as amended at 63 FR 9050, Feb. 23, 1998; 64
FR 32749, June 17, 1999]
52.205-52.206 [Reserved]
52.207-1 Notice of Cost Comparison (Sealed-Bid).
As prescribed in 7.305(a), insert the following provision:
Notice of Cost Comparison (Sealed-Bid) (FEB 1993)
(a) This solicitation is part of a Government cost comparison to
determine whether accomplishing the specified work under contract or by
Government performance is more economical. If Government performance is
determined to be more economical, this solicitation will be canceled and
no contract will be awarded.
(b) The Government's cost estimate for performance by the Government
will be based on the work statement in this solicitation and will be
submitted by designated agency personnel to the Contracting Officer in a
sealed envelope not later than the time set for bid opening. At the
public bid opening, the Contracting Officer will open the bids and the
envelope containing the cost estimate for Government performance and
announce the result. This announcement will be based on an initial
comparison of the cost of Government performance with the cost of
contract performance, as indicated on the cost comparison form.
(c) The abstract of bids, completed cost comparison form, and
detailed data supporting the cost estimate for Government performance
will be made available to interested parties for review for a period of
---------- [insert a number from 15 to 30, depending on the complexity
of the matter (see 7.306(a)(1)(iv)] working days, beginning with the
date the documents are available to interested parties. The Government
will not make a final determination either for contract or Government
performance during this period. During this period, directly affected
parties may file with the Contracting Officer written requests, based on
specific objections, for administrative review of the cost-comparison
result under the agency appeals procedure. The appeals procedure shall
be used only to resolve questions concerning the calculation of the cost
comparison and will not apply to decisions regarding selection of one
bidder in preference to another. Agency determinations under the appeals
procedure shall be final.
(d) After evaluation of bids and resolution of any requests under
the appeals procedure, the Contracting Officer will either award a
contract or cancel this solicitation. The completed cost comparison
analysis will be made available to interested parties.
(e) A cost estimate for Government performance is considered a bid
for purposes of this solicitation's Late Modifications of Bids or
Withdrawal of Bids provision, and a late modification that displaces an
otherwise low cost estimate for Government performance shall not be
considered.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 55 FR 25530, June 21, 1990; 57 FR 60575,
Dec. 21, 1992]
52.207-2 Notice of Cost Comparison (Negotiated).
As prescribed in 7.305(b), insert the following provision:
Notice of Cost Comparison (Negotiated) (FEB 1993)
(a) This solicitation is part of a Government cost comparison to
determine whether accomplishing the specified work under contract or by
Government performance is more economical. If Government performance is
determined to be more economical, this solicitation will be canceled and
no contract will be awarded.
(b) The Government's cost estimate for performance by the Government
will be based on the work statement in this solicitation and will be
submitted by designated agency personnel to the Contracting Officer in a
sealed envelope not later than the time set for receipt of initial
proposals.
(c) After completion of proposal evaluation, negotiation, and
selection of the most advantageous proposal, the Contracting Officer, in
the presence of the preparer of the cost estimate for Government
performance, will open the sealed cost estimate envelope. These
officials will make a cost comparison before public announcement.
Depending on whether the cost comparison result favors performance under
contract or Government performance, the procedure in either subparagraph
(1) or (2) following applies:
(1) If the result of the cost comparison favors performance under
contract and administrative approval is obtained, the Contracting
Officer will award a contract and publicly reveal the completed cost
comparison form showing the cost estimate for Government performance,
its detailed supporting data, and the Contractor's name. However, this
award is conditioned on the offer remaining the more economical
alternative after (i) completion of a public review period of -- [insert
a numeral from 15 to 30, depending upon the complexity of the matter
(see 7.306(b)(3))] working days beginning with the
[[Page 29]]
date this information is available to interested parties and (ii)
resolution of any requests for review under the agency appeals procedure
(see paragraph (d) below). The Government assumes no liability for costs
incurred during the periods specified in (i) and (ii). The Contracting
Officer will then either notify the Contractor in writing that it may
proceed with performance of the contract or will cancel the contract at
no cost to the Government.
(2) If the result of the cost comparison favors Government
performance, the Contracting Officer will publicly disclose this result,
the completed cost comparison form and its detailed supporting data, and
the price of the offer most advantageous to the Government. After (i)
completion of a public review period of -- [insert a numeral from 15 to
30, depending upon the complexity of the matter (see 7.306(b)(3)]
working days beginning with the date this information is available to
interested parties and (ii) resolution of any requests for review under
the agency appeals procedure (see paragraph (d) below), the Contracting
Officer will either cancel this solicitation or award a contract, as
appropriate.
(d) During the public review period, directly affected parties may
file with the Contracting Officer written requests, based on specific
objections, for administrative review of the cost comparison result
under the agency appeals procedure. The appeals procedure shall be used
only to resolve questions concerning the calculation of the cost
comparison and will not apply to questions concerning award to one
offeror in preference to another. Agency determinations under the
appeals procedure shall be final.
(e) A cost estimate for Government performance is considered a
proposal for purposes of this solicitation's Late Submissions,
Modifications, and Withdrawal of Proposals or Quotations provision, and
a late modification that displaces an otherwise low cost estimate for
Government performance shall not be considered.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 25530, June 21, 1990;
57 FR 60575, Dec. 21, 1992]
52.207-3 Right of First Refusal of Employment.
As prescribed in 7.305(c), insert the following clause:
Right of First Refusal of Employment (NOV 1991)
(a) The Contractor shall give Government employees who have been or
will be adversely affected or separated as a result of award of this
contract the right of first refusal for employment openings under the
contract in positions for which they are qualified, if that employment
is consistent with post-Government employment conflict of interest
standards.
(b) Within 10 days after contract award, the Contracting Officer
will provide to the Contractor a list of all Government employees who
have been or will be adversely affected or separated as a result of
award of this contract.
(c) The Contractor shall report to the Contracting Officer the names
of individuals identified on the list who are hired within 90 days after
contract performance begins. This report shall be forwarded within 120
days after contract performance begins.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 52 FR 9039, Mar. 20, 1987;
56 FR 55372, Oct. 25, 1991]
52.207-4 Economic Purchase Quantity--Supplies.
As prescribed in 7.203, insert the following provision:
Economic Purchase Quantity--Supplies (AUG 1987)
(a) Offerors are invited to state an opinion on whether the
quantity(ies) of supplies on which bids, proposals or quotes are
requested in this solicitation is (are) economically advantageous to the
Government.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(b) Each offeror who believes that acquisitions in different
quantities would be more advantageous is invited to recommend an
economic purchase quantity. If different quantities are recommended, a
total and a unit price must be quoted for applicable items. An economic
purchase quantity is that quantity at which a significant price break
occurs. If there are significant price breaks at different quantity
points, this information is desired as well.
Offeror Recommendations
------------------------------------------------------------------------
Price
Item Quantity quotation Total
------------------------------------------------------------------------
......... ........... .......
......... ........... .......
......... ........... .......
------------------------------------------------------------------------
(c) The information requested in this provision is being solicited
to avoid acquisitions in disadvantageous quantities and to assist the
Government in developing a data base for future acquisitions of these
items. However, the Government reserves the right to amend or cancel the
solicitation and resolicit with respect to any individual item in
[[Page 30]]
the event quotations received and the Government's requirements indicate
that different quantities should be acquired.
(End of provision)
[50 FR 35479, Aug. 30, 1985, as amended at 52 FR 30078, Aug. 12, 1987]
52.207-5 Option to Purchase Equipment.
As prescribed in 7.404, insert a clause substantially the same as
the following:
Option to Purchase Equipment (FEB 1995)
(a) The Government may purchase the equipment provided on a lease or
rental basis under this contract. The Contracting Officer may exercise
this option only by providing a unilateral modification to the
Contractor. The effective date of the purchase will be specified in the
unilateral modification and may be any time during the period of the
contract, including any extensions thereto.
(b) Except for final payment and transfer of title to the
Government, the lease or rental portion of the contract becomes complete
and lease or rental charges shall be discontinued on the day immediately
preceding the effective date of purchase specified in the unilateral
modification required in paragraph (a) of this clause.
(c) The purchase conversion cost of the equipment shall be computed
as of the effective date specified in the unilateral modification
required in paragraph (a) of this clause, on the basis of the purchase
price set forth in the contract, minus the total purchase option credits
accumulated during the period of lease or rental, calculated by the
formula contained elsewhere in this contract.
(d) The accumulated purchase option credits available to determine
the purchase conversion cost will also include any credits accrued
during a period of lease or rental of the equipment under any previous
Government contract if the equipment has been on continuous lease or
rental. The movement of equipment from one site to another site shall be
``continuous rental.''
(End of clause)
[59 FR 67026, Dec. 28, 1994]
52.208-1--52.208-3 [Reserved]
52.208-4 Vehicle Lease Payments.
As prescribed in 8.1104(a), insert the following clause in
solicitations and contracts for leasing motor vehicles, unless the motor
vehicles are leased in foreign countries:
Vehicle Lease Payments (APR 1984)
(a) Upon the submission of proper invoices or vouchers, the
Government shall pay rent for each vehicle at the rate(s) specified in
this contract.
(b) Rent shall accrue from the beginning of this contract, or from
the date each vehicle is delivered to the Government, whichever is
later, and shall continue until the expiration of the contract term or
the termination of this contract. However, rent shall accrue only for
the period that each vehicle is in the possession of the Government.
(c) Rent shall not accrue for any vehicle that the Contracting
Officer determines does not comply with the Condition of Leased Vehicles
clause of this contract or otherwise does not comply with the
requirements of this contract, until the vehicle is replaced or the
defects are corrected.
(d) Rent shall not accrue for any vehicle during any period when the
vehicle is unavailable or unusable as a result of the Contractor's
failure to render services for the operation and maintenance of the
vehicle as prescribed by this contract.
(e) Rent stated in monthly terms shall be prorated on the basis of
1/30th of the monthly rate for each day the vehicle is in the
Government's possession. If this contract contains a mileage provision,
the Government shall pay rent as provided in the Schedule.
(End of clause)
52.208-5 Condition of Leased Vehicles.
As prescribed in 8.1104(b), insert the following clause in
solicitations and contracts for leasing motor vehicles, unless the motor
vehicles are leased in foreign countries:
Condition of Leased Vehicles (APR 1984)
Each vehicle furnished under this contract shall be of good quality
and in safe operating condition, and shall comply with the Federal Motor
Vehicle Safety Standards (49 CFR 571) and State safety regulations
applicable to the vehicle. The Government shall accept or reject the
vehicles promptly after receipt. If the Contracting Officer determines
that any vehicle furnished is not in compliance with this contract, the
Contracting Officer shall promptly inform the Contractor in writing. If
the Contractor fails to replace the vehicle or correct the defects as
required by the Contracting Officer, the Government may (a) by contract
or otherwise, correct the defect or arrange for the lease of a similar
vehicle and shall charge or set off against the Contractor any excess
costs occasioned thereby, or (b)
[[Page 31]]
terminate the contract under the Default clause of this contract.
(End of clause)
52.208-6 Marking of Leased Vehicles.
As prescribed in 8.1104(c), insert the following clause in
solicitations and contracts for leasing motor vehicles, unless the motor
vehicles are leased in foreign countries:
Marking of Leased Vehicles (APR 1984)
(a) The Government may place nonpermanent markings or decals,
identifying the using agency, on each side, and on the front and rear
bumpers, of any motor vehicle leased under this contract. The Government
shall use markings or decals that are removable without damage to the
vehicle.
(b) The Contractor may use placards for temporary identification of
vehicles except that the placards may not contain any references to the
Contractor that may be construed as advertising or endorsement by the
Government of the Contractor.
(End of clause)
52.208-7 Tagging of Leased Vehicles.
As prescribed in 8.1104(d), insert a clause substantially as
follows:
Tagging of Leased Vehicles (MAY 1986)
While it is the intent that vehicles leased under this contract will
operate on Federal tags, the Government reserves the right to utilize
State tags if necessary to accomplish its mission. Should State tags be
required, the Contractor shall furnish the Government documentation
necessary to allow acquisition of such tags. Federal tags are the
responsibility of the Government.
(End of clause)
[51 FR 19717, May 30, 1986]
52.208-8 Required Sources for Helium and Helium Usage Data.
As prescribed in 8.505, insert the following clause:
Required Sources for Helium and Helium Usage Data (Apr 2002)
(a) Definitions.
Bureau of Land Management, as used in this clause, means the
Department of the Interior, Bureau of Land Management, Amarillo Field
Office, Helium Operations, located at 801 South Fillmore Street, Suite
500, Amarillo, TX 79101-3545.
Federal helium supplier means a private helium vendor that has an
in-kind crude helium sales contract with the Bureau of Land Management
(BLM) and that is on the BLM Amarillo Field Office's Authorized List of
Federal Helium Suppliers available via the Internet at http://
www.nm.blm.gov/www/amfo/amfo--home.html.
Major helium requirement means an estimated refined helium
requirement greater than 200,000 standard cubic feet (scf) (measured at
14.7 pounds per square inch absolute pressure and 70 degrees Fahrenheit
temperature) of gaseous helium or 7510 liters of liquid helium delivered
to a helium use location per year.
(b) Requirements--(1) Contractors must purchase major helium
requirements from Federal helium suppliers, to the extent that supplies
are available.
(2) The Contractor shall provide to the Contracting Officer the
following data within 10 days after the Contractor or subcontractor
receives a delivery of helium from a Federal helium supplier--
(i) The name of the supplier;
(ii) The amount of helium purchased;
(iii) The delivery date(s); and
(iv) The location where the helium was used.
(c) Subcontracts. The Contractor shall insert this clause, including
this paragraph (c), in any subcontract or order that involves a major
helium requirement.
(End of clause)
[67 FR 13064, Mar. 20, 2002]
52.208-9 Contractor Use of Mandatory Sources of Supply or Services.
As prescribed in 8.004, insert the following clause:
Contractor Use of Mandatory Sources of Supply or Services (FEB 2002)
(c) Price and delivery information for the mandatory supplies is
available from the Contracting Officer for the supplies obtained through
the DLA/GSA/VA distribution facilities. For mandatory supplies or
services that are not available from DLA/GSA/VA, price and delivery
information is available from the appropriate central nonprofit agency.
Payments shall be made directly to the source making delivery. Points of
contact for JWOD central nonprofit agencies are:
(1) National Industries for the Blind (NIB) 1901 North Beauregard
Street, Suite 200 Alexandria, VA 22311-1705 (703) 998-0770
(2) NISH, 2235 Cedar Lane, Vienna, VA 22182-5200 (703) 560-6800
(End of clause)
[61 FR 2631, Jan. 26, 1996, as amended at 61 FR 67430, Dec. 20, 1996; 66
FR 65368, Dec. 18, 2001; 67 FR 56120, Aug. 30, 2002]
[[Page 32]]
52.209-1 Qualification Requirements.
As prescribed in 9.206-2, insert the following clause:
Qualification Requirements (FEB 1995)
(a) Definition: Qualification Requirement, as used in this clause,
means a Government requirement for testing or other quality assurance
demonstration that must be completed before award.
(b) One or more qualification requirements apply to the supplies or
services covered by this contract. For those supplies or services
requiring qualification, whether the covered product or service is an
end item under this contract or simply a component of an end item, the
product, manufacturer, or source must have demonstrated that it meets
the standards prescribed for qualification before award of this
contract. The product, manufacturer, or source must be qualified at the
time of award whether or not the name of the product, manufacturer, or
source is actually included on a qualified products list, qualified
manufacturers list, or qualified bidders list. Offerors should contact
the agency activity designated below to obtain all requirements that
they or their products or services, or their subcontractors or their
products or services, must satisfy to become qualified and to arrange
for an opportunity to demonstrate their abilities to meet the standards
specified for qualification.
(Name)__________________________________________________________________
(Address)_______________________________________________________________
(c) If an offeror, manufacturer, source, product or service covered
by a qualification requirement has already met the standards specified,
the relevant information noted below should be provided.
Offeror's Name__________________________________________________________
Manufacturer's Name_____________________________________________________
Source's Name___________________________________________________________
Item Name_______________________________________________________________
Service Identification__________________________________________________
Test Number_____________________________________________________________
(to the extent known)
(d) Even though a product or service subject to a qualification
requirement is not itself an end item under this contract, the product,
manufacturer, or source must nevertheless be qualified at the time of
award of this contract. This is necessary whether the Contractor or a
subcontractor will ultimately provide the product or service in
question. If, after award, the Contracting Officer discovers that an
applicable qualification requirement was not in fact met at the time of
award, the Contracting Officer may either terminate this contract for
default or allow performance to continue if adequate consideration is
offered and the action is determined to be otherwise in the Government's
best interests.
(e) If an offeror, manufacturer, source, product or service has met
the qualification requirement but is not yet on a qualified products
list, qualified manufacturers list, or qualified bidders list, the
offeror must submit evidence of qualification prior to award of this
contract. Unless determined to be in the Government's interest, award of
this contract shall not be delayed to permit an offeror to submit
evidence of qualification.
(f) Any change in location or ownership of the plant where a
previously qualified product or service was manufactured or performed
requires reevaluation of the qualification. Similarly, any change in
location or ownership of a previously qualified manufacturer or source
requires reevaluation of the qualification. The reevaluation must be
accomplished before the date of award.
(End of clause)
[53 FR 34229, Sept. 2, 1988; 53 FR 36028, Sept. 16, 1988, as amended at
59 FR 67056, Dec. 28, 1994]
52.209-3 First Article Approval--Contractor Testing.
As prescribed in 9.308-1 (a) and (b), insert the following clause:
First Article Approval--Contractor Testing (SEP 1989)
[Contracting Officer shall insert details]
(a) The Contractor shall test -- unit(s) of Lot/Item -- as specified
in this contract. At least -- calendar days before the beginning of
first article tests, the Contractor shall notify the Contracting
Officer, in writing, of the time and location of the testing so that the
Government may witness the tests.
(b) The Contractor shall submit the first article test report within
-- calendar days from the date of this contract to -- [insert address of
the Government activity to receive the report] marked ``FIRST ARTICLE
TEST REPORT: Contract No. ----, Lot/Item No. ----.'' Within -- calendar
days after the Government receives the test report, the Contracting
Officer shall notify the Contractor, in writing, of the conditional
approval, approval, or disapproval of the first article. The notice of
conditional approval or approval shall not relieve the Contractor from
complying with all requirements of the specifications and all other
terms and conditions of this contract. A notice of conditional approval
shall state any further action required of the Contractor. A notice of
disapproval shall cite reasons for the disapproval.
(c) If the first article is disapproved, the Contractor, upon
Government request, shall repeat any or all first article tests. After
[[Page 33]]
each request for additional tests, the Contractor shall make any
necessary changes, modifications, or repairs to the first article or
select another first article for testing. All costs related to these
tests are to be borne by the Contractor, including any and all costs for
additional tests following a disapproval. The Contractor shall then
conduct the tests and deliver another report to the Government under the
terms and conditions and within the time specified by the Government.
The Government shall take action on this report within the time
specified in paragraph (b) above. The Government reserves the right to
require an equitable adjustment of the contract price for any extension
of the delivery schedule, or for any additional costs to the Government
related to these tests.
(d) If the Contractor fails to deliver any first article report on
time, or the Contracting Officer disapproves any first article, the
Contractor shall be deemed to have failed to make delivery within the
meaning of the Default clause of this contract.
(e) Unless otherwise provided in the contract, and if the approved
first article is not consumed or destroyed in testing, the Contractor
may deliver the approved first article as part of the contract quantity
if it meets all contract requirements for acceptance.
(f) If the Government does not act within the time specified in
paragraph (b) or (c) above, the Contracting Officer shall, upon timely
written request from the Contractor, equitably adjust under the Changes
clause of this contract the delivery or performance dates and/or the
contract price, and any other contractual term affected by the delay.
(g) Before first article approval, the acquisition of materials or
components for, or the commencement of production of, the balance of the
contract quantity is at the sole risk of the Contractor. Before first
article approval, the costs thereof shall not be allocable to this
contract for (1) progress payments, or (2) termination settlements if
the contract is terminated for the convenience of the Government.
(h) The Government may waive the requirement for first article
approval test where supplies identical or similar to those called for in
the schedule have been previously furnished by the offeror/contractor
and have been accepted by the Government. The offeror/contractor may
request a waiver.
(End of clause)
Alternate I (JAN 1997). As prescribed in 9.308-1 (a)(2) and (b)(2),
add the following paragraph (i) to the basic clause:
(i) The Contractor shall produce both the first article and the
production quantity at the same facility.
Alternate II (SEP 1989). As prescribed in 9.308-1 (a)(3) and (b)(3),
substitute the following paragraph (g) for paragraph (g) of the basic
clause:
(g) Before first article approval, the Contracting Officer may, by
written authorization, authorize the Contractor to acquire specific
materials or components or to commence production to the extent
essential to meet the delivery schedules. Until first article approval
is granted, only costs for the first article and costs incurred under
this authorization are allocable to this contract for (1) progress
payments, or (2) termination settlements if the contract is terminated
for the convenience of the Government. If first article tests reveal
deviations from contract requirements, the Contractor shall, at the
location designated by the Government, make the required changes or
replace all items produced under this contract at no change in the
contract price.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989;
55 FR 25531, June 21, 1990; 62 FR 238, Jan. 2, 1997]
52.209-4 First Article Approval--Government Testing.
As prescribed in 9.308-2 (a) and (b), insert the following clause:
First Article Approval--Government Testing (SEP 1989)
[Contracting Officer shall insert details]
(a) The Contractor shall deliver -- units(s) of Lot/Item ---- within
-- calendar days from the date of this contract to the Government at --
---- [insert name and address of the testing facility] for first article
tests. The shipping documentation shall contain this contract number and
the Lot/Item identification. The characteristics that the first article
must meet and the testing requirements are specified elsewhere in this
contract.
(b) Within -- calendar days after the Government receives the first
article, the Contracting Officer shall notify the Contractor, in
writing, of the conditional approval, approval, or disapproval of the
first article. The notice of conditional approval or approval shall not
relieve the Contractor from complying with all requirements of the
specifications and all other terms and conditions of this contract. A
notice of conditional approval shall state any further action required
of the Contractor. A notice of disapproval shall cite reasons for the
disapproval.
(c) If the first article is disapproved, the Contractor, upon
Government request, shall submit an additional first article for
testing. After each request, the Contractor shall make any necessary
changes, modifications,
[[Page 34]]
or repairs to the first article or select another first article for
testing. All costs related to these tests are to be borne by the
Contractor, including any and all costs for additional tests following a
disapproval. The Contractor shall furnish any additional first article
to the Government under the terms and conditions and within the time
specified by the Government. The Government shall act on this first
article within the time limit specified in paragraph (b) above. The
Government reserves the right to require an equitable adjustment of the
contract price for any extension of the delivery schedule or for any
additional costs to the Government related to these tests.
(d) If the Contractor fails to deliver any first article on time, or
the Contracting Officer disapproves any first article, the Contractor
shall be deemed to have failed to make delivery within the meaning of
the Default clause of this contract.
(e) Unless otherwise provided in the contract, the Contractor--
(1) May deliver the approved first article as a part of the contract
quantity, provided it meets all contract requirements for acceptance and
was not consumed or destroyed in testing; and
(2) Shall remove and dispose of any first article from the
Government test facility at the Contractor's expense.
(f) If the Government does not act within the time specified in
paragraph (b) or (c) above, the Contracting Officer shall, upon timely
written request from the Contractor, equitably adjust under the Changes
clause of this contract the delivery or performance dates and/or the
contract price, and any other contractual term affected by the delay.
(g) The Contractor is responsible for providing operating and
maintenance instructions, spare parts support, and repair of the first
article during any first article test.
(h) Before first article approval, the acquisition of materials or
components for, or the commencement of production of, the balance of the
contract quantity is at the sole risk of the Contractor. Before first
article approval, the costs thereof shall not be allocable to this
contract for (1) progress payments, or (2) termination settlements if
the contract is terminated for the convenience of the Government.
(i) The Government may waive the requirement for first article
approval test where supplies identical or similar to those called for in
the schedule have been previously furnished by the Offeror/Contractor
and have been accepted by the Government. The Offeror/Contractor may
request a waiver.
(End of clause)
Alternate I (JAN 1997). As prescribed in 9.308-2 (a)(2) and (b)(2),
add the following paragraph (j) to the basic clause:
(j) The Contractor shall produce both the first article and the
production quantity at the same facility.
Alternate II (SEP 1989). As prescribed in 9.308-2 (a)(3) and (b)(3)
substitute the following paragraph (h) for paragraph (h) of the basic
clause:
(h) Before first article approval, the Contracting Officer may, by
written authorization, authorize the Contractor to acquire specific
materials or components or to commence production to the extent
essential to meet the delivery schedules. Until first article approval
is granted, only costs for the first article and costs incurred under
this authorization are allocable to this contract for (1) progress
payments, or (2) termination settlements if the contract is terminated
for the convenience of the Government. If first article tests reveal
deviations from contract requirements, the Contractor shall, at the
location designated by the Government, make the required changes or
replace all items produced under this contract at no change in the
contract price.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989;
62 FR 238, Jan. 2, 1997]
52.209-5 Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters.
As prescribed in 9.409(a), insert the following provision:
Certification Regarding Debarment, Suspension, Proposed Debarment, And
Other Responsibility Matters (DEC 2001)
(a)(1) The Offeror certifies, to the best of its knowledge and
belief, that--
(i) The Offeror and/or any of its Principals--
(A) Are ( ) are not ( ) presently debarred, suspended, proposed
for debarment, or declared ineligible for the award of contracts by any
Federal agency;
(B) Have ( ) have not ( ), within a three-year period preceding
this offer, been convicted of or had a civil judgment rendered against
them for: commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (Federal, state,
or local) contract or subcontract; violation of Federal or state
antitrust statutes relating to the submission of offers; or commission
of embezzlement, theft, forgery, bribery, falsification or destruction
of records, making false statements, tax evasion, or receiving stolen
property; and
[[Page 35]]
(C) Are ( ) are not ( ) presently indicted for, or otherwise
criminally or civilly charged by a governmental entity with, commission
of any of the offenses enumerated in subdivision (a)(1)(i)(B) of this
provision.
(ii) The Offeror has ( ) has not ( ), within a 3-year period
preceding this offer, had one or more contracts terminated for default
by any Federal agency.
(2) Principals, for the purposes of this certification, means
officers; directors; owners; partners; and, persons having primary
management or supervisory responsibilities within a business entity
(e.g., general manager; plant manager; head of a subsidiary, division,
or business segment, and similar positions).
This certification concerns a matter within the jurisdiction of an
agency of the United States and the making of a false, fictitious, or
fraudulent certification may render the maker subject to prosecution
under section 1001, title 18, United States Code.
(b) The Offeror shall provide immediate written notice to the
Contracting Officer if, at any time prior to contract award, the Offeror
learns that its certification was erroneous when submitted or has become
erroneous by reason of changed circumstances.
(c) A certification that any of the items in paragraph (a) of this
provision exists will not necessarily result in withholding of an award
under this solicitation. However, the certification will be considered
in connection with a determination of the Offeror's responsibility.
Failure of the Offeror to furnish a certification or provide such
additional information as requested by the Contracting Officer may
render the Offeror nonresponsible.
(d) Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render, in good faith,
the certification required by paragraph (a) of this provision. The
knowledge and information of an Offeror is not required to exceed that
which is normally possessed by a prudent person in the ordinary course
of business dealings.
(e) The certification in paragraph (a) of this provision is a
material representation of fact upon which reliance was placed when
making award. If it is later determined that the Offeror knowingly
rendered an erroneous certification, in addition to other remedies
available to the Government, the Contracting Officer may terminate the
contract resulting from this solicitation for default.
(End of provision)
[54 FR 19827, May 8, 1989, as amended at 61 FR 2633, Jan. 26, 1996; 65
FR 80265, Dec. 20, 2000; 66 FR 17756, Apr. 3, 2001; 66 FR 66986, 66990,
Dec. 27, 2001]
52.209-6 Protecting the Government's Interest When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment.
As prescribed in 9.409(b), insert the following clause:
Protecting the Government's Interest When Subcontracting With
Contractors Debarred, Suspended, or Proposed for Debarment (JUL 1995)
(a) The Government suspends or debars Contractors to protect the
Government's interests. The Contractor shall not enter into any
subcontract in excess of $25,000 with a Contractor that is debarred,
suspended, or proposed for debarment unless there is a compelling reason
to do so.
(b) The Contractor shall require each proposed first-tier
subcontractor, whose subcontract will exceed $25,000, to disclose to the
Contractor, in writing, whether as of the time of award of the
subcontract, the subcontractor, or its principals, is or is not
debarred, suspended, or proposed for debarment by the Federal
Government.
(c) A corporate officer or a designee of the Contractor shall notify
the Contracting Officer, in writing, before entering into a subcontract
with a party that is debarred, suspended, or proposed for debarment (see
FAR 9.404 for information on the List of Parties Excluded From Federal
Procurement and Nonprocurement Programs). The notice must include the
following:
(1) The name of the subcontractor.
(2) The Contractor's knowledge of the reasons for the subcontractor
being on the List of Parties Excluded From Federal Procurement and
Nonprocurement Programs.
(3) The compelling reason(s) for doing business with the
subcontractor notwithstanding its inclusion on the List of Parties
Excluded From Federal Procurement and Nonprocurement Programs.
(4) The systems and procedures the Contractor has established to
ensure that it is fully protecting the Government's interests when
dealing with such subcontractor in view of the specific basis for the
party's debarment, suspension, or proposed debarment.
(End of clause)
[56 FR 29138, June 25, 1991, as amended at 57 FR 44269, Sept. 24, 1992;
60 FR 33066, June 26, 1995; 60 FR 34761, July 3, 1995]
52.211-1 Availability of Specifications Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29.
As prescribed in 11.204(a), insert the following provision:
[[Page 36]]
Availability of Specifications Listed in the GSA Index of Federal
Specifications, Standards and Commercial Item Descriptions, FPMR Part
101-29 (AUG 1998)
(a) The GSA Index of Federal Specifications, Standards and
Commercial Item Descriptions, FPMR Part 101-29, and copies of
specifications, standards, and commercial item descriptions cited in
this solicitation may be obtained for a fee by submitting a request to--
GSA Federal Supply Service, Specifications Section, Suite 8100, 470 East
L'Enfant Plaza, SW, Washington, DC 20407, Telephone (202) 619-8925,
Facsimile (202) 619-8978.
(b) If the General Services Administration, Department of
Agriculture, or Department of Veterans Affairs issued this solicitation,
a single copy of specifications, standards, and commercial item
descriptions cited in this solicitation may be obtained free of charge
by submitting a request to the addressee in paragraph (a) of this
provision. Additional copies will be issued for a fee.
(End of provision)
[63 FR 34063, June 22, 1998]
52.211-2 Availability of Specifications Listed in the DoD Index of Specifications and Standards (DoDISS) and descriptions listed in the Acquisition Management
Systems and Data Requirements Control List, DoD 5010.12-L.
As prescribed in 11.204(b), insert the following provision:
Availability of Specifications Listed in the DOD Index of Specifications
and Standards (DODISS) and Descriptions Listed in the Acquisition
Management Systems and Data Requirements Control List, DOD 5010.12-L
(DEC 1999)
Copies of specifications, standards, and data item descriptions
cited in this solicitation may be obtained--
(a) From the ASSIST database via the Internet at http://
assist.daps.mil; or
(b) By submitting a request to the--Department of Defense Single
Stock Point (DoDSSP), Building 4, Section D, 700 Robbins Avenue,
Philadelphia, PA 19111-5094, Telephone (215) 697-2667/2179, Facsimile
(215) 697-1462.
(End of provision)
[64 FR 72446, Dec. 27, 1999]
52.211-3 Availability of Specifications Not Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions.
As prescribed in 11.204(c), insert a provision substantially the
same as the following:
Availability of Specifications Not Listed in the GSA Index of Federal
Specifications, Standards and Commercial Item Descriptions (JUN 1988)
The specifications cited in this solicitation may be obtained from:
(Activity) address)_____________________________________________________
________________________________________________________________________
________________________________________________________________________
(Telephone number)______________________________________________________
(Person to be contacted)________________________________________________
The request should identify the solicitation number and the
specification requested by date, title, and number, as cited in the
solicitation.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 53 FR 17860, May 18, 1988.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995; 61 FR
31663, June 20, 1996]
52.211-4 Availability for Examination of Specifications Not Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions.
As prescribed in 11.204(d), insert a provision substantially the
same as the following:
Availability for Examination of Specifications Not Listed in the GSA
Index of Federal Specifications, Standards and Commercial Item
Descriptions (JUN 1988)
The specifications cited in this solicitation are not available for
distribution. However, they may be examined at the following
location(s):
(ACTIVITY)______________________________________________________________
(COMPLETE ADDRESS)______________________________________________________
________________________________________________________________________
________________________________________________________________________
(TELEPHONE NUMBER)______________________________________________________
(PERSON TO BE CONTACTED)________________________________________________
(TIME(S) FOR VIEWING)___________________________________________________
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 53 FR 17860, May 18, 1988.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995; 61 FR
67430, Dec. 20, 1996]
[[Page 37]]
52.211-5 Material Requirements.
As prescribed in 11.304, insert the following clause:
Material Requirements (AUG 2000)
(a) Definitions.
As used in this clause--
New means composed of previously unused components, whether
manufactured from virgin material, recovered material in the form of raw
material, or materials and by-products generated from, and reused
within, an original manufacturing process; provided that the supplies
meet contract requirements, including but not limited to, performance,
reliability, and life expectancy.
Reconditioned means restored to the original normal operating
condition by readjustments and material replacement.
Recovered material means waste materials and by-products recovered
or diverted from solid waste, but the term does not include those
materials and by-products generated from, and commonly reused within, an
original manufacturing process.
Remanufactured means factory rebuilt to original specifications.
Virgin material means--
(1) Previously unused raw material, including previously unused
copper, aluminum, lead, zinc, iron, other metal or metal ore; or
(2) Any undeveloped resource that is, or with new technology will
become, a source of raw materials.
(b) Unless this contract otherwise requires virgin material or
supplies composed of or manufactured from virgin material, the
Contractor shall provide supplies that are new, reconditioned, or
remanufactured, as defined in this clause.
(c) A proposal to provide unused former Government surplus property
shall include a complete description of the material, the quantity, the
name of the Government agency from which acquired, and the date of
acquisition.
(d) A proposal to provide used, reconditioned, or remanufactured
supplies shall include a detailed description of such supplies and shall
be submitted to the Contracting Officer for approval.
(e) Used, reconditioned, or remanufactured supplies, or unused
former Government surplus property, may be used in contract performance
if the Contractor has proposed the use of such supplies, and the
Contracting Officer has authorized their use.
(End of clause)
[62 FR 44812, Aug. 22, 1997, as amended at 65 FR 36021, June 6, 2000]
52.211-6 Brand name or equal.
As prescribed in 11.107(a), insert the following provision:
Brand Name or Equal (AUG 1999)
(a) If an item in this solicitation is identified as ``brand name or
equal,'' the purchase description reflects the characteristics and level
of quality that will satisfy the Government's needs. The salient
physical, functional, or performance characteristics that ``equal''
products must meet are specified in the solicitation.
(b) To be considered for award, offers of ``equal'' products,
including ``equal'' products of the brand name manufacturer, must--
(1) Meet the salient physical, functional, or performance
characteristic specified in this solicitation;
(2) Clearly identify the item by--
(i) Brand name, if any; and
(ii) Make or model number;
(3) Include descriptive literature such as illustrations, drawings,
or a clear reference to previously furnished descriptive data or
information available to the Contracting Officer; and
(4) Clearly describe any modifications the offeror plans to make in
a product to make it conform to the solicitation requirements. Mark any
descriptive material to clearly show the modifications.
(c) The Contracting Officer will evaluate ``equal'' products on the
basis of information furnished by the offeror or identified in the offer
and reasonably available to the Contracting Officer. The Contracting
Officer is not responsible for locating or obtaining any information not
identified in the offer.
(d) Unless the offeror clearly indicates in its offer that the
product being offered is an ``equal'' product, the offeror shall provide
the brand name product referenced in the solicitation.
(End of provision)
[64 FR 32742, June 17, 1999, as amended at 64 FR 51850, Sept. 24, 1999;
64 FR 53264, Oct. 1, 1999]
Sec. 52.211-7 Alternatives to Government-unique standards.
As prescribed in 11.107(b), insert the following provision:
Alternatives to Government-Unique Standards (NOV 1999)
(a) This solicitation includes Government-unique standards. The
offeror may propose voluntary consensus standards that meet the
Government's requirements as alternatives to the Government-unique
standards. The Government will accept use of the voluntary
[[Page 38]]
consensus standard instead of the Government-unique standard if it meets
the Government's requirements unless inconsistent with law or otherwise
impractical.
(b) If an alternative standard is proposed, the offeror must furnish
data and/or information regarding the alternative in sufficient detail
for the Government to determine if it meets the Government's
requirements. Acceptance of the alternative standard is a unilateral
decision made solely at the discretion of the Government.
(c) Offers that do not comply with the Government-unique standards
specified in this solicitation may be determined to be nonresponsive or
unacceptable. The offeror may submit an offer that complies with the
Government-unique standards specified in this solicitation, in addition
to any proposed alternative standard(s).
(End of provision)
[64 FR 51853, Sept. 24, 1999]
52.211-8 Time of Delivery.
As prescribed in 11.404(a)(2), insert the following clause:
Time of Delivery (JUN 1997)
(a) The Government requires delivery to be made according to the
following schedule:
REQUIRED DELIVERY SCHEDULE
[Contracting Officer insert specific details]
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
---------- ---------- ----------
---------- ---------- ----------
---------- ---------- ----------
------------------------------------------------------------------------
The Government will evaluate equally, as regards time of delivery,
offers that propose delivery of each quantity within the applicable
delivery period specified above. Offers that propose delivery that will
not clearly fall within the applicable required delivery period
specified above, will be considered nonresponsive and rejected. The
Government reserves the right to award under either the required
delivery schedule or the proposed delivery schedule, when an offeror
offers an earlier delivery schedule than required above. If the offeror
proposes no other delivery schedule, the required delivery schedule
above will apply.
OFFEROR'S PROPOSED DELIVERY SCHEDULE
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
---------- ---------- ----------
---------- ---------- ----------
---------- ---------- ----------
------------------------------------------------------------------------
(b) Attention is directed to the Contract Award provision of the
solicitation that provides that a written award or acceptance of offer
mailed, or otherwise furnished to the successful offeror, results in a
binding contract. The Government will mail or otherwise furnish to the
offeror an award or notice of award not later than the day award is
dated. Therefore, the offeror should compute the time available for
performance beginning with the actual date of award, rather than the
date the written notice of award is received from the Contracting
Officer through the ordinary mails. However, the Government will
evaluate an offer that proposes delivery based on the Contractor's date
of receipt of the contract or notice of award by adding (1) five
calendar days for delivery of the award through the ordinary mails, or
(2) one working day if the solicitation states that the contract or
notice of award will be transmitted electronically. (The term working
day excludes weekends and U.S. Federal holidays.) If, as so computed,
the offered delivery date is later than the required delivery date, the
offer will be considered nonresponsive and rejected.
(End of clause)
Alternate I (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date of award, the contracting officer may substitute the
following paragraph (b) for paragraph (b) of the basic clause. The time
may be expressed by substituting on or before; during the months --; or
not sooner than -- or later than -- as headings for the third column of
paragraph (a) the basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the Government will make award by ---- [Contracting
Officer insert date]. Each delivery date in the delivery schedule above
will be extended by the number of calendar days after the above date
that the contract is in fact awarded. Attention is directed to the
Contract Award provision of the solicitation that provides that a
written award or acceptance of offer mailed or otherwise furnished to
the successful offeror results in a binding
[[Page 39]]
contract. Therefore, the offeror should compute the time available for
performance beginning with the actual date of award, rather than the
date the written notice of award is received from the Contracting
Officer through the ordinary mails.
Alternate II (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date the contractor will receive notice of award, the
contracting officer may substitute the following paragraph (b) for
paragraph (b) of the basic clause. The time may be expressed by
substituting within days after the date of receipt of a written notice
of award as the heading for the third column of paragraph (a) of the
basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the successful offeror will receive notice of award by
---- [Contracting Officer insert date]. Each delivery date in the
delivery schedule above will be extended by the number of calendar days
after the above date that the Contractor receives notice of award;
provided, that the Contractor promptly acknowledges receipt of notice of
award.
Alternate III (APR 1984). If the delivery schedule is to be based on
the actual date the contractor receives a written notice of award, the
contracting officer may delete paragraph (b) of the basic clause. The
time may be expressed by substituting within days after the date of
receipt of a written notice of award as the heading for the third column
of paragraph (a) of the basic clause.
[48 FR 42478, Sept. 19, 1983, as amended at 56 FR 41732, Aug. 22, 1991;
60 FR 34739, July 3, 1995. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995; 62 FR 40238, July 25, 1997]
52.211-9 Desired and Required Time of Delivery.
As prescribed in 11.404(a)(3), insert the following clause:
Desired and Required Time of Delivery (JUN 1997)
(a) The Government desires delivery to be made according to the
following schedule:
DESIRED DELIVERY SCHEDULE
[Contracting Officer insert specific details]
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
-------- -------- --------
-------- -------- --------
-------- -------- --------
------------------------------------------------------------------------
If the offeror is unable to meet the desired delivery schedule, it
may, without prejudicing evaluation of its offer, propose a delivery
schedule below. However, the offeror's proposed delivery schedule must
not extend the delivery period beyond the time for delivery in the
Government's required delivery schedule as follows:
REQUIRED DELIVERY SCHEDULE
[Contracting Officer insert specific details]
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
---------- ---------- ----------
---------- ---------- ----------
---------- ---------- ----------
------------------------------------------------------------------------
Offers that propose delivery of a quantity under such terms or
conditions that delivery will not clearly fall within the applicable
required delivery period specified above, will be considered
nonresponsive and rejected. If the offeror proposes no other delivery
schedule, the desired delivery schedule above will apply.
OFFEROR'S PROPOSED DELIVERY SCHEDULE
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
---------- ---------- ----------
---------- ---------- ----------
---------- ---------- ----------
------------------------------------------------------------------------
(b) Attention is directed to the Contract Award provision of the
solicitation that provides that a written award or acceptance of offer
mailed or otherwise furnished to the successful offeror results in a
binding contract. The Government will mail or otherwise furnish to the
offeror an award or notice of award not later than the day the award is
dated. Therefore, the offeror shall compute the time available for
performance beginning with the actual date of award, rather than the
date the written notice of award is received from the Contracting
Officer through the ordinary mails. However, the Government will
evaluate an offer that proposes delivery based on the Contractor's date
of receipt of the contract or notice of award
[[Page 40]]
by adding (1) five calendar days for delivery of the award through the
ordinary mails, or (2) one working day if the solicitation states that
the contract or notice of award will be transmitted electronically. (The
term working day excludes weekends and U.S. Federal holidays.) If, as so
computed, the offered delivery date is later than the required delivery
date, the offer will be considered nonresponsive and rejected.
(End of clause)
Alternate I (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date of award, the contracting officer may substitute the
following paragraph (b) for paragraph (b) of the basic clause. The time
may be expressed by substituting on or before; during the months ----;
or not sooner than ----, or later than ---- as headings for the third
column of paragraph (a) of the basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the Government will make award by ---- [Contracting
Officer insert date]. Each delivery date in the delivery schedule above
will be extended by the number of calendar days after the above date
that the contract is in fact awarded. Attention is directed to the
Contract Award provision of the solicitation that provides that a
written award or acceptance of offer mailed or otherwise furnished to
the successful offeror results in a binding contract. Therefore, the
offeror shall compute the time available for performance beginning with
the actual date of award, rather than the date the written notice of
award is received from the Contracting Officer through the ordinary
mails.
Alternate II (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date the contractor receives notice of award, the contracting
officer may substitute the following paragraph (b) for paragraph (b) of
the basic clause. The time may be expressed by substituting within days
after the date of receipt of a written notice of award as the heading of
the third column of paragraph (a) of the basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the successful offeror will receive notice of award by
---- [Contracting Officer insert date]. Each delivery date in the
delivery schedule above will be extended by the number of calendar days
after the above date that the Contractor receives notice of award;
provided, that the Contractor promptly acknowledges receipt of notice of
award.
Alternate III (APR 1984). If the delivery schedule is to be based on
the actual date the contractor receives a written notice of award, the
contracting officer may delete paragraph (b) of the basic clause. The
time may be expressed by substituting within days after the date of
receipt of a written notice of award as the heading of the third column
of paragraph (a) of the basic clause.
[48 FR 42478, Sept. 19, 1983, as amended at 56 FR 41732, Aug. 22, 1991;
60 FR 34739, July 3, 1995. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995; 62 FR 40238, July 25, 1997]
52.211-10 Commencement, Prosecution, and Completion of Work.
As prescribed in 11.404(b), insert the following clause in
solicitations and contracts when a fixed-price construction contract is
contemplated. The clause may be changed to accommodate the issuance of
orders under indefinite-delivery contracts for construction.
Commencement, Prosecution, and Completion of Work (APR 1984)
The Contractor shall be required to (a) commence work under this
contract within -- [Contracting Officer insert number] calendar days
after the date the Contractor receives the notice to proceed, (b)
prosecute the work diligently, and (c) complete the entire work ready
for use not later than ----*. The time stated for completion shall
include final cleanup of the premises.
(End of clause)
*The Contracting Officer shall specify either a number of days after
the date the contractor receives the notice to proceed, or a calendar
date.
Alternate I (APR 1984). If the completion date is expressed as a
specific calendar date, computed on the basis of the contractor
receiving the notice to proceed by a certain day, add the following
paragraph to the basic clause:
The completion date is based on the assumption that the successful
offeror will receive the notice to proceed by ---- [Contracting Officer
insert date]. The completion date will be extended by the number of
[[Page 41]]
calendar days after the above date that the Contractor receives the
notice to proceed, except to the extent that the delay in issuance of
the notice to proceed results from the failure of the Contractor to
execute the contract and give the required performance and payment bonds
within the time specified in the offer.
[48 FR 42478, Sept. 19, 1983. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995]
52.211-11 Liquidated Damages--Supplies, Services, or Research and Development.
As prescribed in 11.503(a), insert the following clause in
solicitations and contracts:
Liquidated Damages--Supplies, Services, or Research and Development (SEP
2000)
(a) If the Contractor fails to deliver the supplies or perform the
services within the time specified in this contract, the Contractor
shall, in place of actual damages, pay to the Government liquidated
damages of $---- per calendar day of delay [Contracting Officer insert
amount].
(b) If the Government terminates this contract in whole or in part
under the Default--Fixed-Price Supply and Service clause, the Contractor
is liable for liquidated damages accruing until the Government
reasonably obtains delivery or performance of similar supplies or
services. These liquidated damages are in addition to excess costs of
repurchase under the Termination clause.
(c) The Contractor will not be charged with liquidated damages when
the delay in delivery or performance is beyond the control and without
the fault or negligence of the Contractor as defined in the Default--
Fixed-Price Supply and Service clause in this contract.
(End of clause)
[65 FR 46067, July 26, 2000]
52.211-12 Liquidated Damages--Construction.
As prescribed in 11.503(b), insert the following clause in
solicitations and contracts:
Liquidated Damages--Construction (SEP 2000)
(a) If the Contractor fails to complete the work within the time
specified in the contract, the Contractor shall pay liquidated damages
to the Government in the amount of ---- [Contracting Officer insert
amount] for each calendar day of delay until the work is completed or
accepted.
(b) If the Government terminates the Contractor's right to proceed,
liquidated damages will continue to accrue until the work is completed.
These liquidated damages are in addition to excess costs of repurchase
under the Termination clause.
(End of clause)
[65 FR 46067, July 26, 2000]
52.211-13 Time Extensions.
As prescribed in 11.503(c), insert the following clause:
Time Extensions (SEP 2000)
Time extensions for contract changes will depend upon the extent, if
any, by which the changes cause delay in the completion of the various
elements of construction. The change order granting the time extension
may provide that the contract completion date will be extended only for
those specific elements related to the changed work and that the
remaining contract completion dates for all other portions of the work
will not be altered. The change order also may provide an equitable
readjustment of liquidated damages under the new completion schedule.
(End of clause)
[65 FR 46067, July 26, 2000]
52.211-14 Notice of Priority Rating for National Defense Use.
As prescribed in 11.604(a), insert the following provision:
Notice of Priority Rating for National Defense Use (SEP 1990)
Any contract awarded as a result of this solicitation will be a
[ ] DX rated order; [ ] DO rated order certified for national defense
use under the Defense Priorities and Allocations System (DPAS) (15 CFR
part 700), and the Contractor will be required to follow all of the
requirements of this regulation. [Contracting Officer check appropriate
box.]
(End of provision)
[51 FR 19717, May 30, 1986, as amended at 55 FR 38518, Sept. 18, 1990.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995]
52.211-15 Defense Priority and Allocation Requirements.
As prescribed in 11.604(b), insert the following clause:
[[Page 42]]
Defense Priority and Allocation Requirements (SEP 1990)
This is a rated order certified for national defense use, and the
Contractor shall follow all the requirements of the Defense Priorities
and Allocations System regulation (15 CFR part 700).
(End of clause)
[51 FR 19717, May 30, 1986, as amended at 55 FR 38518, Sept. 18, 1990.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995]
52.211-16 Variation in Quantity.
As prescribed in 11.703(a), insert the following clause:
Variation in Quantity (APR 1984)
(a) A variation in the quantity of any item called for by this
contract will not be accepted unless the variation has been caused by
conditions of loading, shipping, or packing, or allowances in
manufacturing processes, and then only to the extent, if any, specified
in paragraph (b) below.
(b) The permissible variation shall be limited to:
-- Percent increase [Contracting Officer insert percentage]
-- Percent decrease [Contracting Officer insert percentage]
This increase or decrease shall apply to ---- *
(End of clause)
*Contracting Officer shall insert in the blank the designation(s) to
which the percentages apply, such as (1) the total contract quantity,
(2) item 1 only, (3) each quantity specified in the delivery schedule,
(4) the total item quantity for each destination, or (5) the total
quantity of each item without regard to destination.
[48 FR 42478, Sept. 19, 1983. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995; 64 FR 10538, Mar. 4, 1999]
52.211-17 Delivery of Excess Quantities.
As prescribed in 11.703(b), insert the following clause:
Delivery of Excess Quantities (SEP 1989)
The Contractor is responsible for the delivery of each item quantity
within allowable variations, if any. If the Contractor delivers and the
Government receives quantities of any item in excess of the quantity
called for (after considering any allowable variation in quantity), such
excess quantities will be treated as being delivered for the convenience
of the Contractor. The Government may retain such excess quantities up
to $250 in value without compensating the Contractor therefor, and the
Contractor waives all right, title, or interests therein. Quantities in
excess of $250 will, at the option of the Government, either be returned
at the Contractor's expense or retained and paid for by the Government
at the contract unit price.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995]
52.211-18 Variation in Estimated Quantity.
As prescribed in 11.703(c), insert the following clause in
solicitations and contracts when a fixed-price construction contract is
contemplated that authorizes a variation in the estimated quantity of
unit-priced items:
Variation in Estimated Quantity (APR 1984)
If the quantity of a unit-priced item in this contract is an
estimated quantity and the actual quantity of the unit-priced item
varies more than 15 percent above or below the estimated quantity, an
equitable adjustment in the contract price shall be made upon demand of
either party. The equitable adjustment shall be based upon any increase
or decrease in costs due solely to the variation above 115 percent or
below 85 percent of the estimated quantity. If the quantity variation is
such as to cause an increase in the time necessary for completion, the
Contractor may request, in writing, an extension of time, to be received
by the Contracting Officer within 10 days from the beginning of the
delay, or within such further period as may be granted by the
Contracting Officer before the date of final settlement of the contract.
Upon the receipt of a written request for an extension, the Contracting
Officer shall ascertain the facts and make an adjustment for extending
the completion date as, in the judgement of the Contracting Officer, is
justified.
(End of clause)
[48 FR 42478, Sept. 19, 1983. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995]
52.212-1 Instructions to Offerors--Commercial Items.
As prescribed in 12.301(b)(1), insert the following provision:
[[Page 43]]
Instructions to Offerors--Commercial Items (OCT 2000)
(a) North American Industry Classification System (NAICS) code and
small business size standard. The NAICS code and small business size
standard for this acquisition appear in Block 10 of the solicitation
cover sheet (SF 1449). However, the small business size standard for a
concern which submits an offer in its own name, but which proposes to
furnish an item which it did not itself manufacture, is 500 employees.
(b) Submission of offers. Submit signed and dated offers to the
office specified in this solicitation at or before the exact time
specified in this solicitation. Offers may be submitted on the SF 1449,
letterhead stationery, or as otherwise specified in the solicitation. As
a minimum, offers must show--
(1) The solicitation number;
(2) The time specified in the solicitation for receipt of offers;
(3) The name, address, and telephone number of the offeror;
(4) A technical description of the items being offered in sufficient
detail to evaluate compliance with the requirements in the solicitation.
This may include product literature, or other documents, if necessary;
(5) Terms of any express warranty;
(6) Price and any discount terms;
(7) ``Remit to'' address, if different than mailing address;
(8) A completed copy of the representations and certifications at
FAR 52.212-3;
(9) Acknowledgment of Solicitation Amendments;
(10) Past performance information, when included as an evaluation
factor, to include recent and relevant contracts for the same or similar
items and other references (including contract numbers, points of
contact with telephone numbers and other relevant information); and
(11) If the offer is not submitted on the SF 1449, include a
statement specifying the extent of agreement with all terms, conditions,
and provisions included in the solicitation. Offers that fail to furnish
required representations or information, or reject the terms and
conditions of the solicitation may be excluded from consideration.
(c) Period for acceptance of offers. The offeror agrees to hold the
prices in its offer firm for 30 calendar days from the date specified
for receipt of offers, unless another time period is specified in an
addendum to the solicitation.
(d) Product samples. When required by the solicitation, product
samples shall be submitted at or prior to the time specified for receipt
of offers. Unless otherwise specified in this solicitation, these
samples shall be submitted at no expense to the Government, and returned
at the sender's request and expense, unless they are destroyed during
preaward testing.
(e) Multiple offers. Offerors are encouraged to submit multiple
offers presenting alternative terms and conditions or commercial items
for satisfying the requirements of this solicitation. Each offer
submitted will be evaluated separately.
(f) Late submissions, modifications, revisions, and withdrawals of
offers. (1) Offerors are responsible for submitting offers, and any
modifications, revisions, or withdrawals, so as to reach the Government
office designated in the solicitation by the time specified in the
solicitation. If no time is specified in the solicitation, the time for
receipt is 4:30 p.m., local time, for the designated Government office
on the date that offers or revisions are due.
(2)(i) Any offer, modification, revision, or withdrawal of an offer
received at the Government office designated in the solicitation after
the exact time specified for receipt of offers is ``late'' and will not
be considered unless it is received before award is made, the
Contracting Officer determines that accepting the late offer would not
unduly delay the acquisition; and--
(A) If it was transmitted through an electronic commerce method
authorized by the solicitation, it was received at the initial point of
entry to the Government infrastructure not later than 5:00 p.m. one
working day prior to the date specified for receipt of offers; or
(B) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of offers and was
under the Government's control prior to the time set for receipt of
offers; or
(C) If this solicitation is a request for proposals, it was the only
proposal received.
(ii) However, a late modification of an otherwise successful offer,
that makes its terms more favorable to the Government, will be
considered at any time it is received and may be accepted.
(3) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the offer wrapper, other documentary evidence of receipt
maintained by the installation, or oral testimony or statements of
Government personnel.
(4) If an emergency or unanticipated event interrupts normal
Government processes so that offers cannot be received at the Government
office designated for receipt of offers by the exact time specified in
the solicitation, and urgent Government requirements preclude amendment
of the solicitation or other notice of an extension of the closing date,
the time specified for receipt of offers will be deemed to be extended
to the same time of day specified in the solicitation on the first work
day on which normal Government processes resume.
[[Page 44]]
(5) Offers may be withdrawn by written notice received at any time
before the exact time set for receipt of offers. Oral offers in response
to oral solicitations may be withdrawn orally. If the solicitation
authorizes facsimile offers, offers may be withdrawn via facsimile
received at any time before the exact time set for receipt of offers,
subject to the conditions specified in the solicitation concerning
facsimile offers. An offer may be withdrawn in person by an offeror or
its authorized representative if, before the exact time set for receipt
of offers, the identity of the person requesting withdrawal is
established and the person signs a receipt for the offer.
(g) Contract award (not applicable to Invitation for Bids). The
Government intends to evaluate offers and award a contract without
discussions with offerors. Therefore, the offeror's initial offer should
contain the offeror's best terms from a price and technical standpoint.
However, the Government reserves the right to conduct discussions if
later determined by the Contracting Officer to be necessary. The
Government may reject any or all offers if such action is in the public
interest; accept other than the lowest offer; and waive informalities
and minor irregularities in offers received.
(h) Multiple awards. The Government may accept any item or group of
items of an offer, unless the offeror qualifies the offer by specific
limitations. Unless otherwise provided in the Schedule, offers may not
be submitted for quantities less than those specified. The Government
reserves the right to make an award on any item for a quantity less than
the quantity offered, at the unit prices offered, unless the offeror
specifies otherwise in the offer.
(i) Availability of requirements documents cited in the
solicitation. (1)(i) The GSA Index of Federal Specifications, Standards
and Commercial Item Descriptions, FPMR Part 101-29, and copies of
specifications, standards, and commercial item descriptions cited in
this solicitation may be obtained for a fee by submitting a request to--
GSA Federal Supply Service Specifications Section, Suite 8100, 470 East
L'Enfant Plaza, SW, Washington, DC 20407, Telephone (202) 619-8925,
Facsimile (202) 619-8978.
(ii) If the General Services Administration, Department of
Agriculture, or Department of Veterans Affairs issued this solicitation,
a single copy of specifications, standards, and commercial item
descriptions cited in this solicitation may be obtained free of charge
by submitting a request to the addressee in paragraph (i)(1)(i) of this
provision. Additional copies will be issued for a fee.
(2) The DoD Index of Specifications and Standards (DoDISS) and
documents listed in it may be obtained from the--Department of Defense
Single Stock Point (DoDSSP), Building 4, Section D, 700 Robbins Avenue,
Philadelphia, PA 19111-5094, Telephone (215) 697-2667/2179, Facsimile
(215) 697-1462.
(i) Automatic distribution may be obtained on a subscription basis.
(ii) Order forms, pricing information, and customer support
information may be obtained--
(A) By telephone at (215) 697-2667/2179; or
(B) Through the DoDSSP Internet site at http://assist.daps.mil.
(3) Nongovernment (voluntary) standards must be obtained from the
organization responsible for their preparation, publication, or
maintenance.
(j) Data Universal Numbering System (DUNS) Number. (Applies to
offers exceeding $25,000.) The offeror shall enter, in the block with
its name and address on the cover page of its offer, the annotation
``DUNS'' followed by the DUNS number that identifies the offeror's name
and address. If the offeror does not have a DUNS number, it should
contact Dun and Bradstreet to obtain one at no charge. An offeror within
the United States may call 1-800-333-0505. The offeror may obtain more
information regarding the DUNS number, including locations of local Dun
and Bradstreet Information Services offices for offerors located outside
the United States, from the Internet home page at http://
[email protected]. If an offeror is unable to locate a local
service center, it may send an e-mail to Dun and Bradstreet at
[email protected].
(End of provision)
[60 FR 48251, Sept. 18, 1995, as amended at 62 FR 40238, July 25, 1997;
63 FR 9050, Feb. 23, 1998; 63 FR 34063, June 22, 1998; 64 FR 32749, June
17, 1999; 64 FR 51840, Sept. 24, 1999; 65 FR 16286, Mar. 27, 2000; 65
46058, July 26, 2000; ]
52.212-2 Evaluation--Commercial Items.
As prescribed in 12.301(c), the Contracting Officer may insert a
provision substantially as follows:
Evaluation--Commercial Items (JAN 1999)
(a) The Government will award a contract resulting from this
solicitation to the responsible offeror whose offer conforming to the
solicitation will be most advantageous to the Government, price and
other factors considered. The following factors shall be used to
evaluate offers:
________________________________________________________________________
________________________________________________________________________
(Contracting Officer shall insert the significant evaluation
factors, such as (i) technical capability of the item offered to meet
the Government requirement; (ii) price; (iii) past performance (see FAR
15.304); (iv) small
[[Page 45]]
disadvantaged business participation; and include them in the relative
order of importance of the evaluation factors, such as in descending
order of importance.)
Technical and past performance, when combined, are --------
(Contracting Officer state, in accordance with FAR 15.304, the relative
importance of all other evaluation factors, when combined, when compared
to price.)
(b) Options. The Government will evaluate offers for award purposes
by adding the total price for all options to the total price for the
basic requirement. The Government may determine that an offer is
unacceptable if the option prices are significantly unbalanced.
Evaluation of options shall not obligate the Government to exercise the
option(s).
(c) A written notice of award or acceptance of an offer, mailed or
otherwise furnished to the successful offeror within the time for
acceptance specified in the offer, shall result in a binding contract
without further action by either party. Before the offer's specified
expiration time, the Government may accept an offer (or part of an
offer), whether or not there are negotiations after its receipt, unless
a written notice of withdrawal is received before award.
(End of provision)
[60 FR 48252, Sept. 18, 1995, as amended at 62 FR 51271, Sept. 30, 1997;
63 FR 36124, July 1, 1998]
52.212-3 Offeror Representations and Certifications--Commercial Items.
As prescribed in 12.301(b)(2), insert the following provision:
Offeror Representations and Certifications--Commercial Items (JUL 2002)
(a) Definitions. As used in this provision:
Emerging small business means a small business concern whose size is
no greater than 50 percent of the numerical size standard for the NAICS
code designated.
Forced or indentured child labor means all work or service--
(1) Exacted from any person under the age of 18 under the menace of
any penalty for its nonperformance and for which the worker does not
offer himself voluntarily; or
(2) Performed by any person under the age of 18 pursuant to a
contract the enforcement of which can be accomplished by process or
penalties.
Service-disabled veteran-owned small business concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service--disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by one
or more service-disabled veterans; and
(ii) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case of a
veteran with permanent and severe disability, the spouse or permanent
caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as defined
in 38 U.S.C. 101(16).
Small business concern means a concern, including its affiliates,
that is independently owned and operated, not dominant in the field of
operation in which it is bidding on Government contracts, and qualified
as a small business under the criteria in 13 CFR Part 121 and size
standards in this solicitation.
Veteran-owned small business concern means a small business concern-
-
(1) Not less than 51 percent of which is owned by one or more
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
publicly owned business, not less than 51 percent of the stock of which
is owned by one or more veterans; and
(2) The management and daily business operations of which are
controlled by one or more veterans.
Women-owned small business concern means a small business concern--
(1) That is at least 51 percent owned by one or more women; or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(2) Whose management and daily business operations are controlled by
one or more women.
Women-owned business concern means a concern which is at least 51
percent owned by one or more women; or in the case of any publicly owned
business, at least 51 percent of its stock is owned by one or more
women; and whose management and daily business operations are controlled
by one or more women.
(b) Taxpayer Identification Number (TIN) (26 U.S.C. 6109, 31 U.S.C.
7701). (Not applicable if the offeror is required to provide this
information to a central contractor registration database to be eligible
for award.)
(1) All offerors must submit the information required in paragraphs
(b)(3) through (b)(5) of this provision to comply with debt collection
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by
the Internal Revenue Service (IRS).
(2) The TIN may be used by the Government to collect and report on
any delinquent amounts arising out of the offeror's relationship with
the Government (31 U.S.C. 7701(c)(3)). If the resulting contract is
subject
[[Page 46]]
to the payment reporting requirements described in FAR 4.904, the TIN
provided hereunder may be matched with IRS records to verify the
accuracy of the offeror's TIN.
(3) Taxpayer Identification Number (TIN).
[squ] TIN:______________________________________________________________
[squ] TIN has been applied for.
[squ] TIN is not required because:
[squ] Offeror is a nonresident alien, foreign corporation, or
foreign partnership that does not have income effectively connected with
the conduct of a trade or business in the United States and does not
have an office or place of business or a fiscal paying agent in the
United States;
[squ] Offeror is an agency or instrumentality of a foreign
government;
[squ] Offeror is an agency or instrumentality of the Federal
Government.
(4) Type of organization.
[squ] Sole proprietorship;
[squ] Partnership;
[squ] Corporate entity (not tax-exempt);
[squ] Corporate entity (tax-exempt);
[squ] Government entity (Federal, State, or local);
[squ] Foreign government;
[squ] International organization per 26 CFR 1.6049-4;
[squ] Other_____________________________________________________________
(5) Common parent.
[squ] Offeror is not owned or controlled by a common parent;
[squ] Name and TIN of common parent:
Name____________________________________________________________________
TIN_____________________________________________________________________
(c) Offerors must complete the following representations when the
resulting contract is to be performed inside the United States, its
territories or possessions, Puerto Rico, the Trust Territory of the
Pacific Islands, or the District of Columbia. Check all that apply.
(1) Small business concern. The offeror represents as part of its
offer that it [squ] is, [squ] is not a small business concern.
(2) Veteran-owned small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents as part of its offer
that it [ ] is, [ ] is not a veteran-owned small business concern.
(3) Service-disabled veteran-owned small business concern. [Complete
only if the offeror represented itself as a veteran-owned small business
concern in paragraph (c)(2) of this provision.] The offeror represents
as part of its offer that it [ ] is, [ ] is not a service-disabled
veteran-owned small business concern.
(4) Small disadvantaged business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents, for general
statistical purposes, that it [squ] is, [squ] is not a small
disadvantaged business concern as defined in 13 CFR 124.1002.
(5) Women-owned small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents that it [squ] is,
[squ] is not a women-owned small business concern.
Note: Complete paragraphs (c)(6) and (c)(7) only if this
solicitation is expected to exceed the simplified acquisition threshold.
(6) Women-owned business concern (other than small business
concern). [Complete only if the offeror is a women-owned business
concern and did not represent itself as a small business concern in
paragraph (c)(1) of this provision.] The offeror represents that it
[squ] is, a women-owned business concern.
(7) Tie bid priority for labor surplus area concerns. If this is an
invitation for bid, small business offerors may identify the labor
surplus areas in which costs to be incurred on account of manufacturing
or production (by offeror or first-tier subcontractors) amount to more
than 50 percent of the contract price:
________________________________________________________________________
(8) Small Business Size for the Small Business Competitiveness
Demonstration Program and for the Targeted Industry Categories under the
Small Business Competitiveness Demonstration Program. [Complete only if
the offeror has represented itself to be a small business concern under
the size standards for this solicitation.]
(i) (Complete only for solicitations indicated in an addendum as
being set-aside for emerging small businesses in one of the four
designated industry groups (DIGs).) The offeror represents as part of
its offer that it [squ] is, [squ] is not an emerging small business.
(ii) (Complete only for solicitations indicated in an addendum as
being for one of the targeted industry categories (TICs) or four
designated industry groups (DIGs).) Offeror represents as follows:
(A) Offeror's number of employees for the past 12 months (check the
Employees column if size standard stated in the solicitation is
expressed in terms of number of employees); or
(B) Offeror's average annual gross revenue for the last 3 fiscal
years (check the Average Annual Gross Number of Revenues column if size
standard stated in the solicitation is expressed in terms of annual
receipts)
(Check one of the following):
No. of Employees Avg. Annual Gross Revenues
-- 50 or fewer -- $1 million or less
-- 51-100 -- $1,000,001-$2 million
-- 101-250 -- $2,000,001-$3.5 million
-- 251-500 -- $3,500,001-$5 million
-- 501-750 -- $5,000,001-$10 million
-- 751-1,000 -- $10,000,001-$17 million
-- Over 1,000 -- Over $17 million
(9) (Complete only if the solicitation contains the clause at FAR
52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged
Business Concerns, or FAR
[[Page 47]]
52.219-25, Small Disadvantaged Business Participation Program--
Disadvantaged Status and Reporting, and the offeror desires a benefit
based on its disadvantaged status.)
(i) General. The offeror represents that either--
(A) It /--/ is, /--/ is not certified by the Small Business
Administration as a small disadvantaged business concern and identified,
on the date of this representation, as a certified small disadvantaged
business concern in the database maintained by the Small Business
Administration (PRO-Net), and that no material change in disadvantaged
ownership and control has occurred since its certification, and, where
the concern is owned by one or more individuals claiming disadvantaged
status, the net worth of each individual upon whom the certification is
based does not exceed $750,000 after taking into account the applicable
exclusions set forth at 13 CFR 124.104(c)(2); or
(B) It [squ] has, [squ] has not submitted a completed application to
the Small Business Administration or a Private Certifier to be certified
as a small disadvantaged business concern in accordance with 13 CFR 124,
Subpart B, and a decision on that application is pending, and that no
material change in disadvantaged ownership and control has occurred
since its application was submitted.
(ii) Joint Ventures under the Price Evaluation Adjustment for Small
Disadvantaged Business Concerns. The offeror represents, as part of its
offer, that it is a joint venture that complies with the requirements in
13 CFR 124.1002(f) and that the representation in paragraph (c)(9)(i) of
this provision is accurate for the small disadvantaged business concern
that is participating in the joint venture. [The offeror shall enter the
name of the small disadvantaged business concern that is participating
in the joint venture: ------------.]
(10) HUBZone small business concern. [Complete only if the offeror
represented itself as a small business concern in paragraph (c)(1) of
this provision.] The offeror represents, as part of its offer, that--
(i) It [ ] is, [ ] is not a HUBZone small business concern listed,
on the date of this representation, on the List of Qualified HUBZone
Small Business Concerns maintained by the Small Business Administration,
and no material change in ownership and control, principal office, or
HUBZone employee percentage has occurred since it was certified by the
Small Business Administration in accordance with 13 CFR part 126; and
(ii) It [ ] is, [ ] is not a joint venture that complies with the
requirements of 13 CFR part 126, and the representation in paragraph
(c)(10)(i) of this provision is accurate for the HUBZone small business
concern or concerns that are participating in the joint venture. [The
offeror shall enter the name or names of the HUBZone small business
concern or concerns that are participating in the joint venture:--------
----.] Each HUBZone small business concern participating on the joint
venture shall submit a separate signed copy of the HUBZone
representation.
(d) Representations required to implement provisions of Executive
Order 11246--
(1) Previous contracts and compliance. The offeror represents that--
(i) It [squ] has, [squ] has not participated in a previous contract
or subcontract subject to the Equal Opportunity clause of this
solicitation; and
(ii) It [squ] has, [squ] has not filed all required compliance
reports.
(2) Affirmative Action Compliance. The offeror represents that--
(i) It [squ] has developed and has on file, [squ] has not developed
and does not have on file, at each establishment, affirmative action
programs required by rules and regulations of the Secretary of Labor (41
CFR parts 60-1 and 60-2), or
(ii) It [squ] has not previously had contracts subject to the
written affirmative action programs requirement of the rules and
regulations of the Secretary of Labor.
(e) Certification Regarding Payments to Influence Federal
Transactions (31 U.S.C. 1352). (Applies only if the contract is expected
to exceed $100,000.) By submission of its offer, the offeror certifies
to the best of its knowledge and belief that no Federal appropriated
funds have been paid or will be paid to any person for influencing or
attempting to influence an officer or employee of any agency, a Member
of Congress, an officer or employee of Congress or an employee of a
Member of Congress on his or her behalf in connection with the award of
any resultant contract.
(f) Buy American Act Certificate. (Applies only if the clause at
Federal Acquisition Regulation (FAR) 52.225-1, Buy American Act--
Supplies, is included in this solicitation.)
(1) The offeror certifies that each end product, except those listed
in paragraph (f)(2) of this provision, is a domestic end product as
defined in the clause of this solicitation entitled ``Buy American Act--
Supplies'' and that the offeror has considered components of unknown
origin to have been mined, produced, or manufactured outside the United
States. The offeror shall list as foreign end products those end
products manufactured in the United States that do not qualify as
domestic end products.
(2) Foreign End Products:
Line Item No.:__________________________________________________________
Country of Origin:______________________________________________________
(List as necessary)
(3) The Government will evaluate offers in accordance with the
policies and procedures of FAR Part 25.
[[Page 48]]
(g)(1) Buy American Act--North American Free Trade Agreement--
Israeli Trade Act Certificate. (Applies only if the clause at FAR
52.225-3, Buy American Act--North American Free Trade Agreement--Israeli
Trade Act, is included in this solicitation.)
(i) The offeror certifies that each end product, except those listed
in paragraph (g)(1)(ii) or (g)(1)(iii) of this provision, is a domestic
end product as defined in the clause of this solicitation entitled ``Buy
American Act--North American Free Trade Agreement--Israeli Trade Act--
'' and that the offeror has considered components of unknown origin to
have been mined, produced, or manufactured outside the United States.
(ii) The offeror certifies that the following supplies are NAFTA
country end products or Israeli end products as defined in the clause of
this solicitation entitled ``Buy American Act--North American Free Trade
Agreement--Israeli Trade Act '':
NAFTA Country or Israeli End Products
Line Item No.:__________________________________________________________
Country of Origin:______________________________________________________
(List as necessary)
(iii) The offeror shall list those supplies that are foreign end
products (other than those listed in paragraph (g)(1)(ii) of this
provision) as defined in the clause of this solicitation entitled ``Buy
American Act--North American Free Trade Agreement--Israeli Trade Act.''
The offeror shall list as other foreign end products those end products
manufactured in the United States that do not qualify as domestic end
products.
Other Foreign End Products
Line Item No.:__________________________________________________________
Country of Origin:______________________________________________________
(List as necessary)
(iv) The Government will evaluate offers in accordance with the
policies and procedures of FAR Part 25.
(2) Buy American Act--North American Free Trade Agreements--Israeli
Trade Act Certificate, Alternate I (May 2002). If Alternate I to the
clause at FAR 52.225-3 is included in this solicitation, substitute the
following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic
provision:
(g)(1)(ii) The offeror certifies that the following supplies are
Canadian end products as defined in the clause of this solicitation
entitled ``Buy American Act--North American Free Trade Agreement--
Israeli Trade Act'':
Canadian End Products:
Line Item No.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(List as necessary)
(3) Buy American Act--North American Free Trade Agreements--Israeli
Trade Act Certificate, Alternate II (May 2002). If Alternate II to the
clause at FAR 52.225-3 is included in this solicitation, substitute the
following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic
provision:
(g)(1)(ii) The offeror certifies that the following supplies are
Canadian end products or Israeli end products as defined in the clause
of this solicitation entitled ``Buy American Act--North American Free
Trade Agreement--Israeli Trade Act'':
Canadian or Israeli End Products:
Line Item No.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Country of Origin
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(List as necessary)
(4) Trade Agreements Certificate. (Applies only if the clause at FAR
52.225-5, Trade Agreements, is included in this solicitation.)
(i) The offeror certifies that each end product, except those listed
in paragraph (g)(4)(ii) of this provision, is a U.S.-made, designated
country, Caribbean Basin country, or NAFTA country end product, as
defined in the clause of this solicitation entitled ``Trade
Agreements.''
(ii) The offeror shall list as other end products those end products
that are not U.S.-made, designated country, Caribbean Basin country, or
NAFTA country end products.
Other End Products
Line Item No.:__________________________________________________________
Country of Origin:______________________________________________________
(List as necessary)
(iii) The Government will evaluate offers in accordance with the
policies and procedures of FAR Part 25. For line items subject to the
Trade Agreements Act, the Government will evaluate offers of U.S.-made,
designated country, Caribbean Basin country, or NAFTA country end
products without regard to the restrictions of the Buy American Act. The
Government will consider for award only offers of U.S.-
[[Page 49]]
made, designated country, Caribbean Basin country, or NAFTA country end
products unless the Contracting Officer determines that there are no
offers for such products or that the offers for such products are
insufficient to fulfill the requirements of the solicitation.
(g)(1) Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program. (Applies only if FAR
clause 52.22521, Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program, is included in this
solicitation.)
(i) The offeror certifies that each end product being offered,
except those listed in paragraph (g)(1)(ii) of this provision, is a
domestic end product (as defined in the clause entitled ``Buy American
Act--North American Free Trade Agreement Implementation Act--Balance of
Payments Program,'' and that components of unknown origin have been
considered to have been mined, produced, or manufactured outside the
United States.
(ii) Excluded End Products:
Line item No. Country of origin
-------------------- ----------------------
-------------------- ----------------------
[List as necessary]
(iii) Offers will be evaluated by giving certain preferences to
domestic end products or NAFTA country end products over other end
products. In order to obtain these preferences in the evaluation of each
excluded end product listed in paragraph (g)(1)(ii) of this provision,
offerors must identify and certify below those excluded end products
that are NAFTA country end products. Products that are not identified
and certified below will not be deemed NAFTA country end products. The
offeror certifies that the following supplies qualify as NAFTA country
end products as that term is defined in the clause entitled ``Buy
American Act--North American Free Trade Agreement Implementation Act--
Balance of Payments Program'':
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
[Insert line item numbers)
(iv) Offers will be evaluated in accordance with part 25 of the
Federal Acquisition Regulation. In addition, if this solicitation is for
supplies for use outside the United States, an evaluation factor of 50
percent will be applied to offers of end products that are not domestic
or NAFTA country end products.
(2) Alternate I. If Alternate I to the clause at 52.225-21 is
included in this solicitation, substitute the following paragraph
(g)(1)(iii) for paragraph (g)(1)(iii) of this provision:
(g)(1)(iii) Offers will be evaluated by giving certain preferences
to domestic end products or Canadian end products over other end
products. In order to obtain these preferences in the evaluation of each
excluded end product listed in paragraph (b) of this provision, offerors
must identify and certify below those excluded end products that are
Canadian end products. Products that are not identified and certified
below will not be deemed Canadian end products.
The offeror certifies that the following supplies qualify as
Canadian end products as that term is defined in the clause entitled
``Buy American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program'':
________________________________________________________________________
[Insert line item numbers]
(h) Certification Regarding Debarment, Suspension or Ineligibility
for Award (Executive Order 12549). (Applies only if the contract value
is expected to exceed the simplified acquisition threshold.) The offeror
certifies, to the best of its knowledge and belief, that the offeror
and/or any of its principals--
(1) [ ] Are, [ ] are not presently debarred, suspended, proposed
for debarment, or declared ineligible for the award of contracts by any
Federal agency; and
(2) [ ] Have, [ ] have not, within a three-year period preceding
this offer, been convicted of or had a civil judgment rendered against
them for: Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a Federal, state or local
government contract or subcontract; violation of Federal or state
antitrust statutes relating to the
[[Page 50]]
submission of offers; or Commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, tax evasion, or receiving stolen property; and
(3) [ ] Are, [ ] are not presently indicted for, or otherwise
criminally or civilly charged by a Government entity with, commission of
any of these offenses.
(i) Certification Regarding Knowledge of Child Labor for Listed End
Products (Executive Order 13126). [The Contracting Officer must list in
paragraph (i)(1) any end products being acquired under this solicitation
that are included in the List of Products Requiring Contractor
Certification as to Forced or Indentured Child Labor, unless excluded at
22.1503(b).]
(1) Listed end products.
Listed End Product
________________________________________________________________________
________________________________________________________________________
Listed Countries of Origin
________________________________________________________________________
________________________________________________________________________
(2) Certification. [If the Contracting Officer has identified end
products and countries of origin in paragraph (i)(1) of this provision,
then the offeror must certify to either (i)(2)(i) or (i)(2)(ii) by
checking the appropriate block.]
[squ] (i) The offeror will not supply any end product listed in
paragraph (i)(1) of this provision that was mined, produced, or
manufactured in the corresponding country as listed for that product.
[squ] (ii) The offeror may supply an end product listed in paragraph
(i)(1) of this provision that was mined, produced, or manufactured in
the corresponding country as listed for that product. The offeror
certifies that it has made a good faith effort to determine whether
forced or indentured child labor was used to mine, produce, or
manufacture any such end product furnished under this contract. On the
basis of those efforts, the offeror certifies that it is not aware of
any such use of child labor.
(End of provision)
Alternate I (APR 2002). As prescribed in 12.301(b)(2), add the
following paragraph (c)(11) to the basic provision:
(11) (Complete if the offeror has represented itself as
disadvantaged in paragraph (c)(4) or (c)(9) of this provision.) [The
offeror shall check the category in which its ownership falls]:
--Black American.
--Hispanic American.
--Native American (American Indians, Eskimos, Aleuts, or Native
Hawaiians).
--Asian-Pacific American (persons with origins from Burma, Thailand,
Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos,
Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust
Territory of the Pacific Islands (Republic of Palau), Republic of the
Marshall Islands, Federated States of Micronesia, the Commonwealth of
the Northern Mariana Islands, Guam, Samoa, Macao, Hong Kong, Fiji,
Tonga, Kiribati, Tuvalu, or Nauru).
--Subcontinent Asian (Asian-Indian) American (persons with origins
from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives
Islands, or Nepal).
--Individual/concern, other than one of the preceding.
Alternate II (Oct 2000). As prescribed in 12.301(b)(2), add the
following paragraph (c)(9)(iii) to the basic provision:
(iii) Address. The offeror represents that its address --is, --is
not in a region for which a small disadvantaged business procurement
mechanism is authorized and its address has not changed since its
certification as a small disadvantaged business concern or submission of
its application for certification. The list of authorized small
disadvantaged business procurement mechanisms and regions is posted at
http://www.arnet.gov/References/sdbadjustments.htm. The offeror shall
use the list in effect on the date of this solicitation. ``Address,'' as
used in this provision, means the address of the offeror as listed on
the Small Business Administration's register of small disadvantaged
business concerns or the address on the completed application that the
concern has submitted to the Small Business Administration or a Private
Certifier in accordance with 13 CFR part 124, subpart B. For joint
ventures, ``address'' refers to the address of the small disadvantaged
business concern that is participating in the joint venture.
[60 FR 48252, Sept. 18, 1995, as amended at 60 FR 54818, Oct. 26, 1995;
61 FR 2633, Jan. 26, 1996; 61 FR 31648, June 20, 1996; 62 FR 233, Jan.
2, 1997; 62 FR 238, 261, Jan. 2, 1997; 63 FR 35724, June 30, 1998; 63 FR
36124, July 1, 1998; 63 FR 52427, Sept. 30, 1998; 63 FR 58590, Oct. 30,
1998; 63 FR 70274, 70285, Dec. 18, 1998; 64 FR 10533, Mar. 4, 1999; 64
FR 32749, June 17, 1999; 64 FR 36224, July 2, 1999; 64 FR 72432, Dec.
27, 1999; 65 FR 46058, July 26, 2000; 65 FR 60546; Oct. 11, 2000; 65 FR
80266, Dec. 20, 2000; 66 FR 2134, Jan. 10, 2001; 66 FR 5348, Jan. 18,
2001; 66 FR 18735, Apr. 11, 2001; 66 FR 66986, 66990, Dec. 27, 2001; 67
FR 6121, Feb. 8, 2002; 67 FR 13066, Mar. 20, 2002; 67 FR 21536, Apr. 30,
2002; 67 FR 43520, June 27, 2002]
[[Page 51]]
52.212-4 Contract Terms and Conditions--Commercial Items.
As prescribed in 12.301(b)(3), insert the following clause:
Contract Terms and Conditions--Commercial Items (FEB 2002)
(a) Inspection/Acceptance. The Contractor shall only tender for
acceptance those items that conform to the requirements of this
contract. The Government reserves the right to inspect or test any
supplies or services that have been tendered for acceptance. The
Government may require repair or replacement of nonconforming supplies
or reperformance of nonconforming services at no increase in contract
price. The Government must exercise its postacceptance rights (1) within
a reasonable time after the defect was discovered or should have been
discovered; and (2) before any substantial change occurs in the
condition of the item, unless the change is due to the defect in the
item.
(b) Assignment. The Contractor or its assignee may assign its rights
to receive payment due as a result of performance of this contract to a
bank, trust company, or other financing institution, including any
Federal lending agency in accordance with the Assignment of Claims Act
(31 U.S.C. 3727). However, when a third party makes payment (e.g., use
of the Governmentwide commercial purchase card), the Contractor may not
assign its rights to receive payment under this contract.
(c) Changes. Changes in the terms and conditions of this contract
may be made only by written agreement of the parties.
(d) Disputes. This contract is subject to the Contract Disputes Act
of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this
contract to reach agreement on any request for equitable adjustment,
claim, appeal or action arising under or relating to this contract shall
be a dispute to be resolved in accordance with the clause at FAR 52.233-
1, Disputes, which is incorporated herein by reference. The Contractor
shall proceed diligently with performance of this contract, pending
final resolution of any dispute arising under the contract.
(e) Definitions. The clause at FAR 52.202-1, Definitions, is
incorporated herein by reference.
(f) Excusable delays. The Contractor shall be liable for default
unless nonperformance is caused by an occurrence beyond the reasonable
control of the Contractor and without its fault or negligence such as,
acts of God or the public enemy, acts of the Government in either its
sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, unusually severe weather, and delays of common
carriers. The Contractor shall notify the Contracting Officer in writing
as soon as it is reasonably possible after the commencement of any
excusable delay, setting forth the full particulars in connection
therewith, shall remedy such occurrence with all reasonable dispatch,
and shall promptly give written notice to the Contracting Officer of the
cessation of such occurrence.
(g) Invoice. (1) The Contractor shall submit an original invoice and
three copies (or electronic invoice, if authorized) to the address
designated in the contract to receive invoices. An invoice must include-
-
(i) Name and address of the Contractor;
(ii) Invoice date and number;
(iii) Contract number, contract line item number and, if applicable,
the order number;
(iv) Description, quantity, unit of measure, unit price and extended
price of the items delivered;
(v) Shipping number and date of shipment, including the bill of
lading number and weight of shipment if shipped on Government bill of
lading;
(vi) Terms of any discount for prompt payment offered;
(vii) Name and address of official to whom payment is to be sent;
(viii) Name, title, and phone number of person to notify in event of
defective invoice; and
(ix) Taxpayer Identification Number (TIN). The Contractor shall
include its TIN on the invoice only if required elsewhere in this
contract.
(x) Electronic funds transfer (EFT) banking information.
(A) The Contractor shall include EFT banking information on the
invoice only if required elsewhere in this contract.
(B) If EFT banking information is not required to be on the invoice,
in order for the invoice to be a proper invoice, the Contractor shall
have submitted correct EFT banking information in accordance with the
applicable solicitation provision, contract clause (e.g., 52.232-33,
Payment by Electronic Funds Transfer--Central Contractor Registration,
or 52.232-34, Payment by Electronic Funds Transfer--Other Than Central
Contractor Registration), or applicable agency procedures.
(C) EFT banking information is not required if the Government waived
the requirement to pay by EFT.
(2) Invoices will be handled in accordance with the Prompt Payment
Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt
payment regulations at 5 CFR part 1315.
(h) Patent indemnity. The Contractor shall indemnify the Government
and its officers, employees and agents against liability, including
costs, for actual or alleged direct or contributory infringement of, or
inducement to infringe, any United States or foreign patent, trademark
or copyright, arising out of the performance of this contract, provided
[[Page 52]]
the Contractor is reasonably notified of such claims and proceedings.
(i) Payment. Payment shall be made for items accepted by the
Government that have been delivered to the delivery destinations set
forth in this contract. The Government will make payment in accordance
with the Prompt Payment Act (31 U.S.C. 3903) and OMB prompt payment
regulations at 5 CFR part 1315. If the Government makes payment by
Electronic Funds Transfer (EFT), see 52.212-5(b) for the appropriate EFT
clause.
In connection with any discount offered for early payment, time
shall be computed from the date of the invoice. For the purpose of
computing the discount earned, payment shall be considered to have been
made on the date which appears on the payment check or the specified
payment date if an electronic funds transfer payment is made.
(j) Risk of loss. Unless the contract specifically provides
otherwise, risk of loss or damage to the supplies provided under this
contract shall remain with the Contractor until, and shall pass to the
Government upon:
(1) Delivery of the supplies to a carrier, if transportation is
f.o.b. origin; or
(2) Delivery of the supplies to the Government at the destination
specified in the contract, if transportation is f.o.b. destination.
(k) Taxes. The contract price includes all applicable Federal,
State, and local taxes and duties.
(l) Termination for the Government's convenience. The Government
reserves the right to terminate this contract, or any part hereof, for
its sole convenience. In the event of such termination, the Contractor
shall immediately stop all work hereunder and shall immediately cause
any and all of its suppliers and subcontractors to cease work. Subject
to the terms of this contract, the Contractor shall be paid a percentage
of the contract price reflecting the percentage of the work performed
prior to the notice of termination, plus reasonable charges the
Contractor can demonstrate to the satisfaction of the Government using
its standard record keeping system, have resulted from the termination.
The Contractor shall not be required to comply with the cost accounting
standards or contract cost principles for this purpose. This paragraph
does not give the Government any right to audit the Contractor's
records. The Contractor shall not be paid for any work performed or
costs incurred which reasonably could have been avoided.
(m) Termination for cause. The Government may terminate this
contract, or any part hereof, for cause in the event of any default by
the Contractor, or if the Contractor fails to comply with any contract
terms and conditions, or fails to provide the Government, upon request,
with adequate assurances of future performance. In the event of
termination for cause, the Government shall not be liable to the
Contractor for any amount for supplies or services not accepted, and the
Contractor shall be liable to the Government for any and all rights and
remedies provided by law. If it is determined that the Government
improperly terminated this contract for default, such termination shall
be deemed a termination for convenience.
(n) Title. Unless specified elsewhere in this contract, title to
items furnished under this contract shall pass to the Government upon
acceptance, regardless of when or where the Government takes physical
possession.
(o) Warranty. The Contractor warrants and implies that the items
delivered hereunder are merchantable and fit for use for the particular
purpose described in this contract.
(p) Limitation of liability. Except as otherwise provided by an
express warranty, the Contractor will not be liable to the Government
for consequential damages resulting from any defect or deficiencies in
accepted items.
(q) Other compliances. The Contractor shall comply with all
applicable Federal, State and local laws, executive orders, rules and
regulations applicable to its performance under this contract.
(r) Compliance with laws unique to Government contracts. The
Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations
on the use of appropriated funds to influence certain Federal contracts;
18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. 327, et
seq., Contract Work Hours and Safety Standards Act; 41 U.S.C. 51-58,
Anti-Kickback Act of 1986; 41 U.S.C. 265 and 10 U.S.C. 2409 relating to
whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C.
423 relating to procurement integrity.
(s) Order of precedence. Any inconsistencies in this solicitation or
contract shall be resolved by giving precedence in the following order:
(1) the schedule of supplies/services; (2) the Assignments, Disputes,
Payments, Invoice, Other Compliances, and Compliance with Laws Unique to
Government Contracts paragraphs of this clause; (3) the clause at
52.212-5; (4) addenda to this solicitation or contract, including any
license agreements for computer software; (5) solicitation provisions if
this is a solicitation; (6) other paragraphs of this clause; (7) the
Standard Form 1449; (8) other documents, exhibits, and attachments; and
(9) the specification.
(End of clause)
[60 FR 48254, Sept. 18, 1995, as amended at 61 FR 45773, Aug. 29, 1996;
62 FR 12711, Mar. 14, 1997; 63 FR 9052, Feb. 23, 1998; 64 FR 10542, Mar.
4, 1999; 66 FR 2139, Jan. 10, 2001; 66 FR 53485, Oct. 22, 2001; 66 FR
65350, Dec. 18, 2001]
[[Page 53]]
52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items.
As prescribed in 12.301(b)(4), insert the following clause:
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items (DEC 2001)
(a) The Contractor shall comply with the following FAR clauses,
which are incorporated in this contract by reference, to implement
provisions of law or executive orders applicable to acquisitions of
commercial items:
(1) 52.222-3, Convict Labor (E.O. 11755).
(2) 52.233-3, Protest after Award (31 U.S.C. 3553).
(b) The Contractor shall comply with the FAR clauses in this
paragraph (b) that the Contracting Officer has indicated as being
incorporated in this contract by reference to implement provisions of
law or Executive orders applicable to acquisitions of commercial items
or components:
[Contracting Officer must check as appropriate.]
-- (1) 52.203-6, Restrictions on Subcontractor Sales to the
Government, with Alternate I (41 U.S.C. 253g and 10 U.S.C. 2402).
-- (2) 52.219-3, Notice of HUBZone Small Business Set-Aside (Jan
1999).
-- (3) 52.219-4, Notice of Price Evaluation Preference for HUBZone
Small Business Concerns (Jan 1999) (if the offeror elects to waive the
preference, it shall so indicate in its offer).
-- (4)(i) 52.219-5, Very Small Business Set-Aside (Pub. L. 103-403,
section 304, Small Business Reauthorization and Amendments Act of 1994).
-- (ii) Alternate I to 52.219-5.
-- (iii) Alternate II to 52.219-5.
-- (5) 52.219-8, Utilization of Small Business Concerns (15 U.S.C.
637 (d)(2) and (3)).
-- (6) 52.219-9, Small Business Subcontracting Plan (15 U.S.C.
637(d)(4)).
-- (7) 52.219-14, Limitations on Subcontracting (15 U.S.C.
637(a)(14)).
-- (8)(i) 52.219-23, Notice of Price Evaluation Adjustment for Small
Disadvantaged Business Concerns (Pub. L. 103-355, section 7102, and 10
U.S.C. 2323) (if the offeror elects to waive the adjustment, it shall so
indicate in its offer).
-- (ii) Alternate I of 52.219-23.
-- (9) 52.219-25, Small Disadvantaged Business Participation
Program--Disadvantaged Status and Reporting (Pub. L. 103-355, section
7102, and 10 U.S.C. 2323).
-- (10) 52.219-26, Small Disadvantaged Business Participation
Program--Incentive Subcontracting (Pub. L. 103-355, section 7102, and 10
U.S.C. 2323).
-- (11) 52.222-21, Prohibition of Segregated Facilities (Feb 1999).
-- (12) 52.222-26, Equal Opportunity (E.O. 11246).
-- (13) 52.222-35, Equal Opportunity for Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C.
4212).
-- (14) 52.222-36, Affirmative Action for Workers with Disabilities
(29 U.S.C. 793).
-- (15) 52.222-37, Employment Reports on Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C.
4212).
-- (16) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (E.O. 13126).
-- (17)(i) 52.223-9, Estimate of Percentage of Recovered Material
Content for EPA-Designated Products (42 U.S.C. 6962(c)(3)(A)(ii)).
-- (ii) Alternate I of 52.223-9 (42 U.S.C. 6962(i)(2)(C)).
-- (18) 52.225-1, Buy American Act--Supplies (41 U.S.C. 10a-10d).
-- (19)(i) 52.225-3, Buy American Act--North American Free Trade
Agreement--Israeli Trade Act (41 U.S.C. 10a-10d, 19 U.S.C. 3301 note, 19
U.S.C. 2112 note).
-- (ii) Alternate I of 52.225-3.
-- (iii) Alternate II of 52.225-3.
-- (20) 52.225-13, Restriction on Certain Foreign Purchases (E.O.
12722, 12724, 13059, 13067, 13121, and 13129).
-- (21) 52.225-5, Trade Agreements (19 U.S.C. 2501, et seq., 19
U.S.C. 3301 note).
-- (22) 52.225-15, Sanctioned European Union Country End Products
(E.O. 12849).
-- (23) [Reserved]
-- (24) 52.232-33, Payment by Electronic Funds Transfer--Central
Contractor Registration (31 U.S.C. 3332).
-- (25) 52.232-34, Payment by Electronic Funds Transfer--Other than
Central Contractor Registration (31 U.S.C. 3332).
-- (26) 52.232-36, Payment by Third Party (31 U.S.C. 3332).
-- (27) 52.239-1, Privacy or Security Safeguards (5 U.S.C. 552a).-
-- (28)(i) 52.247-64, Preference for Privately Owned U.S.-Flag
Commercial Vessels (46 U.S.C. 1241).
-- (ii) Alternate I of 52.247-64.
(This acquisition is being conducted under -------------- delegation
of GSA's exclusive procurement authority for FIP resources. The specific
GSA DPA case number is ------------).
(c) The Contractor shall comply with the FAR clauses in this
paragraph (c), applicable to commercial services, which the Contracting
Officer has indicated as being incorporated in this contract by
reference to implement provisions of law or executive orders applicable
to acquisitions of commercial items or components:
[[Page 54]]
[Contracting Officer check as appropriate.]
-- (1) 52.222-41, Service Contract Act of 1965, As amended (41
U.S.C. 351, et seq.).
-- (2) 52.222-42, Statement of Equivalent Rates for Federal Hires
(29 U.S.C. 206 and 41 U.S.C. 351, et seq.).
-- (3) 52.222-43, Fair Labor Standards Act and Service Contract Act-
-Price Adjustment (Multiple Year and Option Contracts) (29 U.S.C. 206
and 41 U.S.C. 351, et seq.).
-- (4) 52.222-44, Fair Labor Standards Act and Service Contract Act-
-Price Adjustment (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).
-- (5) 52.222-47, SCA Minimum Wages and Fringe Benefits Applicable
to Successor Contract Pursuant to Predecessor Contractor Collective
Bargaining Agreement (CBA) (41 U.S.C. 351, et seq.).
(d) Comptroller General Examination of Record. The Contractor shall
comply with the provisions of this paragraph (d) if this contract was
awarded using other than sealed bid, is in excess of the simplified
acquisition threshold, and does not contain the clause at 52.215-2,
Audit and Records--Negotiation.
(1) The Comptroller General of the United States, or an authorized
representative of the Comptroller General, shall have access to and
right to examine any of the Contractor's directly pertinent records
involving transactions related to this contract.
(2) The Contractor shall make available at its offices at all
reasonable times the records, materials, and other evidence for
examination, audit, or reproduction, until 3 years after final payment
under this contract or for any shorter period specified in FAR Subpart
4.7, Contractor Records Retention, of the other clauses of this
contract. If this contract is completely or partially terminated, the
records relating to the work terminated shall be made available for 3
years after any resulting final termination settlement. Records relating
to appeals under the disputes clause or to litigation or the settlement
of claims arising under or relating to this contract shall be made
available until such appeals, litigation, or claims are finally
resolved.
(3) As used in this clause, records include books, documents,
accounting procedures and practices, and other data, regardless of type
and regardless of form. This does not require the Contractor to create
or maintain any record that the Contractor does not maintain in the
ordinary course of business or pursuant to a provision of law.
(e) Notwithstanding the requirements of the clauses in paragraphs
(a), (b), (c) or (d) of this clause, the Contractor is not required to
include any FAR clause, other than those listed below (and as may be
required by an addenda to this paragraph to establish the reasonableness
of prices under part 15), in a subcontract for commercial items or
commercial components--
(1) 52.222-26, Equal Opportunity (E.O. 11246);
(2) 52.222-35, Equal Opportunity for Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C.
4212);
(3) 52.222-36, Affirmative Action for Workers with Disabilities (29
U.S.C. 793);
(4) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial
Vessels (46 U.S.C. 1241) (flow down not required for subcontracts
awarded beginning May 1, 1996); and
(5) 52.222-41, Service Contract Act of 1965, As Amended (41 U.S.C.
351, et seq.).
(End of clause)
Alternate I (Feb 2000). As prescribed in 12.301(b)(4), delete
paragraph (d) from the basic clause, redesignate paragraph (e) as
paragraph (d), and revise the reference to ``paragraphs (a), (b), (c),
or (d) of this clause'' in the redesignated paragraph (d) to read
``paragraphs (a), (b), and (c) of this clause''.
[60 FR 48255, Sept. 18, 1995, as amended at 60 FR 67517, Dec. 29, 1995;
61 FR 31648, June 20, 1996; 61 FR 41471, Aug. 8, 1996; 63 FR 9052, 9058,
Feb. 23, 1998; 63 FR 34075, June 22, 1998; 63 FR 35724, June 30, 1998;
63 FR 36124, July 1, 1998; 63 FR 70274, 70292, Dec. 18, 1998; 64 FR
10537, 10542, Mar. 4, 1999; 64 FR 72433, 72451, Dec. 27, 1999; 64 FR
72451, Dec. 27, 1999; 65 FR 24324, Apr. 25, 2000; 65 FR 36021, 36028,
June 6, 2000; 65 FR 46069, July 26, 2000; 66 FR 5348, Jan. 18, 2001; 66
FR 27417, May 16, 2001; 66 FR 53489, Dec. 21, 2001; 67 FR 21536, Apr.
30, 2002]
52.213-1 Fast Payment Procedure.
As prescribed in 13.404, insert the following clause:
Fast Payment Procedure (FEB 1998)
(a) General. The Government will pay invoices based on the
Contractor's delivery to a post office or common carrier (or, if shipped
by other means, to the point of first receipt by the Government).
(b) Responsibility for supplies. (1) Title to the supplies passes to
the Government upon delivery to--
(i) A post office or common carrier for shipment to the specific
destination; or
(ii) The point of first receipt by the Government, if shipment is by
means other than Postal Service or common carrier.
(2) Notwithstanding any other provision of the contract, order, or
blanket purchase agreement, the Contractor shall--
(i) Assume all responsibility and risk of loss for supplies not
received at destination,
[[Page 55]]
damaged in transit, or not conforming to purchase requirements; and
(ii) Replace, repair, or correct those supplies promptly at the
Contractor's expense, if instructed to do so by the Contracting Officer
within 180 days from the date title to the supplies vests in the
Government.
(c) Preparation of invoice. (1) Upon delivery to a post office or
common carrier (or, if shipped by other means, the point of first
receipt by the Government), the Contractor shall--
(i) Prepare an invoice as provided in this contract, order, or
blanket purchase agreement; and
(ii) Display prominently on the invoice ``FAST PAY.''
(2) If the purchase price excludes the cost of transportation, the
Contractor shall enter the prepaid shipping cost on the invoice as a
separate item. The Contractor shall not include the cost of parcel post
insurance. If transportation charges are stated separately on the
invoice, the Contractor shall retain related paid freight bills or other
transportation billings paid separately for a period of 3 years and
shall furnish the bills to the Government upon request.
(3) If this contract, order, or blanket purchase agreement requires
the preparation of a receiving report, the Contractor shall prepare the
receiving report on the prescribed form or, alternatively, shall include
the following information on the invoice, in addition to that required
in paragraph (c)(1) of this clause:
(i) A statement in prominent letters ``NO RECEIVING REPORT
PREPARED.''
(ii) Shipment number.
(iii) Mode of shipment.
(iv) At line item level--
(A) National stock number and/or manufacturer's part number;
(B) Unit of measure;
(C) Ship-To Point;
(D) Mark-For Point, if in the contract; and
(E) FEDSTRIP/MILSTRIP document number, if in the contract.
(4) If this contract, order, or blanket purchase agreement does not
require preparation of a receiving report on a prescribed form, the
Contractor shall include on the invoice the following information at the
line item level, in addition to that required in paragraph (c)(1) of
this clause:
(i) Ship-To Point.
(ii) Mark-For Point.
(iii) FEDSTRIP/MILSTRIP document number, if in the contract.
(5) Where a receiving report is not required, the Contractor shall
include a copy of the invoice in each shipment.
(d) Certification of invoice. The Contractor certifies by submitting
an invoice to the Government that the supplies being billed to the
Government have been shipped or delivered in accordance with shipping
instructions issued by the ordering officer, in the quantities shown on
the invoice, and that the supplies are in the quantity and of the
quality designated by the contract, order, or blanket purchase
agreement.
(e) Fast pay container identification. The Contractor shall mark all
outer shipping containers ``FAST PAY.''
(End of clause)
[62 FR 64927, Dec. 9, 1997]
52.213-2 Invoices.
As prescribed in 13.302-5(b), insert the following clause:
Invoices (APR 1984)
The Contractor's invoices must be submitted before payment can be
made. The Contractor will be paid on the basis of the invoice, which
must state (a) the starting and ending dates of the subscription
delivery, and (b) either that orders have been placed in effect for the
addressees required, or that the orders will be placed in effect upon
receipt of payment.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986;
60 FR 34761, July 3, 1995; 61 FR 39198, July 26, 1996; 62 FR 64928, Dec.
9, 1997]
52.213-3 Notice To Supplier.
As prescribed in 13.302-5(c), insert the following clause:
Notice to Supplier (APR 1984)
This is a firm order ONLY if your price does not exceed the maximum
line item or total price in the Schedule. Submit invoices to the
Contracting Officer. If you cannot perform in exact accordance with this
order, WITHHOLD PERFORMANCE and notify the Contracting Officer
immediately, giving your quotation.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34761, July 3, 1995;
61 FR 39198, July 26, 1996; 62 FR 64928, Dec. 9, 1997]
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items).
As prescribed in 13.302-5(d), insert the following clause:
[[Page 56]]
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (SEP 2002)
(a) The Contractor shall comply with the following Federal
Acquisition Regulation (FAR) clauses that are incorporated by reference:
(1) The clauses listed below implement provisions of law or
Executive order:
(i) 52.222-3, Convict Labor (Aug 1996) (E.O. 11755).
(ii) 52.222-21, Prohibition of Segregated Facilities (Feb 1999)
(E.O. 11246).
(iii) 52.222-26, Equal Opportunity (Apr 2002) (E.O. 11246).
(iv) 52.225-13, Restrictions on Certain Foreign Purchases (July
2000) (E.O.'s 12722, 12724, 13059, 13067, 13121, and 13129).
(v) 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553).
(2) Listed below are additional clauses that apply:
(i) 52.232-1, Payments (Apr 1984).
(ii) 52.232-8, Discounts for Prompt Payment (Feb 2002).
(iii) 52.232-11, Extras (Apr 1984).
(iv) 52.232-25, Prompt Payment (Feb 2002).
(v) 52.233-1, Disputes (Jul 2002).
(vi) 52.244-6, Subcontracts for Commercial Items (Dec 2001).
(vii) 52.253-1, Computer Generated Forms (Jan 1991).
(b) The Contractor shall comply with the following FAR clauses,
incorporated by reference, unless the circumstances do not apply:
(1) The clauses listed below implement provisions of law or
Executive order:
(i) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (Sept 2002) (E.O. 13126). (Applies to contracts for supplies
exceeding the micro-purchase threshold.)
(ii) 52.222-20, Walsh-Healey Public Contracts Act (Dec 1996) (41
U.S.C. 35-45) (Applies to supply contracts over $10,000 in the United
States, Puerto Rico, or the U.S. Virgin Islands).
(iii) 52.222-35, Equal Opportunity for Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (DEC 2001) (38
U.S.C. 4212) (Applies to contracts of $25,000 or more).
(iv) 52.222-36, Affirmative Action for Workers with Disabilities
(June 1998) (29 U.S.C. 793). (Applies to contracts over $10,000, unless
the work is to be performed outside the United States by employees
recruited outside the United States.) (For purposes of this clause,
United States includes the 50 States, the District of Columbia, Puerto
Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S.
Virgin Islands, and Wake Island.)
(v) 52.222-37, Employment Reports on Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (DEC 2001) (38
U.S.C. 4212) (Applies to contracts of $25,000 or more).
(vi) 52.222-41, Service Contract Act of 1965, As Amended (May 1989)
(41 U.S.C. 351, et seq.) (Applies to service contracts over $2,500 that
are subject to the Service Contract Act and will be performed in the
United States, District of Columbia, Puerto Rico, the Northern Mariana
Islands, American Samoa, Guam, the U.S. Virgin Islands, Johnston Island,
Wake Island, or the outer continental shelf lands).
(vii) 52.223-5, Pollution Prevention and Right-to-Know Information
(APR 1998) (E.O. 12856) (Applies to services performed on Federal
facilities).
(viii) 52.225-1, Buy American Act --Supplies (May 2002) (41 U.S.C.
10a-10d) (Applies to contracts for supplies, and to contracts for
services involving the furnishing of supplies, for use within the United
States if the value of the supply contract or supply portion of a
service contract exceeds the micro-purchase threshold and the
acquisition--
(A) Is set aside for small business concerns; or
(B) Cannot be set aside for small business concerns (see 19.502-2),
and does not exceed $25,000.)
(ix) 52.232-33, Payment by Electronic Funds Transfer--Central
Contractor Registration (May 1999). (Applies when the payment will be
made by electronic funds transfer (EFT) and the payment office uses the
Central Contractor Registration (CCR) database as its source of EFT
information.)
(x) 52.232-34, Payment by Electronic Funds Transfer--Other than
Central Contractor Registration (May 1999). (Applies when the payment
will be made by EFT and the payment office does not use the CCR database
as its source of EFT information.)
(xi) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial
Vessels (June 2000) (46 U.S.C. 1241). (Applies to supplies transported
by ocean vessels.)
(2) Listed below are additional clauses that may apply:
(i) 52.209-6, Protecting the Government's Interest When
Subcontracting with Contractors Debarred, Suspended, or Proposed for
Debarment (JULY 1995) (Applies to contracts over $25,000).
(ii) 52.211-17, Delivery of Excess Quantities (SEPT 1989) (Applies
to fixed-price supplies).
(iii) 52.247-29, F.o.b. Origin (JUN 1988) (Applies to supplies if
delivery is f.o.b. origin).
(iv) 52.247-34, F.o.b. Destination (NOV 1991) (Applies to supplies
if delivery is f.o.b. destination).
(c) FAR 52.252-2, Clauses Incorporated by Reference (FEB 1998). This
contract incorporates one or more clauses by reference, with the same
force and effect as if they were given in full text. Upon request, the
[[Page 57]]
Contracting Officer will make their full text available. Also, the full
text of a clause may be accessed electronically at this/these
address(es):
________________________________________________________________________
________________________________________________________________________
[Insert one or more Internet addresses]
(d) Inspection/Acceptance. The Contractor shall tender for
acceptance only those items that conform to the requirements of this
contract. The Government reserves the right to inspect or test any
supplies or services that have been tendered for acceptance. The
Government may require repair or replacement of nonconforming supplies
or reperformance of nonconforming services at no increase in contract
price. The Government must exercise its postacceptance rights--
(1) Within a reasonable period of time after the defect was
discovered or should have been discovered; and
(2) Before any substantial change occurs in the condition of the
item, unless the change is due to the defect in the item.
(e) Excusable delays. The Contractor shall be liable for default
unless nonperformance is caused by an occurrence beyond the reasonable
control of the Contractor and without its fault or negligence, such as
acts of God or the public enemy, acts of the Government in either its
sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, unusually severe weather, and delays of common
carriers. The Contractor shall notify the Contracting Officer in writing
as soon as it is reasonably possible after the commencement of any
excusable delay, setting forth the full particulars in connection
therewith, shall remedy such occurrence with all reasonable dispatch,
and shall promptly give written notice to the Contracting Officer of the
cessation of such occurrence.
(f) Termination for the Government's convenience. The Government
reserves the right to terminate this contract, or any part hereof, for
its sole convenience. In the event of such termination, the Contractor
shall immediately stop all work hereunder and shall immediately cause
any and all of its suppliers and subcontractors to cease work. Subject
to the terms of this contract, the Contractor shall be paid a percentage
of the contract price reflecting the percentage of the work performed
prior to the notice of termination, plus reasonable charges that the
Contractor can demonstrate to the satisfaction of the Government, using
its standard record keeping system, have resulted from the termination.
The Contractor shall not be required to comply with the cost accounting
standards or contract cost principles for this purpose. This paragraph
does not give the Government any right to audit the Contractor's
records. The Contractor shall not be paid for any work performed or
costs incurred that reasonably could have been avoided.
(g) Termination for cause. The Government may terminate this
contract, or any part hereof, for cause in the event of any default by
the Contractor, or if the Contractor fails to comply with any contract
terms and conditions, or fails to provide the Government, upon request,
with adequate assurances of future performance. In the event of
termination for cause, the Government shall not be liable to the
Contractor for any amount for supplies or services not accepted, and the
Contractor shall be liable to the Government for any and all rights and
remedies provided by law. If it is determined that the Government
improperly terminated this contract for default, such termination shall
be deemed a termination for convenience.
(h) Warranty. The Contractor warrants and implies that the items
delivered hereunder are merchantable and fit for use for the particular
purpose described in this contract.
(End of clause)
[62 FR 64928, Dec. 9, 1997, as amended at 63 FR 9052, 9058, Feb. 23,
1998; 63 FR 34075, 34077, June 22, 1998; 64 FR 10542, Mar. 4, 1999; 64
FR 32749, June 17, 1999; 64 FR 72433, Dec, 27, 1999; 65 FR 24324, Apr.
25, 2000; 65 FR 36028, June 6, 2000; 66 FR 5349, Jan. 18, 2001; 66 FR
53489, Oct. 22, 2001; 67 FR 65360, Dec. 18, 2001; 67 FR 6121, Feb. 8,
2002; 67 FR 13067, Mar. 20, 2002; 67 FR 21536, Apr. 30, 2002; 67 FR
43514, June 27, 2002; 67 FR 47635, July 19, 2002; 67 FR 56124, Aug. 30,
2002]
52.214-1 [Reserved]
52.214-2 [Reserved]
52.214-3 Amendments to Invitations for Bids.
As prescribed in 14.201-6(b)(1), insert the following provision:
Amendments to Invitations for Bids (DEC 1989)
(a) If this solicitation is amended, then all terms and conditions
which are not modified remain unchanged.
(b) Bidders shall acknowledge receipt of any amendment to this
solicitation (1) by signing and returning the amendment, (2) by
identifying the amendment number and date in space provided for this
purpose on the form for submitting a bid, (3) by letter or telegram, or
(4) by facsimile, if facsimile bids are authorized in the solicitation.
The Government must receive the acknowledgment by the time and at the
place specified for receipt of bids.
[[Page 58]]
(End of provision)
[53 FR 43394, Oct. 26, 1988, as amended at 54 FR 48990, Nov. 28, 1989;
67 FR 13056, Mar. 20, 2002]
52.214-4 False Statements in Bids.
As prescribed in 14.201-6(b)(2), insert the following provision in
all invitations for bids:
False Statements in Bids (APR 1984)
Bidders must provide full, accurate, and complete information as
required by this solicitation and its attachments. The penalty for
making false statements in bids is prescribed in 18 U.S.C. 1001.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 67 FR 13056, Mar. 20, 2002]
52.214-5 Submission of Bids.
As prescribed in 14.201-6(c)(1), insert the following provision:
Submission of Bids (MAR 1997)
(a) Bids and bid modifications shall be submitted in sealed
envelopes or packages (unless submitted by electronic means) (1)
addressed to the office specified in the solicitation, and (2) showing
the time and date specified for receipt, the solicitation number, and
the name and address of the bidder.
(b) Bidders using commercial carrier services shall ensure that the
bid is addressed and marked on the outermost envelope or wrapper as
prescribed in subparagraphs (a) (1) and (2) of this provision when
delivered to the office specified in the solicitation.
(c) Telegraphic bids will not be considered unless authorized by the
solicitation; however, bids may be modified or withdrawn by written or
telegraphic notice.
(d) Facsimile bids, modifications, or withdrawals, will not be
considered unless authorized by the solicitation.
(e) Bids submitted by electronic commerce shall be considered only
if the electronic commerce method was specifically stipulated or
permitted by the solicitation.
(End of provision)
[54 FR 48991, Nov. 28, 1989, as amended at 55 FR 3887, Feb. 5, 1990; 60
FR 34739, July 3, 1995; 61 FR 69293, Dec. 31, 1996; 62 FR 12721, Mar.
17, 1997]
52.214-6 Explanation to Prospective Bidders.
As prescribed in 14.201-6(c)(2), insert the following provision:
Explanation to Prospective Bidders (APR 1984)
Any prospective bidder desiring an explanation or interpretation of
the solicitation, drawings, specifications, etc., must request it in
writing soon enough to allow a reply to reach all prospective bidders
before the submission of their bids. Oral explanations or instructions
given before the award of a contract will not be binding. Any
information given a prospective bidder concerning a solicitation will be
furnished promptly to all other prospective bidders as an amendment to
the solicitation, if that information is necessary in submitting bids or
if the lack of it would be prejudicial to other prospective bidders.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 25531, June 21, 1990]
52.214-7 Late submissions, modifications, and withdrawals of bids.
As prescribed in 14.201-6(c)(3), insert the following provision:
Late Submissions, Modifications, and Withdrawals of Bids (NOV 1999)
(a) Bidders are responsible for submitting bids, and any
modifications or withdrawals, so as to reach the Government office
designated in the invitation for bids (IFB) by the time specified in the
IFB. If no time is specified in the IFB, the time for receipt is 4:30
p.m., local time, for the designated Government office on the date that
bids are due.
(b)(1) Any bid, modification, or withdrawal received at the
Government office designated in the IFB after the exact time specified
for receipt of bids is ``late'' and will not be considered unless it is
received before award is made, the Contracting Officer determines that
accepting the late bid would not unduly delay the acquisition; and--
(i) If it was transmitted through an electronic commerce method
authorized by the IFB, it was received at the initial point of entry to
the Government infrastructure not later than 5:00 p.m. one working day
prior to the date specified for receipt of bids; or
(ii) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of bids and was
under the Government's control prior to the time set for receipt of
bids.
(2) However, a late modification of an otherwise successful bid that
makes its terms more favorable to the Government, will be
[[Page 59]]
considered at any time it is received and may be accepted.
(c) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the bid wrapper, other documentary evidence of receipt
maintained by the installation, or oral testimony or statements of
Government personnel.
(d) If an emergency or unanticipated event interrupts normal
Government processes so that bids cannot be received at the Government
office designated for receipt of bids by the exact time specified in the
IFB and urgent Government requirements preclude amendment of the IFB,
the time specified for receipt of bids will be deemed to be extended to
the same time of day specified in the solicitation on the first work day
on which normal Government processes resume.
(e) Bids may be withdrawn by written notice received at any time
before the exact time set for receipt of bids. If the IFB authorizes
facsimile bids, bids may be withdrawn via facsimile received at any time
before the exact time set for receipt of bids, subject to the conditions
specified in the provision at 52.214-31, Facsimile Bids. A bid may be
withdrawn in person by a bidder or its authorized representative if,
before the exact time set for receipt of bids, the identity of the
person requesting withdrawal is established and the person signs a
receipt for the bid.
(End of provision)
[64 FR 51840, Sept. 24, 1999]
52.214-8 [Reserved]
52.214-9 Failure to Submit Bid.
As prescribed in 14.201-6(e)(1), insert the following provision in
invitations for bids:
Failure to Submit Bid (JUL 1995)
Recipients of this solicitation not responding with a bid should not
return this solicitation, unless it specifies otherwise. Instead, they
should advise the issuing office by letter, postcard, or established
electronic commerce methods, whether they want to receive future
solicitations for similar requirements. If a recipient does not submit a
bid and does not notify the issuing office that future solicitations are
desired, the recipient's name may be removed from the applicable mailing
list.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34740, July 3, 1995]
52.214-10 Contract Award--Sealed Bidding.
As prescribed in 14.201-6(e)(2), insert the following provision:
Contract Award--Sealed Bidding (JUL 1990)
(a) The Government will evaluate bids in response to this
solicitation without discussions and will award a contract to the
responsible bidder whose bid, conforming to the solicitation, will be
most advantageous to the Government considering only price and the
price-related factors specified elsewhere in the solicitation.
(b) The Government may (1) reject any or all bids, (2) accept other
than the lowest bid, and (3) waive informalities or minor irregularities
in bids received.
(c) The Government may accept any item or group of items of a bid,
unless the bidder qualifies the bid by specific limitations. Unless
otherwise provided in the Schedule, bids may be submitted for quantities
less than those specified. The Government reserves the right to make an
award on any item for a quantity less than the quantity offered, at the
unit prices offered, unless the bidder specifies otherwise in the bid.
(d) A written award or acceptance of a bid mailed or otherwise
furnished to the successful bidder within the time for acceptance
specified in the bid shall result in a binding contract without further
action by either party.
(e) The Government may reject a bid as nonresponsive if the prices
bid are materially unbalanced between line items or subline items. A bid
is materially unbalanced when it is based on prices significantly less
than cost for some work and prices which are significantly overstated in
relation to cost for other work, and if there is a reasonable doubt that
the bid will result in the lowest overall cost to the Government even
though it may be the low evaluated bid, or if it is so unbalanced as to
be tantamount to allowing an advance payment.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 55 FR 25531, June 21, 1990]
52.214-11 [Reserved]
52.214-12 Preparation of Bids.
As prescribed in 14.201-6(f), insert the following provision:
Preparation of Bids (APR 1984)
(a) Bidders are expected to examine the drawings, specifications,
Schedule, and all
[[Page 60]]
instructions. Failure to do so will be at the bidder's risk.
(b) Each bidder shall furnish the information required by the
solicitation. The bidder shall sign the bid and print or type its name
on the Schedule and each continuation sheet on which it makes an entry.
Erasures or other changes must be initialed by the person signing the
bid. Bids signed by an agent shall be accompanied by evidence of that
agent's authority, unless that evidence has been previously furnished to
the issuing office.
(c) For each item offered, bidders shall (1) show the unit price,
including, unless otherwise specified, packaging, packing, and
preservation and (2) enter the extended price for the quantity of each
item offered in the Amount column of the Schedule. In case of
discrepancy between a unit price and an extended price, the unit price
will be presumed to be correct, subject, however, to correction to the
same extent and in the same manner as any other mistake.
(d) Bids for supplies or services other than those specified will
not be considered unless authorized by the solicitation.
(e) Bidders must state a definite time for delivery of supplies or
for performance of services, unless otherwise specified in the
solicitation.
(f) Time, if stated as a number of days, will include Saturdays,
Sundays, and holidays.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986]
52.214-13 Telegraphic Bids.
As prescribed in 14.201-6(g)(1), insert the following provision:
Telegraphic Bids (APR 1984)
(a) Bidders may submit telegraphic bids as responses to this
solicitation. These responses must arrive at the place, and by the time,
specified in the solicitation.
(b) Telegraphic bids shall refer to this solicitation and include
the items or subitems, quantities, unit prices, time and place of
delivery, all representations and other information required by this
solicitation, and a statement of agreement with all the terms,
conditions, and provisions of the invitation for bids.
(c) Telegraphic bids that fail to furnish required representations
or information, or that reject any of the terms, conditions, and
provisions of the solicitation, may be excluded from consideration.
(d) Bidders must promptly sign and submit complete copies of the
bids in confirmation of their telegraphic bids.
(e) The term telegraphic bids, as used in this provision, includes
mailgrams.
(End of provision)
Alternate I (NOV 1988). As prescribed in 14.201-6(g)(2), substitute
the following for paragraph (d) of the basic clause:
(d) Written confirmation of telegraphic bids is not required.
[48 FR 42478, Sept. 19, 1983, as amended at 53 FR, 43394, Oct. 26, 1988]
52.214-14 Place of Performance--Sealed Bidding.
As prescribed in 14.201-6(h), insert the following provision:
Place of Performance--Sealed Bidding (APR 1985)
(a) The bidder, in the performance of any contract resulting from
this solicitation, [squ] intends, [squ] does not intend [check
applicable box] to use one or more plants or facilities located at a
different address from the address of the bidder as indicated in this
bid.
(b) If the bidder checks intends in paragraph (a) above, it shall
insert in the spaces provided below the required information:
Name and Address of
Place of Performance (Street Owner and Operator of
Address, City, County, State, Zip the Plant or Facility
Code) if Other than Bidder
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.214-15 Period for Acceptance of Bids.
As prescribed in 14.201-6(i), insert the following provision:
Period for Acceptance of Bids (APR 1984)
In compliance with the solicitation, the bidder agrees, if this bid
is accepted within -- calendar days (60 calendar days unless a different
period is inserted by the bidder) from the date specified in the
solicitation for receipt of bids, to furnish any or all items upon which
prices are bid at the price set opposite each item, delivered at the
designated point(s), within the time specified in the Schedule.
[[Page 61]]
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 48991, Nov. 28, 1989]
52.214-16 Minimum Bid Acceptance Period.
As prescribed in 14.201-6(j), insert the following provision in
invitations for bids, except for construction, if the contracting
officer determines that a minimum acceptance period must be specified:
Minimum Bid Acceptance Period (APR 1984)
(a) Acceptance period, as used in this provision, means the number
of calendar days available to the Government for awarding a contract
from the date specified in this solicitation for receipt of bids.
(b) This provision supersedes any language pertaining to the
acceptance period that may appear elsewhere in this solicitation.
(c) The Government requires a minimum acceptance period of --
calendar days [the Contracting Officer shall insert the number of days].
(d) In the space provided immediately below, bidders may specify a
longer acceptance period than the Government's minimum requirement.
The bidder allows the following acceptance period: -- calendar days.
(e) A bid allowing less than the Government's minimum acceptance
period will be rejected.
(f) The bidder agrees to execute all that it has undertaken to do,
in compliance with its bid, if that bid is accepted in writing within
(1) the acceptance period stated in paragraph (c) above or (2) any
longer acceptance period stated in paragraph (d) above.
(End of provision)
52.214-17 [Reserved]
52.214-18 Preparation of Bids--Construction.
As prescribed in 14.201-6(l), insert the following provision:
Preparation of Bids--Construction (APR 1984)
(a) Bids must be (1) submitted on the forms furnished by the
Government or on copies of those forms, and (2) manually signed. The
person signing a bid must initial each erasure or change appearing on
any bid form.
(b) The bid form may require bidders to submit bid prices for one or
more items on various bases, including--
(1) Lump sum bidding;
(2) Alternate prices;
(3) Units of construction; or
(4) Any combination of subparagraphs (1) through (3) above.
(c) If the solicitation requires bidding on all items, failure to do
so will disqualify the bid. If bidding on all items is not required,
bidders should insert the words no bid in the space provided for any
item on which no price is submitted.
(d) Alternate bids will not be considered unless this solicitation
authorizes their submission.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 25531, June 21, 1990]
52.214-19 Contract Award--Sealed Bidding--Construction.
As prescribed in 14.201-6(m), insert the following provision:
Contract Award--Sealed Bidding--Construction (AUG 1996)
(a) The Government will evaluate bids in response to this
solicitation without discussions and will award a contract to the
responsible bidder whose bid, conforming to the solicitation, will be
most advantageous to the Government, considering only price and the
price-related factors specified elsewhere in the solicitation.
(b) The Government may reject any or all bids, and waive
informalities or minor irregularities in bids received.
(c) The Government may accept any item or combination of items,
unless doing so is precluded by a restrictive limitation in the
solicitation or the bid.
(d) The Government may reject a bid as nonresponsive if the prices
bid are materially unbalanced between line items or subline items. A bid
is materially unbalanced when it is based on prices significantly less
than cost for some work and prices which are significantly overstated in
relation to cost for other work, and if there is a reasonable doubt that
the bid will result in the lowest overall cost to the Government even
though it may be the low evaluated bid, or if it is so unbalanced as to
be tantamount to allowing an advance payment.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52434, Dec. 23, 1985; 61 FR 31664, June 20, 1996]
52.214-20 Bid Samples.
As prescribed in 14.201-6(o)(1), insert the following provision:
[[Page 62]]
Bid Samples (APR 2002)
(a) Bid sample means a product sample required to be submitted by a
bidder to show those characteristics of the offered products that cannot
adequately be described by specifications, purchase descriptions, or the
invitation for bid (e.g., balance, facility of use, or pattern).
(b) Bidders must furnish bid samples as part of the bid. The
Government must receive the bid samples by the time specified in the
invitation for bids. If the bidder fails to submit samples on time, the
Government will reject the bid, except that the Contracting Officer will
consider a late sample sent by mail under the Late Submissions,
Modifications, and Withdrawals of Bids provision of this solicitation.
(c) The Government will test or evaluate bid samples to determine
compliance with all the characteristics listed for examination in this
solicitation. The Government will reject the bid when the sample fails
to conform to the required characteristics. Products delivered under any
resulting contract must conform to--
(1) the approved sample for the characteristics listed for test or
evaluation and
(2) the specifications for all other characteristics.
(d) Unless otherwise specified in the solicitation, bid samples
shall be (1) submitted at no expense to the Government, and (2) returned
at the bidder's request and expense, unless they are destroyed during
preaward testing.
(End of provision)
Alternate I (May 2002). As prescribed in 14.201-6(o)(2)(i), insert
the following Alternate I:
(e) At the discretion of the Contracting Officer, the requirement
for furnishing bid samples may be waived for a bidder if (1) the bid
states that the offered product is the same as a product offered by the
bidder to the ---- [as appropriate, the Contracting Officer shall
designate the contracting office or an alternate activity or office],
and (2) the Contracting Officer determines that the previously offered
product was accepted or tested and found to comply with specification
and other requirements for technical acceptability conforming in every
material respect with those in this solicitation.
Alternate II (May 2002). As prescribed in 14.201-6(o)(2)(ii), insert
the following Alternate II:
(e) At the discretion of the Contracting Officer, the requirements
for furnishing bid samples may be waived for a bidder if (1) the bid
states that the offered product is the same as a product offered by the
bidder to the ---- [as appropriate, the Contracting Officer shall
designate the contracting office or an alternate activity or office] on
a previous acquisition, (2) the Contracting Officer determines that the
previously offered product was accepted or tested and found to comply
with specification and other requirements for technical acceptability
conforming in every material respect with those of this solicitation,
and (3) the product offered under this solicitation will be produced
under a resulting contract at the same plant in which the previously
acquired or tested product was produced.
[48 FR 42478, Sept. 19, 1983, as amended at 67 FR 13056, Mar. 20, 2002;
67 FR 21536, Apr. 30, 2002]
52.214-21 Descriptive Literature.
As prescribed in 14.201-6(p)(1), insert the following provision:
Descriptive Literature (Apr 2002)
(a) Descriptive literature, as used in this provision, means
information furnished by a bidder, such as cuts, illustrations,
drawings, and brochures, that shows a product's characteristics or
construction or explains its operation. The term includes only that
information required to evaluate the acceptability of the product and
excludes other information for operating or maintaining the product.
(b) Descriptive literature is required to establish, for the purpose
of evaluation and award, details of the product offered that are
specified elsewhere in the solicitation and pertain to significant
elements such as--
(1) Design;
(2) Materials;
(3) Components;
(4) Performance characteristics; and
(5) Methods of manufacture, assembly, construction, or operation.
(c) Descriptive literature, required elsewhere in this solicitation,
shall be--
(1) Identified to show the item(s) of the offer to which it applies;
and
(2) Received by the time specified in this solicitation.
(d) If the bidder fails to submit descriptive literature on time,
the Government will reject the bid, except that late descriptive
literature sent by mail may be considered under the Late Submissions,
Modifications, and Withdrawals of Bids provision of this solicitation.
(e) If the descriptive literature fails to show that the product
offered conforms to the requirements of the solicitation, the Government
will reject the bid.
(End of provision)
Alternate I (Apr 2002). As prescribed in 14.201-6(p)(2), add the
following paragraphs (f) and (g) to the basic provision:
[[Page 63]]
(f) The Contracting Officer may waive the requirement for furnishing
descriptive literature if the offeror has supplied a product that is the
same as that required by this solicitation under a prior contract. A
bidder that requests a waiver of this requirement shall provide the
following information:
Prior contract number__________________________________________________
Date of prior contract_________________________________________________
Contract line item number of product
supplied_______________________________________________________________
Name and address of Government activity to which delivery was made_____
Date of final delivery product supplied
________________________________________________________________________
(g) Bidders shall submit bids on the basis of required descriptive
literature or on the basis of a previously supplied product under
paragraph (f) of this provision. A bidder submitting a bid on one of
these two bases may not elect to have its bid considered on the
alternative basis after the time specified for receipt of bids. The
Government will disregard a bidder's request for a waiver under
paragraph (f) if that bidder has submitted the descriptive literature
requested under this solicitation.
[67 FR 13056, Mar. 20, 2002]
52.214-22 Evaluation of Bids for Multiple Awards.
As prescribed in 14.201-6(q), insert the following provision:
Evaluation of Bids for Multiple Awards (MAR 1990)
In addition to other factors, bids will be evaluated on the basis of
advantages and disadvantages to the Government that might result from
making more than one award (multiple awards). It is assumed, for the
purpose of evaluating bids, that $500 would be the administrative cost
to the Government for issuing and administering each contract awarded
under this solicitation, and individual awards will be for the items or
combinations of items that result in the lowest aggregate cost to the
Government, including the assumed administrative costs.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 3887, Feb. 5, 1990]
52.214-23 Late submissions, modifications, revisions, and withdrawals of technical proposals under two-step sealed bidding.
As prescribed in 14.201-6(r), insert the following provision:
Late Submissions, Modifications, Revisions, and Withdrawals of Technical
Proposals Under Two-Step Sealed Bidding (NOV 1999)
(a) Bidders are responsible for submitting technical proposals, and
any modifications or revisions, so as to reach the Government office
designated in the request for technical proposals by the time specified
in the invitation for bids (IFB). If no time is specified in the IFB,
the time for receipt is 4:30 p.m., local time, for the designated
Government office on the date that bids or revisions are due.
(b)(1) Any technical proposal under step one of two-step sealed
bidding or modification, revision, or withdrawal of such proposal
received at the Government office designated in the request for
technical proposals after the exact time specified for receipt will not
be considered unless the Contracting Officer determines that accepting
the late technical proposal would not unduly delay the acquisition; and-
-
(i) If it was transmitted through an electronic commerce method
authorized by the request for technical proposals, it was received at
the initial point of entry to the Government infrastructure not later
than 5:00 p.m. one working day prior to the date specified for receipt
of proposals; or
(ii) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of offers and was
under the Government's control prior to the time set for receipt; or
(iii) It is the only proposal received and it is negotiated under
part 15 of the Federal Acquisition Regulation.
(2) However, a late modification of an otherwise successful proposal
that makes its terms more favorable to the Government will be considered
at any time it is received and may be accepted.
(c) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the technical proposal wrapper, other documentary
evidence of receipt maintained by the installation, or oral testimony or
statements of Government personnel.
(d) If an emergency or unanticipated event interrupts normal
Government processes so that technical proposals cannot be received at
the Government office designated for receipt of technical proposals by
the exact time specified in the request for technical proposals, and
urgent Government requirements preclude amendment of the request for
technical proposals, the time specified for receipt of technical
proposals will be deemed to be extended to the same time of day
specified in the request for technical proposals on the first work day
on which normal Government processes resume.
[[Page 64]]
(e) Technical proposals may be withdrawn by written notice received
at any time before the exact time set for receipt of technical
proposals. If the request for technical proposals authorizes facsimile
technical proposals, they may be withdrawn via facsimile received at any
time before the exact time set for receipt of proposals, subject to the
conditions specified in the provision at 52.214-31, Facsimile Bids. A
technical proposal may be withdrawn in person by a bidder or its
authorized representative if, before the exact time set for receipt of
technical proposals, the identity of the person requesting withdrawal is
established and the person signs a receipt for the technical proposal.
(End of provision)
[64 FR 51840, Sept. 24, 1999]
52.214-24 Multiple Technical Proposals.
As prescribed in 14.201-6(s), insert the following provision:
Multiple Technical Proposals (APR 1984)
In the first step of this two-step acquisition, solicited sources
are encouraged to submit multiple technical proposals presenting
different basic approaches. Each technical proposal submitted will be
separately evaluated and the submitter will be notified as to its
acceptability.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.214-25 Step Two of Two-Step Sealed Bidding.
As prescribed in 14.201-6(t), insert the following provision:
Step Two of Two-Step Sealed Bidding (APR 1985)
(a) This invitation for bids is issued to initiate step two of two-
step sealed bidding under subpart 14.5 of the Federal Acquisition
Regulation.
(b) The only bids that the Contracting Officer may consider for
award of a contract are those received from bidders that have submitted
acceptable technical proposals in step one of this acquisition under --
-- [the Contracting Officer shall insert the identification of the step-
one request for technical proposals].
(c) Any bidder that has submitted multiple technical proposals in
step one of this acquisition may submit a separate bid on each technical
proposal that was determined to be acceptable to the Government.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.214-26 Audit and Records--Sealed Bidding.
As prescribed in 14.201-7(a), insert the following clause:
Audit and Records--Sealed Bidding (OCT 1997)
(a) As used in this clause, records includes books, documents,
accounting procedures and practices, and other data, regardless of type
and regardless of whether such items are in written form, in the form of
computer data, or in any other form.
(b) Cost or pricing data. If the Contractor has been required to
submit cost or pricing data in connection with the pricing of any
modification to this contract, the Contracting Officer, or an authorized
representative of the Contracting Officer, in order to evaluate the
accuracy, completeness, and currency of the cost or pricing data, shall
have the right to examine and audit all of the Contractor's records,
including computations and projections, related to--
(1) The proposal for the modification;
(2) The discussions conducted on the proposal(s), including those
related to negotiating;
(3) Pricing of the modification; or
(4) Performance of the modification.
(c) Comptroller General. In the case of pricing any modification,
the Comptroller General of the United States, or an authorized
representative, shall have the same rights as specified in paragraph (b)
of this clause.
(d) Availability. The Contractor shall make available at its office
at all reasonable times the materials described in paragraph (b) of this
clause, for examination, audit, or reproduction, until 3 years after
final payment under this contract, or for any other period specified in
subpart 4.7 of the Federal Acquisition Regulation (FAR). FAR Subpart
4.7, Contractor Records Retention, in effect on the data of this
contract, is incorporated by reference in its entirety and made a part
of this contract.
(1) If this contract is completely or partially terminated, the
records relating to the work terminated shall be made available for 3
years after any resulting final termination settlement.
(2) Records pertaining to appeals under the Disputes clause or to
litigation or the settlement of claims arising under or relating to the
performance of this contract shall be made available until disposition
of such appeals, litigation, or claims.
(e) The Contractor shall insert a clause containing all the
provisions of this clause,
[[Page 65]]
including this paragraph (e), in all subcontracts expected to exceed the
threshold in FAR 15.403-4(a)(1) for submission of cost or pricing data.
(End of clause)
[60 FR 42651, Aug. 16, 1995; 60 FR 44548, Aug. 28, 1995; 62 FR 51271,
Sept. 30, 1997]
52.214-27 Price Reduction for Defective Cost or Pricing Data--Modifications--Sealed Bidding.
As prescribed in 14.201-7(b), insert the following clause:
Price Reduction for Defective Cost or Pricing Data--Modifications--
Sealed Bidding (OCT 1997)
(a) This clause shall become operative only for any modification to
this contract involving aggregate increases and/or decreases in costs,
plus applicable profits, expected to exceed the threshold for the
submission of cost or pricing data at FAR 15.403-4(a)(1), except that
this clause does not apply to a modification if an exception under FAR
15.403-1(b) applies.
(b) If any price, including profit, negotiated in connection with
any modification under this clause, was increased by any significant
amount because (1) the Contractor or a subcontractor furnished cost or
pricing data that were not complete, accurate, and current as certified
in its Certificate of Current Cost or Pricing Data, (2) a subcontractor
or prospective subcontractor furnished the Contractor cost or pricing
data that were not complete, accurate, and current as certified in the
Contractor's Certificate of Current Cost or Pricing Data, or (3) any of
these parties furnished data of any description that were not accurate,
the price shall be reduced accordingly and the contract shall be
modified to reflect the reduction. This right to a price reduction is
limited to that resulting from defects in data relating to modifications
for which this clause becomes operative under paragraph (a) above.
(c) Any reduction in the contract price under paragraph (b) above
due to defective data from a prospective subcontractor that was not
subsequently awarded the subcontract shall be limited to the amount,
plus applicable overhead and profit markup, by which (1) the actual
subcontract or (2) the actual cost to the Contractor, if there was no
subcontract, was less than the prospective subcontract cost estimate
submitted by the Contractor; provided, that the actual subcontract price
was not itself affected by defective cost or pricing data.
(d)(1) If the Contracting Officer determines under paragraph (b) of
this clause that a price or cost reduction should be made, the
Contractor agrees not to raise the following matters as a defense--
(i) The Contractor or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the price of
the contract would not have been modified even if accurate, complete,
and current cost or pricing data had been submitted;
(ii) The Contracting Officer should have known that the cost or
pricing data in issue were defective even though the Contractor or
subcontractor took no affirmative action to bring the character of the
data to the attention of the Contracting Officer;
(iii) The contract was based on an agreement about the total cost of
the contract and there was no agreement about the cost of each item
procured under the contract; or
(iv) The Contractor or subcontractor did not submit a Certificate of
Current Cost or Pricing Data.
(2)(i) Except as prohibited by subdivision (d)(2)(ii) of this
clause, an offset in an amount determined appropriate by the Contracting
Officer based upon the facts shall be allowed against the amount of a
contract price reduction if--
(A) The Contractor certifies to the Contracting Officer that, to the
best of the Contractor's knowledge and belief, the Contractor is
entitled to the offset in the amount requested; and
(B) The Contractor proves that the cost or pricing data were
available before the date of agreement on the price of the contract (or
price of the modification) and that the data were not submitted before
such date.
(ii) An offset shall not be allowed if--
(A) The understated data was known by the Contractor to be
understated when the Certificate of Current Cost or Pricing Data was
signed; or
(B) The Government proves that the facts demonstrate that the
contract price would not have increased in the amount to be offset even
if the available data had been submitted before the date of agreement on
price.
(e) If any reduction in the contract price under this clause reduces
the price of items for which payment was made prior to the date of the
modification reflecting the price reduction, the Contractor shall be
liable to and shall pay the United States at the time such overpayment
is repaid--
(1) Simple interest on the amount of such overpayment to be computed
from the date(s) of overpayment to the Contractor to the date the
Government is repaid by the Contractor at the applicable underpayment
rate effective for each quarter prescribed by the Secretary of the
Treasury under 26 U.S.C. 6621(a)(2); and
(2) A penalty equal to the amount of the overpayment, if the
Contractor or subcontractor knowingly submitted cost or pricing
[[Page 66]]
data which were incomplete, inaccurate, or noncurrent.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 53 FR 10830, Apr. 1, 1988; 55 FR 52797, Dec.
21, 1990; 56 FR 67415, Dec. 30, 1991; 60 FR 48218, Sept. 18, 1995; 62 FR
51271, Sept. 30, 1997]
52.214-28 Subcontractor Cost or Pricing Data--Modifications--Sealed Bidding.
As prescribed in 14.201-7(c), insert the following clause:
Subcontractor Cost or Pricing Data--Modifications--Sealed Bidding (OCT
1997)
(a) The requirements of paragraphs (b) and (c) of this clause shall
(1) become operative only for any modification to this contract
involving aggregate increases and/or decreases in costs, plus applicable
profits, expected to exceed the threshold for submission of cost or
pricing data at (FAR) 48 CFR 15.403-4(a)(1), and (2) be limited to such
modifications.
(b) Before awarding any subcontract expected to exceed the threshold
for submission of cost or pricing data at FAR 15.403-4(a)(1), on the
date of agreement on price or the date of award, whichever is later; or
before pricing any subcontract modifications involving aggregate
increases and/or decreases in costs, plus applicable profits, expected
to exceed the threshold for submission of cost or pricing data at FAR
15.403-4(a)(1), the Contractor shall require the subcontractor to submit
cost or pricing data (actually or by specific identification in
writing), unless an exception under FAR 15.403-1(b) applies.
(c) The Contractor shall require the subcontractor to certify in
substantially the form prescribed in subsection 15.406-2 of the Federal
Acquisition Regulation that, to the best of its knowledge and belief,
the data submitted under paragraph (b) above were accurate, complete,
and current as of the date of agreement on the negotiated price of the
subcontract or subcontract modification.
(d) The Contractor shall insert the substance of this clause,
including this paragraph (d), in each subcontract that, when entered
into, exceeds the threshold for submission of cost or pricing data at
FAR 15.403-4(a)(1).
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 56 FR 67415, Dec. 30, 1991; 59 FR 62499,
Dec. 5, 1994; 60 FR 48218, Sept. 18, 1995; 62 FR 51271, Sept. 30, 1997]
52.214-29 Order of Precedence--Sealed Bidding.
As prescribed in 14.201-7(d), insert the following clause:
Order of Precedence--Sealed Bidding (JAN 1986)
Any inconsistency in this solicitation or contract shall be resolved
by giving precedence in the following order: (a) the Schedule (excluding
the specifications); (b) representations and other instructions; (c)
contract clauses; (d) other documents, exhibits, and attachments; and
(e) the specifications.
(End of clause)
[51 FR 2666, Jan. 17, 1986, as amended at 60 FR 48218, Sept. 18, 1995]
52.214-30 Annual Representations and Certifications--Sealed Bidding.
As prescribed in 14.201-6(u), insert the following provision:
Annual Representations and Certifications--Sealed Bidding (JAN 1997)
The bidder has (check the appropriate block):
[squ] (a) Submitted to the contracting office issuing this
solicitation, annual representations and certifications dated ------
[insert date of signature on submission], which are incorporated herein
by reference, and are current, accurate, and complete as of the date of
this bid, except as follows [insert changes that affect only this
solicitation; if ``none,'' so state]:
________________________________________________________________________
[squ] (b) Enclosed its annual representations and certifications.
(End of provision)
[62 FR 238, Jan. 2, 1997]
52.214-31 Facsimile Bids.
As prescribed in 14.201-6(v), insert the following provision:
Facsimile Bids (DEC 1989)
(a) Definition. Facsimile bid, as used in this solicitation, means a
bid, modification of a
[[Page 67]]
bid, or withdrawal of a bid that is transmitted to and received by the
Government via electronic equipment that communicates and reproduces
both printed and handwritten material.
(b) Bidders may submit facsimile bids as responses to this
solicitation. These responses must arrive at the place and by the time,
specified in the solicitation.
(c) Facsimile bids that fail to furnish required representations or
information or that reject any of the terms, conditions, and provisions
of the solicitation may be excluded from consideration.
(d) Facsimile bids must contain the required signatures.
(e) The Government reserves the right to make award solely on the
facsimile bid. However, if requested to do so by the Contracting
Officer, the apparently successful bidder agrees to promptly submit the
complete original signed bid.
(f) Facsimile receiving data and compatibility characteristics are
as follows:
(1) Telephone number of receiving facsimile equipment:
________________________________________________________________________
(2) Compatibility characteristics of receiving facsimile equipment
(e.g., make and model number, receiving speed, communications protocol):
________________________________________________________________________
________________________________________________________________________
(g) If the bidder chooses to transmit a facsimile bid, the
Government will not be responsible for any failure attributable to the
transmission or receipt of the facsimile bid including, but not limited
to, the following:
(1) Receipt of garbled or incomplete bid.
(2) Availability or condition of the receiving facsimile equipment.
(3) Incompatibility between the sending and receiving equipment.
(4) Delay in transmission or receipt of bid.
(5) Failure of the bidder to properly identify the bid.
(6) Illegibility of bid.
(7) Security of bid data.
(End of provision)
[54 FR 48992, Nov. 28, 1989, as amended at 64 FR 51841, Sept. 24, 1999]
52.214-32 Late Submissions, Modifications, and Withdrawals of Bids (Overseas).
As prescribed in 14.201-6(c)(4), insert the following provision:
Late Submissions, Modifications, and Withdrawals of Bids (Overseas) (MAY
1997)
(a) Any bid received at the office designated in the solicitation
after the exact time specified for receipt will not be considered unless
it is received before award is made and it--
(1) Was sent by mail (or telegram or facsimile, if authorized) or
hand-carried (including delivery by a commercial carrier) if it is
determined by the Government that the late receipt was due primarily to
Government mishandling after receipt at the Government installation; or
(2) Was transmitted through an electronic commerce method authorized
by the solicitation and was received at the initial point of entry to
the Government infrastructure not later than 5:00 p.m. one working day
prior to the date specified for receipt of bids. The term working day
excludes weekends and U.S. Federal holidays.
(b) Any modification or withdrawal of a bid is subject to the same
conditions as in paragraph (a) of this provision.
(c) The only acceptable evidence to establish the time of receipt at
the Government installation is the time/date stamp of that installation
on the bid wrapper or other documentary evidence of receipt maintained
by the installation.
(d) Notwithstanding paragraph (a) of this provision, a late
modification of an otherwise successful bid that makes its terms more
favorable to the Government will be considered at any time it is
received and may be accepted.
(e) Bids may be withdrawn by written notice or telegram (including
mailgram) received at any time before the exact time set for receipt of
bids. If the solicitation authorizes facsimile bids, bids may be
withdrawn via facsimile received at any time before the exact time set
for receipt of bids, subject to the conditions specified in the
provision entitled Facsimile Bids. A bid may be withdrawn in person by a
bidder or its authorized representative if, before the exact time set
for receipt of bids, the identity of the person requesting withdrawal is
established and that person signs a receipt for the bid.
(f) If an emergency or unanticipated event interrupts normal
Government processes so as to cause postponement of the scheduled bid
opening, and urgent Government requirements preclude amendment of the
solicitation or other notice of an extension of the opening date, the
time specified for receipt of bids will be deemed to be extended to the
same time of day specified in the solicitation on the first work day on
which normal Government processes resume.
(End of provision)
[54 FR 48992, Nov. 28, 1989, as amended at 60 FR 34740, July 3, 1995; 61
FR 31620, June 20, 1996; 61 FR 69293, Dec. 31, 1996; 62 FR 12693, Mar.
17, 1997]
[[Page 68]]
52.214-33 Late Submissions, Modifications, and Withdrawals of Technical Proposals Under Two-Step Sealed Bidding (Overseas).
As prescribed in 14.201-6(v), insert the following provision:
Late Submissions, Modifications, and Withdrawals of Technical Proposals
Under Two-Step Sealed Bidding (Overseas) (MAY 1997)
(a) Any technical proposal under step one of two-step sealed bidding
received at the office designated in this solicitation after the exact
time specified for receipt will not be considered unless it is received
before the invitation for bids in step two is issued and it--
(1) Was sent by mail (or telegram or facsimile, if authorized) or
hand-carried (including delivery by a commercial carrier) if it is
determined by the Government that the late receipt was due primarily to
Government mishandling after receipt at the Government installation;
(2) Was transmitted through an electronic commerce method authorized
by the solicitation and was received at the initial point of entry to
the Government infrastructure not later than 5:00 p.m. one working day
prior to the date specified for receipt of technical proposals. The term
working day excludes weekends and U.S. Federal holidays; or
(3) Is the only technical proposal received.
(b) Any modification of a technical proposal is subject to the same
conditions as in paragraph (a) of this provision, except that (1) the
use of a telegram (or mailgram) is authorized, and (2) if the
solicitation authorizes facsimile bids, technical proposals may be
modified via facsimile received at any time before the exact time set
for receipt of bids under step two, subject to the conditions specified
in the provision entitled Facsimile Bids.
(c) Technical proposals may be withdrawn by written notice or
telegram (including mailgram) received at any time before the exact time
set for receipt of bids under step two. If the solicitation authorizes
facsimile bids, technical proposals may be withdrawn via facsimile
received at any time before the exact time set for receipt of bids under
step two, subject to the conditions specified in the provision entitled
Facsimile Bids. Technical proposals may be withdrawn in person by the
submitter or the submitter's authorized representative if, before the
exact time set for receipt of bids in step two, the identity of the
person requesting withdrawal is established and that person signs a
receipt for the technical proposal.
(d) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the proposal wrapper, other documentary evidence of
receipt maintained by the installation, or oral testimony or statements
of Government personnel.
(e) If an emergency or unanticipated event interrupts normal
Government processes so that technical proposals cannot be received at
the office designated for receipt of technical proposals by the exact
time specified in the solicitation, and urgent Government requirements
preclude amendment of the solicitation or other notice of an extension
of the closing date, the time specified for receipt of technical
proposals will be deemed to be extended to the same time of day
specified in the solicitation on the first work day on which normal
Government processes resume. If no time is specified in the
solicitation, the time for receipt is 4:30 p.m., local time, for the
designated Government office.
(End of provision)
[54 FR 48992, Nov. 28, 1989, as amended at 60 FR 34740, July 3, 1995; 61
FR 31620, June 20, 1996; 61 FR 69293, Dec. 31, 1996; 62 FR 12693, Mar.
17, 1997]
52.214-34 Submission of Offers in the English Language.
As prescribed in 14.201-6(w), insert the following provision:
Submission of Offers in the English Language (APR 1991)
Offers submitted in response to this solicitation shall be in the
English language. Offers received in other than English shall be
rejected.
(End of provision)
[56 FR 15155, Apr. 15, 1991, as amended at 56 FR 33487, July 22, 1991;
58 FR 31143, May 28, 1993; 62 FR 51271, Sept. 30, 1997; 64 FR 51841,
Sept. 24, 1999; 64 FR 72433, Dec. 27, 1999]
52.214-35 Submission of Offers in U.S. Currency.
As prescribed in 14.201-6(x), insert the following provision:
Submission of Offers in U.S. Currency (APR 1991)
Offers submitted in response to this solicitation shall be in terms
of U.S. dollars. Offers received in other than U.S. dollars shall be
rejected.
[[Page 69]]
(End of provision)
[56 FR 15155, Apr. 15, 1991, as amended at 58 FR 31143, May 28, 1993; 62
FR 51271, Sept. 30, 1997; 64 FR 51841, Sept. 24, 1999; 64 FR 72433, Dec.
27, 1999]
52.215-1 Instructions to Offerors--Competitive Acquisition.
As prescribed in 15.209(a), insert the following provision:
Instructions to Offerors--Competitive Acquisitions (MAY 2001)
(a) Definitions. As used in this provision--
Discussions are negotiations that occur after establishment of the
competitive range that may, at the Contracting Officer's discretion,
result in the offeror being allowed to revise its proposal.
In writing, writing, or written means any worded or numbered
expression that can be read, reproduced, and later communicated, and
includes electronically transmitted and stored information.
Proposal modification is a change made to a proposal before the
solicitation's closing date and time, or made in response to an
amendment, or made to correct a mistake at any time before award.
Proposal revision is a change to a proposal made after the
solicitation closing date, at the request of or as allowed by a
Contracting Officer as the result of negotiations.
Time, if stated as a number of days, is calculated using calendar
days, unless otherwise specified, and will include Saturdays, Sundays,
and legal holidays. However, if the last day falls on a Saturday,
Sunday, or legal holiday, then the period shall include the next working
day.
(b) Amendments to solicitations. If this solicitation is amended,
all terms and conditions that are not amended remain unchanged. Offerors
shall acknowledge receipt of any amendment to this solicitation by the
date and time specified in the amendment(s).
(c) Submission, modification, revision, and withdrawal of proposals.
(1) Unless other methods (e.g., electronic commerce or facsimile) are
permitted in the solicitation, proposals and modifications to proposals
shall be submitted in paper media in sealed envelopes or packages (i)
addressed to the office specified in the solicitation, and (ii) showing
the time and date specified for receipt, the solicitation number, and
the name and address of the offeror. Offerors using commercial carriers
should ensure that the proposal is marked on the outermost wrapper with
the information in paragraphs (c)(1)(i) and (c)(1)(ii) of this
provision.
(2) The first page of the proposal must show--
(i) The solicitation number;
(ii) The name, address, and telephone and facsimile numbers of the
offeror (and electronic address if available);
(iii) A statement specifying the extent of agreement with all terms,
conditions, and provisions included in the solicitation and agreement to
furnish any or all items upon which prices are offered at the price set
opposite each item;
(iv) Names, titles, and telephone and facsimile numbers (and
electronic addresses if available) of persons authorized to negotiate on
the offeror's behalf with the Government in connection with this
solicitation; and
(v) Name, title, and signature of person authorized to sign the
proposal. Proposals signed by an agent shall be accompanied by evidence
of that agent's authority, unless that evidence has been previously
furnished to the issuing office.
(3) Submission, modification, revision, and withdrawal of proposals.
(i) Offerors are responsible for submitting proposals, and any
modifications or revisions, so as to reach the Government office
designated in the solicitation by the time specified in the
solicitation. If no time is specified in the solicitation, the time for
receipt is 4:30 p.m., local time, for the designated Government office
on the date that proposal or revision is due.
(ii)(A) Any proposal, modification, or revision, received at the
Government office designated in the solicitation after the exact time
specified for receipt of offers is ``late'' and will not be considered
unless it is received before award is made, the Contracting Officer
determines that accepting the late offer would not unduly delay the
acquisition; and--
(1) If it was transmitted through an electronic commerce method
authorized by the solicitation, it was received at the initial point of
entry to the Government infrastructure not later than 5:00 p.m. one
working day prior to the date specified for receipt of proposals; or
(2) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of offers and was
under the Government's control prior to the time set for receipt of
offers; or
(3) It is the only proposal received.
(B) However, a late modification of an otherwise successful proposal
that makes its terms more favorable to the Government, will be
considered at any time it is received and may be accepted.
(iii) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the proposal wrapper, other documentary evidence of
receipt maintained by the installation, or oral testimony or statements
of Government personnel.
(iv) If an emergency or unanticipated event interrupts normal
Government processes so that proposals cannot be received at
[[Page 70]]
the office designated for receipt of proposals by the exact time
specified in the solicitation, and urgent Government requirements
preclude amendment of the solicitation, the time specified for receipt
of proposals will be deemed to be extended to the same time of day
specified in the solicitation on the first work day on which normal
Government processes resume.
(v) Proposals may be withdrawn by written notice received at any
time before award. Oral proposals in response to oral solicitations may
be withdrawn orally. If the solicitation authorizes facsimile proposals,
proposals may be withdrawn via facsimile received at any time before
award, subject to the conditions specified in the provision at 52.215-5,
Facsimile Proposals. Proposals may be withdrawn in person by an offeror
or an authorized representative, if the identity of the person
requesting withdrawal is established and the person signs a receipt for
the proposal before award.
(4) Unless otherwise specified in the solicitation, the offeror may
propose to provide any item or combination of items.
(5) Offerors shall submit proposals in response to this solicitation
in English, unless otherwise permitted by the solicitation, and in U.S.
dollars, unless the provision at FAR 52.225-17, Evaluation of Foreign
Currency Offers, is included in the solicitation.
(6) Offerors may submit modifications to their proposals at any time
before the solicitation closing date and time, and may submit
modifications in response to an amendment, or to correct a mistake at
any time before award.
(7) Offerors may submit revised proposals only if requested or
allowed by the Contracting Officer.
(8) Proposals may be withdrawn at any time before award. Withdrawals
are effective upon receipt of notice by the Contracting Officer.
(d) Offer expiration date. Proposals in response to this
solicitation will be valid for the number of days specified on the
solicitation cover sheet (unless a different period is proposed by the
offeror).
(e) Restriction on disclosure and use of data. Offerors that include
in their proposals data that they do not want disclosed to the public
for any purpose, or used by the Government except for evaluation
purposes, shall--
(1) Mark the title page with the following legend: This proposal
includes data that shall not be disclosed outside the Government and
shall not be duplicated, used, or disclosed--in whole or in part--for
any purpose other than to evaluate this proposal. If, however, a
contract is awarded to this offeror as a result of--or in connection
with-- the submission of this data, the Government shall have the right
to duplicate, use, or disclose the data to the extent provided in the
resulting contract. This restriction does not limit the Government's
right to use information contained in this data if it is obtained from
another source without restriction. The data subject to this restriction
are contained in sheets [insert numbers or other identification of
sheets]; and
(2) Mark each sheet of data it wishes to restrict with the following
legend: Use or disclosure of data contained on this sheet is subject to
the restriction on the title page of this proposal.
(f) Contract award. (1) The Government intends to award a contract
or contracts resulting from this solicitation to the responsible
offeror(s) whose proposal(s) represents the best value after evaluation
in accordance with the factors and subfactors in the solicitation.
(2) The Government may reject any or all proposals if such action is
in the Government's interest.
(3) The Government may waive informalities and minor irregularities
in proposals received.
(4) The Government intends to evaluate proposals and award a
contract without discussions with offerors (except clarifications as
described in FAR 15.306(a)). Therefore, the offeror's initial proposal
should contain the offeror's best terms from a cost or price and
technical standpoint. The Government reserves the right to conduct
discussions if the Contracting Officer later determines them to be
necessary. If the Contracting Officer determines that the number of
proposals that would otherwise be in the competitive range exceeds the
number at which an efficient competition can be conducted, the
Contracting Officer may limit the number of proposals in the competitive
range to the greatest number that will permit an efficient competition
among the most highly rated proposals.
(5) The Government reserves the right to make an award on any item
for a quantity less than the quantity offered, at the unit cost or
prices offered, unless the offeror specifies otherwise in the proposal.
(6) The Government reserves the right to make multiple awards if,
after considering the additional administrative costs, it is in the
Government's best interest to do so.
(7) Exchanges with offerors after receipt of a proposal do not
constitute a rejection or counteroffer by the Government.
(8) The Government may determine that a proposal is unacceptable if
the prices proposed are materially unbalanced between line items or
subline items. Unbalanced pricing exists when, despite an acceptable
total evaluated price, the price of one or more contract line items is
significantly overstated or understated as indicated by the application
of cost or price analysis techniques. A proposal may be rejected if the
Contracting Officer determines that the lack of balance
[[Page 71]]
poses an unacceptable risk to the Government.
(9) If a cost realism analysis is performed, cost realism may be
considered by the source selection authority in evaluating performance
or schedule risk.
(10) A written award or acceptance of proposal mailed or otherwise
furnished to the successful offeror within the time specified in the
proposal shall result in a binding contract without further action by
either party.
(11) The Government may disclose the following information in
postaward debriefings to other offerors:
(i) The overall evaluated cost or price and technical rating of the
successful offeror;
(ii) The overall ranking of all offerors, when any ranking was
developed by the agency during source selection;
(iii) A summary of the rationale for award; and
(iv) For acquisitions of commercial items, the make and model of the
item to be delivered by the successful offeror.
(End of provision)
Alternate I (Oct 1997). As prescribed in 15.209(a)(1), substitute
the following paragraph (f)(4) for paragraph (f)(4) of the basic
provision:
(f)(4) The Government intends to evaluate proposals and award a
contract after conducting discussions with offerors whose proposals have
been determined to be within the competitive range. If the Contracting
Officer determines that the number of proposals that would otherwise be
in the competitive range exceeds the number at which an efficient
competition can be conducted, the Contracting Officer may limit the
number of proposals in the competitive range to the greatest number that
will permit an efficient competition among the most highly rated
proposals. Therefore, the offeror's initial proposal should contain the
offeror's best terms from a price and technical standpoint.
Alternate II (Oct 1997). As prescribed in 15.209(a)(2), add a
paragraph (c)(9) substantially the same as the following to the basic
clause:
(9) Offerors may submit proposals that depart from stated
requirements. Such proposals shall clearly identify why the acceptance
of the proposal would be advantageous to the Government. Any deviations
from the terms and conditions of the solicitation, as well as the
comparative advantage to the Government, shall be clearly identified and
explicitly defined. The Government reserves the right to amend the
solicitation to allow all offerors an opportunity to submit revised
proposals based on the revised requirements.
[62 FR 51259, Sept. 30, 1997; 64 FR 51841, Sept. 24, 1999, as amended at
64 FR 72433, 72451, Dec. 27, 1999; 66 FR 2135, Jan. 10, 2001]
52.215-2 Audit and Records--Negotiation.
As prescribed in 15.209(b), insert the following clause:
Audit and Records--Negotiation (JUN 1999)
(a) As used in this clause, records includes books, documents,
accounting procedures and practices, and other data, regardless of type
and regardless of whether such items are in written form, in the form of
computer data, or in any other form.
(b) Examination of costs. If this is a cost-reimbursement,
incentive, time-and-materials, labor-hour, or price redeterminable
contract, or any combination of these, the Contractor shall maintain and
the Contracting Officer, or an authorized representative of the
Contracting Officer, shall have the right to examine and audit all
records and other evidence sufficient to reflect properly all costs
claimed to have been incurred or anticipated to be incurred directly or
indirectly in performance of this contract. This right of examination
shall include inspection at all reasonable times of the Contractor's
plants, or parts of them, engaged in performing the contract.
(c) Cost or pricing data. If the Contractor has been required to
submit cost or pricing data in connection with any pricing action
relating to this contract, the Contracting Officer, or an authorized
representative of the Contracting Officer, in order to evaluate the
accuracy, completeness, and currency of the cost or pricing data, shall
have the right to examine and audit all of the Contractor's records,
including computations and projections, related to--
(1) The proposal for the contract, subcontract, or modification;
(2) The discussions conducted on the proposal(s), including those
related to negotiating;
(3) Pricing of the contract, subcontract, or modification; or
(4) Performance of the contract, subcontract or modification.
(d) Comptroller General. (1) The Comptroller General of the United
States, or an authorized representative, shall have access to and the
right to examine any of the Contractor's directly pertinent records
involving transactions related to this contract or a subcontract
hereunder.
(2) This paragraph may not be construed to require the Contractor or
subcontractor to create or maintain any record that the Contractor or
subcontractor does not maintain
[[Page 72]]
in the ordinary course of business or pursuant to a provision of law.
(e) Reports. If the Contractor is required to furnish cost, funding,
or performance reports, the Contracting Officer or an authorized
representative of the Contracting Officer shall have the right to
examine and audit the supporting records and materials, for the purpose
of evaluating (1) the effectiveness of the Contractor's policies and
procedures to produce data compatible with the objectives of these
reports and (2) the data reported.
(f) Availability. The Contractor shall make available at its office
at all reasonable times the records, materials, and other evidence
described in paragraphs (a), (b), (c), (d), and (e) of this clause, for
examination, audit, or reproduction, until 3 years after final payment
under this contract or for any shorter period specified in Subpart 4.7,
Contractor Records Retention, of the Federal Acquisition Regulation
(FAR), or for any longer period required by statute or by other clauses
of this contract. In addition--
(1) If this contract is completely or partially terminated, the
Contractor shall make available the records relating to the work
terminated until 3 years after any resulting final termination
settlement; and
(2) The Contractor shall make available records relating to appeals
under the Disputes clause or to litigation or the settlement of claims
arising under or relating to this contract until such appeals,
litigation, or claims are finally resolved.
(g) The Contractor shall insert a clause containing all the terms of
this clause, including this paragraph (a), in all subcontracts under
this contract that exceed the simplified acquisition threshold and--
(1) That are cost-reimbursement, incentive, time-and-materials,
labor-hour, or price-redeterminable type or any combination of these;
(2) For which cost or pricing data are required; or
(3) That require the subcontractor to furnish reports as discussed
in paragraph (e) of this clause.
The clause may be altered only as necessary to identify properly the
contracting parties and the Contracting Officer under the Government
prime contract.
(End of clause)
Alternate I (JAN 1997). As prescribed in 15.209(b)(2), in facilities
contracts, add the following sentence at the end of paragraph (b) of the
basic clause:
The obligations and rights specified in this paragraph shall extend
to the use of, and charges for the use of, the facilities under this
contract.
Alternate II (APR 1998). As prescribed in 15.209(b)(3), add the
following paragraph (h) to the basic clause:
(h) The provisions of OMB Circular No. A-133, ``Audits of States,
Local Governments, and Nonprofit Organizations,'' apply to this
contract.
Alternate III (June 1999). As prescribed in 15.209(b)(4), delete
paragraph (d) of the basic clause and redesignate the remaining
paragraphs accordingly, and substitute the following paragraph (e) for
the redesignated paragraph (e) of the basic clause:
(e) Availability. The Contractor shall make available at its office
at all reasonable times the records, materials, and other evidence
described in paragraphs (a), (b), (c), and (d) of this clause, for
examination, audit, or reproduction, until 3 years after final payment
under this contract or for any shorter period specified in Subpart 4.7,
Contractor Records Retention, of the Federal Acquisition Regulation
(FAR), or for any longer period required by statute or by other clauses
of this contract. In addition--
(1) If this contract is completely or partially terminated, the
Contractor shall make available the records relating to the work
terminated until 3 years after any resulting final termination
settlement; and
(2) The Contractor shall make available records relating to appeals
under the Disputes clause or to litigation or the settlement of claims
arising under or relating to this contract until such appeals,
litigation, or claims are finally resolved.
[60 FR 42651, Aug. 16, 1995, as amended at 61 FR 39198, July 26, 1996;
62 FR 259, Jan. 2, 1997; 62 FR 51271, Sept. 30, 1997; 63 FR 9055, Feb.
23, 1998; 64 FR 32749, June 17, 1999]
52.215-3 Request for Information or Solicitation for Planning Purposes.
As prescribed in 15.209(c), insert the following provision:
Request for Information or Solicitation for Planning Purposes (OCT 1997)
(a) The Government does not intend to award a contract on the basis
of this solicitation or to otherwise pay for the information solicited
except as an allowable cost under other contracts as provided in
subsection 31.205-18, Bid and proposal costs, of the Federal Acquisition
Regulation.
(b) Although ``proposal'' and ``offeror'' are used in this Request
for Information, your response will be treated as information only. It
shall not be used as a proposal.
(c) This solicitation is issued for the purpose of: [state purpose].
[[Page 73]]
(End of provision)
[62 FR 51261, Sept. 30, 1997]
52.215-4 [Reserved]
52.215-5 Facsimile Proposals.
As prescribed in 15.209(e), insert the following provision:
Facsimile Proposals (OCT 1997)
(a) Definition. Facsimile proposal, as used in this provision, means
a proposal, revision or modification of a proposal, or withdrawal of a
proposal that is transmitted to and received by the Government via
facsimile machine.
(b) Offerors may submit facsimile proposals as responses to this
solicitation. Facsimile proposals are subject to the same rules as paper
proposals.
(c) The telephone number of receiving facsimile equipment is:
[insert telephone number].
(d) If any portion of a facsimile proposal received by the
Contracting Officer is unreadable to the degree that conformance to the
essential requirements of the solicitation cannot be ascertained from
the document--
(1) The Contracting Officer immediately shall notify the offeror and
permit the offeror to resubmit the proposal;
(2) The method and time for resubmission shall be prescribed by the
Contracting Officer after consultation with the offeror; and
(3) The resubmission shall be considered as if it were received at
the date and time of the original unreadable submission for the purpose
of determining timeliness, provided the offeror complies with the time
and format requirements for resubmission prescribed by the Contracting
Officer.
(e) The Government reserves the right to make award solely on the
facsimile proposal. However, if requested to do so by the Contracting
Officer, the apparently successful offeror promptly shall submit the
complete original signed proposal.
(End of provision)
[62 FR 51261, Sept. 30, 1997]
52.215-6 Place of Performance.
As prescribed in 15.209(f), insert the following provision:
Place of Performance (OCT 1997)
(a) The offeror or respondent, in the performance of any contract
resulting from this solicitation, [squ] intends, [squ] does not intend
[check applicable block] to use one or more plants or facilities located
at a different address from the address of the offeror or respondent as
indicated in this proposal or response to request for information.
(b) If the offeror or respondent checks ``intends'' in paragraph (a)
of this provision, it shall insert in the following spaces the required
information:
------------------------------------------------------------------------
Place of performance (street Name and address of owner and
address, city, state, county, zip operator of the plant or facility
code) if other than offeror or respondent
------------------------------------------------------------------------
------------------------------------------------------------------------
(End of provision)
[62 FR 51261, Sept. 30, 1997]
52.215-7 Annual Representations and Certifications--Negotiation.
As prescribed in 15.209(g), insert the following provision:
Annual Representations and Certifications--Negotiation (OCT 1997)
The offeror has [check the appropriate block]:
[squ] (a) Submitted to the contracting office issuing this
solicitation, annual representations and certifications dated ------
[insert date of signature on submission] that are incorporated herein by
reference, and are current, accurate, and complete as of the date of
this proposal, except as follows [insert changes that affect only this
proposal; if ``none,'' so state]:
[squ] (b) Enclosed its annual representations and certifications.
(End of provision)
[62 FR 51261, Sept. 30, 1997]
52.215-8 Order of Precedence--Uniform Contract Format.
As prescribed in 15.209(h), insert the following clause:
Order of Precedence--Uniform Contract Format (OCT 1997)
Any inconsistency in this solicitation or contract shall be resolved
by giving precedence in the following order:
(a) The Schedule (excluding the specifications).
(b) Representations and other instructions.
(c) Contract clauses.
(d) Other documents, exhibits, and attachments.
(e) The specifications.
[[Page 74]]
(End of clause)
[62 FR 51261, Sept. 30, 1997]
52.215-9 Changes or Additions to Make-or-Buy Program.
As prescribed in 15.408(a), insert the following clause:
Changes or Additions to Make-or-Buy Program (OCT 1997)
(a) The Contractor shall perform in accordance with the make-or-buy
program incorporated in this contract. If the Contractor proposes to
change the program, the Contractor shall, reasonably in advance of the
proposed change, (1) notify the Contracting Officer in writing, and (2)
submit justification in sufficient detail to permit evaluation. Changes
in the place of performance of any ``make'' items in the program are
subject to this requirement.
(b) For items deferred at the time of negotiation of this contract
for later addition to the program, the Contractor shall, at the earliest
possible time--
(1) Notify the Contracting Officer of each proposed addition; and
(2) Provide justification in sufficient detail to permit evaluation.
(c) Modification of the make-or-buy program to incorporate proposed
changes or additions shall be effective upon the Contractor's receipt of
the Contracting Officer's written approval.
(End of clause)
Alternate I (Oct 1997). As prescribed in 15.408(a)(1) add the
following paragraph (d) to the basic clause:
(d) If the Contractor desires to reverse the categorization of
``make'' or ``buy'' for any item or items designated in the contract as
subject to this paragraph, it shall--
(1) Support its proposal with cost or pricing data when permitted
and necessary to support evaluation; and
(2) After approval is granted, promptly negotiate with the
Contracting Officer an equitable reduction in the contract price in
accordance with paragraph (k) of the Incentive Price Revision--Firm
Target clause or paragraph (m) of the Incentive Price Revision--
Successive Targets clause of this contract.
Alternate II (Oct 1997). As prescribed in 15.408(a)(2), add the
following paragraph (d) to the basic clause:
(d) If the Contractor desires to reverse the categorization of
``make'' or ``buy'' for any item or items designated in the contract as
subject to this paragraph, it shall--
(1) Support its proposal with cost or pricing data to permit
evaluation; and
(2) After approval is granted, promptly negotiate with the
Contracting Officer an equitable reduction in the contract's total
estimated cost and fee in accordance with paragraph (e) of the Incentive
Fee clause of this contract.
[62 FR 51261, Sept. 30, 1997]
52.215-10 Price Reduction for Defective Cost or Pricing Data.
As prescribed in 15.408(b), insert the following clause:
Price Reduction for Defective Cost or Pricing Data (OCT 1997)
(a) If any price, including profit or fee, negotiated in connection
with this contract, or any cost reimbursable under this contract, was
increased by any significant amount because--
(1) The Contractor or a subcontractor furnished cost or pricing data
that were not complete, accurate, and current as certified in its
Certificate of Current Cost or Pricing Data;
(2) A subcontractor or prospective subcontractor furnished the
Contractor cost or pricing data that were not complete, accurate, and
current as certified in the Contractor's Certificate of Current Cost or
Pricing Data; or
(3) Any of these parties furnished data of any description that were
not accurate, the price or cost shall be reduced accordingly and the
contract shall be modified to reflect the reduction.
(b) Any reduction in the contract price under paragraph (a) of this
clause due to defective data from a prospective subcontractor that was
not subsequently awarded the subcontract shall be limited to the amount,
plus applicable overhead and profit markup, by which--
(1) The actual subcontract; or
(2) The actual cost to the Contractor, if there was no subcontract,
was less than the prospective subcontract cost estimate submitted by the
Contractor; provided, that the actual subcontract price was not itself
affected by defective cost or pricing data.
(c)(1) If the Contracting Officer determines under paragraph (a) of
this clause that a price or cost reduction should be made, the
Contractor agrees not to raise the following matters as a defense:
(i) The Contractor or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the price of
the contract would not have been modified even if accurate, complete,
and current cost or pricing data had been submitted.
(ii) The Contracting Officer should have known that the cost or
pricing data in issue
[[Page 75]]
were defective even though the Contractor or subcontractor took no
affirmative action to bring the character of the data to the attention
of the Contracting Officer.
(iii) The contract was based on an agreement about the total cost of
the contract and there was no agreement about the cost of each item
procured under the contract.
(iv) The Contractor or subcontractor did not submit a Certificate of
Current Cost or Pricing Data.
(2)(i) Except as prohibited by subdivision (c)(2)(ii) of this
clause, an offset in an amount determined appropriate by the Contracting
Officer based upon the facts shall be allowed against the amount of a
contract price reduction if--
(A) The Contractor certifies to the Contracting Officer that, to the
best of the Contractor's knowledge and belief, the Contractor is
entitled to the offset in the amount requested; and
(B) The Contractor proves that the cost or pricing data were
available before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data, and that the data were not submitted
before such date.
(ii) An offset shall not be allowed if--
(A) The understated data were known by the Contractor to be
understated before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data; or
(B) The Government proves that the facts demonstrate that the
contract price would not have increased in the amount to be offset even
if the available data had been submitted before the ``as of'' date
specified on its Certificate of Current Cost or Pricing Data.
(d) If any reduction in the contract price under this clause reduces
the price of items for which payment was made prior to the date of the
modification reflecting the price reduction, the Contractor shall be
liable to and shall pay the United States at the time such overpayment
is repaid--
(1) Simple interest on the amount of such overpayment to be computed
from the date(s) of overpayment to the Contractor to the date the
Government is repaid by the Contractor at the applicable underpayment
rate effective for each quarter prescribed by the Secretary of the
Treasury under 26 U.S.C. 6621(a)(2); and
(2) A penalty equal to the amount of the overpayment, if the
Contractor or subcontractor knowingly submitted cost or pricing data
that were incomplete, inaccurate, or noncurrent.
(End of clause)
[62 FR 51262, Sept. 30, 1997]
52.215-11 Price Reduction for Defective Cost or Pricing Data--Modifications.
As prescribed in 15.408(c), insert the following clause:
Price Reduction for Defective Cost or Pricing Data--Modifications (OCT
1997)
(a) This clause shall become operative only for any modification to
this contract involving a pricing adjustment expected to exceed the
threshold for submission of cost or pricing data at FAR 15.403-4, except
that this clause does not apply to any modification if an exception
under FAR 15.403-1 applies.
(b) If any price, including profit or fee, negotiated in connection
with any modification under this clause, or any cost reimbursable under
this contract, was increased by any significant amount because (1) the
Contractor or a subcontractor furnished cost or pricing data that were
not complete, accurate, and current as certified in its Certificate of
Current Cost or Pricing Data, (2) a subcontractor or prospective
subcontractor furnished the Contractor cost or pricing data that were
not complete, accurate, and current as certified in the Contractor's
Certificate of Current Cost or Pricing Data, or (3) any of these parties
furnished data of any description that were not accurate, the price or
cost shall be reduced accordingly and the contract shall be modified to
reflect the reduction. This right to a price reduction is limited to
that resulting from defects in data relating to modifications for which
this clause becomes operative under paragraph (a) of this clause.
(c) Any reduction in the contract price under paragraph (b) of this
clause due to defective data from a prospective subcontractor that was
not subsequently awarded the subcontract shall be limited to the amount,
plus applicable overhead and profit markup, by which--
(1) The actual subcontract; or
(2) The actual cost to the Contractor, if there was no subcontract,
was less than the prospective subcontract cost estimate submitted by the
Contractor; provided, that the actual subcontract price was not itself
affected by defective cost or pricing data.
(d)(1) If the Contracting Officer determines under paragraph (b) of
this clause that a price or cost reduction should be made, the
Contractor agrees not to raise the following matters as a defense:
(i) The Contractor or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the price of
the contract would not have been modified even if accurate, complete,
and current cost or pricing data had been submitted.
(ii) The Contracting Officer should have known that the cost or
pricing data in issue were defective even though the Contractor or
[[Page 76]]
subcontractor took no affirmative action to bring the character of the
data to the attention of the Contracting Officer.
(iii) The contract was based on an agreement about the total cost of
the contract and there was no agreement about the cost of each item
procured under the contract.
(iv) The Contractor or subcontractor did not submit a Certificate of
Current Cost or Pricing Data.
(2)(i) Except as prohibited by subdivision (d)(2)(ii) of this
clause, an offset in an amount determined appropriate by the Contracting
Officer based upon the facts shall be allowed against the amount of a
contract price reduction if--
(A) The Contractor certifies to the Contracting Officer that, to the
best of the Contractor's knowledge and belief, the Contractor is
entitled to the offset in the amount requested; and
(B) The Contractor proves that the cost or pricing data were
available before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data, and that the data were not submitted
before such date.
(ii) An offset shall not be allowed if--
(A) The understated data were known by the Contractor to be
understated before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data; or
(B) The Government proves that the facts demonstrate that the
contract price would not have increased in the amount to be offset even
if the available data had been submitted before the ``as of'' date
specified on its Certificate of Current Cost or Pricing Data.
(e) If any reduction in the contract price under this clause reduces
the price of items for which payment was made prior to the date of the
modification reflecting the price reduction, the Contractor shall be
liable to and shall pay the United States at the time such overpayment
is repaid--
(1) Simple interest on the amount of such overpayment to be computed
from the date(s) of overpayment to the Contractor to the date the
Government is repaid by the Contractor at the applicable underpayment
rate effective for each quarter prescribed by the Secretary of the
Treasury under 26 U.S.C. 6621(a)(2); and
(2) A penalty equal to the amount of the overpayment, if the
Contractor or subcontractor knowingly submitted cost or pricing data
that were incomplete, inaccurate, or noncurrent.
(End of clause)
[62 FR 51262, Sept. 30, 1997]
52.215-12 Subcontractor Cost or Pricing Data.
As prescribed in 15.408(d), insert the following clause:
Subcontractor Cost or Pricing Data (OCT 1997)
(a) Before awarding any subcontract expected to exceed the threshold
for submission of cost or pricing data at FAR 15.403-4, on the date of
agreement on price or the date of award, whichever is later; or before
pricing any subcontract modification involving a pricing adjustment
expected to exceed the threshold for submission of cost or pricing data
at FAR 15.403-4, the Contractor shall require the subcontractor to
submit cost or pricing data (actually or by specific identification in
writing), unless an exception under FAR 15.403-1 applies.
(b) The Contractor shall require the subcontractor to certify in
substantially the form prescribed in FAR 15.406-2 that, to the best of
its knowledge and belief, the data submitted under paragraph (a) of this
clause were accurate, complete, and current as of the date of agreement
on the negotiated price of the subcontract or subcontract modification.
(c) In each subcontract that exceeds the threshold for submission of
cost or pricing data at FAR 15.403-4, when entered into, the Contractor
shall insert either--
(1) The substance of this clause, including this paragraph (c), if
paragraph (a) of this clause requires submission of cost or pricing data
for the subcontract; or
(2) The substance of the clause at FAR 52.215-13, Subcontractor Cost
or Pricing Data--Modifications.
(End of clause)
[62 FR 51263, Sept. 30, 1997]
52.215-13 Subcontractor Cost or Pricing Data--Modifications.
As prescribed in 15.408(e), insert the following clause:
Subcontractor Cost or Pricing Data--Modifications (OCT 1997)
(a) The requirements of paragraphs (b) and (c) of this clause shall-
-
(1) Become operative only for any modification to this contract
involving a pricing adjustment expected to exceed the threshold for
submission of cost or pricing data at FAR 15.403-4; and
(2) Be limited to such modifications.
(b) Before awarding any subcontract expected to exceed the threshold
for submission of cost or pricing data at FAR 15.403-4, on the date of
agreement on price or the date
[[Page 77]]
of award, whichever is later; or before pricing any subcontract
modification involving a pricing adjustment expected to exceed the
threshold for submission of cost or pricing data at FAR 15.403-4, the
Contractor shall require the subcontractor to submit cost or pricing
data (actually or by specific identification in writing), unless an
exception under FAR 15.403-1 applies.
(c) The Contractor shall require the subcontractor to certify in
substantially the form prescribed in FAR 15.406-2 that, to the best of
its knowledge and belief, the data submitted under paragraph (b) of this
clause were accurate, complete, and current as of the date of agreement
on the negotiated price of the subcontract or subcontract modification.
(d) The Contractor shall insert the substance of this clause,
including this paragraph (d), in each subcontract that exceeds the
threshold for submission of cost or pricing data at FAR 15.403-4 on the
date of agreement on price or the date of award, whichever is later.
(End of clause)
[62 FR 51263, Sept. 30, 1997]
52.215-14 Integrity of Unit Prices.
As prescribed in 15.408(f)(1), insert the following clause:
Integrity of Unit Prices (OCT 1997)
(a) Any proposal submitted for the negotiation of prices for items
of supplies shall distribute costs within contracts on a basis that
ensures that unit prices are in proportion to the items' base cost
(e.g., manufacturing or acquisition costs). Any method of distributing
costs to line items that distorts unit prices shall not be used. For
example, distributing costs equally among line items is not acceptable
except when there is little or no variation in base cost. Nothing in
this paragraph requires submission of cost or pricing data not otherwise
required by law or regulation.
(b) When requested by the Contracting Officer, the Offeror/
Contractor shall also identify those supplies that it will not
manufacture or to which it will not contribute significant value.
(c) The Contractor shall insert the substance of this clause, less
paragraph (b), in all subcontracts for other than: acquisitions at or
below the simplified acquisition threshold in FAR Part 2; construction
or architect-engineer services under FAR Part 36; utility services under
FAR Part 41; services where supplies are not required; commercial items;
and petroleum products.
(End of clause)
Alternate I (Oct 1997). As prescribed in 15.408(f)(2), substitute
the following paragraph (b) for paragraph (b) of the basic clause:
(b) The Offeror/Contractor shall also identify those supplies that
it will not manufacture or to which it will not contribute significant
value.
[62 FR 51263, Sept. 30, 1997]
52.215-15 Pension adjustments and asset reversions.
As prescribed in 15.408(g), insert the following clause:
Pension Adjustments and Asset Reversions (DEC 1998)
(a) The Contractor shall promptly notify the Contracting Officer in
writing when it determines that it will terminate a defined-benefit
pension plan or otherwise recapture such pension fund assets.
(b) For segment closings, pension plan terminations, or curtailment
of benefits, the adjustment amount shall be the amount measured,
assigned, and allocated in accordance with 48 CFR 9904.413-50(c)(12) for
contracts and subcontracts that are subject to Cost Accounting Standards
(CAS) Board rules and regulations (48 CFR Chapter 99). For contracts and
subcontracts that are not subject to CAS, the adjustment amount shall be
the amount measured, assigned, and allocated in accordance with 48 CFR
9904.413-50(c)(12), except the numerator of the fraction at 48 CFR
9904.413-50(c)(12)(vi) shall be the sum of the pension plan costs
allocated to all non-CAS-covered contracts and subcontracts that are
subject to Federal Acquisition Regulation (FAR) Subpart 31.2 or for
which cost or pricing data were submitted.
(c) For all other situations where assets revert to the Contractor,
or such assets are constructively received by it for any reason, the
Contractor shall, at the Government's option, make a refund or give a
credit to the Government for its equitable share of the gross amount
withdrawn. The Government's equitable share shall reflect the
Government's participation in pension costs through those contracts for
which cost or pricing data were submitted or that are subject to FAR
Subpart 31.2.
(d) The Contractor shall include the substance of this clause in all
subcontracts under this contract that meet the applicability requirement
of FAR 15.408(g).
(End of clause)
[63 FR 58598, Oct. 30, 1998]
[[Page 78]]
52.215-16 Facilities Capital Cost of Money.
As prescribed in 15.408(h), insert the following provision:
Facilities Capital Cost of Money (OCT 1997)
(a) Facilities capital cost of money will be an allowable cost under
the contemplated contract, if the criteria for allowability in
subparagraph 31.205-10(a)(2) of the Federal Acquisition Regulation are
met. One of the allowability criteria requires the prospective
contractor to propose facilities capital cost of money in its offer.
(b) If the prospective Contractor does not propose this cost, the
resulting contract will include the clause Waiver of Facilities Capital
Cost of Money.
(End of provision)
[52 FR 35669, Sept. 22, 1987. Redesignated and amended at 62 FR 51263,
Sept. 30, 1997]
52.215-17 Waiver of Facilities Capital Cost of Money.
As prescribed in 15.408(i), insert the following clause:
Waiver of Facilities Capital Cost of Money (OCT 1997)
The Contractor did not include facilities capital cost of money as a
proposed cost of this contract. Therefore, it is an unallowable cost
under this contract.
(End of clause)
[52 FR 35669, Sept. 22, 1987. Redesignated and amended at 62 FR 51263,
Sept. 30, 1997]
52.215-18 Reversion or Adjustment of Plans for Postretirement Benefits (PRB) Other Than Pensions.
As prescribed in 15.408(j), insert the following clause:
Reversion or Adjustment of Plans for Postretirement Benefits (PRB) Other
Than Pensions (OCT 1997)
The Contractor shall promptly notify the Contracting Officer in
writing when it determines that it will terminate or reduce a PRB plan.
If PRB fund assets revert, or inure, to the Contractor or are
constructively received by it under a plan termination or otherwise, the
Contractor shall make a refund or give a credit to the Government for
its equitable share as required by FAR 31.205-6(o)(6). The Contractor
shall include the substance of this clause in all subcontracts under
this contract that meet the applicability requirements of FAR 15.408(j).
(End of clause)
[62 FR 51263, Sept. 30, 1997]
52.215-19 Notification of Ownership Changes.
As prescribed in 15.408(k), insert the following clause:
Notification of Ownership Changes (OCT 1997)
(a) The Contractor shall make the following notifications in
writing:
(1) When the Contractor becomes aware that a change in its ownership
has occurred, or is certain to occur, that could result in changes in
the valuation of its capitalized assets in the accounting records, the
Contractor shall notify the Administrative Contracting Officer (ACO)
within 30 days.
(2) The Contractor shall also notify the ACO within 30 days whenever
changes to asset valuations or any other cost changes have occurred or
are certain to occur as a result of a change in ownership.
(b) The Contractor shall--
(1) Maintain current, accurate, and complete inventory records of
assets and their costs;
(2) Provide the ACO or designated representative ready access to the
records upon request;
(3) Ensure that all individual and grouped assets, their capitalized
values, accumulated depreciation or amortization, and remaining useful
lives are identified accurately before and after each of the
Contractor's ownership changes; and
(4) Retain and continue to maintain depreciation and amortization
schedules based on the asset records maintained before each Contractor
ownership change.
(c) The Contractor shall include the substance of this clause in all
subcontracts under this contract that meet the applicability requirement
of FAR 15.408(k).
(End of clause)
[62 FR 51264, Sept. 30, 1997]
52.215-20 Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data.
As prescribed in 15.408(l), insert the following provision:
Requirements for Cost or Pricing Data or Information Other Than Cost or
Pricing Data (OCT 1997)
(a) Exceptions from cost or pricing data. (1) In lieu of submitting
cost or pricing data,
[[Page 79]]
offerors may submit a written request for exception by submitting the
information described in the following subparagraphs. The Contracting
Officer may require additional supporting information, but only to the
extent necessary to determine whether an exception should be granted,
and whether the price is fair and reasonable.
(i) Identification of the law or regulation establishing the price
offered. If the price is controlled under law by periodic rulings,
reviews, or similar actions of a governmental body, attach a copy of the
controlling document, unless it was previously submitted to the
contracting office.
(ii) Commercial item exception. For a commercial item exception, the
offeror shall submit, at a minimum, information on prices at which the
same item or similar items have previously been sold in the commercial
market that is adequate for evaluating the reasonableness of the price
for this acquisition. Such information may include--
(A) For catalog items, a copy of or identification of the catalog
and its date, or the appropriate pages for the offered items, or a
statement that the catalog is on file in the buying office to which the
proposal is being submitted. Provide a copy or describe current discount
policies and price lists (published or unpublished), e.g., wholesale,
original equipment manufacturer, or reseller. Also explain the basis of
each offered price and its relationship to the established catalog
price, including how the proposed price relates to the price of recent
sales in quantities similar to the proposed quantities;
(B) For market-priced items, the source and date or period of the
market quotation or other basis for market price, the base amount, and
applicable discounts. In addition, describe the nature of the market;
(C) For items included on an active Federal Supply Service Multiple
Award Schedule contract, proof that an exception has been granted for
the schedule item.
(2) The offeror grants the Contracting Officer or an authorized
representative the right to examine, at any time before award, books,
records, documents, or other directly pertinent records to verify any
request for an exception under this provision, and the reasonableness of
price. For items priced using catalog or market prices, or law or
regulation, access does not extend to cost or profit information or
other data relevant solely to the offeror's determination of the prices
to be offered in the catalog or marketplace.
(b) Requirements for cost or pricing data. If the offeror is not
granted an exception from the requirement to submit cost or pricing
data, the following applies:
(1) The offeror shall prepare and submit cost or pricing data and
supporting attachments in accordance with Table 15-2 of FAR 15.408.
(2) As soon as practicable after agreement on price, but before
contract award (except for unpriced actions such as letter contracts),
the offeror shall submit a Certificate of Current Cost or Pricing Data,
as prescribed by FAR 15.406-2.
(End of provision)
Alternate I (Oct 1997). As prescribed in 15.408(l), substitute the
following paragraph (b)(1) for paragraph (b)(1) of the basic provision:
(b)(1) The offeror shall submit cost or pricing data and supporting
attachments in the following format:
Alternate II (Oct 1997). As prescribed in 15.408(l), add the
following paragraph (c) to the basic provision:
(c) When the proposal is submitted, also submit one copy each to:
(1) the Administrative Contracting Officer, and (2) the Contract
Auditor.
Alternate III (Oct 1997). As prescribed in 15.408(l), add the
following paragraph (c) to the basic provision (if Alternate II is also
used, redesignate the following paragraph as paragraph (d)).
(c) Submit the cost portion of the proposal via the following
electronic media: [Insert media format, e.g., electronic spreadsheet
format, electronic mail, etc.]
Alternate IV (Oct 1997). As prescribed in 15.408(l), replace the
text of the basic provision with the following:
(a) Submission of cost or pricing data is not required.
(b) Provide information described below: [Insert description of the
information and the format that are required, including access to
records necessary to permit an adequate evaluation of the proposed price
in accordance with 15.403-3.]
[62 FR 51264, Sept. 30, 1997]
52.215-21 Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data--Modifications.
As prescribed in 15.408(m), insert the following clause:
Requirements for Cost or Pricing Data or Information Other Than Cost or
Pricing Data--Modifications (OCT 1997)
(a) Exceptions from cost or pricing data. (1) In lieu of submitting
cost or pricing data for modifications under this contract, for price
adjustments expected to exceed the threshold set forth at FAR 15.403-4
on the date of
[[Page 80]]
the agreement on price or the date of the award, whichever is later, the
Contractor may submit a written request for exception by submitting the
information described in the following subparagraphs. The Contracting
Officer may require additional supporting information, but only to the
extent necessary to determine whether an exception should be granted,
and whether the price is fair and reasonable--
(i) Identification of the law or regulation establishing the price
offered. If the price is controlled under law by periodic rulings,
reviews, or similar actions of a governmental body, attach a copy of the
controlling document, unless it was previously submitted to the
contracting office.
(ii) Information on modifications of contracts or subcontracts for
commercial items. (A) If--
(1) The original contract or subcontract was granted an exception
from cost or pricing data requirements because the price agreed upon was
based on adequate price competition or prices set by law or regulation,
or was a contract or subcontract for the acquisition of a commercial
item; and
(2) The modification (to the contract or subcontract) is not
exempted based on one of these exceptions, then the Contractor may
provide information to establish that the modification would not change
the contract or subcontract from a contract or subcontract for the
acquisition of a commercial item to a contract or subcontract for the
acquisition of an item other than a commercial item.
(B) For a commercial item exception, the Contractor shall provide,
at a minimum, information on prices at which the same item or similar
items have previously been sold that is adequate for evaluating the
reasonableness of the price of the modification. Such information may
include--
(1) For catalog items, a copy of or identification of the catalog
and its date, or the appropriate pages for the offered items, or a
statement that the catalog is on file in the buying office to which the
proposal is being submitted. Provide a copy or describe current discount
policies and price lists (published or unpublished), e.g., wholesale,
original equipment manufacturer, or reseller. Also explain the basis of
each offered price and its relationship to the established catalog
price, including how the proposed price relates to the price of recent
sales in quantities similar to the proposed quantities.
(2) For market-priced items, the source and date or period of the
market quotation or other basis for market price, the base amount, and
applicable discounts. In addition, describe the nature of the market.
(3) For items included on an active Federal Supply Service Multiple
Award Schedule contract, proof that an exception has been granted for
the schedule item.
(2) The Contractor grants the Contracting Officer or an authorized
representative the right to examine, at any time before award, books,
records, documents, or other directly pertinent records to verify any
request for an exception under this clause, and the reasonableness of
price. For items priced using catalog or market prices, or law or
regulation, access does not extend to cost or profit information or
other data relevant solely to the Contractor's determination of the
prices to be offered in the catalog or marketplace.
(b) Requirements for cost or pricing data. If the Contractor is not
granted an exception from the requirement to submit cost or pricing
data, the following applies:
(1) The Contractor shall submit cost or pricing data and supporting
attachments in accordance with Table 15-2 of FAR 15.408.
(2) As soon as practicable after agreement on price, but before
award (except for unpriced actions), the Contractor shall submit a
Certificate of Current Cost or Pricing Data, as prescribed by FAR
15.406-2.
(End of clause)
Alternate I (OCT 1997). As prescribed in 15.408(m), substitute the
following paragraph (b)(1) for paragraph (b)(1) of the basic clause.
(1) The Contractor shall submit cost or pricing data and supporting
attachments prepared in the following format:
Alternate II (OCT 1997). As prescribed in 15.408(m), add the
following paragraph (c) to the basic clause:
(c) When the proposal is submitted, also submit one copy each to:
(1) the Administrative Contracting Officer, and (2) the Contract
Auditor.
Alternate III (OCT 1997). As prescribed in 15.408(m), add the
following paragraph (c) to the basic clause (if Alternate II is also
used, redesignate the following paragraph as paragraph (d)):
(c) Submit the cost portion of the proposal via the following
electronic media: [Insert media format]
Alternate IV (OCT 1997). As prescribed in 15.408(m), replace the
text of the basic clause with the following:
(a) Submission of cost or pricing data is not required.
(b) Provide information described below: [Insert description of the
information and the format that are required, including access to
records necessary to permit an adequate evaluation of the proposed price
in accordance with 15.403-3.]
[62 FR 51264, Sept. 30, 1997]
[[Page 81]]
52.215-22--52.215-42 [Reserved]
52.216-1 Type of Contract.
As prescribed in 16.105, complete and insert the following
provision:
Type of Contract (APR 1984)
The Government contemplates award of a ------ [Contracting Officer
insert specific type of contract] contract resulting from this
solicitation.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34761, July 3, 1995]
52.216-2 Economic Price Adjustment--Standard Supplies.
As prescribed in 16.203-4(a), insert the following clause. The
clause may be modified by increasing the 10 percent limit on aggregate
increases specified in subparagraph (c)(1), upon approval by the chief
of the contracting office.
Economic Price Adjustment--Standard Supplies (JAN 1997)
(a) The Contractor warrants that the unit price stated in the
Schedule for ---- [offeror insert Schedule line item number] is not in
excess of the Contractor's applicable established price in effect on the
contract date for like quantites of the same item. The term unit price
excludes any part of the price directly resulting from requirements for
preservation, packaging, or packing beyond standard commercial practice.
The term established price means a price that (1) is an established
catalog or market price for a commercial item sold in substantial
quantities to the general public, and (2) is the net price after
applying any standard trade discounts offered by the Contractor.
(b) The Contractor shall promptly notify the Contracting Officer of
the amount and effective date of each decrease in any applicable
established price. Each corresponding contract unit price shall be
decreased by the same percentage that the established price is
decreased. The decrease shall apply to those items delivered on and
after the effective date of the decrease in the Contractor's established
price, and this contract shall be modified accordingly.
(c) If the Contractor's applicable established price is increased
after the contract date, the corresponding contract unit price shall be
increased, upon the Contractor's written request to the Contracting
Officer, by the same percentage that the established price is increased,
and the contract shall be modified accordingly, subject to the following
limitations:
(1) The aggregate of the increases in any contract unit price under
this clause shall not exceed 10 percent of the original contract unit
price.
(2) The increased contract unit price shall be effective (i) on the
effective date of the increase in the applicable established price if
the Contracting Officer receives the Contractor's written request within
10 days thereafter or (ii) if the written request is received later, on
the date the Contracting Officer receives the request.
(3) The increased contract unit price shall not apply to quantities
scheduled under the contract for delivery before the effective date of
the increased contract unit price, unless failure to deliver before that
date results from causes beyond the control and without the fault or
negligence of the Contractor, within the meaning of the Default clause.
(4) No modification increasing a contract unit price shall be
executed under this paragraph (c) until the Contracting Officer verifies
the increase in the applicable established price.
(5) Within 30 days after receipt of the Contractor's written
request, the Contracting Officer may cancel, without liability to either
party, any undelivered portion of the contract items affected by the
requested increase.
(d) During the time allowed for the cancellation provided for in
subparagraph (c)(5) above, and thereafter if there is no cancellation,
the Contractor shall continue deliveries according to the contract
delivery schedule, and the Government shall pay for such deliveries at
the contract unit price, increased to the extent provided by paragraph
(c) above.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
62 FR 238, 260, Jan. 2, 1997]
52.216-3 Economic Price Adjustment--Semistandard Supplies.
As prescribed in 16.203-4(b), insert the following clause. The
clause may be modified by increasing the 10 percent limit on aggregate
increases specified in subparagraph (c)(1), upon approval by the chief
of the contracting office.
Economic Price Adjustment--Semistandard Supplies (JAN 1997)
(a) The Contractor warrants that the supplies identified as line
items ---- [offeror insert Schedule line item number] in the Schedule
are, except for modifications required by the contract specifications,
supplies for which it has an established price. The term established
price means a price that (1) is an established catalog or market price
for a
[[Page 82]]
commercial item sold in substantial quantities to the general public,
and (2) is the net price after applying any standard trade discounts
offered by the Contractor. The Contractor further warrants that, as of
the date of this contract, any difference between the unit prices stated
in the contract for these line items and the Contractor's established
prices for like quantities of the nearest commercial equivalents are due
to compliance with contract specifications and with any contract
requirements for preservation, packaging, and packing beyond standard
commercial practice.
(b) The Contractor shall promptly notify the Contracting Officer of
the amount and effective date of each decrease in any applicable
established price. Each corresponding contract unit price (exclusive of
any part of the unit price that reflects modifications resulting from
compliance with specifications or with requirements for preservation,
packaging, and packing beyond standard commercial practice) shall be
decreased by the same percentage that the established price is
decreased. The decrease shall apply to those items delivered on and
after the effective date of the decrease in the Contractor's established
price, and this contract shall be modified accordingly.
(c) If the Contractor's applicable established price is increased
after the contract date, the corresponding contract unit price
(exclusive of any part of the unit price resulting from compliance with
specifications or with requirements for preservation, packaging, and
packing beyond standard commercial practice) shall be increased, upon
the Contractor's written request to the Contracting Officer, by the same
percentage that the established price is increased, and the contract
shall be modified accordingly, subject to the following limitations:
(1) The aggregate of the increases in any contract unit price under
this clause shall not exceed 10 percent of the original contract unit
price.
(2) The increased contract unit price shall be effective (i) on the
effective date of the increase in the applicable established price if
the Contracting Officer receives the Contractor's written request within
10 days thereafter or (ii) if the written request is received later, on
the date the Contracting Officer receives the request.
(3) The increased contract unit price shall not apply to quantities
scheduled under the contract for delivery before the effective date of
the increased contract unit price, unless failure to deliver before that
date results from causes beyond the control and without the fault or
negligence of the Contractor, within the meaning of the Default clause.
(4) No modification increasing a contract unit price shall be
executed under this paragraph (c) until the Contracting Officer verifies
the increase in the applicable established price.
(5) Within 30 days after receipt of the Contractor's written
request, the Contracting Officer may cancel, without liability to either
party, any undelivered portion of the contract items affected by the
requested increase.
(d) During the time allowed for the cancellation provided for in
subparagraph (c)(5) above, and thereafter if there is no cancellation,
the Contractor shall continue deliveries according to the contract
delivery schedule, and the Government shall pay for such deliveries at
the contract unit price, increased to the extent provided by paragraph
(c) above.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
62 FR 238, 261, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997]
52.216-4 Economic Price Adjustment--Labor and Material.
As prescribed in 16.203-4(c), when contracting by negotiation,
insert a clause that is substantially the same as the following clause
in solicitations and contracts when the conditions specified in 16.203-
4(c)(1)(i) through (iv) apply (but see 16.203-4(c)(2)). The clause may
be modified by increasing the 10-percent limit on aggregate increases
specified in subparagraph (c)(4), upon approval by the chief of the
contracting office.
Economic Price Adjustment--Labor and Material (JAN 1997)
(a) The Contractor shall notify the Contracting Officer if, at any
time during contract performance, the rates of pay for labor (including
fringe benefits) or the unit prices for material shown in the Schedule
either increase or decrease. The Contractor shall furnish this notice
within 60 days after the increase or decrease, or within any additional
period that the Contracting Officer may approve in writing, but not
later than the date of final payment under this contract. The notice
shall include the Contractor's proposal for an adjustment in the
contract unit prices to be negotiated under paragraph (b) below, and
shall include, in the form required by the Contracting Officer,
supporting data explaining the cause, effective date, and amount of the
increase or decrease and the amount of the Contractor's adjustment
proposal.
(b) Promptly after the Contracting Officer receives the notice and
data under paragraph (a) above, the Contracting Officer and the
[[Page 83]]
Contractor shall negotiate a price adjustment in the contract unit
prices and its effective date. However, the Contracting Officer may
postpone the negotiations until an accumulation of increases and
decreases in the labor rates (including fringe benefits) and unit prices
of material shown in the Schedule results in an adjustment allowable
under subparagraph (c)(3) below. The Contracting Officer shall modify
this contract (1) to include the price adjustment and its effective date
and (2) to revise the labor rates (including fringe benefits) or unit
prices of material as shown in the Schedule to reflect the increases or
decreases resulting from the adjustment. The Contractor shall continue
performance pending agreement on, or determination of, any adjustment
and its effective date.
(c) Any price adjustment under this clause is subject to the
following limitations:
(1) Any adjustment shall be limited to the effect on unit prices of
the increases or decreases in the rates of pay for labor (including
fringe benefits) or unit prices for material shown in the Schedule.
There shall be no adjustment for (i) supplies or services for which the
production cost is not affected by such changes, (ii) changes in rates
or unit prices other than those shown in the Schedule, or (iii) changes
in the quantities of labor or material used from those shown in the
Schedule for each item.
(2) No upward adjustment shall apply to supplies or services that
are required to be delivered or performed before the effective date of
the adjustment, unless the Contractor's failure to deliver or perform
according to the delivery schedule results from causes beyond the
Contractor's control and without its fault or negligence, within the
meaning of the Default clause.
(3) There shall be no adjustment for any change in rates of pay for
labor (including fringe benefits) or unit prices for material which
would not result in a net change of at least 3 percent of the then-
current total contract price. This limitation shall not apply, however,
if, after final delivery of all contract line items, either party
requests an adjustment under paragraph (b) above.
(4) The aggregate of the increases in any contract unit price made
under this clause shall not exceed 10 percent of the original unit
price. There is no percentage limitation on the amount of decreases that
may be made under this clause.
(d) The Contracting Officer may examine the Contractor's books,
records, and other supporting data relevant to the cost of labor
(including fringe benefits) and material during all reasonable times
until the end of 3 years after the date of final payment under this
contract or the time periods specified in subpart 4.7 of the Federal
Acquisition Regulation (FAR), whichever is earlier.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 62 FR 238, Jan. 2, 1997]
52.216-5 Price Redetermination--Prospective.
As prescribed in 16.205-4, insert the following clause:
Price Redetermination--Prospective (OCT 1997)
(a) General. The unit prices and the total price stated in this
contract shall be periodically redetermined in accordance with this
clause, except that (1) the prices for supplies delivered and services
performed before the first effective date of price redetermination (see
paragraph (c) below) shall remain fixed and (2) in no event shall the
total amount paid under this contract exceed any ceiling price included
in the contract.
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Price redetermination periods. For the purpose of price
redetermination, performance of this contract is divided into successive
periods. The first period shall extend from the date of the contract to
----, [see Note (1)] and the second and each succeeding period shall
extend for ---- [insert appropriate number] months from the end of the
last preceding period, except that the parties may agree to vary the
length of the final period. The first day of the second and each
succeeding period shall be the effective date of price redetermination
for that period.
(d) Data submission. (1) Not more than -- nor less than -- [see Note
(2)] days before the end of each redetermination period, except the
last, the Contractor shall submit--
(i) Proposed prices for supplies that may be delivered or services
that may be performed in the next succeeding period, and--
(A) An estimate and breakdown of the costs of these supplies or
services in the format of Table 15-2, FAR 15.408, or in any other form
on which the parties may agree;
(B) Sufficient data to support the accuracy and reliability of this
estimate; and
(C) An explanation of the differences between this estimate and the
original (or last preceding) estimate for the same supplies or services;
and
(ii) A statement of all costs incurred in performing this contract
through the end of the ------ month (see Note (3)) before the submission
of proposed prices in the format of Table 15-2, FAR 15.408 (or in any
other form on which the parties may agree), with sufficient supporting
data to disclose unit costs and cost trends for--
(A) Supplies delivered and services performed; and
[[Page 84]]
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary).
(2) The Contractor shall also submit, to the extent that it becomes
available before negotiations on redetermined prices are concluded--
(i) Supplemental statements of costs incurred after the date stated
in subdivision (d)(1)(ii) above for--
(A) Supplies delivered and services performed; and
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary); and
(ii) Any other relevant data that the Contracting Officer may
reasonably require.
(3) If the Contractor fails to submit the data required by
subparagraphs (1) and (2) above, within the time specified, the
Contracting Officer may suspend payments under this contract until the
data are furnished. If it is later determined that the Government has
overpaid the Contractor, the Contractor shall repay the excess to the
Government immediately. Unless repaid within 30 days after the end of
the data submittal period, the amount of the excess shall bear interest,
computed from the date the data were due to the date of repayment, at
the rate established in accordance with the Interest clause.
(e) Price redetermination. Upon the Contracting Officer's receipt of
the data required by paragraph (d) above, the Contracting Officer and
the Contractor shall promptly negotiate to redetermine fair and
reasonable prices for supplies that may be delivered or services that
may be performed in the period following the effective date of price
redetermination.
(f) Contract modifications. Each negotiated redetermination of
prices shall be evidenced by a modification to this contract, signed by
the Contractor and the Contracting Officer, stating the redetermined
prices that apply during the redetermination period.
(g) Adjusting billing prices. Pending execution of the contract
modification (see paragraph (f) above), the Contractor shall submit
invoices or vouchers in accordance with the billing prices stated in
this contract. If at any time it appears that the then-current billing
prices will be substantially greater than the estimated final prices, or
if the Contractor submits data showing that the redetermined price will
be substantially greater than the current billing prices, the parties
shall negotiate an appropriate decrease or increase in billing prices.
Any billing price adjustment shall be reflected in a contract
modification and shall not affect the redetermination of prices under
this clause. After the contract modification for price redetermination
is executed, the total amount paid or to be paid on all invoices or
vouchers shall be adjusted to reflect the agreed-upon prices, and any
requested additional payments, refunds, or credits shall be made
promptly.
(h) Quarterly limitation on payments statement. This paragraph (h)
applies only during periods for which firm prices have not been
established.
(1) Within 45 days after the end of the quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor) a statement, cumulative from the beginning
of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total costs (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total interim profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (h)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) The statement required by subparagraph (1) above need not be
submitted for any quarter for which either no costs are to be reported
under subdivision (1)(ii) above, or revised billing prices have been
established in accordance with paragraph (g) above, and do not exceed
the existing contract price, the Contractor's price-redetermination
proposal, or a price based on the most recent quarterly statement,
whichever is least.
(3) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (1)(i), (ii), and (iii) above,
the Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
Contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may,
[[Page 85]]
instead of being refunded, be added to the unliquidated progress payment
account, consistent with the Progress Payments clause. The Contractor
shall provide complete details to support any claimed reductions in
refunds.
(4) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
(i) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(j) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon redetermined prices for any price redetermination
period within 60 days (or within such other period as the parties agree)
after the date on which the data required by paragraph (d) above are to
be submitted, the Contracting Officer shall promptly issue a decision in
accordance with the Disputes clause. For the purpose of paragraphs (f),
(g), and (h) above, and pending final settlement of the disagreement on
appeal, by failure to appeal, or by agreement, this decision shall be
treated as an executed contract modification. Pending final settlement,
price redetermination for subsequent periods, if any, shall continue to
be negotiated as provided in this clause.
(k) Termination. If this contract is terminated, prices shall
continue to be established in accordance with this clause for (1)
completed supplies and services accepted by the Government and (2) those
supplies and services not terminated under a partial termination. All
other elements of the termination shall be resolved in accordance with
other applicable clauses of this contract.
(End of clause)
Notes: (1) Express in terms of units delivered, or as a date; but in
either case the period should end on the last day of a month.
(2) Insert the numbers of days chosen so that the Contractor's
submission will be late enough to reflect recent cost experience (taking
into account the Contractor's accounting system), but early enough to
permit review, audit (if necessary), and negotiation before the start of
the prospective period.
(3) Insert first, except that second may be inserted if necessary to
achieve compatibility with the Contractor's accounting system.
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
61 FR 67425, Dec. 20, 1996; 62 FR 51265, Sept. 30, 1997]
52.216-6 Price Redetermination--Retroactive.
As prescribed in 16.206-4, insert the following clause:
Price Redetermination--Retroactive (OCT 1997)
(a) General. The unit price and the total price stated in this
contract shall be redetermined in accordance with this clause, but in no
event shall the total amount paid under this contract exceed ----
[insert dollar amount of ceiling price].
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Data submission. (1) Within -- [Contracting Officer insert
number of days] days after delivery of all supplies to be delivered and
completion of all services to be performed under this contract, the
Contractor shall submit--
(i) Proposed prices;
(ii) A statement in the format of table 15-2, FAR 15.408, or in any
other form on which the parties may agree, of all costs incurred in
performing the contract; and
(iii) Any other relevant data that the Contracting Officer may
reasonably require.
(2) If the Contractor fails to submit the data required by
subparagraph (1) above within the time specified, the Contracting
Officer may suspend payments under this contract until the data are
furnished. If it is later determined that the Government has overpaid
the Contractor, the excess shall be repaid to the Government
immediately. Unless repaid within 30 days after the end of the data
submittal period, the amount of the excess shall bear interest, computed
from the date the data were due to the date of repayment, at the rate
established in accordance with the Interest clause.
(d) Price determination. Upon the Contracting Officer's receipt of
the data required by paragraph (c) above, the Contracting Officer and
the Contractor shall promptly negotiate to redetermine fair and
reasonable prices for supplies delivered and services performed by the
Contractor under this contract.
(e) Contract modification. The negotiated redetermination of price
shall be evidenced by a modification to this contract, signed by the
Contractor and the Contracting Officer.
(f) Adjusting billing prices. Pending execution of the contract
modification (see paragraph (e) above), the Contractor shall submit
[[Page 86]]
invoices or vouchers in accordance with billing prices stated in this
contract. If at any time it appears that the then-current billing prices
will be substantially greater than the estimated final prices, or if the
Contractor submits data showing that the redetermined prices will be
substantially greater than the current billing prices, the parties shall
negotiate an appropriate decrease or increase in billing prices. Any
billing price adjustment shall be reflected in a contract modification
and shall not affect the redetermination of prices under this clause.
After the contract modification for price redetermination is executed,
the total amount paid or to be paid on all invoices or vouchers shall be
adjusted to reflect the agreed-upon prices, and any resulting additional
payments, refunds, or credits shall be made promptly.
(g) Quarterly limitation on payments statement. This paragraph (g)
shall apply until final price redetermination under this contract has
been completed.
(1) Within 45 days after the end of the quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor), a statement, cumulative from the beginning
of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total costs (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total interim profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (g)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (i), (ii), and (iii) above, the
Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may, instead of being refunded, be added to the unliquidated progress
payment account, consistent with the Progress Payments clause. The
Contractor shall provide complete details to support any claimed
reduction in refunds.
(3) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
(h) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(i) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon redetermined prices within 60 days (or within such
other period as the parties agree) after the date on which the data
required by paragraph (c) above are to be submitted, the Contracting
Officer shall promptly issue a decision in accordance with the Disputes
clause. For the purpose of paragraphs (e), (f), and (g) above, and
pending final settlement of the disagreement on appeal, by failure to
appeal, or by agreement, this decision shall be treated as an executed
contract modification.
(j) Termination. If this contract is terminated before price
redetermination, prices shall be established in accordance with this
clause for completed supplies and services not terminated. All other
elements of the termination shall be resolved in accordance with other
applicable clauses of this contract.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
61 FR 67426, Dec. 20, 1996; 62 FR 51265, Sept. 30, 1997]
52.216-7 Allowable Cost and Payment.
As prescribed in 16.307(a), insert the following clause:
Allowable Cost and Payment (FEB 2002)
(a) Invoicing. (1) The Government will make payments to the
Contractor when requested as work progresses, but (except for small
business concerns) not more often than once every 2 weeks, in amounts
determined to be allowable by the Contracting Officer in
[[Page 87]]
accordance with Federal Acquisition Regulation (FAR) subpart 31.2 in
effect on the date of this contract and the terms of this contract. The
Contractor may submit to an authorized representative of the Contracting
Officer, in such form and reasonable detail as the representative may
require, an invoice or voucher supported by a statement of the claimed
allowable cost for performing this contract.
(2) Contract financing payments are not subject to the interest
penalty provisions of the Prompt Payment Act. Interim payments made
prior to the final payment under the contract are contract financing
payments, except interim payments if this contract contains Alternate I
to the clause at 52.232-25.
(3) The designated payment office will make interim payments for
contract financing on the --------[Contracting Officer insert day as
prescribed by agency head; if not prescribed, insert ``30th''] day after
the designated billing office receives a proper payment request.
In the event that the Government requires an audit or other review
of a specific payment request to ensure compliance with the terms and
conditions of the contract, the designated payment office is not
compelled to make payment by the specified due date.
(b) Reimbursing costs. (1) For the purpose of reimbursing allowable
costs (except as provided in paragraph (b)(2) of the clause, with
respect to pension, deferred profit sharing, and employee stock
ownership plan contributions), the term costs includes only--
(i) Those recorded costs that, at the time of the request for
reimbursement, the Contractor has paid by cash, check, or other form of
actual payment for items or services purchased directly for the
contract;
(ii) When the Contractor is not delinquent in paying costs of
contract performance in the ordinary course of business, costs incurred,
but not necessarily paid, for--
(A) Supplies and services purchased directly for the contract and
associated financing payments to subcontractors, provided payments will
be made--
(1) In accordance with the terms and conditions of a subcontract or
invoice; and
(2) Ordinarily prior to the submission of the Contractor's next
payment request to the Government;
(B) Materials issued from the Contractor's inventory and placed in
the production process for use on the contract;
(C) Direct labor;
(D) Direct travel;
(E) Other direct in-house costs; and
(F) Properly allocable and allowable indirect costs, as shown in the
records maintained by the Contractor for purposes of obtaining
reimbursement under Government contracts; and
(iii) The amount of financing payments that have been paid by cash,
check, or other forms of payment to subcontractors.
(2) Accrued costs of Contractor contributions under employee pension
plans shall be excluded until actually paid unless--
(i) The Contractor's practice is to make contributions to the
retirement fund quarterly or more frequently; and
(ii) The contribution does not remain unpaid 30 days after the end
of the applicable quarter or shorter payment period (any contribution
remaining unpaid shall be excluded from the Contractor's indirect costs
for payment purposes).
(3) Notwithstanding the audit and adjustment of invoices or vouchers
under paragraph (g) below, allowable indirect costs under this contract
shall be obtained by applying indirect cost rates established in
accordance with paragraph (d) below.
(4) Any statements in specifications or other documents incorporated
in this contract by reference designating performance of services or
furnishing of materials at the Contractor's expense or at no cost to the
Government shall be disregarded for purposes of cost-reimbursement under
this clause.
(c) Small business concerns. A small business concern may receive
more frequent payments than every 2 weeks.
(d) Final indirect cost rates. (1) Final annual indirect cost rates
and the appropriate bases shall be established in accordance with
subpart 42.7 of the Federal Acquisition Regulation (FAR) in effect for
the period covered by the indirect cost rate proposal.
(2)(i) The Contractor shall submit an adequate final indirect cost
rate proposal to the Contracting Officer (or cognizant Federal agency
official) and auditor within the 6-month period following the expiration
of each of its fiscal years. Reasonable extensions, for exceptional
circumstances only, may be requested in writing by the Contractor and
granted in writing by the Contracting Officer. The Contractor shall
support its proposal with adequate supporting data.
(ii) The proposed rates shall be based on the Contractor's actual
cost experience for that period. The appropriate Government
representative and the Contractor shall establish the final indirect
cost rates as promptly as practical after receipt of the Contractor's
proposal.
(3) The Contractor and the appropriate Government representative
shall execute a written understanding setting forth the final indirect
cost rates. The understanding shall specify (i) the agreed-upon final
annual indirect cost rates, (ii) the bases to which the rates apply,
(iii) the periods for which the rates apply, (iv) any specific indirect
cost items treated as direct costs in the settlement, and (v) the
affected contract and/or
[[Page 88]]
subcontract, identifying any with advance agreements or special terms
and the applicable rates. The understanding shall not change any
monetary ceiling, contract obligation, or specific cost allowance or
disallowance provided for in this contract. The understanding is
incorporated into this contract upon execution.
(4) Failure by the parties to agree on a final annual indirect cost
rate shall be a dispute within the meaning of the Disputes clause.
(5) Within 120 days (or longer period if approved in writing by the
Contracting Officer) after settlement of the final annual indirect cost
rates for all years of a physically complete contract, the Contractor
shall submit a completion invoice or voucher to reflect the settled
amounts and rates.
(6)(i) If the Contractor fails to submit a completion invoice or
voucher within the time specified in paragraph (d)(5) of this clause,
the Contracting Officer may--
(A) Determine the amounts due to the Contractor under the contract;
and
(B) Record this determination in a unilateral modification to the
contract.
(ii) This determination constitutes the final decision of the
Contracting Officer in accordance with the Disputes clause.
(e) Billing rates. Until final annual indirect cost rates are
established for any period, the Government shall reimburse the
Contractor at billing rates established by the Contracting Officer or by
an authorized representative (the cognizant auditor), subject to
adjustment when the final rates are established. These billing rates--
(1) Shall be the anticipated final rates; and
(2) May be prospectively or retroactively revised by mutual
agreement, at either party's request, to prevent substantial overpayment
or underpayment.
(f) Quick-closeout procedures. Quick-closeout procedures are
applicable when the conditions in FAR 42.708(a) are satisfied.
(g) Audit. At any time or times before final payment, the
Contracting Officer may have the Contractor's invoices or vouchers and
statements of cost audited. Any payment may be (1) reduced by amounts
found by the Contracting Officer not to constitute allowable costs or
(2) adjusted for prior overpayments or underpayments.
(h) Final payment. (1) Upon approval of a completion invoice or
voucher submitted by the Contractor in accordance with paragraph (d)(5)
of this clause, and upon the Contractor's compliance with all terms of
this contract, the Government shall promptly pay any balance of
allowable costs and that part of the fee (if any) not previously paid.
(2) The Contractor shall pay to the Government any refunds, rebates,
credits, or other amounts (including interest, if any) accruing to or
received by the Contractor or any assignee under this contract, to the
extent that those amounts are properly allocable to costs for which the
Contractor has been reimbursed by the Government. Reasonable expenses
incurred by the Contractor for securing refunds, rebates, credits, or
other amounts shall be allowable costs if approved by the Contracting
Officer. Before final payment under this contract, the Contractor and
each assignee whose assignment is in effect at the time of final payment
shall execute and deliver--
(i) An assignment to the Government, in form and substance
satisfactory to the Contracting Officer, of refunds, rebates, credits,
or other amounts (including interest, if any) properly allocable to
costs for which the Contractor has been reimbursed by the Government
under this contract; and
(ii) A release discharging the Government, its officers, agents, and
employees from all liabilities, obligations, and claims arising out of
or under this contract, except--
(A) Specified claims stated in exact amounts, or in estimated
amounts when the exact amounts are not known;
(B) Claims (including reasonable incidental expenses) based upon
liabilities of the Contractor to third parties arising out of the
performance of this contract; provided, that the claims are not known to
the Contractor on the date of the execution of the release, and that the
Contractor gives notice of the claims in writing to the Contracting
Officer within 6 years following the release date or notice of final
payment date, whichever is earlier; and
(C) Claims for reimbursement of costs, including reasonable
incidental expenses, incurred by the Contractor under the patent clauses
of this contract, excluding, however, any expenses arising from the
Contractor's indemnification of the Government against patent liability.
(End of clause)
Alternate I (FEB 1997). As prescribed in 16.307(a)(2), substitute
the following paragraph (b)(1)(iii) for paragraph (b)(1)(iii) of the
basic clause:
(iii) The amount of progress and other payments to the Contractor's
subcontractors that either have been paid, or that the Contractor is
required to pay pursuant to the clause of this contract entitled
``Prompt Payment for Construction Contracts.'' Payments shall be made by
cash, check, or other
[[Page 89]]
form of payment to the Contractor's subcontractors under similar cost
standards.
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 23607, June 4, 1985;
56 FR 29138, June 25, 1991; 61 FR 31661, June 20, 1996; 61 FR 67419,
Dec. 20, 1996; 61 FR 69296, Dec. 31, 1996; 62 FR 12721, Mar. 17, 1997;
62 FR 64916, Dec. 9, 1997; 63 FR 9065, Feb. 23, 1998; 65 FR 16283, Mar.
27, 2000; 66 FR 65360, Dec. 18, 2001; 67 FR 6119, Feb. 8, 2002]
52.216-8 Fixed Fee.
As prescribed in 16.307(b), insert the following clause in
solicitations and contracts when a cost-plus-fixed-fee contract (other
than a facilities contract or a construction contract) is contemplated.
Fixed Fee (MAR 1997)
(a) The Government shall pay the Contractor for performing this
contract the fixed fee specified in the Schedule.
(b) Payment of the fixed fee shall be made as specified in the
Schedule; provided that after payment of 85 percent of the fixed fee,
the Contracting Officer may withhold further payment of fee until a
reserve is set aside in an amount that the Contracting Officer considers
necessary to protect the Government's interest. This reserve shall not
exceed 15 percent of the total fixed fee or $100,000, whichever is less.
The Contracting Officer shall release 75 percent of all fee withholds
under this contract after receipt of the certified final indirect cost
rate proposal covering the year of physical completion of this contract,
provided the Contractor has satisfied all other contract terms and
conditions, including the submission of the final patent and royalty
reports, and is not delinquent in submitting final vouchers on prior
years' settlements. The Contracting Officer may release up to 90 percent
of the fee withholds under this contract based on the Contractor's past
performance related to the submission and settlement of final indirect
cost rate proposals.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 69296, Dec. 31, 1996;
62 FR 12721, Mar. 17, 1997]
52.216-9 Fixed Fee--Construction.
As prescribed in 16.307(c), insert the following clause in
solicitations and contracts when a cost-plus-fixed-fee construction
contract is contemplated:
Fixed Fee--Construction (MAR 1997)
(a) The Government shall pay to the Contractor for performing this
contract the fixed fee specified in the Schedule.
(b) Payment of the fixed fee shall be made in installments based
upon the percentage of completion of the work as determined from
estimates submitted to and approved by the Contracting Officer, but
subject to the withholding provisions of paragraph (c) below.
(c) After the payment of 85 percent of the fixed fee, the
Contracting Officer may withhold further payment of fee until a reserve
is set aside in an amount that the Contracting Officer considers
necessary to protect the Government's interest. This reserve shall not
exceed 15 percent of the total fixed fee or $100,000, whichever is less.
The Contracting Officer shall release 75 percent of all fee withholds
under this contract after receipt of the certified final indirect cost
rate proposal covering the year of physical completion of this contract,
provided the Contractor has satisifed all other contract terms and
conditions, including the submission of the final patent and royalty
reports, and is not delinquent in submitting final vouchers on prior
years' settlements. The Contracting Officer may release up to 90 percent
of the fee withholds under this contract based on the Contractor's past
performance related to the submission and settlement of final indirect
cost rate proposals.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 69296, Dec. 31, 1996;
62 FR 12721, Mar. 17, 1997]
52.216-10 Incentive Fee.
As prescribed in 16.307(d), insert the following clause in
solicitations and contracts when a cost-plus-incentive-fee contract
(other than a facilities contract) is contemplated:
Incentive Fee (MAR 1997)
(a) General. The Government shall pay the Contractor for performing
this contract a fee determined as provided in this contract.
(b) Target cost and target fee. The target cost and target fee
specified in the Schedule are subject to adjustment if the contract is
modified in accordance with paragraph (d) below.
(1) Target cost, as used in this contract, means the estimated cost
of this contract as initially negotiated, adjusted in accordance with
paragraph (d) below.
(2) Target fee, as used in this contract, means the fee initially
negotiated on the assumption that this contract would be performed for a
cost equal to the estimated cost
[[Page 90]]
initially negotiated, adjusted in accordance with paragraph (d) below.
(c) Withholding of payment. Normally, the Government shall pay the
fee to the Contractor as specified in the Schedule. However, when the
Contracting Officer considers that performance or cost indicates that
the Contractor will not achieve target, the Government shall pay on the
basis of an appropriate lesser fee. When the Contractor demonstrates
that performance or cost clearly indicates that the Contractor will earn
a fee significantly above the target fee, the Government may, at the
sole discretion of the Contracting Officer, pay on the basis of an
appropriate higher fee. After payment of 85 percent of the applicable
fee, the Contracting Officer may withhold further payment of fee until a
reserve is set aside in an amount that the Contracting Officer considers
necessary to protect the Government's interest. This reserve shall not
exceed 15 percent of the applicable fee or $100,000, whichever is less.
The Contracting Officer shall release 75 percent of all fee withholds
under this contract after receipt of the certified final indirect cost
rate proposal covering the year of physical completion of this contract,
provided the Contractor has satisfied all other contract terms and
conditions, including the submission of the final patent and royalty
reports, and is not delinquent in submitting final vouchers on prior
years' settlements. The Contracting Officer may release up to 90 percent
of the fee withholds under this contract based on the Contractor's past
performance related to the submission and settlement of final indirect
cost rate proposals.
(d) Equitable adjustments. When the work under this contract is
increased or decreased by a modification to this contract or when any
equitable adjustment in the target cost is authorized under any other
clause, equitable adjustments in the target cost, target fee, minimum
fee, and maximum fee, as appropriate, shall be stated in a supplemental
agreement to this contract.
(e) Fee payable. (1) The fee payable under this contract shall be
the target fee increased by -- [Contracting Officer insert Contractor's
participation] cents for every dollar that the total allowable cost is
less than the target cost or decreased by -- [Contracting Officer insert
Contractor's participation] cents for every dollar that the total
allowable cost exceeds the target cost. In no event shall the fee be
greater than -- [Contracting Officer insert percentage] percent or less
than -- [Contracting Officer insert percentage] percent of the target
cost.
(2) The fee shall be subject to adjustment, to the extent provided
in paragraph (d) above, and within the minimum and maximum fee
limitations in subparagraph (1) above, when the total allowable cost is
increased or decreased as a consequence of (i) payments made under
assignments or (ii) claims excepted from the release as required by
paragraph (h)(2) of the Allowable Cost and Payment clause.
(3) If this contract is terminated in its entirety, the portion of
the target fee payable shall not be subject to an increase or decrease
as provided in this paragraph. The termination shall be accomplished in
accordance with other applicable clauses of this contract.
(4) For the purpose of fee adjustment, total allowable cost shall
not include allowable costs arising out of--
(i) Any of the causes covered by the Excusable Delays clause to the
extent that they are beyond the control and without the fault or
negligence of the Contractor or any subcontractor;
(ii) The taking effect, after negotiating the target cost, of a
statute, court decision, written ruling, or regulation that results in
the Contractor's being required to pay or bear the burden of any tax or
duty or rate increase in a tax or duty;
(iii) Any direct cost attributed to the Contractor's involvement in
litigation as required by the Contracting Officer pursuant to a clause
of this contract, including furnishing evidence and information
requested pursuant to the Notice and Assistance Regarding Patent and
Copyright Infringement clause;
(iv) The purchase and maintenance of additional insurance not in the
target cost and required by the Contracting Officer, or claims for
reimbursement for liabilities to third persons pursuant to the
Insurance--Liability to Third Persons clause;
(v) Any claim, loss, or damage resulting from a risk for which the
Contractor has been relieved of liability by the Government Property
clause; or
(vi) Any claim, loss, or damage resulting from a risk defined in the
contract as unusually hazardous or as a nuclear risk and against which
the Government has expressly agreed to indemnify the Contractor.
(5) All other allowable costs are included in total allowable cost
for fee adjustment in accordance with this paragraph (e), unless
otherwise specifically provided in this contract.
(f) Contract modification. The total allowable cost and the adjusted
fee determined as provided in this clause shall be evidenced by a
modification to this contract signed by the Contractor and Contracting
Officer.
(g) Inconsistencies. In the event of any language inconsistencies
between this clause and provisioning documents or Government options
under this contract, compensation for spare parts or other supplies and
services ordered under such documents shall be determined in accordance
with this clause.
[[Page 91]]
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 69296, Dec. 31, 1996;
62 FR 12721, Mar. 17, 1997]
52.216-11 Cost Contract--No Fee.
As prescribed in 16.307(e), insert the following clause in
solicitations and contracts when a cost-reimbursement contract is
contemplated that provides no fee and is not a cost-sharing contract or
a facilities contract. This clause may be modified by substituting
$10,000 in lieu of $100,000 as the maximum reserve in paragraph (b) if
the Contractor is a nonprofit organization.
Cost Contract--No Fee (APR 1984)
(a) The Government shall not pay the Contractor a fee for performing
this contract.
(b) After payment of 80 percent of the total estimated cost shown in
the Schedule, the Contracting Officer may withhold further payment of
allowable cost until a reserve is set aside in an amount that the
Contracting Officer considers necessary to protect the Government's
interest. This reserve shall not exceed one percent of the total
estimated cost shown in the Schedule or $100,000, whichever is less.
(End of clause)
Alternate I (APR 1984). In a contract for research and development
with an educational institution or a nonprofit organization, for which
the contracting officer has determined that withholding of a portion of
allowable costs is not required, delete paragraph (b) of the basic
clause.
52.216-12 Cost-Sharing Contract--No Fee.
As prescribed in 16.307(f), insert the following clause in
solicitations and contracts when a cost-sharing contract (other than a
facilities contract) is contemplated. This clause may be modified by
substituting $10,000 in lieu of $100,000 as the maximum reserve in
paragraph (b) if the contract is with a nonprofit organization.
Cost-Sharing Contract--No Fee (APR 1984)
(a) The Government shall not pay to the Contractor a fee for
performing this contract.
(b) After paying 80 percent of the Government's share of the total
estimated cost of performance shown in the Schedule, the Contracting
Officer may withhold further payment of allowable cost until a reserve
is set aside in an amount that the Contracting Officer considers
necessary to protect the Government's interest. This reserve shall not
exceed one percent of the Government's share of the total estimated cost
shown in the Schedule or $100,000, whichever is less.
(End of clause)
Alternate I (APR 1984). In a contract for research and development
with an educational institution, for which the contracting officer has
determined that withholding of a portion of allowable cost is not
required, delete paragraph (b) of the basic clause.
52.216-13 Allowable Cost and Payment--Facilities.
As prescribed in 16.307(g), insert the following clause:
Allowable Cost and Payment--Facilities (FEB 2002)
(a) General. (1) For the performance of any work, duty, or
obligation specified in this contract to be at Government expense, the
Government shall pay the Contractor all allowable costs as determined by
the Contracting Officer in accordance with the contract terms and
section 31.106 of the Federal Acquisition Regulation (FAR) in effect on
the contract date.
(2) Except as otherwise specifically provided in this contract, the
failure of this contract to provide for reimbursement does not preclude
the Contractor from including, as part of the price or cost under any
other Government contract or subcontract, an allocable portion of the
costs incurred for any work, duty, or obligation performed under this
contract, but not reimbursable under it.
(b) Invoicing. (1) The Government will make payments to the
Contractor when requested once each month. The Contractor may submit to
an authorized representative of the Contracting Officer, in such form
and reasonable detail as the representative may require, an invoice or
voucher supported by a statement of the claimed allowable cost for the
performance of this contract.
(2) Contract financing payments are not subject to the interest
penalty provisions of the Prompt Payment Act. Interim payments made
prior to the final payment under the contract are contract financing
payments, except interim payments if this contract contains Alternate I
to the clause at 52.232-25.
(3) The designated payment office will make interim payments for
contract financing on the --------[Contracting Officer insert
[[Page 92]]
day as prescribed by agency head; if not prescribed, insert ``30th'']
day after the designated billing office receives a proper payment
request. In the event that the Government requires an audit or other
review of a specific payment request to ensure compliance with the terms
and conditions of the contract, the designated payment office is not
compelled to make payment by the specified due date.
(c) Negotiated indirect costs. Notwithstanding the audit and
adjustment of invoices or vouchers under paragraph (f) of this clause,
allowable indirect costs under this contract shall be obtained by
applying final indirect cost rates established as follows:
(1) Final annual indirect cost rates and the appropriate bases shall
be established in accordance with subpart 42.7 of the FAR in effect for
the period covered by the indirect cost rate proposal.
(2)(i) The Contractor shall submit an adequate final indirect cost
rate proposal to the Contracting Officer (or cognizant Federal agency
official) and auditor within the 6-month period following the expiration
of each of its fiscal years. Reasonable extensions, for exceptional
circumstances only, may be requested in writing by the Contractor and
granted in writing by the Contracting Officer. The Contractor shall
support its proposal with adequate supporting data.
(ii) The proposed rates shall be based on the Contractor's actual
cost experience for that period. The appropriate Government
representative and the Contractor shall establish the final indirect
cost rates as promptly as practical after receipt of the Contractor's
proposal.
(3) The Contractor and the appropriate Government representative
shall execute a written understanding setting forth the final indirect
cost rates. The understanding shall specify (i) the agreed-upon final
annual indirect cost rates, (ii) the bases to which the rates apply,
(iii) the periods for which the rates apply, (iv) any specific indirect
cost items treated as direct costs in the settlement, and (v) the
affected contract and/or subcontract, identifying any with advance
agreements or special terms and the applicable rates. The understanding
shall not change any monetary ceiling, contract obligation, or specific
cost allowance or disallowance provided for in this contract. The
understanding is incorporated into this contract upon execution.
(4) Within 120 days after settlement of the final indirect cost
rates covering the year in which this contract is physically complete
(or longer, if approved in writing by the Contracting Officer), the
Contractor shall submit a completion invoice or voucher to reflect the
settled amounts and rates.
(5) Failure by the parties to agree on a final annual indirect cost
rate shall be a dispute within the meaning of the Disputes clause.
(d) Billing rates. Until final annual indirect cost rates are
established for any period, the Government shall reimburse the
Contractor at billing rates established by the Contracting Officer or by
an authorized representative (the cognizant auditor), subject to
adjustment when the final rates are established. These billing rates--
(1) Shall be the anticipated final rates; and
(2) May be prospectively or retroactively revised by mutual
agreement, at either party's request, to prevent substantial overpayment
or underpayment.
(e) Quick-closeout procedures. Quick-closeout procedures are
applicable when the conditions in FAR 42.708(a) are satisfied.
(f) Audit. At any time or times before final payment, the
Contracting Officer may have the Contractor's invoices or vouchers and
statements of cost audited. Any payment may be (1) reduced by amounts
found by the Contracting Officer not to constitute allowable costs or
(2) adjusted for prior overpayments or underpayments.
(g) Assignments and releases. The Contractor shall pay to the
Government any refunds, rebates, credits, or other amounts (including
interest, if any) accruing to or received by the Contractor or any
assignee under this contract, to the extent that those amounts are
properly allocable to costs for which the Contractor has been reimbursed
by the Government. Reasonable expenses incurred by the Contractor for
securing refunds, rebates, credits, or other amounts shall be allowable
costs if approved by the Contracting Officer. Before final payment under
this contract, the Contractor and each assignee shall execute and
deliver--
(1) An assignment to the Government, in form and substance
satisfactory to the Contracting Officer, of refunds, rebates, credits,
or other amounts (including interest, if any) properly allocable to
costs for which the Contractor has been reimbursed by the Government
under this contract; and
(2) A release discharging the Government, its officers, agents, and
employees from all liabilities, obligations, and claims arising out of
or under this contract, except--
(i) Specified claims stated in exact amounts, or in estimated
amounts when the exact amounts are not known;
(ii) Claims (including reasonable incidental expenses) based upon
liabilities of the Contractor to third parties arising out of
performance of this contract; provided that the claims are not known to
the Contractor on the date of the execution of the release, and that the
Contractor gives notice of the claims in writing to the Contracting
Officer within 6 years following the release date or notice of final
payment date, whichever is earlier; and
[[Page 93]]
(iii) Claims for reimbursement of costs, including related expenses,
incurred by the Contractor under the patent clauses of this contract,
excluding, however, any expenses arising from the Contractor's
indemnification of the Government against patent liability.
(End of clause)
Alternate I (MAR 1997). If the contract is for facilities
acquisition, and the Contracting Officer considers it appropriate, add
the following paragraphs (g) and (h) to the basic clause, and
redesignate paragraph (g) of the basic clause as paragraph (i):
(g) Withholding. After payment of 80 percent of the total estimated
cost shown in the Schedule, the Contracting Officer may withhold payment
of allowable costs until a reserve is set aside in an amount that the
Contracting Officer considers necessary to protect the Government's
interest. This reserve shall not exceed one percent of the total
estimated cost shown in the Schedule or $100,000, whichever is less.
(h) Final Payment. Upon approval of a completion invoice or voucher
submitted by the Contractor in accordance with paragraph (c)(4) of this
clause, and upon the Contractor's compliance with all terms of this
contract, the Government shall promptly pay any balance of allowable
costs not previously paid.
[48 FR 42478, Sept. 19, 1983, as amended at 59 FR 67052, Dec. 28, 1994;
61 FR 31661, June 20, 1996; 61 FR 69296, Dec. 31, 1996; 62 FR 12721,
Mar. 17, 1997; 62 FR 64916, Dec. 9, 1997; 63 FR 9065, Feb. 23, 1998; 66
FR 65361, Dec. 18, 2001]
52.216-14 Allowable Cost and Payment--Facilities Use.
As prescribed in 16.307(h), insert the following clause in
solicitations and contracts when a facilities use contract is
contemplated:
Allowable Cost and Payment--Facilities Use (APR 1984)
(a) For the performance of any work, duty, or obligations specified
in this contract to be at Government expense, the Government shall pay
the Contractor all allowable costs as determined by the Contracting
Officer in accordance with the contract terms and section 31.106 of the
Federal Acquisition Regulation (FAR) in effect on the contract date.
(b) Except as otherwise specifically provided in this contract, the
failure of this contract to provide for reimbursement does not preclude
the Contractor from including, as part of the price or cost under any
other Government contract or subcontract, an allocable portion of the
costs incurred for any work, duty, or obligation performed under this
contract, but not reimbursed under it.
(End of clause)
52.216-15 Predetermined Indirect Cost Rates.
As prescribed in 16.307(i), insert the following clause:
Predetermined Indirect Cost Rates (APR 1998)
(a) Notwithstanding the Allowable Cost and Payment clause of this
contract, the allowable indirect costs under this contract shall be
obtained by applying predetermined indirect cost rates to bases agreed
upon by the parties, as specified below.
(b)(1) The Contractor shall submit an adequate final indirect cost
rate proposal to the Contracting Officer (or cognizant Federal agency
official) and auditor within the 6-month period following the expiration
of each of its fiscal years. Reasonable extensions, for exceptional
circumstances only, may be requested in writing by the Contractor and
granted in writing by the Contracting Officer. The Contractor shall
support its proposal with adequate supporting data.
(2) The proposed rates shall be based on the Contractor's actual
cost experience for that period. The appropriate Government
representative and the Contractor shall establish the final indirect
cost rates as promptly as practical after receipt of the Contractor's
proposal.
(c) Allowability of costs and acceptability of cost allocation
methods shall be determined in accordance with FAR subpart 31.3 in
effect on the date of this contract.
(d) Predetermined rate agreements in effect on the date of this
contract shall be incorporated into the contract Schedule. The
Contracting Officer (or cognizant Federal agency official) and
Contractor shall negotiate rates for subsequent periods and execute a
written indirect cost rate agreement setting forth the results. The
agreement shall specify (1) the agreed-upon predetermined indirect cost
rates, (2) the bases to which the rates apply, (3) the period for which
the rates apply, and (4) the specific items treated as direct costs or
any changes in the items previously agreed to be direct costs. The
indirect cost rate agreement shall not change any monetary ceiling,
contract obligation, or specific cost allowance or disallowance provided
for in this contract. The agreement is incorporated into this contract
upon execution.
(e) Pending establishment of predetermined indirect cost rates for
any fiscal year (or other period agreed to by the parties), the
Contractor shall be reimbursed either at
[[Page 94]]
the rates fixed for the previous fiscal year (or other period) or at
billing rates acceptable to the Contracting Officer (or cognizant
Federal agency official), subject to appropriate adjustment when the
final rates for that period are established.
(f) Any failure by the parties to agree on any predetermined
indirect cost rates under this clause shall not be considered a dispute
within the meaning of the Disputes clause. If for any fiscal year (or
other period specified in the Schedule) the parties fail to agree to
predetermined indirect cost rates, the allowable indirect costs shall be
obtained by applying final indirect cost rates established in accordance
with the Allowable Cost and Payment clause.
(g) Allowable indirect costs for the period from the beginning of
performance until the end of the Contractor's fiscal year (or other
period specified in the Schedule) shall be obtained using the
predetermined indirect cost rates and the bases shown in the Schedule.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 31622, June 20, 1996;
62 FR 64916, Dec. 9, 1997; 63 FR 9065, Feb. 23, 1998]
52.216-16 Incentive Price Revision--Firm Target.
As prescribed in 16.406(a), insert the following clause:
Incentive Price Revision--Firm Target (OCT 1997)
(a) General. The supplies or services identified in the Schedule as
Items ---- [Contracting Officer insert Schedule line item numbers] are
subject to price revision in accordance with this clause; provided, that
in no event shall the total final price of these items exceed the
ceiling price of ---- dollars ($----). Any supplies or services that are
to be (1) ordered separately under, or otherwise added to, this contract
and (2) subject to price revision in accordance with the terms of this
clause shall be identified as such in a modification to this contract.
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Data submission. (1) Within ---- [Contracting Officer insert
number of days] days after the end of the month in which the Contractor
has delivered the last unit of supplies and completed the services
specified by item number in paragraph (a) of this clause, the Contractor
shall sumbit in the format of Table 15-2, FAR 15.408, or in any other
form on which the parties agree--
(i) A detailed statement of all costs incurred up to the end of that
month in performing all work under the items;
(ii) An estimate of costs of further performance, if any, that may
be necessary to complete performance of all work under the items;
(iii) A list of all residual inventory and an estimate of its value;
and
(iv) Any other relevant data that the Contracting Officer may
reasonably require.
(2) If the Contractor fails to submit the data required by
subparagraph (1) above within the time specified and it is later
determined that the Government has overpaid the Contractor, the
Contractor shall repay the excess to the Government immediately. Unless
repaid within 30 days after the end of the data submittal period, the
amount of the excess shall bear interest, computed from the date the
data were due to the date of repayment, at the rate established in
accordance with the Interest clause.
(d) Price revision. Upon the Contracting Officer's receipt of the
data required by paragraph (c) above, the Contracting Officer and the
Contractor shall promptly establish the total final price of the items
specified in (a) above by applying to final negotiated cost an
adjustment for profit or loss, as follows:
(1) On the basis of the information required by paragraph (c) above,
together with any other pertinent information, the parties shall
negotiate the total final cost incurred or to be incurred for supplies
delivered (or services performed) and accepted by the Government and
which are subject to price revision under this clause.
(2) The total final price shall be established by applying to the
total final negotiated cost an adjustment for profit or loss, as
follows:
(i) If the total final negotiated cost is equal to the total target
cost, the adjustment is the total target profit.
(ii) If the total final negotiated cost is greater than the total
target cost, the adjustment is the total target profit, less --
[Contracting Officer insert percent] percent of the amount by which the
total final negotiated cost exceeds the total target cost.
(iii) If the final negotiated cost is less than the total target
cost, the adjustment is the total target profit plus -- [Contracting
Officer insert percent] percent of the amount by which the total final
negotiated cost is less than the total target cost.
(e) Contract modification. The total final price of the items
specified in paragraph (a) above shall be evidenced by a modification to
this contract, signed by the Contractor and the Contracting Officer.
This price shall not be subject to revision, notwithstanding any changes
in the cost of performing the contract, except to the extent that--
(1) The parties may agree in writing, before the determination of
total final price, to exclude specific elements of cost from this price
and to a procedure for subsequent disposition of those elements; and
[[Page 95]]
(2) Adjustments or credits are explicitly permitted or required by
this or any other clause in this contract.
(f) Adjusting billing prices. (1) Pending execution of the contract
modification (see paragraph (e) above), the Contractor shall submit
invoices or vouchers in accordance with billing prices as provided in
this paragraph. The billing prices shall be the target prices shown in
this contract.
(2) If at any time it appears from information provided by the
contractor under subparagraph (g)(2) below that the then-current billing
prices will be substantially greater than the estimated final prices,
the parties shall negotiate a reduction in the billing prices.
Similarly, the parties may negotiate an increase in billing prices by
any or all of the difference between the target prices and the ceiling
price, upon the Contractor's submission of factual data showing that
final cost under this contract will be substantially greater than the
target cost.
(3) Any billing price adjustment shall be reflected in a contract
modification and shall not affect the determination of the total final
price under paragraph (d) above. After the contract modification
establishing the total final price is executed, the total amount paid or
to be paid on all invoices or vouchers shall be adjusted to reflect the
total final price, and any resulting additional payments, refunds, or
credits shall be made promptly.
(g) Quarterly limitation on payments statement. This paragraph (g)
shall apply until final price revision under this contract has been
completed.
(1) Within 45 days after the end of each quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor) a statement, cumulative from the beginning
of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total costs (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total target profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (g)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established--increased or decreased in
accordance with subparagraph (d)(2) above, when the amount stated under
subdivision (ii), immediately above, differs from the aggregate target
costs of the supplies or services; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (1)(i), (ii), and (iii) above,
the Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
Contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may, instead of being refunded, be added to the unliquidated progress
payment account consistent with the Progress Payments clause. The
Contractor shall provide complete details to support any claimed
reductions in refunds.
(3) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
(h) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(i) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon the total final price within 60 days (or within such
other period as the Contracting Officer may specify) after the date on
which the data required by paragraph (c) above are to be submitted, the
Contracting Officer shall promptly issue a decision in accordance with
the Disputes clause.
(j) Termination. If this contract is terminated before the total
final price is established, prices of supplies or services subject to
price revision shall be established in accordance with this clause for
(1) completed supplies and services accepted by the Government and (2)
those supplies and services not terminated under a partial termination.
All other elements of the termination shall be resolved in accordance
with other applicable clauses of this contract.
[[Page 96]]
(k) Equitable adjustment under other clauses. If an equitable
adjustment in the contract price is made under any other clause of this
contract before the total final price is established, the adjustment
shall be made in the total target cost and may be made in the maximum
dollar limit on the total final price, the total target profit, or both.
If the adjustment is made after the total final price is established,
only the total final price shall be adjusted.
(l) Exclusion from target price and total final price. If any clause
of this contract provides that the contract price does not or will not
include an amount for a specific purpose, then neither any target price
nor the total final price includes or will include any amount for that
purpose.
(m) Separate reimbursement. If any clause of this contract expressly
provides that the cost of performance of an obligation shall be at
Government expense, that expense shall not be included in any target
price or in the total final price, but shall be reimbursed separately.
(n) Taxes. As used in the Federal, State, and Local Taxes clause or
in any other clause that provides for certain taxes or duties to be
included in, or excluded from, the contract price, the term contract
price includes the total target price or, if it has been established,
the total final price. When any of these clauses requires that the
contract price be increased or decreased as a result of changes in the
obligation of the Contractor to pay or bear the burden of certain taxes
or duties, the increase or decrease shall be made in the total target
price or, if it has been established, in the total final price, so that
it will not affect the Contractor's profit or loss on this contract.
(End of clause)
Alternate I (APR 1984). As prescribed in 16.406(a), add the
following paragraph (o) to the basic clause:
(o) Provisioning and options. Parts, other supplies, or services
that are to be furnished under this contract on the basis of a
provisioning document or Government option shall be subject to price
revision in accordance with this clause. Any prices established for
these parts, other supplies, or services under a provisioning document
or Government option shall be treated as target prices. Target cost and
profit covering these parts, other supplies, or services may be
established separately, in the aggregate, or in any combination, as the
parties may agree.
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 67426, Dec. 20, 1996;
62 FR 12696, Mar. 17, 1997; 62 FR 51265, Sept. 30, 1997]
52.216-17 Incentive Price Revision--Successive Targets.
As prescribed in 16.406(b), insert the following clause:
Incentive Price Revision--Successive Targets (OCT 1997)
(a) General. The supplies or services identified in the Schedule as
Items ---- [Contracting Officer insert line item numbers] are subject to
price revision in accordance with this clause; provided, that in no
event shall the total final price of these items exceed the ceiling
price of ---- dollars ($----). The prices of these items shown in the
Schedule are the initial target prices, which include an initial target
profit of -- [Contracting Officer insert percent] percent of the initial
target cost. Any supplies or services that are to be (1) ordered
separately under, or otherwise added to, this contract and (2) subject
to price revision in accordance with this clause shall be identified as
such in a modification to this contract.
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Submitting data for establishing the firm fixed price or a final
profit adjustment formula. (1) Within -- [Contracting Officer insert
number of days] days after the end of the month in which the Contractor
has completed ---- [see Note 1], the Contractor shall submit the
following data:
(i) A proposed firm fixed price or total firm target price for
supplies delivered and to be delivered and services performed and to be
performed.
(ii) A detailed statement of all costs incurred in the performance
of this contract through the end of the month specified above, in the
format of Table 15-2, FAR 15.408 (or in any other form on which the
parties may agree), with sufficient supporting data to disclose unit
costs and cost trends for--
(A) Supplies delivered and services performed; and
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary).
(iii) An estimate of costs of all supplies delivered and to be
delivered and all services performed and to be performed under this
contract, using the statement of costs incurred plus an estimate of
costs to complete performance, in the format of table 15-2, FAR 15.408
(or in any other form on which the parties may agree), together with--
(A) Sufficient data to support the accuracy and reliability of the
estimate; and
(B) An explanation of the differences between this estimate and the
original estimate used to establish the initial target prices.
[[Page 97]]
(2) The Contractor shall also submit, to the extent that it becomes
available before negotiations establishing the total firm price are
concluded--
(i) Supplemental statements of costs incurred after the end of the
month specified in subparagraph (1) above for--
(A) Supplies delivered and services performed; and
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary); and
(ii) Any other relevant data that the Contracting Officer may
reasonably require.
(3) If the Contractor fails to submit the data required by
subparagraphs (1) and (2) above within the time specified and it is
later determined that the Government has overpaid the Contractor, the
Contractor shall repay the excess to the Government immediately. Unless
repaid within 30 days after the end of the data submittal period, the
amount of the excess shall bear interest, computed from the date the
data were due to the date of repayment, at the rate established in
accordance with the Interest clause.
(d) Establishing firm fixed price or final profit adjustment
formula. Upon the Contracting Officer's receipt of the data required by
paragraph (c) above the Contracting Officer and the Contractor shall
promptly establish either a firm fixed price or a profit adjustment
formula for determining final profit, as follows:
(1) The parties shall negotiate a total firm target cost, based upon
the data submitted under paragraph (c) above.
(2) If the total firm target cost is more than the total initial
target cost, the total initial target profit shall be decreased. If the
total firm target cost is less than the total initial target cost, the
total initial target profit shall be increased. The initial target
profit shall be increased or decreased by -- percent [see Note 2] of the
difference between the total initial target cost and the total firm
target cost. The resulting amount shall be the total firm target profit;
provided, that in no event shall the total firm target profit be less
than -- percent or more than -- percent [Contracting Officer insert
percents] of the total initial target cost.
(3) If the total firm target cost plus the total firm target profit
represent a reasonable price for performing that part of the contract
subject to price revision under this clause, the parties may agree on a
firm fixed price, which shall be evidenced by a contract modification
signed by the Contractor and the Contracting Officer.
(4) Failure of the parties to agree to a firm fixed price shall not
constitute a dispute under the Disputes clause. If agreement is not
reached, or if establishment of a firm fixed price is inappropriate, the
Contractor and the Contracting Officer shall establish a profit
adjustment formula under which the total final price shall be
established by applying to the total final negotiated cost an adjustment
for profit or loss, determined as follows:
(i) If the total final negotiated cost is equal to the total firm
target cost, the adjustment is the total firm target profit.
(ii) If the total final negotiated cost is greater than the total
firm target cost, the adjustment is the total firm target profit, less
-- percent of the amount by which the total final negotiated cost
exceeds the total firm target cost.
(iii) If the total final negotiated cost is less than the total firm
target cost, the adjustment is the total firm target profit, plus --
percent of the amount by which the total final negotiated cost is less
than the total firm target cost.
(iv) The total firm target cost, total firm target profit, and the
profit adjustment formula for determining final profit shall be
evidenced by a modification to this contract signed by the Contractor
and the Contracting Officer.
(e) Submitting data for final price revision. Unless a firm fixed
price has been established in accordance with paragraph (d) of this
section within ---- [Contracting Officer insert number of days] days
after the end of the month in which the Contractor has delivered the
last unit of supplies and completed the services specified by item
number in paragraph (a) of this section, the Contractor shall submit in
the format of table 15-2, FAR 15.408 (or in any other form on which the
parties agree)--
(1) A detailed statement of all costs incurred up to the end of that
month in performing all work under the items;
(2) An estimate of costs of further performance, if any, that may be
necessary to complete performance of all work under the items;
(3) A list of all residual inventory and an estimate of its value;
and
(4) Any other relevant data that the Contracting Officer may
reasonably require.
(f) Final price revision. Unless a firm fixed price has been agreed
to in accordance with paragraph (d) above, the Contractor and the
Contracting Officer shall, promptly after submission of the data
required by paragraph (e) above, establish the total final price, as
follows:
(1) On the basis of the information required by paragraph (e) above,
together with any other pertinent information, the parties shall
negotiate the total final cost incurred or to be incurred for the
supplies delivered (or services performed) and accepted by the
Government and which are subject to price revision under this clause.
(2) The total final price shall be established by applying to the
total final negotiated cost an adjustment for final profit or
[[Page 98]]
loss determined as agreed upon under subparagraph (d)(4) above.
(g) Contract modification. The total final price of the items
specified in paragraph (a) above shall be evidenced by a modification to
this contract, signed by the Contractor and the Contracting Officer.
This price shall not be subject to revision, notwithstanding any changes
in the cost of performing the contract, except to the extent that--
(1) The parties may agree in writing, before the determination of
total final price, to exclude specific elements of cost from this price
and to a procedure for subsequent disposition of these elements; and
(2) Adjustments or credits are explicitly permitted or required by
this or any other clause in this contract.
(h) Adjustment of billing prices. (1) Pending execution of the
contract modification (see paragraph (e) above), the Contractor shall
submit invoices or vouchers in accordance with billing prices as
provided in this paragraph. The billing prices shall be the initial
target prices shown in this contract until firm target prices are
established under paragraph (d) above. When established, the firm target
prices shall be used as the billing prices.
(2) If at any time it appears from information provided by the
contractor under subparagraph (i)(1) below that the then-current billing
prices will be substantially greater than the estimated final prices,
the parties shall negotiate a reduction in the billing prices.
Similarly, the parties may negotiate an increase in billing prices by
any or all of the difference between the target prices and the ceiling
price, upon the Contractor's submission of factual data showing that the
final cost under this contract will be substantially greater than the
target cost.
(3) Any adjustment of billing prices shall be reflected in a
contract modification and shall not affect the determination of any
price under paragraph (d) or (f) above. After the contract modification
establishing the total final price is executed, the total amount paid or
to be paid on all invoices or vouchers shall be adjusted to reflect the
total final price, and any resulting additional payments, refunds, or
credits shall be made promptly.
(i) Quarterly limitation on payments statement. This paragraph (i)
shall apply until a firm fixed price or a total final price is
established under subparagraph (d)(3) or (f)(2).
(1) Within 45 days after the end of each quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor) a statement, cumulative from the beginning
of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total cost (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total interim profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (i)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established--increased or decreased in
accordance with subparagraph (d)(4) above when the amount stated under
subdivision (ii), immediately above, differs from the aggregate firm
target costs of the supplies or services; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (1)(i), (ii), and (iii) above,
the Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
Contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may, instead of being refunded, be added to the unliquidated progress
payment account consistent with the Progress Payments clause. The
Contractor shall provide complete details to support any claimed
reductions in refunds.
(3) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
[[Page 99]]
(j) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(k) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon (1) a total firm target cost and a final profit
adjustment formula or (2) a total final price, within 60 days (or within
such other period as the Contracting Officer may specify) after the date
on which the data required in paragraphs (c) and (e) above are to be
submitted, the Contracting Officer shall promptly issue a decision in
accordance with the Disputes clause.
(l) Termination. If this contract is terminated before the total
final price is established, prices of supplies or services subject to
price revision shall be established in accordance with this clause for
(1) completed supplies and services accepted by the Government and (2)
those supplies or services not terminated under a partial termination.
All other elements of the termination shall be resolved in accordance
with other applicable clauses of this contract.
(m) Equitable adjustments under other clauses. If an equitable
adjustment in the contract price is made under any other clause of this
contract before the total final price is established, the adjustment
shall be made in the total target cost and may be made in the maximum
dollar limit on the total final price, the total target profit, or both.
If the adjustment is made after the total final price is established,
only the total final price shall be adjusted.
(n) Exclusion from target price and total final price. If any clause
of this contract provides that the contract price does not or will not
include an amount for a specific purpose, then neither any target price
nor the total final price includes or will include any amount for that
purpose.
(o) Separate reimbursement. If any clause of this contract expressly
provides that the cost of performance of an obligation shall be at
Government expense, that expense shall not be included in any target
price or in the total final price, but shall be reimbursed separately.
(p) Taxes. As used in the Federal, State, and Local Taxes clause or
in any other clause that provides for certain taxes or duties to be
included in, or excluded from, the contract price, the term contract
price includes the total target price or, if it has been established,
the total final price. When any of these clauses requires that the
contract price be increased or decreased as a result of changes in the
obligation of the Contractor to pay or bear the burden of certain taxes
or duties, the increase or decrease shall be made in the total target
price or, if it has been established, in the total final price, so that
it will not affect the Contractor's profit or loss on this contract.
(End of clause)
NOTES: (1) The degree of completion may be based on a percentage of
contract performance or any other reasonable basis.
(2) The language may be changed to describe a negotiated adjustment
pattern under which the extent of adjustment is not the same for all
levels of cost variation.
Alternate I (APR 1984). As prescribed in 16.406(b), add the
following paragraph (q) to the basic clause:
(q) Provisioning and options. Parts, other supplies, or services
that are to be furnished under this contract on the basis of a
provisioning document or Government option shall be subject to price
revision in accordance with this clause. Any prices established for
these parts, other supplies, or services under a provisioning document
or Government option shall be treated as initial target prices, or
target prices as agreed upon and stipulated in the pricing document
supporting the provisioning or added items. Initial or firm target costs
and profits and final prices covering these parts, other supplies, or
services may be established separately, in the aggregate, or in any
combination, as the parties may agree.
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 67426, Dec. 20, 1996;
62 FR 12696, Mar. 17, 1997; 62 FR 51265, Sept. 30, 1997]
52.216-18 Ordering.
As prescribed in 16.506(a), insert the following clause:
Ordering (OCT 1995)
(a) Any supplies and services to be furnished under this contract
shall be ordered by issuance of delivery orders or task orders by the
individuals or activities designated in the Schedule. Such orders may be
issued from ------ through ------ [insert dates].
(b) All delivery orders or task orders are subject to the terms and
conditions of this contract. In the event of conflict between a delivery
order or task order and this contract, the contract shall control.
(c) If mailed, a delivery order or task order is considered
``issued'' when the Government deposits the order in the mail. Orders
may be issued orally, by facsimile, or by electronic commerce methods
only if authorized in the Schedule.
(End of clause)
[60 FR 49727, Sept. 26, 1995]
[[Page 100]]
52.216-19 Order Limitations.
As prescribed in 16.506(b), insert a clause substantially the same
as follows:
Order Limitations (OCT 1995)
(a) Minimum order. When the Government requires supplies or services
covered by this contract in an amount of less than ---- [insert dollar
figure or quantity], the Government is not obligated to purchase, nor is
the Contractor obligated to furnish, those supplies or services under
the contract.
(b) Maximum order. The Contractor is not obligated to honor--
(1) Any order for a single item in excess of ---- [insert dollar
figure or quantity];
(2) Any order for a combination of items in excess of ---- [insert
dollar figure or quantity]; or
(3) A series of orders from the same ordering office within -- days
that together call for quantities exceeding the limitation in
subparagraph (1) or (2) above.
(c) If this is a requirements contract (i.e., includes the
Requirements clause at subsection 52.216-21 of the Federal Acquisition
Regulation (FAR)), the Government is not required to order a part of any
one requirement from the Contractor if that requirement exceeds the
maximum-order limitations in paragraph (b) above.
(d) Notwithstanding paragraphs (b) and (c) above, the Contractor
shall honor any order exceeding the maximum order limitations in
paragraph (b), unless that order (or orders) is returned to the ordering
office within -- days after issuance, with written notice stating the
Contractor's intent not to ship the item (or items) called for and the
reasons. Upon receiving this notice, the Government may acquire the
supplies or services from another source.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 49727, Sept. 26, 1995]
52.216-20 Definite Quantity.
As prescribed in 16.506(c), insert the following clause:
Definite Quantity (OCT 1995)
(a) This is a definite-quantity, indefinite-delivery contract for
the supplies or services specified, and effective for the period stated,
in the Schedule.
(b) The Government shall order the quantity of supplies or services
specified in the Schedule, and the Contractor shall furnish them when
ordered. Delivery or performance shall be at locations designated in
orders issued in accordance with the Ordering clause and the Schedule.
(c) Except for any limitations on quantities in the Order
Limitations clause or in the Schedule, there is no limit on the number
of orders that may be issued. The Government may issue orders requiring
delivery to multiple destinations or performance at multiple locations.
(d) Any order issued during the effective period of this contract
and not completed within that time shall be completed by the Contractor
within the time specified in the order. The contract shall govern the
Contractor's and Government's rights and obligations with respect to
that order to the same extent as if the order were completed during the
contract's effective period; provided, that the Contractor shall not be
required to make any deliveries under this contract after ---- [insert
date].
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 49727, Sept. 26, 1995]
52.216-21 Requirements.
As prescribed in 16.506(d), insert the following clause:
Requirements (OCT 1995)
(a) This is a requirements contract for the supplies or services
specified, and effective for the period stated, in the Schedule. The
quantities of supplies or services specified in the Schedule are
estimates only and are not purchased by this contract. Except as this
contract may otherwise provide, if the Government's requirements do not
result in orders in the quantities described as estimated or maximum in
the Schedule, that fact shall not constitute the basis for an equitable
price adjustment.
(b) Delivery or performance shall be made only as authorized by
orders issued in accordance with the Ordering clause. Subject to any
limitations in the Order Limitations clause or elsewhere in this
contract, the Contractor shall furnish to the Government all supplies or
services specified in the Schedule and called for by orders issued in
accordance with the Ordering clause. The Government may issue orders
requiring delivery to multiple destinations or performance at multiple
locations.
(c) Except as this contract otherwise provides, the Government shall
order from the Contractor all the supplies or services specified in the
Schedule that are required to be purchased by the Government activity or
activities specified in the Schedule.
(d) The Government is not required to purchase from the Contractor
requirements in excess of any limit on total orders under this contract.
[[Page 101]]
(e) If the Government urgently requires delivery of any quantity of
an item before the earliest date that delivery may be specified under
this contract, and if the Contractor will not accept an order providing
for the accelerated delivery, the Government may acquire the urgently
required goods or services from another source.
(f) Any order issued during the effective period of this contract
and not completed within that period shall be completed by the
Contractor within the time specified in the order. The contract shall
govern the Contractor's and Government's rights and obligations with
respect to that order to the same extent as if the order were completed
during the contract's effective period; provided, that the Contractor
shall not be required to make any deliveries under this contract after
---- [insert date].
(End of clause)
Alternate I (APR 1984). If the requirements contract is for
nonpersonal services and related supplies and covers estimated
requirements that exceed a specific Government activity's internal
capability to produce or perform, substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(c) The estimated quantities are not the total requirements of the
Government activity specified in the Schedule, but are estimates of
requirements in excess of the quantities that the activity may itself
furnish within its own capabilities. Except as this contract otherwise
provides, the Government shall order from the Contractor all of that
activity's requirements for supplies and services specified in the
Schedule that exceed the quantities that the activity may itself furnish
within its own capabilities.
Alternate II (APR 1984). If the requirements contract includes
subsistence for both Government use and resale in the same Schedule, and
similar products may be acquired on a brand-name basis, add the
following paragraph (g) to the basic clause:
(g) The requirements referred to in this contract are for items to
be manufactured according to Government specifications. Notwithstanding
anything to the contrary stated in the contract, the Government may
acquire similar products by brand name from other sources for resale.
Alternate III (OCT 1995). If the requirements contract involves a
partial small business set-aside, substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(c) The Government's requirements for each item or subitem of
supplies or services described in the Schedule are being purchased
through one non-set-aside contract and one set-aside contract.
Therefore, the Government shall order from each Contractor approximately
one-half of the total supplies or services specified in the Schedule
that are required to be purchased by the specified Government activity
or activities. The Government may choose between the set-aside
Contractor and the non-set-aside Contractor in placing any particular
order. However, the Government shall allocate successive orders, in
accordance with its delivery requirements, to maintain as close a ratio
as is reasonably practicable between the total quantities ordered from
the two Contractors.
Alternate IV (OCT 1995). If the contract includes subsistence for
both Government use and resale in the same Schedule and similar products
may be acquired on a brand-name basis and the contract also involves a
partial small business set-aside, substitute the following paragraph (c)
for paragraph (c) of the basic clause and add the following paragraph
(g) to the basic clause:
(c) The Government's requirements for each item or subitem of
supplies or services described in the Schedule are being purchased
through one non-set-aside contract and one set-aside contract.
Therefore, the Government shall order from each Contractor approximately
one-half of the total supplies or services specified in the Schedule
that are required to be purchased by the specified Government activity
or activities. The Government may choose between the set-aside
Contractor and the non-set-aside Contractor in placing any particular
order. However, the Government shall allocate successive orders, in
accordance with its delivery requirements, to maintain as close a ratio
as is reasonably practicable between the total quantities ordered from
the two Contractors.
(g) The requirements referred to in this contract are for items to
be manufactured according to the Government specifications.
Notwithstanding anything to the contrary stated in the contract, the
Government may acquire similar products by brand name from other sources
for resale.
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48264, Sept. 18, 1995;
60 FR 49727, Sept. 26, 1995]
52.216-22 Indefinite Quantity.
As prescribed in 16.506(e), insert the following clause:
[[Page 102]]
Indefinite Quantity (OCT 1995)
(a) This is an indefinite-quantity contract for the supplies or
services specified, and effective for the period stated, in the
Schedule. The quantities of supplies and services specified in the
Schedule are estimates only and are not purchased by this contract.
(b) Delivery or performance shall be made only as authorized by
orders issued in accordance with the Ordering clause. The Contractor
shall furnish to the Government, when and if ordered, the supplies or
services specified in the Schedule up to and including the quantity
designated in the Schedule as the maximum. The Government shall order at
least the quantity of supplies or services designated in the Schedule as
the minimum.
(c) Except for any limitations on quantities in the Order
Limitations clause or in the Schedule, there is no limit on the number
of orders that may be issued. The Government may issue orders requiring
delivery to multiple destinations or performance at multiple locations.
(d) Any order issued during the effective period of this contract
and not completed within that period shall be completed by the
Contractor within the time specified in the order. The contract shall
govern the Contractor's and Government's rights and obligations with
respect to that order to the same extent as if the order were completed
during the contract's effective period; provided, that the Contractor
shall not be required to make any deliveries under this contract after
---- [insert date].
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 38518, Sept. 18, 1990;
60 FR 49727, Sept. 26, 1995]
52.216-23 Execution and Commencement of Work.
As prescribed in 16.603-4(b)(1), insert the following clause in
solicitations and contracts when a letter contract is contemplated,
except that it may be omitted from letter contracts awarded on SF 26:
Execution and Commencement of Work (APR 1984)
The Contractor shall indicate acceptance of this letter contract by
signing three copies of the contract and returning them to the
Contracting Officer not later than ---- [insert date]. Upon acceptance
by both parties, the Contractor shall proceed with performance of the
work, including purchase of necessary materials.
(End of clause)
52.216-24 Limitation of Government Liability.
As prescribed in 16.603-4(b)(2), insert the following clause in
solicitations and contracts when a letter contract is contemplated:
Limitation of Government Liability (APR 1984)
(a) In performing this contract, the Contractor is not authorized to
make expenditures or incur obligations exceeding ---- dollars.
(b) The maximum amount for which the Government shall be liable if
this contract is terminated is ---- dollars.
(End of clause)
52.216-25 Contract Definitization.
As prescribed in 16.603-4(b)(3), insert the following clause:
Contract Definitization (OCT 1997)
(a) A ---- [insert specific type of contract] definitive contract is
contemplated. The Contractor agrees to begin promptly negotiating with
the Contracting Officer the terms of a definitive contract that will
include (1) all clauses required by the Federal Acquisition Regulation
(FAR) on the date of execution of the letter contract, (2) all clauses
required by law on the date of execution of the definitive contract, and
(3) any other mutually agreeable clauses, terms, and conditions. The
Contractor agrees to submit a ---- [insert specific type of proposal
(e.g., fixed-price or cost-and-fee)] proposal and cost or pricing data
supporting its proposal.
(b) The schedule for definitizing this contract is [insert target
date for definitization of the contract and dates for submission of
proposal, beginning of negotiations, and, if appropriate, submission of
make-or-buy and subcontracting plans and cost or pricing data]:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(c) If agreement on a definitive contract to supersede this letter
contract is not reached by the target date in paragraph (b) above, or
within any extension of it granted by the Contracting Officer, the
Contracting Officer may, with the approval of the head of the
contracting activity, determine a reasonable price or fee in accordance
with subpart 15.4 and part 31 of the FAR, subject to Contractor appeal
as provided in the Disputes clause. In any event, the Contractor shall
proceed with completion of the contract, subject only to the Limitation
of Government Liability clause.
[[Page 103]]
(1) After the Contracting Officer's determination of price or fee,
the contract shall be governed by--
(i) All clauses required by the FAR on the date of execution of this
letter contract for either fixed-price or cost-reimbursement contracts,
as determined by the Contracting Officer under this paragraph (c);
(ii) All clauses required by law as of the date of the Contracting
Officer's determination; and
(iii) Any other clauses, terms, and conditions mutually agreed upon.
(2) To the extent consistent with subparagraph (c)(1) above, all
clauses, terms, and conditions included in this letter contract shall
continue in effect, except those that by their nature apply only to a
letter contract.
(End of clause)
Alternate I (APR 1984). In letter contracts awarded on the basis of
price competition, add the following paragraph (d) to the basic clause:
(d) The definitive contract resulting from this letter contract will
include a negotiated ---- [insert price ceiling or firm fixed price] in
no event to exceed ---- [insert the proposed price upon which the award
was based].
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
62 FR 51271, Sept. 30, 1997]
52.216-26 Payments of Allowable Costs Before Definitization.
As prescribed in 16.603-4(c), insert the following clause:
Payments of Allowable Costs Before Definitization (MAR 2000)
(a) Reimbursement rate. Pending the placing of the definitive
contract referred to in this letter contract, the Government will
promptly reimburse the Contractor for all allowable costs under this
contract at the following rates:
(1) One hundred percent of approved costs representing financing
payments to subcontractors under fixed-price subcontracts, provided that
the Government's payments to the Contractor will not exceed 80 percent
of the allowable costs of those subcontractors.
(2) One hundred percent of approved costs representing cost-
reimbursement subcontracts; provided, that the Government's payments to
the Contractor shall not exceed 85 percent of the allowable costs of
those subcontractors.
(3) Eighty-five percent of all other approved costs.
(b) Limitation of reimbursement. To determine the amounts payable to
the Contractor under this letter contract, the Contracting Officer shall
determine allowable costs in accordance with the applicable cost
principles in part 31 of the Federal Acquisition Regulation (FAR). The
total reimbursement made under this paragraph shall not exceed 85
percent of the maximum amount of the Government's liability, as stated
in this contract.
(c) Invoicing. Payments shall be made promptly to the Contractor
when requested as work progresses, but (except for small business
concerns) not more often than every 2 weeks, in amounts approved by the
Contracting Officer. The Contractor may submit to an authorized
representative of the Contracting Officer, in such form and reasonable
detail as the representative may require, an invoice or voucher
supported by a statement of the claimed allowable cost incurred by the
Contractor in the performance of this contract.
(d) Allowable costs. For the purpose of determining allowable costs,
the term costs includes--
(1) Those recorded costs that result, at the time of the request for
reimbursement, from payment by cash, check, or other form of actual
payment for items or services purchased directly for the contract;
(2) When the Contractor is not delinquent in payment of costs of
contract performance in the ordinary course of business, costs incurred,
but not necessarily paid, for--
(i) Supplies and services purchased directly for the contract,
provided payments will be made--
(A) In accordance with the terms and conditions of a subcontract or
invoice; and
(B) Ordinarily prior to the submission of the Contractor's next
payment request to the Government;
(ii) Materials issued from the Contractor's stores inventory and
placed in the production process for use on the contract;
(iii) Direct labor;
(iv) Direct travel;
(v) Other direct in-house costs; and
(vi) Properly allocable and allowable indirect costs as shown on the
records maintained by the Contractor for purposes of obtaining
reimbursement under Government contracts; and
(3) The amount of financing payments that the Contractor has paid by
cash, check, or other forms of payment to subcontractors.
(e) Small business concerns. A small business concern may receive
more frequent payments than every 2 weeks.
(f) Audit. At any time before final payment, the Contracting Officer
may have the Contractor's invoices or vouchers and statements of costs
audited. Any payment may be (1) reduced by any amounts found by the
Contracting Officer not to constitute allowable costs or (2) adjusted
for overpayments or underpayments made on preceding invoices or
vouchers.
[[Page 104]]
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 65 FR 16283, Mar. 27, 2000]
52.216-27 Single or Multiple Awards.
As prescribed in 16.506(f), insert the following provision:
Single or Multiple Awards (OCT 1995)
The Government may elect to award a single delivery order contract
or task order contract or to award multiple delivery order contracts or
task order contracts for the same or similar supplies or services to two
or more sources under this solicitation.
(End of provision)
[60 FR 49727, Sept. 26, 1995]
52.216-28 Multiple Awards for Advisory and Assistance Services.
As prescribed in 16.506(g), insert the following provision:
Multiple Awards for Advisory and Assistance Services (OCT 1995)
The Government intends to award multiple contracts for the same or
similar advisory and assistance services to two or more sources under
this solicitation unless the Government determines, after evaluation of
offers, that only one offeror is capable of providing the services at
the level of quality required.
(End of provision)
[60 FR 49728, Sept. 26, 1995]
52.217-1 [Reserved]
52.217-2 Cancellation Under Multiyear Contracts.
As prescribed in 17.109(a), insert the following clause:
Cancellation Under Multiyear Contracts (OCT 1997)
(a) Cancellation, as used in this clause, means that the Government
is canceling its requirements for all supplies or services in program
years subsequent to that in which notice of cancellation is provided.
Cancellation shall occur by the date or within the time period specified
in the Schedule, unless a later date is agreed to, if the Contracting
Officer (1) notifies the Contractor that funds are not available for
contract performance for any subsequent program year, or (2) fails to
notify the Contractor that funds are available for performance of the
succeeding program year requirement.
(b) Except for cancellation under this clause or termination under
the Default clause, any reduction by the Contracting Officer in the
requirements of this contract shall be considered a termination under
the Termination for Convenience of the Government clause.
(c) If cancellation under this clause occurs, the Contractor will be
paid a cancellation charge not over the cancellation ceiling specified
in the Schedule as applicable at the time of cancellation.
(d) The cancellation charge will cover only (1) costs (i) incurred
by the Contractor and/or subcontractor, (ii) reasonably necessary for
performance of the contract, and (iii) that would have been equitably
amortized over the entire multiyear contract period but, because of the
cancellation, are not so amortized, and (2) a reasonable profit or fee
on the costs.
(e) The cancellation charge shall be computed and the claim made for
it as if the claim were being made under the Termination for Convenience
of the Government clause of this contract. The Contractor shall submit
the claim promptly but no later than 1 year from the date (1) of
notification of the nonavailability of funds, or (2) specified in the
Schedule by which notification of the availability of additional funds
for the next succeeding program year is required to be issued, whichever
is earlier, unless extensions in writing are granted by the Contracting
Officer.
(f) The Contractor's claim may include--
(1) Reasonable nonrecurring costs (see Subpart 15.4 of the Federal
Acquisition Regulation) which are applicable to and normally would have
been amortized in all supplies or services which are multiyear
requirements;
(2) Allocable portions of the costs of facilities acquired or
established for the conduct of the work, to the extent that it is
impracticable for the Contractor to use the facilities in its commercial
work, and if the costs are not charged to the contract through overhead
or otherwise depreciated;
(3) Costs incurred for the assembly, training, and transportation to
and from the job site of a specialized work force; and
(4) Costs not amortized solely because the cancellation had
precluded anticipated benefits of Contractor or subcontractor learning.
(g) The claim shall not include--
(1) Labor, material, or other expenses incurred by the Contractor or
subcontractors for performance of the canceled work;
(2) Any cost already paid to the Contractor;
(3) Anticipated profit or unearned fee on the canceled work; or
(4) For service contracts, the remaining useful commercial life of
facilities. Useful commercial life means the commercial utility
[[Page 105]]
of the facilities rather than their physical life with due consideration
given to such factors as location of facilities, their specialized
nature, and obsolescence.
(h) This contract may include an Option clause with the period for
exercising the option limited to the date in the contract for
notification that funds are available for the next succeeding program
year. If so, the Contractor agrees not to include in option quantities
any costs of a startup or nonrecurring nature that have been fully set
forth in the contract. The Contractor further agrees that the option
quantities will reflect only those recurring costs and a reasonable
profit or fee necessary to furnish the additional option quantities.
(i) Quantities added to the original contract through the Option
clause of this contract shall be included in the quantity canceled for
the purpose of computing allowable cancellation charges.
(End of clause)
[61 FR 39207, July 26, 1996, as amended at 62 FR 51271, Sept. 30, 1997]
52.217-3 Evaluation Exclusive of Options.
As prescribed in 17.208(a), insert a provision substantially the
same as the following in solicitations when the solicitation includes an
option clause and does not include one of the provisions prescribed in
17.208 (b) or (c):
Evaluation Exclusive of Options (ACT 1984)
The Government will evaluate offers for award purposes by including
only the price for the basic requirement; i.e., options will not be
included in the evaluation for award purposes.
(End of provision)
52.217-4 Evaluation of Option Exercised at Time of Contract Award.
As prescribed in 17.208(b), insert a provision substantially the
same as the following:
Evaluation of Options Exercised at Time of Contract Award (JUN 1988)
Except when it is determined in accordance with FAR 17.206(b) not to
be in the Government's best interests, the Government will evaluate the
total price for the basic requirement together with any option(s)
exercised at the time of award.
(End of provision)
[53 FR 17860, May 18, 1988]
52.217-5 Evaluation of Options.
As prescribed in 17.208(c)(1), insert a provision substantially the
same as the following:
Evaluation of Options (JUL 1990)
Except when it is determined in accordance with FAR 17.206(b) not to
be in the Government's best interests, the Government will evaluate
offers for award purposes by adding the total price for all options to
the total price for the basic requirement. Evaluation of options will
not obligate the Government to exercise the option(s).
(End of provision)
[53 FR 17860, May 18, 1988, as amended at 55 FR 25532, June 21, 1990]
52.217-6 Option for Increased Quantity.
As prescribed in 17.208(d), insert a clause substantially the same
as the following:
Option for Increased Quantity (MAR 1989)
The Government may increase the quantity of supplies called for in
the Schedule at the unit price specified. The Contracting Officer may
exercise the option by written notice to the Contractor within ----
[insert in the clause the period of time in which the Contracting
Officer has to exercise the option]. Delivery of the added items shall
continue at the same rate as the like items called for under the
contract, unless the parties otherwise agree.
(End of clause)
[54 FR 5058, Jan. 31, 1989]
52.217-7 Option for Increased Quantity--Separately Priced Line Item.
As prescribed in 17.208(e), insert a clause substantially the same
as the following:
Option for Increased Quantity--Separately Priced Line Item (MAR 1989)
The Government may require the delivery of the numbered line item,
identified in the Schedule as an option item, in the quantity and at the
price stated in the Schedule. The Contracting Officer may exercise the
option by written notice to the Contractor within ---- [insert in the
clause the period of time in which the Contracting Officer has to
exercise
[[Page 106]]
the option]. Delivery of added items shall continue at the same rate
that like items are called for under the contract, unless the parties
otherwise agree.
(End of clause)
[54 FR 5058, Jan. 31, 1989]
52.217-8 Option to Extend Services.
As prescribed in 17.208(f), insert a clause substantially the same
as the following:
Option to Extend Services (NOV 1999)
The Government may require continued performance of any services
within the limits and at the rates specified in the contract. These
rates may be adjusted only as a result of revisions to prevailing labor
rates provided by the Secretary of Labor. The option provision may be
exercised more than once, but the total extention of performance
hereunder shall not exceed 6 months. The Contracting Officer may
exercise the option by written notice to the Contractor within-- [insert
the period of time within which the Contracting Officer may exercise the
option].
(End of clause)
[54 FR 29283, July 11, 1989, as amended at 64 51843, Sept. 24, 1999]
52.217-9 Option to Extend the Term of the Contract.
As prescribed in 17.208(g), insert a clause substantially the same
as the following:
Option to Extend the Term of the Contract (MAR 2000)
(a) The Government may extend the term of this contract by written
notice to the Contractor within -- [insert the period of time within
which the Contracting Officer may exercise the option]; provided that
the Government gives the Contractor a preliminary written notice of its
intent to extend at least -- days [60 days unless a different number of
days is inserted] before the contract expires. The preliminary notice
does not commit the Government to an extension.
(b) If the Government exercises this option, the extended contract
shall be considered to include this option clause.
(c) The total duration of this contract, including the exercise of
any options under this clause, shall not exceed -- (months) (years).
(End of clause)
[54 FR 5058, Jan. 31, 1989, as amended at 64 FR 51843, Sept. 24, 1999;
65 FR 16286, Mar. 27, 2000]
52.218 [Reserved]
52.219-1 Small Business Program Representations.
As prescribed in 19.307(a)(1), insert the following provision:
Small Business Program Representations (APR 2002)
(a)(1) The North American Industry Classification System (NAICS)
code for this acquisition is--[insert NAICS code].
(2) The small business size standard is -------- (insert size
standard).
(3) The small business size standard for a concern which submits an
offer in its own name, other than on a construction or service contract,
but which proposes to furnish a product which it did not itself
manufacture, is 500 employees.
(b) Representations. (1) The offeror represents as part of its offer
that it [squ] is, [squ] is not a small business concern.
(2) (Complete only if the offeror represented itself as a small
business concern in paragraph (b)(1) of this provision.) The offeror
represents, for general statistical purposes, that it [squ] is, [squ] is
not, a small disadvantaged business concern as defined in 13 CFR
124.1002.
(3) (Complete only if the offeror represented itself as a small
business concern in paragraph (b)(1) of this provision.) The offeror
represents as part of its offer that it [squ] is, [squ] is not a women-
owned small business concern.
(4) [Complete only if the offeror represented itself as a small
business concern in paragraph (b)(1) of this provision.] The offeror
represents as part of its offer that it [ ] is, [ ] is not a veteran-
owned small business concern.
(5) [Complete only if the offeror represented itself as a veteran-
owned small business concern in paragraph (b)(4) of this provision.] The
offeror represents as part of its offer that it [ ] is, [ ] is not a
service-disabled veteran-owned small business concern.
(6) [Complete only if the offeror represented itself as a small
business concern in paragraph (b)(1) of this provision.] The offeror
represents, as part of its offer, that--
(i) It [ ] is, [ ] is not a HUBZone small business concern listed,
on the date of this representation, on the List of Qualified HUBZone
Small Business Concerns maintained by the Small Business Administration,
and no material change in ownership and control, principal office, or
HUBZone employee percentage has occurred since it
[[Page 107]]
was certified by the Small Business Administration in accordance with 13
CFR part 126; and
(ii) It [ ] is, [ ] is not a joint venture that complies with the
requirements of 13 CFR part 126, and the representation in paragraph
(b)(6)(i) of this provision is accurate for the HUBZone small business
concern or concerns that are participating in the joint venture. [The
offeror shall enter the name or names of the HUBZone small business
concern or concerns that are participating in the joint venture:--------
----.] Each HUBZone small business concern participating in the joint
venture shall submit a separate signed copy of the HUBZone
representation.
(c) Definitions. As used in this provision--
Service-disabled veteran-owned small business concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service-disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by one
or more service-disabled veterans; and
(ii) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case of a
veteran with permanent and severe disability, the spouse or permanent
caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as defined
in 38 U.S.C. 101(16).
Small business concern means a concern, including its affiliates,
that is independently owned and operated, not dominant in the field of
operation in which it is bidding on Government contracts, and qualified
as a small business under the criteria in 13 CFR part 121 and the size
standard in paragraph (a) of this provision.
Veteran-owned small business concern means a small business concern-
-
(1) Not less than 51 percent of which is owned by one or more
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
publicly owned business, not less than 51 percent of the stock of which
is owned by one or more veterans; and
(2) The management and daily business operations of which are
controlled by one or more veterans.
Women-owned small business concern means a small business concern--
(1) That is at least 51 percent owned by one or more women; or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(2) Whose management and daily business operations are controlled by
one or more women.
(d) Notice. (1) If this solicitation is for supplies and has been
set aside, in whole or in part, for small business concerns, then the
clause in this solicitation providing notice of the set-aside contains
restrictions on the source of the end items to be furnished.
(2) Under 15 U.S.C. 645(d), any person who misrepresents a firm's
status as a small, HUBZone small, small disadvantaged, or women-owned
small business concern in order to obtain a contract to be awarded under
the preference programs established pursuant to section 8(a), 8(d), 9,
or 15 of the Small Business Act or any other provision of Federal law
that specifically references section 8(d) for a definition of program
eligibility, shall--
(i) Be punished by imposition of fine, imprisonment, or both;
(ii) Be subject to administrative remedies, including suspension and
debarment; and
(iii) Be ineligible for participation in programs conducted under
the authority of the Act.
(End of provision)
Alternate I (Oct 2002). As prescribed in 19.307(a)(2), add the
following paragraph (b)(7) to the basic provision:
(7) [Complete if offeror represented itself as disadvantaged in
paragraph (b)(2) of this provision.] The offeror shall check the
category in which its ownership falls:
---- Black American.
---- Hispanic American.
---- Native American (American Indians, Eskimos, Aleuts, or Native
Hawaiians).
---- Asian-Pacific American (persons with origins from Burma,
Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan,
Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust
Territory of the Pacific Islands (Republic of Palau), Republic of the
Marshall Islands, Federated States of Micronesia, the Commonwealth of
the Northern Mariana Islands, Guam, Samoa, Macao, Hong Kong, Fiji,
Tonga, Kiribati, Tuvalu, or Nauru).
---- Subcontinent Asian (Asian-Indian) American (persons with
origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the
Maldives Islands, or Nepal).
---- Individual/concern, other than one of the preceding.
[60 FR 48264, Sept. 18, 1995, as amended at 61 FR 67422, Dec. 20, 1996;
62 FR 238, Jan. 2, 1997; 63 FR 9069, Feb. 23, 1998; 63 FR 35725, June
30, 1998; 63 FR 70274, Dec. 18, 1998; 64 FR 10533, Mar. 4, 1999; 64 FR
32749, June 17, 1999; 64 FR 51832, Sept. 24, 1999; 65 FR 46058, July 26,
2000; 65 FR 60546, Oct. 11, 2000; 66 FR 2134, Jan. 10, 2001; 67 FR
13066, Mar. 20, 2002]
52.219-2 Equal Low Bids.
As prescribed in 19.307(c), insert the following provision:
[[Page 108]]
Equal Low Bids (OCT 1995)
(a) This provision applies to small business concerns only.
(b) The bidder's status as a labor surplus area (LSA) concern may
affect entitlement to award in case of tie bids. If the bidder wishes to
be considered for this priority, the bidder must identify, in the
following space, the LSA in which the costs to be incurred on account of
manufacturing or production (by the bidder or the first-tier
subcontractors) amount to more than 50 percent of the contract price.
________________________________________________________________________
________________________________________________________________________
(c) Failure to identify the labor surplus areas as specified in
paragraph (b) of this provision will preclude the bidder from receiving
priority consideration. If the bidder is awarded a contract as a result
of receiving priority consideration under this provision and would not
have otherwise received award, the bidder shall perform the contract or
cause the contract to be performed in accordance with the obligations of
an LSA concern.
(End of provision)
[60 FR 48265, Sept. 18, 1995, as amended at 63 FR 35725, June 30, 1998;
63 FR 70274, Dec. 18, 1998]
52.219-3 Notice of total HUBZone set-aside.
As prescribed in 19.1308(a), insert the following clause:
Notice of Total HUBZone Set-Aside (JAN 1999)
(a) Definition. HUBZone small business concern, as used in this
clause, means a small business concern that appears on the List of
Qualified HUBZone Small Business Concerns maintained by the Small
Business Administration.
(b) General. (1) Offers are solicited only from HUBZone small
business concerns. Offers received from concerns that are not HUBZone
small business concerns shall not be considered.
(2) Any award resulting from this solicitation will be made to a
HUBZone small business concern.
(c) Agreement. A HUBZone small business concern agrees that in the
performance of the contract, in the case of a contract for--
(1) Services (except construction), at least 50 percent of the cost
of personnel for contract performance will be spent for employees of the
concern or employees of other HUBZone small business concerns;
(2) Supplies (other than acquisition from a nonmanufacturer of the
supplies), at least 50 percent of the cost of manufacturing, excluding
the cost of materials, will be performed by the concern or other HUBZone
small business concerns;
(3) General construction, at least 15 percent of the cost of the
contract performance incurred for personnel will be spent on the
concern's employees or the employees of other HUBZone small business
concerns; or
(4) Construction by special trade contractors, at least 25 percent
of the cost of the contract performance incurred for personnel will be
spent on the concern's employees or the employees of other HUBZone small
business concerns.
(d) A HUBZone joint venture agrees that, in the performance of the
contract, the applicable percentage specified in paragraph (c) of this
clause will be performed by the HUBZone small business participant or
participants.
(e) A HUBZone small business concern nonmanufacturer agrees to
furnish in performing this contract only end items manufactured or
produced by HUBZone small business manufacturer concerns. This paragraph
does not apply in connection with construction or service contracts.
(End of clause)
[63 FR 70274, Dec. 18, 1998]
52.219-4 Notice of price evaluation preference for HUBZone small business concerns.
As prescribed in 19.1308(b), insert the following clause:
Notice of Price Evaluation Preference for HUBZone Small Business
Concerns (JAN 1999)
(a) Definition. HUBZone small business concern, as used in this
clause, means a small business concern that appears on the List of
Qualified HUBZone Small Business Concerns maintained by the Small
Business Administration.
(b) Evaluation preference. (1) Offers will be evaluated by adding a
factor of 10 percent to the price of all offers, except--
(i) Offers from HUBZone small business concerns that have not waived
the evaluation preference;
(ii) Otherwise successful offers from small business concerns;
(iii) Otherwise successful offers of eligible products under the
Trade Agreements Act when the dollar threshold for application of the
Act is exceeded (see 25.402 of the Federal Acquisition Regulation
(FAR)); and
(iv) Otherwise successful offers where application of the factor
would be inconsistent with a Memorandum of Understanding or other
international agreement with a foreign government.
[[Page 109]]
(2) The factor of 10 percent shall be applied on a line item basis
or to any group of items on which award may be made. Other evaluation
factors described in the solicitation shall be applied before
application of the factor.
(3) A concern that is both a HUBZone small business concern and a
small disadvantaged business concern will receive the benefit of both
the HUBZone small business price evaluation preference and the small
disadvantaged business price evaluation adjustment (see FAR clause
52.219-23). Each applicable price evaluation preference or adjustment
shall be calculated independently against an offeror's base offer.
These individual preference amounts shall be added together to
arrive at the total evaluated price for that offer.
(c) Waiver of evaluation preference. A HUBZone small business
concern may elect to waive the evaluation preference, in which case the
factor will be added to its offer for evaluation purposes. The
agreements in paragraph (d) of this clause do not apply if the offeror
has waived the evaluation preference.
[squ] Offeror elects to waive the evaluation preference.
(d) Agreement. A HUBZone small business concern agrees that in the
performance of the contract, in the case of a contract for
(1) Services (except construction), at least 50 percent of the cost
of personnel for contract performance will be spent for employees of the
concern or employees of other HUBZone small business concerns;
(2) Supplies (other than procurement from a nonmanufacturer of such
supplies), at least 50 percent of the cost of manufacturing, excluding
the cost of materials, will be performed by the concern or other HUBZone
small business concerns;
(3) General construction, at least 15 percent of the cost of the
contract performance incurred for personnel will be will be spent on the
concern's employees or the employees of other HUBZone small business
concerns; or
(4) Construction by special trade contractors, at least 25 percent
of the cost of the contract performance incurred for personnel will be
spent on the concern's employees or the employees of other HUBZone small
business concerns.
(e) A HUBZone joint venture agrees that in the performance of the
contract, the applicable percentage specified in paragraph (d) of this
clause will be performed by the HUBZone small business participant or
participants.
(f) A HUBZone small business concern nonmanufacturer agrees to
furnish in performing this contract only end items manufactured or
produced by HUBZone small business manufacturer concerns. This paragraph
does not apply in connection with construction or service contracts.
End of clause)
[63 FR 70275, Dec. 18, 1998]
52.219-5 Very small business set-aside.
As prescribed in 19.905, insert the following clause:
Very Small Business Set-Aside (MAR 1999)
(a) Definition. Very Small Business Concern, as used in this clause,
means a concern whose headquarters is located within the geographical
area served by a designated SBA district (see 13 CFR 125.7(b)); which,
together with its affiliates, has no more than 15 employees and has
average annual receipts that do not exceed $1 million.
(b) Eligibility. (1) Only those firms headquartered in the --------
------------------------ Small Business Administration (SBA) district
[Contracting Officer shall insert the applicable SBA designated
district. If the geographic area is served by the SBA Los Angeles or
Santa Ana District offices, list both] are eligible for this
acquisition.
(2) Offers or quotations under this acquisition are solicited from
very small business concerns only. Offers that are from other than an
eligible very small business concern shall not be considered and shall
be rejected. The offeror represents that it is an eligible very small
business concern by submission of an offer or quotation.
(c) Agreement. A very small business concern submitting an offer in
its own name agrees to furnish, in performing the contract, only end
items manufactured or produced by small business concerns in the United
States. As used in this clause, the term United States includes its
territories and possessions, the Commonwealth of Puerto Rico, the trust
territory of the Pacific Islands, and the District of Columbia.
(End of clause)
Alternate I (Mar 1999). As prescribed in 19.905(a), delete paragraph
(c) of the basic clause.
Alternate II (Mar 1999). As prescribed in 19.905(b), substitute the
following paragraph (c) for paragraph (c) of the basic clause:
(c) Agreement. A very small business concern submitting an offer in
its own name agrees to furnish, in performing the contract, only end
items manufactured or produced by domestic firms in the United States.
As used in this clause, the term United States includes its territories
and possessions, the Commonwealth of Puerto Rico,
[[Page 110]]
the trust territory of the Pacific Islands, and the District of
Columbia.
[64 FR 10537, Mar. 4, 1999]
52.219-6 Notice of Total Small Business Set-Aside.
As prescribed in 19.508(c), insert the following clause:
Notice of Total Small Business Set-Aside (JUL 1996)
(a) Definition.
Small business concern, as used in this clause, means a concern,
including its affiliates, that is independently owned and operated, not
dominant in the field of operation in which it is bidding on Government
contracts, and qualified as a small business under the size standards in
this solicitation.
(b) General. (1) Offers are solicited only from small business
concerns. Offers received from concerns that are not small business
concerns shall be considered nonresponsive and will be rejected.
(2) Any award resulting from this solicitation will be made to a
small business concern.
(c) Agreement. A small business concern submitting an offer in its
own name agrees to furnish, in performing the contract, only end items
manufactured or produced by small business concerns in the United
States. The term United States includes its territories and possessions,
the Commonwealth of Puerto Rico, the Trust Territory of the Pacific
Islands, and the District of Columbia. If this procurement is processed
under simplified acquisition procedures and the total amount of this
contract does not exceed $25,000, a small business concern may furnish
the product of any domestic firm. This paragraph does not apply in
connection with construction or service contracts.
(End of clause)
Alternate I (OCT 1995). When the acquisition is for a product in a
class for which the Small Business Administration has determined that
there are no small business manufacturers or processors in the Federal
market in accordance with 19.502-2(c), delete paragraph (c).
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 25069, June 12, 1989;
60 FR 48265, Sept. 18, 1995; 61 FR 39209, July 26, 1996]
52.219-7 Notice of Partial Small Business Set-Aside.
As prescribed in 19.508(d), insert the following clause:
Notice of Partial Small Business Set-Aside (JUL 1996)
(a) Definitions.
Small business concern, as used in this clause, means a concern,
including its affiliates, that is independently owned and operated, not
dominant in the field of operation in which it is bidding on Government
contracts, and qualified as a small business under the size standards in
this solicitation.
(b) General. (1) A portion of this requirement, identified elsewhere
in this solicitation, has been set aside for award to one or more small
business concerns.
(2) Offers on the non-set-aside portion will be evaluated first and
award will be made on that portion in accordance with the provisions of
this solicitation.
(3) The set-aside portion will be awarded at the highest unit
price(s) in the contract(s) for the non-set-aside portion, adjusted to
reflect transportation and other costs appropriate for the selected
contractor(s).
(4) The contractor(s) for the set-aside portion will be selected
from among the small business concerns that submitted responsive offers
on the non-set-aside portion. Negotiations will be conducted with the
concern that submitted the lowest responsive offer on the non-set-aside
portion. If the negotiations are not successful or if only part of the
set-aside portion is awarded to that concern, negotiations will be
conducted with the concern that submitted the second-lowest responsive
offer on the non-set-aside portion. This process will continue until a
contract or contracts are awarded for the entire set-aside portion.
(c) Agreement. For the set-aside portion of the acquisition, a small
business concern submitting an offer in its own name agrees to furnish,
in performing the contract, only end items manufactured or produced by
small business concerns in the United States. The term United States
includes its territories and possessions, the Commonwealth of Puerto
Rico, the Trust Territory of the Pacific Islands, and the District of
Columbia. If this procurement is processed under simplified acquisition
procedures and the total amount of this contract does not exceed
$25,000, a small business concern may furnish the product of any
domestic firm. This paragraph does not apply in connection with
construction or service contracts.
(End of clause)
Alternate I (OCT 1995). When the acquisition is for a product in a
class for which the Small Business Administration has determined that
there are no
[[Page 111]]
small business manufacturers or processors in the Federal market in
accordance with 19.502-2(c), delete paragraph (c).
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 25069, June 12, 1989;
55 FR 52798, Dec. 21, 1990; 60 FR 48265, Sept. 18, 1995; 61 FR 39209,
July 26, 1996]
52.219-8 Utilization of small business concerns.
As prescribed in 19.708(a), insert the following clause:
Utilization of Small Business Concerns (OCT 2000)
(a) It is the policy of the United States that small business
concerns, veteran-owned small business concerns, service-disabled
veteran-owned small business concerns, HUBZone small business concerns,
small disadvantaged business concerns, and women-owned small business
concerns shall have the maximum practicable opportunity to participate
in performing contracts let by any Federal agency, including contracts
and subcontracts for subsystems, assemblies, components, and related
services for major systems. It is further the policy of the United
States that its prime contractors establish procedures to ensure the
timely payment of amounts due pursuant to the terms of their
subcontracts with small business concerns, veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, small disadvantaged business concerns,
and women-owned small business concerns.
(b) The Contractor hereby agrees to carry out this policy in the
awarding of subcontracts to the fullest extent consistent with efficient
contract performance. The Contractor further agrees to cooperate in any
studies or surveys as may be conducted by the United States Small
Business Administration or the awarding agency of the United States as
may be necessary to determine the extent of the Contractor's compliance
with this clause.
(c) Definitions. As used in this contract--
HUBZone small business concern means a small business concern that
appears on the List of Qualified HUBZone Small Business Concerns
maintained by the Small Business Administration.
Service-disabled veteran-owned small business concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service-disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by one
or more service-disabled veterans; and
(ii) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case of a
veteran with permanent and severe disability, the spouse or permanent
caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as defined
in 38 U.S.C. 101(16).
Small business concern means a small business as defined pursuant to
Section 3 of the Small Business Act and relevant regulations promulgated
pursuant thereto.
Small disadvantaged business concern means a small business concern
that represents, as part of its offer that--
(1) It has received certification as a small disadvantaged business
concern consistent with 13 CFR part 124, subpart B;
(2) No material change in disadvantaged ownership and control has
occurred since its certification;
(3) Where the concern is owned by one or more individuals, the net
worth of each individual upon whom the certification is based does not
exceed $750,000 after taking into account the applicable exclusions set
forth at 13 CFR 124.104(c)(2); and
(4) It is identified, on the date of its representation, as a
certified small disadvantaged business in the database maintained by the
Small Business Administration (PRO-Net).
Veteran-owned small business concern means a small business concern-
-
(1) Not less than 51 percent of which is owned by one or more
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
publicly owned business, not less than 51 percent of the stock of which
is owned by one or more veterans; and
(2) The management and daily business operations of which are
controlled by one or more veterans.
Women-owned small business concern means a small business concern--
(1) That is at least 51 percent owned by one or more women, or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(2) Whose management and daily business operations are controlled by
one or more women.
(d) Contractors acting in good faith may rely on written
representations by their subcontractors regarding their status as a
small business concern, a veteran-owned small business concern, a
service-disabled veteran-owned small business concern, a HUBZone small
business concern, a small disadvantaged business concern, or a women-
owned small business concern.
[[Page 112]]
(End of clause)
[63 FR 70275, Dec. 18, 1998, as amended at 64 FR 3196, Jan. 20, 1999; 64
FR 10549, Mar. 4, 1999; 64 FR 32749, June 17, 1999; 64 FR 36224, July 2,
1999; 65 FR 60546, Oct. 11, 2000]
52.219-9 Small business subcontracting plan.
As prescribed in 19.708(b), insert the following clause:
Small Business Subcontracting Plan (JAN 2002)
(a) This clause does not apply to small business concerns.
(b) Definitions. As used in this clause--
Commercial item means a product or service that satisfies the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation.
Commercial plan means a subcontracting plan (including goals) that
covers the offeror's fiscal year and that applies to the entire
production of commercial items sold by either the entire company or a
portion thereof (e.g., division, plant, or product line).
Individual contract plan means a subcontracting plan that covers the
entire contract period (including option periods), applies to a specific
contract, and has goals that are based on the offeror's planned
subcontracting in support of the specific contract, except that indirect
costs incurred for common or joint purposes may be allocated on a
prorated basis to the contract.
Master plan means a subcontracting plan that contains all the
required elements of an individual contract plan, except goals, and may
be incorporated into individual contract plans, provided the master plan
has been approved.
Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a Federal Government
prime Contractor or subcontractor calling for supplies or services
required for performance of the contract or subcontract.
(c) The offeror, upon request by the Contracting Officer, shall
submit and negotiate a subcontracting plan, where applicable, that
separately addresses subcontracting with small business, veteran-owned
small business, service-disabled veteran-owned small business, HUBZone
small business concerns, small disadvantaged business, and women-owned
small business concerns. If the offeror is submitting an individual
contract plan, the plan must separately address subcontracting with
small business, veteran-owned small business, service-disabled veteran-
owned small business, HUBZone small business, small disadvantaged
business, and women-owned small business concerns, with a separate part
for the basic contract and separate parts for each option (if any). The
plan shall be included in and made a part of the resultant contract. The
subcontracting plan shall be negotiated within the time specified by the
Contracting Officer. Failure to submit and negotiate the subcontracting
plan shall make the offeror ineligible for award of a contract.
(d) The offeror's subcontracting plan shall include the following:
(1) Goals, expressed in terms of percentages of total planned
subcontracting dollars, for the use of small business, veteran-owned
small business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business concerns as subcontractors. The offeror shall include all
subcontracts that contribute to contract performance, and may include a
proportionate share of products and services that are normally allocated
as indirect costs.
(2) A statement of--
(i) Total dollars planned to be subcontracted for an individual
contract plan; or the offeror's total projected sales, expressed in
dollars, and the total value of projected subcontracts to support the
sales for a commercial plan;
(ii) Total dollars planned to be subcontracted to small business
concerns;
(iii) Total dollars planned to be subcontracted to veteran-owned
small business concerns;
(iv) Total dollars planned to be subcontracted to service-disabled
veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small
business concerns;
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns; and
(vii) Total dollars planned to be subcontracted to women-owned small
business concerns.
(3) A description of the principal types of supplies and services to
be subcontracted, and an identification of the types planned for
subcontracting to--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the subcontracting
goals in paragraph (d)(1) of this clause.
(5) A description of the method used to identify potential sources
for solicitation purposes (e.g., existing company source lists, the
Procurement Marketing and Access Network (PRO-Net) of the Small Business
Administration (SBA), veterans service organizations, the National
Minority Purchasing
[[Page 113]]
Council Vendor Information Service, the Research and Information
Division of the Minority Business Development Agency in the Department
of Commerce, or small, HUBZone, small disadvantaged, and women-owned
small business trade associations). A firm may rely on the information
contained in PRO-Net as an accurate representation of a concern's size
and ownership characteristics for the purposes of maintaining a small,
veteran-owned small, service-disabled veteran-owned small, HUBZone
small, small disadvantaged, and women-owned small business source list.
Use of PRO-Net as its source list does not relieve a firm of its
responsibilities (e.g., outreach, assistance, counseling, or publicizing
subcontracting opportunities) in this clause.
(6) A statement as to whether or not the offeror in included
indirect costs in establishing subcontracting goals, and a description
of the method used to determine the proportionate share of indirect
costs to be incurred with--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(7) The name of the individual employed by the offeror who will
administer the offeror's subcontracting program, and a description of
the duties of the individual.
(8) A description of the efforts the offeror will make to assure
that small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns have an
equitable opportunity to compete for subcontracts.
(9) Assurances that the offeror will include the clause of this
contract entitled ``Utilization of Small Business Concerns'' in all
subcontracts that offer further subcontracting opportunities, and that
the offeror will require all subcontractors (except small business
concerns) that receive subcontracts in excess of $500,000 ($1,000,000
for construction of any public facility) to adopt a subcontracting plan
that complies with the requirements of this clause.
(10) Assurances that the offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can determine
the extent of compliance by the offeror with the subcontracting plan;
(iii) Submit Standard Form (SF) 294, Subcontracting Report for
Individual Contracts, and/or SF 295, Summary Subcontract Report, in
accordance with paragraph (j) of this clause. The reports shall provide
information on subcontract awards to small business concerns, veteran-
owned small business concerns, service-disabled veteran-owned small
business concerns, HUBZone small business concerns, small disadvantaged
business concerns, women-owned small business concerns, and Historically
Black Colleges and Universities and Minority Institutions. Reporting
shall be in accordance with the instructions on the forms or as provided
in agency regulations.
(iv) Ensure that its subcontractors agree to submit SF 294 and SF
295.
(11) A description of the types of records that will be maintained
concerning procedures that have been adopted to comply with the
requirements and goals in the plan, including establishing source lists;
and a description of the offeror's efforts to locate small business,
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business, and
women-owned small business concerns and award subcontracts to them. The
records shall include at least the following (on a plant-wide or
company-wide basis, unless otherwise indicated):
(i) Source lists (e.g., PRO-Net), guides, and other data that
identify small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns.
(ii) Organizations contacted in an attempt to locate sources that
are small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an award
of more than $100,000, indicating--
(A) Whether small business concerns were solicited and, if not, why
not;
(B) Whether veteran-owned small business concerns were solicited
and, if not, why not;
(C) Whether service-disabled veteran-owned small business concerns
were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and, if
not, why not;
(E) Whether small disadvantaged business concerns were solicited
and, if not, why not;
(F) Whether women-owned small business concerns were solicited and,
if not, why not; and
(G) If applicable, the reason award was not made to a small business
concern.
(iv) Records of any outreach efforts to contact--
(A) Trade associations;
(B) Business development organizations;
[[Page 114]]
(C) Conferences and trade fairs to locate small, HUBZone small,
small disadvantaged, and women-owned small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to
buyers through--
(A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the program's
requirements.
(vi) On a contract-by-contract basis, records to support award data
submitted by the offeror to the Government, including the name, address,
and business size of each subcontractor. Contractors having commercial
plans need not comply with this requirement.
(e) In order to effectively implement this plan to the extent
consistent with efficient contract performance, the Contractor shall
perform the following functions:
(1) Assist small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns by
arranging solicitations, time for the preparation of bids, quantities,
specifications, and delivery schedules so as to facilitate the
participation by such concerns. Where the Contractor's lists of
potential small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business subcontractors
are excessively long, reasonable effort shall be made to give all such
small business concerns an opportunity to compete over a period of time.
(2) Provide adequate and timely consideration of the potentialities
of small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns in all
``make-or-buy'' decisions.
(3) Counsel and discuss subcontracting opportunities with
representatives of small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small business,
small disadvantaged business, and women-owned small business firms.
(4) Provide notice to subcontractors concerning penalties and
remedies for misrepresentations of business status as small, veteran-
owned small business, HUBZone small, small disadvantaged, or women-owned
small business for the purpose of obtaining a subcontract that is to be
included as part or all of a goal contained in the Contractor's
subcontracting plan.
(f) A master plan on a plant or division-wide basis that contains
all the elements required by paragraph (d) of this clause, except goals,
may be incorporated by reference as a part of the subcontracting plan
required of the offeror by this clause; provided--
(1) The master plan has been approved,
(2) The offeror ensures that the master plan is updated as necessary
and provides copies of the approved master plan, including evidence of
its approval, to the Contracting Officer, and
(3) Goals and any deviations from the master plan deemed necessary
by the Contracting Officer to satisfy the requirements of this contract
are set forth in the individual subcontracting plan.
(g) A commercial plan is the preferred type of subcontracting plan
for contractors furnishing commercial items. The commercial plan shall
relate to the offeror's planned subcontracting generally, for both
commercial and Government business, rather than solely to the Government
contract. Commercial plans are also preferred for subcontractors that
provide commercial items under a prime contract, whether or not the
prime contractor is supplying a commercial item.
(h) Prior compliance of the offeror with other such subcontracting
plans under previous contracts will be considered by the Contracting
Officer in determining the responsibility of the offeror for award of
the contract.
(i) The failure of the Contractor or subcontractor to comply in good
faith with (1) the clause of this contract entitled ``Utilization Of
Small Business Concerns,'' or (2) an approved plan required by this
clause, shall be a material breach of the contract.
(j) The Contractor shall submit the following reports:
(1) Standard Form 294, Subcontracting Report for Individual
Contracts. This report shall be submitted to the Contracting Officer
semiannually and at contract completion. The report covers subcontract
award data related to this contract. This report is not required for
commercial plans.
(2) Standard Form 295, Summary Subcontract Report. This report
encompasses all of the contracts with the awarding agency. It must be
submitted semi-annually for contracts with the Department of Defense and
annually for contracts with civilian agencies. If the reporting activity
is covered by a commercial plan, the reporting activity must report
annually all subcontract awards under that plan. All reports submitted
at the close of each fiscal year (both individual and commercial plans)
shall include a breakout, in the Contractor's format, of subcontract
awards, in whole dollars, to small disadvantaged business concerns by
North American Industry Classification System (NAICS) Industry
Subsector. For a commercial plan, the Contractor may obtain from each of
its subcontractors a predominant NAICS Industry Subsector and report all
awards to that
[[Page 115]]
subcontractor under its predominant NAICS Industry Subsector.
(End of clause)
Alternate I (Oct 2001). When contracting by sealed bidding rather
than by negotiation, substitute the following paragraph (c) for
paragraph (c) of the basic clause:
(c) The apparent low bidder, upon request by the Contracting
Officer, shall submit a subcontracting plan, where applicable, that
separately addresses subcontracting with small business, veteran-owned
small business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business concerns. If the bidder is submitting an individual contract
plan, the plan must separately address subcontracting with small
business, veteran-owned small business, service-disabled veteran-owned
small business HUBZone small business, small disadvantaged business, and
women-owned small business concerns, with a separate part for the basic
contract and separate parts for each option (if any). The plan shall be
included in and made a part of the resultant contract. The
subcontracting plan shall be submitted within the time specified by the
Contracting Officer. Failure to submit the subcontracting plan shall
make the bidder ineligible for the award of a contract.
Alternate II (Oct 2001). As prescribed in 19.708(b)(1), substitute
the following paragraph (c) for paragraph (c) of the basic clause:
(c) Proposals submitted in response to this solicitation shall
include a subcontracting plan that separately addresses subcontracting
with small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns. If the
offeror is submitting an individual contract plan, the plan must
separately address subcontracting with small business, veteran-owned
small business, service-disabled veteran-owned small business HUBZone
small business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The plan shall be included in
and made a part of the resultant contract. The subcontracting plan shall
be negotiated within the time specified by the Contracting Officer.
Failure to submit and negotiate a subcontracting plan shall make the
offeror ineligible for award of a contract.
[48 FR 42478, Sept. 19, 1983, as amended at 52 FR 19805, May 27, 1987;
54 FR 29283, July 11, 1989; 54 FR 49296, Nov. 30, 1989; 55 FR 3888, Feb.
5, 1990; 55 FR 52798, Dec. 21, 1990; 60 FR 48265, Sept. 18, 1995; 61 FR
2639, Jan. 26, 1996; 61 FR 31643, June 20, 1996; 63 FR 34067, June 22,
1998; 63 FR 36124, July 1, 1998; 63 FR 70276, 70293, Dec. 18, 1998; 64
FR 36224, July 2, 1999; 65 FR 46058, July 26, 2000; 65 FR 60547, Oct.
11, 2000; 66 FR 53493, Oct. 22, 2001; 67 FR 1858, Jan. 14, 2002]
52.219-10 Incentive Subcontracting Program.
As prescribed in 19.708(c)(1), insert the following clause:
Incentive Subcontracting Program (OCT 2001)
(a) Of the total dollars it plans to spend under subcontracts, the
Contractor has committed itself in its subcontracting plan to try to
award certain percentages to small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small business
concerns, respectively.
(b) If the Contractor exceeds its subcontracting goals for small
business, veteran-owned small business, service-disabled veteran-owned
small business, HUBZone small business, and women-owned small business
concerns in performing this contract, it will receive -- [Contracting
Officer to insert the appropriate number between 0 and 10] percent of
the dollars in excess of each goal in the plan, unless the Contracting
Officer determines that the excess was not due to the Contractor's
efforts (e.g., a subcontractor cost overrun caused the actual
subcontract amount to exceed that estimated in the subcontracting plan,
or the award of subcontracts that had been planned but had not been
disclosed in the subcontracting plan during contract negotiations).
Determinations under this paragraph are unilateral decisions made solely
at the discretion of the Government.
(c) If this is a cost-plus-fixed-fee contract, the sum of the fixed
fee and the incentive fee earned under this contract may not exceed the
limitations in 15.404-4 of the Federal Acquisition Regulation.
[[Page 116]]
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48266, 48267, Sept.
18, 1995; 62 FR 51271, Sept. 30, 1997; 63 FR 36125, July 1, 1998; 63 FR
70277, Dec. 18, 1998; 64 FR 72449, Dec. 27, 1999; 65 FR 60548, Oct. 11,
2000; 66 FR 53493, Oct. 22, 2001]
52.219-11 Special 8(a) Contract Conditions.
As prescribed in 19.811-3(a), insert the following clause:
Special 8(a) Contract Conditions (FEB 1990)
The Small Business Administration (SBA) agrees to the following:
(a) To furnish the supplies or services set forth in this contract
according to the specifications and the terms and conditions hereof by
subcontracting with an eligible concern pursuant to the provisions of
section 8(a) of the Small Business Act, as amended (15 U.S.C. 637(a)).
(b) That in the event SBA does not award a subcontract for all or a
part of the work hereunder, this contract may be terminated either in
whole or in part without cost to either party.
(c) Except for novation agreements and advance payments, delegates
to the ---- [insert name of contracting agency] the responsibility for
administering the subcontract to be awarded hereunder with complete
authority to take any action on behalf of the Government under the terms
and conditions of the subcontract; provided, however, that the ----
[insert name of contracting agency] shall give advance notice to the SBA
before it issues a final notice terminating the right of a subcontractor
to proceed with further performance, either in whole or in part, under
the subcontract for default or for the convenience of the Government.
(d) That payments to be made under any subcontract awarded under
this contract will be made directly to the subcontractor by the ----
[insert name of contracting agency].
(e) That the subcontractor awarded a subcontract hereunder shall
have the right of appeal from decisions of the Contracting Officer
cognizable under the Disputes clause of said subcontract.
(f) To notify the [insert name of contracting agency] Contracting
Officer immediately upon notification by the subcontractor that the
owner or owners upon whom 8(a) eligibility was based plan to relinquish
ownership or control of the concern.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 46009, Oct. 31, 1989;
55 FR 3888, Feb. 5, 1990; 61 FR 67422, Dec. 20, 1996]
52.219-12 Special 8(a) Subcontract Conditions.
As prescribed in 19.811-3(b), insert the following clause:
Special 8(a) Subcontract Conditions (FEB 1990)
(a) The Small Business Administration (SBA) has entered into
Contract No. ---- [insert number of contract] with the ---- [insert name
of contracting agency] to furnish the supplies or services as described
therein. A copy of the contract is attached hereto and made a part
hereof.
(b) The ---- [insert name of subcontractor], hereafter referred to
as the subcontractor, agrees and acknowledges as follows:
(1) That it will, for and on behalf of the SBA, fulfill and perform
all of the requirements of Contract No. ---- [insert number of contract]
for the consideration stated therein and that it has read and is
familiar with each and every part of the contract.
(2) That the SBA has delegated responsibility, except for novation
agreements and advance payments, for the administration of this
subcontract to the ---- [insert name of contracting agency] with
complete authority to take any action on behalf of the Government under
the terms and conditions of this contract.
(3) That it will not subcontract the performance of any of the
requirements of this subcontract to any lower tier subcontractor without
the prior written approval of the SBA and the designated Contracting
Officer of the ---- [insert name of contracting agency].
(4) That is will notify the [insert name of contracting agency]
Contracting Officer in writing immediately upon entering an agreement
(either oral or written) to transfer all or part of its stock or other
ownership interest to any other party.
(c) Payments, including any progress payments under this
subcontract, will be made directly to the subcontractor by the ----
[insert name of contracting agency].
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989;
54 FR 46009, Oct. 31, 1989; 55 FR 3889, Feb. 5, 1990; 55 FR 38518, Sept.
18, 1990; 61 FR 67422, Dec. 20, 1996]
[[Page 117]]
52.219-13 [Reserved]
52.219-14 Limitations on Subcontracting.
As prescribed in 19.508(e) or 19.811-3(e), insert the following
clause:
Limitations on Subcontracting (DEC 1996)
(a) This clause does not apply to the unrestricted portion of a
partial set-aside.
(b) By submission of an offer and execution of a contract, the
Offeror/Contractor agrees that in performance of the contract in the
case of a contract for--
(1) Services (except construction). At least 50 percent of the cost
of contract performance incurred for personnel shall be expended for
employees of the concern.
(2) Supplies (other than procurement from a nonmanufacturer of such
supplies). The concern shall perform work for at least 50 percent of the
cost of manufacturing the supplies, not including the cost of materials.
(3) General construction. The concern will perform at least 15
percent of the cost of the contract, not including the cost of
materials, with its own employees.
(4) Construction by special trade contractors. The concern will
perform at least 25 percent of the cost of the contract, not including
the cost of materials, with its own employees.
(End of clause)
[52 FR 38190, Oct. 14, 1988, as amended at 55 FR 52798, Dec. 21, 1990;
61 FR 67411, Dec. 20, 1996; 64 FR 32749, June 17, 1999]
52.219-15 [Reserved]
52.219-16 Liquidated Damages--Subcontracting Plan.
As prescribed in 19.708(b)(2), insert the following clause:
Liquidated Damages--Subcontracting Plan (JAN 1999)
(a) Failure to make a good faith effort to comply with the
subcontracting plan, as used in this clause, means a willful or
intentional failure to perform in accordance with the requirements of
the subcontracting plan approved under the clause in this contract
entitled ``Small Business Subcontracting Plan,'' or willful or
intentional action to frustrate the plan.
(b) Performance shall be measured by applying the percentage goals
to the total actual subcontracting dollars or, if a commercial plan is
involved, to the pro rata share of actual subcontracting dollars
attributable to Government contracts covered by the commercial plan. If,
at contract completion or, in the case of a commercial plan, at the
close of the fiscal year for which the plan is applicable, the
Contractor has failed to meet its subcontracting goals and the
Contracting Officer decides in accordance with paragraph (c) of this
clause that the Contractor failed to make a good faith effort to comply
with its subcontracting plan, established in accordance with the clause
in this contract entitled ``Small Business Subcontracting Plan,'' the
Contractor shall pay the Government liquidated damages in an amount
stated. The amount of probable damages attributable to the Contractor's
failure to comply shall be an amount equal to the actual dollar amount
by which the Contractor failed to achieve each subcontract goal.
(c) Before the Contracting Officer makes a final decision that the
Contractor has failed to make such good faith effort, the Contracting
Officer shall give the Contractor written notice specifying the failure
and permitting the Contractor to demonstrate what good faith efforts
have been made and to discuss the matter. Failure to respond to the
notice may be taken as an admission that no valid explanation exists.
If, after consideration of all the pertinent data, the Contracting
Officer finds that the Contractor failed to make a good faith effort to
comply with the subcontracting plan, the Contracting Officer shall issue
a final decision to that effect and require that the Contractor pay the
Government liquidated damages as provided in paragraph (b) of this
clause.
(d) With respect to commercial plans, the Contracting Officer who
approved the plan will perform the functions of the Contracting Officer
under this clause on behalf of all agencies with contracts covered by
the commercial plan.
(e) The Contractor shall have the right of appeal, under the clause
in this contract entitled Disputes, from any final decision of the
Contracting Officer.
(f) Liquidated damages shall be in addition to any other remedies
that the Government may have.
(End of clause)
[54 FR 30710, July 21, 1989, as amended at 60 FR 48267, Sept. 18, 1995;
63 FR 34068, June 22, 1998; 63 FR 70277, Dec. 18, 1998]
52.219-17 Section 8(a) Award.
As prescribed in 19.811-3(c), insert the following clause:
Section 8(a) Award (DEC 1996)
(a) By execution of a contract, the Small Business Administration
(SBA) agrees to the following:
(1) To furnish the supplies or services set forth in the contract
according to the specifications and the terms and conditions by
subcontracting with the Offeror who has
[[Page 118]]
been determined an eligible concern pursuant to the provisions of
section 8(a) of the Small Business Act, as amended (15 U.S.C. 637(a)).
(2) Except for novation agreements and advance payments, delegates
to the ---- (insert name of contracting activity) the responsibility for
administering the contract with complete authority to take any action on
behalf of the Government under the terms and conditions of the contract;
provided, however that the contracting agency shall give advance notice
to the SBA before it issues a final notice terminating the right of the
subcontractor to proceed with further performance, either in whole or in
part, under the contract.
(3) That payments to be made under the contract will be made
directly to the subcontractor by the contracting activity.
(4) To notify the [insert name of contracting agency] Contracting
Officer immediately upon notification by the subcontractor that the
owner or owners upon whom 8(a) eligibility was based plan to relinquish
ownership or control of the concern.
(5) That the subcontractor awarded a subcontract hereunder shall
have the right of appeal from decisions of the cognizant Contracting
Officer under the ``Disputes'' clause of the subcontract.
(b) The offeror/subcontractor agrees and acknowledges that it will,
for and on behalf of the SBA, fulfill and perform all of the
requirements of the contract.
(c) The offeror/subcontractor agrees that it will not subcontract
the performance of any of the requirements of this subcontract to any
lower tier subcontractor without the prior written approval of the SBA
and the cognizant Contracting Officer of the ------ [insert name of
contracting agency].
(End of clause)
[54 FR 46009, Oct. 31, 1989, as amended at 55 FR 3889, Feb. 5, 1990; 61
FR 67422, Dec. 20, 1996]
52.219-18 Notification of Competition Limited to Eligible 8(a) Concerns.
As prescribed in 19.811-3(d), insert the following clause:
Notification of Competition Limited to Eligible 8(a) Concerns (JUN 1999)
(a) Offers are solicited only from small business concerns expressly
certified by the Small Business Administration (SBA) for participation
in the SBA's 8(a) Program and which meet the following criteria at the
time of submission of offer--
(1) The Offeror is in conformance with the 8(a) support limitation
set forth in its approved business plan; and
(2) The Offeror is in conformance with the Business Activity Targets
set forth in its approved business plan or any remedial action directed
by the SBA.
(b) By submission of its offer, the Offeror represents that it meets
all of the criteria set forth in paragraph (a) of this clause.
(c) Any award resulting from this solicitation will be made to the
Small Business Administration, which will subcontract performance to the
successful 8(a) offeror selected through the evaluation criteria set
forth in this solicitation.
(d)(1) Agreement. A small business concern submitting an offer in
its own name agrees to furnish, in performing the contract, only end
items manufactured or produced by small business concerns in the United
States. The term United States includes its territories and possessions,
the Commonwealth of Puerto Rico, the Trust Territory of the Pacific
Islands, and the District of Columbia. If this procurement is processed
under simplified acquisition procedures and the total amount of this
contract does not exceed $25,000, a small business concern may furnish
the product of any domestic firm. This subparagraph does not apply in
connection with construction or service contracts.
(2) The [insert name of SBA's contractor] will notify the [insert
name of contracting agency] Contracting Officer in writing immediately
upon entering an agreement (either oral or written) to transfer all or
part of its stock or other ownership interest to any other party.
(End of clause)
Alternate I (NOV 1989). If the competition is to be limited to 8(a)
concerns within one or more specific SBA regions or districts, add the
following subparagraph (a)(4) to paragraph (a) of the clause:
(4) The offeror's approved business plan is on the file and serviced
by ----------* ---------- (*Contracting Officer completes by inserting
the appropriate SBA District and/or Regional Office(s) as identified by
the SBA).
Alternate II (DEC 1996). When the acquisition is for a product in a
class for which the Small Business Administration has determined that
there are no
[[Page 119]]
small business manufacturers or processors in the Federal market in
accordance with 19.502-2(c), delete subparagraph (d)(1).
[54 FR 46009, Oct. 31, 1989; 54 FR 48105, Nov. 21, 1989, as amended at
55 FR 3889, Feb. 5, 1990; 55 FR 25532, June 21, 1990; 55 FR 38518, Sept.
18, 1990; 60 FR 48267, Sept. 18, 1995; 61 FR 39209, July 26, 1996; 61 FR
67422, Dec. 20, 1996; 62 FR 238, Jan. 2, 1997; 62 FR 12720, Mar. 17,
1997; 64 FR 32745, June 17, 1999; 64 FR 51850, Sept. 24, 1999]
52.219-19 Small Business Concern Representation for the Small Business Competitiveness Demonstration Program.
As prescribed in 19.1008(a), insert the following provision:
Small Business Concern Representation for the Small Business
Competitiveness Demonstration Program (OCT 2000)
(a) Definition.
Emerging small business as used in this solicitation, means a small
business concern whose size is no greater than 50 percent of the
numerical size standard applicable to the North American Industry
Classification System (NAICS) code assigned to a contracting
opportunity.
(b) [Complete only if the Offeror has represented itself under the
provision at 52.219-1 as a small business concern under the size
standards of this solicitation.]
The Offeror [squ] is, [squ] is not an emerging small business.
(c) (Complete only if the Offeror is a small business or an emerging
small business, indicating its size range.)
Offeror's number of employees for the past 12 months (check this
column if size standard stated in solicitation is expressed in terms of
number of employees) or Offeror's average annual gross revenue for the
last 3 fiscal years (check this column if size standard stated in
solicitation is expressed in terms of annual receipts). (Check one of
the following.)
No. of employees Avg. annual gross revenues
--50 or fewer --$1 million or less
--51-100 --$1,000,001-$2 million
--101-250 --$2,000,001-$3.5 million
--251-500 --$3,500,001-$5 million
--501-750 --$5,000,001-$10 million
--751-1,000 --$10,000,001-$17 million
-- Over 1,000 -- Over $17 million
(End of provision)
[55 FR 52798, Dec. 21, 1990, as amended at 56 FR 29138, June 25, 1991;
62 FR 238, Jan. 2, 1997; 65 FR 46058, July 26, 2000; 67 FR 13068, Mar.
20, 2002]
52.219-20 Notice of Emerging Small Business Set-Aside.
As prescribed in 19.1008(b), insert the following provision:
Notice of Emerging Small Business Set-Aside (JAN 1991)
Offers or quotations under this acquisition are solicited from
emerging small business concerns only. Offers that are not from an
emerging small business shall not be considered and shall be rejected.
(End of provision)
[55 FR 52799, Dec. 21, 1990, as amended at 67 FR 13068, Mar. 20, 2002]
52.219-21 Small Business Size Representation for Targeted Industry Categories Under the Small Business Competitiveness Demonstration Program.
As prescribed in 19.1008(c), insert the following provision:
Small Business Size Representation for Targeted Industry Categories
Under the Small Business Competitiveness Demonstration Program (MAY
1999)
(Complete only if the Offeror has represented itself under the
provision at 52.219-1 as a small business concern under the size
standards of this solicitation.)
Offeror's number of employees for the past 12 months (check this
column if size standard stated in solicitation is expressed in terms of
number of employees) or Offeror's average annual gross revenue for the
last 3 fiscal years (check this column if size standard stated in
solicitation is expressed in terms of annual receipts). (Check one of
the following.)
No. of employees Avg. annual gross revenues
--50 or fewer --$1 million or less
--51-100 --$1,000,001-$2 million
--101-250 --$2,000,001-$3.5 million
--251-500 --$3,500,001-$5 million
--501-750 --$5,000,001-$10 million
--751-1,000 --$10,000,001-$17 million
-- Over 1,000 -- Over $17 million
(End of provision)
[55 FR 52799, Dec. 21, 1990, as amended at 56 FR 29138, June 25, 1991;
62 FR 238, Jan. 2, 1997; 64 FR 10533, Mar. 4, 1999; 67 FR 6121, Feb. 8,
2002]
52.219-22 Small Disadvantaged Business Status.
As prescribed in 19.307(b), insert the following provision:
[[Page 120]]
Small Disadvantaged Business Status (OCT 1999)
(a) General. This provision is used to assess an offeror's small
disadvantaged business status for the purpose of obtaining a benefit on
this solicitation. Status as a small business and status as a small
disadvantaged business for general statistical purposes is covered by
the provision at FAR 52.219-1, Small Business Program Representation.
(b) Representations.
(1) General. The offeror represents, as part of its offer, that it
is a small business under the size standard applicable to this
acquisition; and either--
[squ] (i) It has received certification by the Small Business
Administration as a small disadvantaged business concern consistent with
13 CFR 124, Subpart B; and
(A) No material change in disadvantaged ownership and control has
occurred since its certification;
(B) Where the concern is owned by one or more disadvantaged
individuals, the net worth of each individual upon whom the
certification is based does not exceed $750,000 after taking into
account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and
(C) It is identified, on the date of its representation, as a
certified small disadvantaged business concern in the database
maintained by the Small Business Administration (PRO-Net); or
[squ] (ii) It has submitted a completed application to the Small
Business Administration or a Private Certifier to be certified as a
small disadvantaged business concern in accordance with 13 CFR 124,
Subpart B, and a decision on that application is pending, and that no
material change in disadvantaged ownership and control has occurred
since its application was submitted.
(2)[squ]For Joint Ventures. The offeror represents, as part of its
offer, that it is a joint venture that complies with the requirements at
13 CFR 124.1002(f) and that the representation in paragraph (b)(1) of
this provision is accurate for the small disadvantaged business concern
that is participating in the joint venture. [The offeror shall enter the
name of the small disadvantaged business concern that is participating
in the joint venture: ------------.]
(c) Penalties and Remedies. Anyone who misrepresents any aspects of
the disadvantaged status of a concern for the purposes of securing a
contract or subcontract shall:
(1) Be punished by imposition of a fine, imprisonment, or both;
(2) Be subject to administrative remedies, including suspension and
debarment; and
(3) Be ineligible for participation in programs conducted under the
authority of the Small Business Act.
(End of provision)
Alternate I (OCT 1998). As prescribed in 19.307(b), add the
following paragraph (b)(3) to the basic provision:
(3) Address. The offeror represents that its address --is, --is not
in a region for which a small disadvantaged business procurement
mechanism is authorized and its address has not changed since its
certification as a small disadvantaged business concern or submission of
its application for certification. The list of authorized small
disadvantaged business procurement mechanisms and regions is posted at
http://www.arnet.gov/References/sdbadjustments.htm. The offeror shall
use the list in effect on the date of this solicitation. ``Address,'' as
used in this provision, means the address of the offeror as listed on
the Small Business Administrations register of small disadvantaged
business concerns or the address on the completed application that the
concern has submitted to the Small Business Administration or a Private
Certifier in accordance with 13 CFR part 124, subpart B. For joint
ventures, ``address'' refers to the address of the small disadvantaged
business concern that is participating in the joint venture.
[63 FR 35725, June 30, 1998, as amended at 63 FR 52427, Sept. 30, 1998;
63 FR 70277, Dec. 18, 1998; 64 FR 32749, June 17, 1999; 64 FR 36224,
July 2, 1999]
52.219-23 Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns.
As prescribed in 19.1104, insert the following clause:
Notice of Price Evaluation Adjustment for Small Disadvantaged Business
Concerns (MAY 2001)
(a) Definitions. As used in this clause--
Small disadvantaged business concern means an offeror that
represents, as part of its offer, that it is a small business under the
size standard applicable to this acquisition; and either--
(1) It has received certification by the Small Business
Administration as a small disadvantaged business concern consistent with
13 CFR 124, Subpart B; and
(i) No material change in disadvantaged ownership and control has
occurred since its certification;
(ii) Where the concern is owned by one or more disadvantaged
individuals, the net worth of each individual upon whom the
certification is based does not exceed $750,000 after taking into
account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and
[[Page 121]]
(iii) It is identified, on the date of its representation, as a
certified small disadvantaged business concern in the database
maintained by the Small Business Administration (PRO-Net).
(2) It has submitted a completed application to the Small Business
Administration or a Private Certifier to be certified as a small
disadvantaged business concern in accordance with 13 CFR 124, Subpart B,
and a decision on that application is pending, and that no material
change in disadvantaged ownership and control has occurred since its
application was submitted. In this case, in order to receive the benefit
of a price evaluation adjustment, an offeror must receive certification
as a small disadvantaged business concern by the Small Business
Administration prior to contract award; or
(3) Is a joint venture as defined in 13 CFR 124.1002(f).
Historically black college or university means an institution
determined by the Secretary of Education to meet the requirements of 34
CFR 608.2. For the Department of Defense (DoD), the National Aeronautics
and Space Administration (NASA), and the Coast Guard, the term also
includes any nonprofit research institution that was an integral part of
such a college or university before November 14, 1986.
Minority institution means an institution of higher education
meeting the requirements of Section 1046(3) of the Higher Education Act
of 1965 (20 U.S.C. 1067k, including a Hispanic-serving institution of
higher education, as defined in Section 316(b)(1) of the Act (20 U.S.C.
1101a)).
United States means the United States, its territories and
possessions, the Commonwealth of Puerto Rico, the U.S. Trust Territory
of the Pacific Islands, and the District of Columbia.
(b) Evaluation adjustment. (1) The Contracting Officer will evaluate
offers by adding a factor of ------ [Contracting Officer insert the
percentage] percent to the price of all offers, except--
(i) Offers from small disadvantaged business concerns that have not
waived the adjustment;
(ii) An otherwise successful offer of eligible products under the
Trade Agreements Act when the dollar threshold for application of the
Act is equaled or exceeded (see section 25.402 of the Federal
Acquisition Regulation (FAR));
(iii) An otherwise successful offer where application of the factor
would be inconsistent with a Memorandum of Understanding or other
international agreement with a foreign government;
(iv) For DoD, NASA, and Coast Guard acquisitions, an otherwise
successful offer from a historically black college or university or
minority institution; and
(v) For DoD acquisitions, an otherwise successful offer of
qualifying country end products (see sections 225.000-70 and 252.225-
7001 of the Defense FAR Supplement).
(2) The Contracting Officer will apply the factor to a line item or
a group of line items on which award may be made. The Contracting
Officer will apply other evaluation factors described in the
solicitation before application of the factor. The factor may not be
applied if using the adjustment would cause the contract award to be
made at a price that exceeds the fair market price by more than the
factor in paragraph (b)(1) of this clause.
(c) Waiver of evaluation adjustment. A small disadvantaged business
concern may elect to waive the adjustment, in which case the factor will
be added to its offer for evaluation purposes. The agreements in
paragraph (d) of this clause do not apply to offers that waive the
adjustment.
-- Offeror elects to waive the adjustment.
(d) Agreements. (1) A small disadvantaged business concern, that did
not waive the adjustment, agrees that in performance of the contract, in
the case of a contract for--
(i) Services, except construction, at least 50 percent of the cost
of personnel for contract performance will be spent for employees of the
concern;
(ii) Supplies (other than procurement from a nonmanufacturer of such
supplies), at least 50 percent of the cost of manufacturing, excluding
the cost of materials, will be performed by the concern;
(iii) General construction, at least 15 percent of the cost of the
contract, excluding the cost of materials, will be performed by
employees of the concern; or
(iv) Construction by special trade contractors, at least 25 percent
of the cost of the contract, excluding the cost of materials, will be
performed by employees of the concern.
(2) A small disadvantaged business concern submitting an offer in
its own name agrees to furnish in performing this contract only end
items manufactured or produced by small disadvantaged business concerns
in the United States. This paragraph does not apply in connection with
construction or service contracts.
(End of clause)
Alternate I (OCT 1998). As prescribed in 19.1104, substitute the
following paragraph (d)(2) for paragraph (d)(2) of the basic clause:
(2) A small disadvantaged business concern submitting an offer in
its own name agrees to furnish in performing this contract only end
items manufactured or produced by small business concerns in the United
States. This paragraph does not apply in
[[Page 122]]
connection with construction or service contracts.
Alternate II (Oct 1998). As prescribed in 19.1104, substitute the
following paragraph (b)(1)(i) for paragraph (b)(1)(i) of the basic
clause:
(i) Offers from small disadvantaged business concerns, that have not
waived the adjustment, whose address is in a region for which an
evaluation adjustment is authorized;
[63 FR 35725, June 30, 1998, as amended at 63 FR 52427, Sept. 30, 1998;
64 FR 36224, July 2, 1999; 65 FR 16286, Mar. 27, 2000; 66 FR 2135, Jan.
10, 2001]
52.219-24 Small Disadvantaged Business Participation Program--Targets.
As prescribed in 19.1204(a), insert a provision substantially the
same as the following:
Small Disadvantaged Business Participation Program--Targets (OCT 2000)
(a) This solicitation contains a source selection factor or
subfactor related to the participation of small disadvantaged business
(SDB) concerns in the contract. Credit under that evaluation factor or
subfactor is not available to an SDB concern that qualifies for a price
evaluation adjustment under the clause at FAR 52.219-23, Notice of Price
Evaluation Adjustment for Small Disadvantaged Business Concerns, unless
the SDB concern specifically waives the price evaluation adjustment.
(b) In order to receive credit under the source selection factor or
subfactor, the offeror must provide, with its offer, targets, expressed
as dollars and percentages of total contract value, for SDB
participation in any of the North American Industry Classification
System (NAICS) Industry Subsectors as determined by the Department of
Commerce. The targets may provide for participation by a prime
contractor, joint venture partner, teaming arrangement member, or
subcontractor; however, the targets for subcontractors must be listed
separately.
(End of provision)
[63 FR 36125, July 1, 1998, as amended at 65 FR 46058, July 26, 2000]
52.219-25 Small Disadvantaged Business Participation Program--Disadvantaged Status and Reporting.
As prescribed in 19.1204(b), insert the following clause:
Small Disadvantaged Business Participation Program--Disadvantaged Status
and Reporting (OCT 1999)
(a) Disadvantaged status for joint venture partners, team members,
and subcontractors. This clause addresses disadvantaged status for joint
venture partners, teaming arrangement members, and subcontractors and is
applicable if this contract contains small disadvantaged business (SDB)
participation targets. The Contractor shall obtain representations of
small disadvantaged status from joint venture partners, teaming
arrangement members, and subcontractors through use of a provision
substantially the same as paragraph (b)(1)(i) of the provision at FAR
52.219-22, Small Disadvantaged Business Status. The Contractor shall
confirm that a joint venture partner, team member, or subcontractor
representing itself as a small disadvantaged business concern, is
identified as a certified small disadvantaged business in the database
maintained by the Small Business Administration (PRO-Net) or by
contacting the SBA's Office of Small Disadvantaged Business
Certification and Eligibility.
(b) Reporting requirement. If this contract contains SDB
participation targets, the Contractor shall report on the participation
of SDB concerns at contract completion, or as otherwise provided in this
contract. Reporting may be on Optional Form 312, Small Disadvantaged
Business Participation Report, or in the Contractor's own format
providing the same information. This report is required for each
contract containing SDB participation targets. If this contract contains
an individual Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan, reports may be submitted with the final
Subcontracting Report for Individual Contracts (Standard Form 294) at
the completion of the contract.
(End of clause)
[63 FR 36125, July 1, 1998, as amended at 63 FR 71723, Dec. 29, 1998; 64
FR 36225, July 2, 1999]
52.219-26 Small Disadvantaged Business Participation Program--Incentive Subcontracting.
As prescribed in 19.1204(c), insert a clause substantially the same
as the following:
Small Disadvantaged Business Participation Program--Incentive
Subcontracting (OCT 2000)
(a) Of the total dollars it plans to spend under subcontracts, the
Contractor has committed itself in its offer to try to award a
[[Page 123]]
certain amount to small disadvantaged business concerns in the North
American Industry Classification System (NAICS) Industry Subsectors as
determined by the Department of Commerce.
(b) If the Contractor exceeds its total monetary target for
subcontracting to small disadvantaged business concerns in the
authorized NAICS Industry Subsectors, it will receive -- [Contracting
Officer to insert the appropriate number between 0 and 10] percent of
the dollars in excess of the monetary target, unless the Contracting
Officer determines that the excess was not due to the Contractor's
efforts (e.g., a subcontractor cost overrun caused the actual
subcontract amount to exceed that estimated in the offer, or the excess
was caused by the award of subcontracts that had been planned but had
not been disclosed in the offer during contract negotiations).
Determinations under this paragraph are unilateral decisions made solely
at the discretion of the Government.
(c) If this is a cost-plus-fixed-fee contract, the sum of the fixed
fee and the incentive fee earned under this contract may not exceed the
limitations in subsection 15.404-4 of the Federal Acquisition
Regulation.
(End of clause)
[63 FR 36125, July 1, 1998, as amended at 64 FR 72449, Dec. 27, 1999; 65
FR 46058, July 26, 2000]
52.221 [Reserved]
52.222-1 Notice to the Government of Labor Disputes.
As prescribed in 22.103-5(a), insert the following clause:
Notice to the Government of Labor Disputes (FEB 1997)
If the Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this
contract, the Contractor shall immediately give notice, including all
relevant information, to the Contracting Officer.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 67426, Dec. 20, 1996]
52.222-2 Payment for Overtime Premiums.
As prescribed in 22.103-5(b), insert the following clause:
Payment for Overtime Premiums (JUL 1990)
(a) The use of overtime is authorized under this contract if the
overtime premium cost does not exceed *---- or the overtime premium is
paid for work--
---------------------------------------------------------------------------
*Insert either ``zero'' or the dollar amount agreed to during
negotiations.
---------------------------------------------------------------------------
(1) Necessary to cope with emergencies such as those resulting from
accidents, natural disasters, breakdowns of production equipment, or
occasional production bottlenecks of a sporadic nature;
(2) By indirect-labor employees such as those performing duties in
connection with administration, protection, transportation, maintenance,
standby plant protection, operation of utilities, or accounting;
(3) To perform tests, industrial processes, laboratory procedures,
loading or unloading of transportation conveyances, and operations in
flight or afloat that are continuous in nature and cannot reasonably be
interrupted or completed otherwise; or
(4) That will result in lower overall costs to the Government.
(b) Any request for estimated overtime premiums that exceeds the
amount specified above shall include all estimated overtime for contract
completion and shall--
(1) Identify the work unit; e.g., department or section in which the
requested overtime will be used, together with present workload,
staffing, and other data of the affected unit sufficient to permit the
Contracting Officer to evaluate the necessity for the overtime;
(2) Demonstrate the effect that denial of the request will have on
the contract delivery or performance schedule;
(3) Identify the extent to which approval of overtime would affect
the performance or payments in connection with other Government
contracts, together with identification of each affected contract; and
(4) Provide reasons why the required work cannot be performed by
using multishift operations or by employing additional personnel.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 25532, June 21, 1990;
55 FR 38518, Sept. 18, 1990]
52.222-3 Convict Labor.
As prescribed in 22.202, insert the following clause:
Convict Labor (AUG 1996)
The Contractor agrees not to employ in the performance of this
contract any person undergoing a sentence of imprisonment which has been
imposed by any court of a State, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern Mariana Islands,
[[Page 124]]
or the Trust Territory of the Pacific Islands. This limitation, however,
shall not prohibit the employment by the Contractor in the performance
of this contract of persons on parole or probation to work at paid
employment during the term of their sentence or persons who have been
pardoned or who have served their terms. Nor shall it prohibit the
employment by the Contractor in the performance of this contract of
persons confined for violation of the laws of any of the States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, or the Trust Territory of the Pacific Islands who are
authorized to work at paid employment in the community under the laws of
such jurisdiction, if--
(a)(1) The worker is paid or is in an approved work training program
on a voluntary basis;
(2) Representatives of local union central bodies or similar labor
union organizations have been consulted;
(3) Such paid employment will not result in the displacement of
employed workers, or be applied in skills, crafts, or trades in which
there is a surplus of available gainful labor in the locality, or impair
existing contracts for services; and
(4) The rates of pay and other conditions of employment will not be
less than those paid or provided for work of a similar nature in the
locality in which the work is being performed; and
(b) The Attorney General of the United States has certified that the
work-release laws or regulations of the jurisdiction involved are in
conformity with the requirements of Executive Order 11755, as amended by
Executive Orders 12608 and 12943.
(End of clause)
[61 FR 31644, June 20, 1996]
52.222-4 Contract Work Hours and Safety Standards Act--Overtime Compensation.
As prescribed in 22.305, insert the following clause:
Contract Work Hours and Safety Standards Act-- Overtime Compensation
(SEP 2000)
(a) Overtime requirements. No Contractor or subcontractor employing
laborers or mechanics (see Federal Acquisition Regulation 22.300) shall
require or permit them to work over 40 hours in any workweek unless they
are paid at least 1 and 1/2 times the basic rate of pay for each hour
worked over 40 hours.
(b) Violation; liability for unpaid wages; liquidated damages. The
responsible Contractor and subcontractor are liable for unpaid wages if
they violate the terms in paragraph (a) of this clause. In addition, the
Contractor and subcontractor are liable for liquidated damages payable
to the Government. The Contracting Officer will assess liquidated
damages at the rate of $10 per affected employee for each calendar day
on which the employer required or permitted the employee to work in
excess of the standard workweek of 40 hours without paying overtime
wages required by the Contract Work Hours and Safety Standards Act.
(c) Withholding for unpaid wages and liquidated damages. The
Contracting Officer will withhold from payments due under the contract
sufficient funds required to satisfy any Contractor or subcontractor
liabilities for unpaid wages and liquidated damages. If amounts withheld
under the contract are insufficient to satisfy Contractor or
subcontractor liabilities, the Contracting Officer will withhold
payments from other Federal or Federally assisted contracts held by the
same Contractor that are subject to the Contract Work Hours and Safety
Standards Act.
(d) Payrolls and basic records. (1) The Contractor and its
subcontractors shall maintain payrolls and basic payroll records for all
laborers and mechanics working on the contract during the contract and
shall make them available to the Government until 3 years after contract
completion. The records shall contain the name and address of each
employee, social security number, labor classifications, hourly rates of
wages paid, daily and weekly number of hours worked, deductions made,
and actual wages paid. The records need not duplicate those required for
construction work by Department of Labor regulations at 29 CFR 5.5(a)(3)
implementing the Davis-Bacon Act.
(2) The Contractor and its subcontractors shall allow authorized
representatives of the Contracting Officer or the Department of Labor to
inspect, copy, or transcribe records maintained under paragraph (d)(1)
of this clause. The Contractor or subcontractor also shall allow
authorized representatives of the Contracting Officer or Department of
Labor to interview employees in the workplace during working hours.
(e) Subcontracts. The Contractor shall insert the provisions set
forth in paragraphs (a) through (d) of this clause in subcontracts
exceeding $100,000 and require subcontractors to include these
provisions in any lower tier subcontracts. The Contractor shall be
responsible for compliance by any subcontractor or lower-tier
subcontractor with the provisions set forth in paragraphs (a) through
(d) of this clause.
(End of clause)
[65 FR 46067, July 26, 2000]
[[Page 125]]
52.222-5 [Reserved]
52.222-6 Davis-Bacon Act.
As prescribed in 22.407(a), insert the following clause:
Davis-Bacon Act (FEB 1995)
(a) All laborers and mechanics employed or working upon the site of
the work will be paid unconditionally and not less often than once a
week, and without subsequent deduction or rebate on any account (except
such payroll deductions as are permitted by regulations issued by the
Secretary of Labor under the Copeland Act (29 CFR part 3)), the full
amount of wages and bona fide fringe benefits (or cash equivalents
thereof) due at time of payment computed at rates not less than those
contained in the wage determination of the Secretary of Labor which is
attached hereto and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between the Contractor and
such laborers and mechanics. Contributions made or costs reasonably
anticipated for bona fide fringe benefits under section 1(b)(2) of the
Davis-Bacon Act on behalf of laborers or mechanics are considered wages
paid to such laborers or mechanics, subject to the provisions of
paragraph (d) of this clause; also, regular contributions made or costs
incurred for more than a weekly period (but not less often than
quarterly) under plans, funds, or programs which cover the particular
weekly period, are deemed to be constructively made or incurred during
such period. Such laborers and mechanics shall be paid not less than the
appropriate wage rate and fringe benefits in the wage determination for
the classification of work actually performed, without regard to skill,
except as provided in the clause entitled Apprentices and Trainees.
Laborers or mechanics performing work in more than one classification
may be compensated at the rate specified for each classification for the
time actually worked therein; provided, that the employer's payroll
records accurately set forth the time spent in each classification in
which work is performed. The wage determination (including any
additional classifications and wage rates conformed under paragraph (b)
of this clause) and the Davis-Bacon poster (WH-1321) shall be posted at
all times by the Contractor and its subcontractors at the site of the
work in a prominent and accessible place where it can be easily seen by
the workers.
(b)(1) The Contracting Officer shall require that any class of
laborers or mechanics, which is not listed in the wage determination and
which is to be employed under the contract shall be classified in
conformance with the wage determination. The Contracting Officer shall
approve an additional classification and wage rate and fringe benefits
therefor only when all the following criteria have been met:
(i) The work to be performed by the classification requested is not
performed by a classification in the wage determination.
(ii) The classification is utilized in the area by the construction
industry.
(iii) The proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates contained in
the wage determination.
(iv) With respect to helpers, such a classification prevails in the
area in which the work is performed.
(2) If the Contractor and the laborers and mechanics to be employed
in the classification (if known), or their representatives, and the
Contracting Officer agree on the classification and wage rate (including
the amount designated for fringe benefits, where appropriate), a report
of the action taken shall be sent by the Contracting Officer to the
Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210. The
Administrator or an authorized representative will approve, modify, or
disapprove every additional classification action within 30 days of
receipt and so advise the Contracting Officer or will notify the
Contracting Officer within the 30-day period that additional time is
necessary.
(3) In the event the Contractor, the laborers or mechanics to be
employed in the classification, or their representatives, and the
Contracting Officer do not agree on the proposed classification and wage
rate (including the amount designated for fringe benefits, where
appropriate), the Contracting Officer shall refer the questions,
including the views of all interested parties and the recommendation of
the Contracting Officer, to the Administrator of the Wage and Hour
Division for Determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and
so advise the Contracting Officer or will notify the Contracting Officer
within the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits, where appropriate)
determined pursuant to subparagraphs (b)(2) and (b)(3) of this clause
shall be paid to all workers performing work in the classification under
this contract from the first day on which work is performed in the
classification.
(c) Whenever the minimum wage rate prescribed in the contract for a
class of laborers or mechanics includes a fringe benefit which is not
expressed as an hourly rate, the Contractor shall either pay the benefit
as stated in the wage determination or shall pay another bona fide
fringe benefit or an hourly cash equivalent thereof.
(d) If the Contractor does not make payments to a trustee or other
third person, the
[[Page 126]]
Contractor may consider as part of the wages of any laborer or mechanic
the amount of any costs reasonably anticipated in providing bona fide
fringe benefits under a plan or program; provided, that the Secretary of
Labor has found, upon the written request of the Contractor, that the
applicable standards of the Davis-Bacon Act have been met. The Secretary
of Labor may require the Contractor to set aside in a separate account
assets for the meeting of obligations under the plan or program.
(End of clause)
[53 FR 4945, Feb. 18, 1988, as amended at 57 FR 44263, Sept. 24, 1992;
59 FR 67038, Dec. 28, 1994]
52.222-7 Withholding of Funds.
As prescribed in 22.407(a), insert the following clause:
Withholding of Funds (FEB 1988)
The Contracting Officer shall, upon his or her own action or upon
written request of an authorized representative of the Department of
Labor, withhold or cause to be withheld from the Contractor under this
contract or any other Federal contract with the same Prime Contractor,
or any other federally assisted contract subject to Davis-Bacon
prevailing wage requirements, which is held by the same Prime
Contractor, so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, including
apprentices, trainees, and helpers, employed by the Contractor or any
subcontractor the full amount of wages required by the contract. In the
event of failure to pay any laborer or mechanic, including any
apprentice, trainee, or helper, employed or working on the site of the
work, all or part of the wages required by the contract, the Contracting
Officer may, after written notice to the Contractor, take such action as
may be necessary to cause the suspension of any further payment,
advance, or guarantee of funds until such violations have ceased.
(End of clause)
[53 FR 4945, Feb. 18, 1988]
52.222-8 Payrolls and Basic Records.
As prescribed in 22.407(a), insert the following clause:
Payment for Overtime Premiums (FEB 1988)
(a) Payrolls and basic records relating thereto shall be maintained
by the Contractor during the course of the work and preserved for a
period of 3 years thereafter for all laborers and mechanics working at
the site of the work. Such records shall contain the name, address, and
social security number of each such worker, his or her correct
classification, hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1(b)(2)(B) of the
Davis-Bacon Act), daily and weekly number of hours worked, deductions
made, and actual wages paid. Whenever the Secretary of Labor has found,
under paragraph (d) of the clause entitled Davis-Bacon Act, that the
wages of any laborer or mechanic include the amount of any costs
reasonably anticipated in providing benefits under a plan or program
described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor
shall maintain records which show that the commitment to provide such
benefits is enforceable, that the plan or program is financially
responsible, and that the plan or program has been communicated in
writing to the laborers or mechanics affected, and records which show
the costs anticipated or the actual cost incurred in providing such
benefits. Contractors employing apprentices or trainees under approved
programs shall maintain written evidence of the registration of
apprenticeship programs and certification of trainee programs, the
registration of the apprentices and trainees, and the ratios and wage
rates prescribed in the applicable programs.
(b)(1) The Contractor shall submit weekly for each week in which any
contract work is performed a copy of all payrolls to the Contracting
Officer. The payrolls submitted shall set out accurately and completely
all of the information required to be maintained under paragraph (a) of
this clause. This information may be submitted in any form desired.
Optional Form WH-347 (Federal Stock Number 029-005-00014-1) is available
for this purpose and may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402. The
Prime Contractor is responsible for the submission of copies of payrolls
by all subcontractors.
(2) Each payroll submitted shall be accompanied by a Statement of
Compliance, signed by the Contractor or subcontractor or his or her
agent who pays or supervises the payment of the persons employed under
the contract and shall certify--
(i) That the payroll for the payroll period contains the information
required to be maintained under paragraph (a) of this clause and that
such information is correct and complete;
(ii) That each laborer or mechanic (including each helper,
apprentice, and trainee) employed on the contract during the payroll
period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have
[[Page 127]]
been made either directly or indirectly from the full wages earned,
other than permissible deductions as set forth in the Regulations, 29
CFR part 3; and
(iii) That each laborer or mechanic has been paid not less than the
applicable wage rates and fringe benefits or cash equivalents for the
classification of work performed, as specified in the applicable wage
determination incorporated into the contract.
(3) The weekly submission of a properly executed certification set
forth on the reverse side of Optional Form WH-347 shall satisfy the
requirement for submission of the Statement of Compliance required by
subparagraph (b)(2) of this clause.
(4) The falsification of any of the certifications in this clause
may subject the Contractor or subcontractor to civil or criminal
prosecution under section 1001 of title 18 and section 3729 of title 31
of the United States Code.
(c) The Contractor or subcontractor shall make the records required
under paragraph (a) of this clause available for inspection, copying, or
transcription by the Contracting Officer or authorized representatives
of the Contracting Officer or the Department of Labor. The Contractor or
subcontractor shall permit the Contracting Officer or representatives of
the Contracting Officer or the Department of Labor to interview
employees during working hours on the job. If the Contractor or
subcontractor fails to submit required records or to make them
available, the Contracting Officer may, after written notice to the
Contractor, take such action as may be necessary to cause the suspension
of any further payment. Furthermore, failure to submit the required
records upon request or to make such records available may be grounds
for debarment action pursuant to 29 CFR 5.12.
(End of clause)
[53 FR 4945, Feb. 18, 1988]
52.222-9 Apprentices and Trainees.
As prescribed in 22.407(a), insert the following clause:
Apprentices and Trainees (FEB 1988)
(a) Apprentices. Apprentices will be permitted to work at less than
the predetermined rate for the work they performed when they are
employed pursuant to and individually registered in a bona fide
apprenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Bureau of Apprenticeship and
Training, or with a State Apprenticeship Agency recognized by the
Bureau, or if a person is employed in his or her first 90 days of
probationary employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but who has
been certified by the Bureau of Apprenticeship and Training or a State
Apprenticeship Agency (where appropriate) to be eligible for
probationary employment as an apprentice. The allowable ratio of
apprentices to journeymen on the job site in any craft classification
shall not be greater than the ratio permitted to the Contractor as to
the entire work force under the registered program. Any worker listed on
a payroll at an apprentice wage rate, who is not registered or otherwise
employed as stated in this paragraph, shall be paid not less than the
applicable wage determination for the classification of work actually
performed. In addition, any apprentice performing work on the job site
in excess of the ratio permitted under the registered program shall be
paid not less than the applicable wage rate on the wage determination
for the work actually performed. Where a Contractor is performing
construction on a project in a locality other than that in which its
program is registered, the ratios and wage rates (expressed in
percentages of the journeyman's hourly rate) specified in the
Contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the
registered program for the apprentice's level of progress, expressed as
a percentage of the journeyman hourly rate specified in the applicable
wage determination. Apprentices shall be paid fringe benefits in
accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits, apprentices
must be paid the full amount of fringe benefits listed on the wage
determination for the applicable classification. If the Administrator
determines that a different practice prevails for the applicable
apprentice classification, fringes shall be paid in accordance with that
determination. In the event the Bureau of Apprenticeship and Training,
or a State Apprenticeship Agency recognized by the Bureau, withdraws
approval of an apprenticeship program, the Contractor will no longer be
permitted to utilize apprentices at less than the applicable
predetermined rate for the work performed until an acceptable program is
approved.
(b) Trainees. Except as provided in 29 CFR 5.16, trainees will not
be permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant to and individually
registered in a program which has received prior approval, evidenced by
formal certification by the U.S. Department of Labor, Employment and
Training Administration. The ratio of trainees to journeymen on the job
site shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at
[[Page 128]]
not less than the rate specified in the approved program for the
trainee's level of progress, expressed as a percentage of the journeyman
hourly rate specified in the applicable wage determination. Trainees
shall be paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention fringe
benefits, trainees shall be paid the full amount of fringe benefits
listed in the wage determination unless the Administrator of the Wage
and Hour Division determines that there is an apprenticeship program
associated with the corresponding journeyman wage rate in the wage
determination which provides for less than full fringe benefits for
apprentices. Any employee listed on the payroll at a trainee rate who is
not registered and participating in a training plan approved by the
Employment and Training Administration shall be paid not less than the
applicable wage rate in the wage determination for the classification of
work actually performed. In addition, any trainee performing work on the
job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate in the wage
determination for the work actually performed. In the event the
Employment and Training Administration withdraws approval of a training
program, the Contractor will no longer be permitted to utilize trainees
at less than the applicable predetermined rate for the work performed
until an acceptable program is approved.
(c) Equal employment opportunity. The utilization of apprentices,
trainees, and journeymen under this clause shall be in conformity with
the equal employment opportunity requirements of Executive Order 11246,
and 29 CFR part 30.
(End of clause)
[53 FR 4946, Feb. 18, 1988]
52.222-10 Compliance With Copeland Act Requirements.
As prescribed in 22.407(a), insert the following clause:
Compliance With Copeland Act Requirements (FEB 1988)
The Contractor shall comply with the requirements of 29 CFR part 3,
which are hereby incorporated by reference in this contract.
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-11 Subcontracts (Labor Standards).
As prescribed in 22.407(a), insert the following clause:
Subcontracts (Labor Standards) (FEB 1988)
(a) The Contractor or subcontractor shall insert in any subcontracts
the clauses entitled Davis-Bacon Act, Contract Work Hours and Safety
Standards Act--Overtime Compensation, Apprentices and Trainees, Payrolls
and Basic Records, Compliance with Copeland Act Requirements,
Withholding of Funds, Subcontracts (Labor Standards), Contract
Termination--Debarment, Disputes Concerning Labor Standards, Compliance
with Davis-Bacon and Related Act Regulations, and Certification of
Eligibility, and such other clauses as the Contracting Officer may, by
appropriate instructions, require, and also a clause requiring
subcontractors to include these clauses in any lower tier subcontracts.
The Prime Contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with all the contract clauses
cited in this paragraph.
(b)(1) Within 14 days after award of the contract, the Contractor
shall deliver to the Contracting Officer a completed Statement and
Acknowledgment Form (SF 1413) for each subcontract, including the
subcontractor's signed and dated acknowledgment that the clauses set
forth in paragraph (a) of this clause have been included in the
subcontract.
(2) Within 14 days after the award of any subsequently awarded
subcontract the Contractor shall deliver to the Contracting Officer an
updated completed SF 1413 for such additional subcontract.
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-12 Contract Termination--Debarment.
As prescribed in 22.407(a), insert the following clause:
Contract Termination--Debarment (FEB 1988)
A breach of the contract clauses entitled Davis-Bacon Act, Contract
Work Hours and Safety Standards Act--Overtime Compensation, Apprentices
and Trainees, Payrolls and Basic Records, Compliance with Copeland Act
Requirements, Subcontracts (Labor Standards), Compliance With Davis-
Bacon and Related Act Regulations, or Certification of Eligibility may
be grounds for termination of the contract, and for debarment as a
Contractor and subcontractor as provided in 29 CFR 5.12.
[[Page 129]]
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-13 Compliance with Davis-Bacon and Related Act Regulations.
As prescribed in 22.407(a), insert the following clause:
Compliance With Davis-Bacon and Related Act Regulations (FEB 1988)
All rulings and interpretations of the Davis-Bacon and Related Acts
contained in 29 CFR parts 1, 3, and, 5 are hereby incorporated by
reference in this contract.
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-14 Disputes Concerning Labor Standards.
As prescribed in 22.407(a), insert the following clause:
Disputes Concerning Labor Standards (FEB 1988)
The United States Department of Labor has set forth in 29 CFR parts
5, 6, and 7 procedures for resolving disputes concerning labor standards
requirements. Such disputes shall be resolved in accordance with those
procedures and not the Disputes clause of this contract. Disputes within
the meaning of this clause include disputes between the Contractor (or
any of its subcontractors) and the contracting agency, the U.S.
Department of Labor, or the employees or their representatives.
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-15 Certification of Eligibility.
As prescribed in 22.407(a), insert the following clause:
Certification of Eligibility (FEB 1988)
(a) By entering into this contract, the Contractor certifies that
neither it (nor he or she) nor any person or firm who has an interest in
the Contractor's firm is a person or firm ineligible to be awarded
Government contracts by virtue of section 3(a) of the Davis-Bacon Act or
29 CFR 5.12(a)(1).
(b) No part of this contract shall be subcontracted to any person or
firm ineligible for award of a Government contract by virtue of section
3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(c) The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-16 Approval of Wage Rates.
As prescribed in 22.407(b), insert the following clause:
Approval of Wage Rates (FEB 1988)
All straight time wage rates, and overtime rates based thereon, for
laborers and mechanics engaged in work under this contract must be
submitted for approval in writing by the head of the contracting
activity or a representative expressly designated for this purpose, if
the straight time wages exceed the rates for corresponding
classifications contained in the applicable Davis-Bacon Act minimum wage
determination included in the contract. Any amount paid by the
Contractor to any laborer or mechanic in excess of the agency approved
wage rate shall be at the expense of the Contractor and shall not be
reimbursed by the Government. If the Government refuses to authorize the
use of the overtime, the Contractor is not released from the obligation
to pay employees at the required overtime rates for any overtime
actually worked.
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-17 Labor Standards for Construction Work--Facilities Contracts.
As prescribed in 22.407(d), insert the following clause:
Labor Standards for Construction Work--Facilities Contracts (FEB 1988)
(a) In the event that construction, alteration, or repair (including
painting and decorating) of public buildings or public works is to be
performed hereunder, the Contractor shall comply with the following
listed clauses of the Federal Acquisition Regulation in performance of
such work:
(1) Contract Work Hours and Safety Standards Act--Overtime
Compensation at 52.222-4.
(2) Davis-Bacon Act at 52.222-6.
(3) Withholding of Funds at 52.222-7.
(4) Payrolls and Basic Records at 52.222-8.
(5) Apprentices and Trainees at 52.222-9.
(6) Compliance With Copeland Act Requirements at 52.222-10.
(7) Subcontracts (Labor Standards) at 52.222-11.
[[Page 130]]
(8) Contract Termination--Debarment at 52.222-12.
(9) Compliance with Davis-Bacon and Related Act Regulations at
52.222-13.
(10) Disputes Concerning Labor Standards at 52.222-14.
(11) Certification of Eligibility at 52.222-15.
(b) Upon determination by the Contracting Officer that the Davis-
Bacon Act is applicable to any item of work to be performed hereunder, a
determination of the prevailing wage rates shall be incorporated into
the contract by modification.
(c) No construction, alteration, or repair (including painting and
decorating) of public buildings or public works shall be performed under
this contract without incorporation of the wage determination unless the
Contracting Officer authorizes the start of work because of unusual or
emergency situations, in which case the wage determination shall be
incorporated as soon as possible and made retroactive to the start of
the work.
(End of clause)
[53 FR 4947, Feb. 18, 1988]
52.222-18 Certification Regarding Knowledge of Child Labor for Listed End Products.
As prescribed in 22.1505(a), insert the following provision:
Certification Regarding Knowledge of Child Labor for Listed End Products
(FEB 2001)
(a) Definition.
Forced or indentured child labor means all work or service--
(1) Exacted from any person under the age of 18 under the menace of
any penalty for its nonperformance and for which the worker does not
offer himself voluntarily; or
(2) Performed by any person under the age of 18 pursuant to a
contract the enforcement of which can be accomplished by process or
penalties.
(b) Listed end products. The following end product(s) being acquired
under this solicitation is (are) included in the List of Products
Requiring Contractor Certification as to Forced or Indentured Child
Labor, identified by their country of origin. There is a reasonable
basis to believe that listed endproducts from the listed countries of
origin may have been mined, produced, or manufactured by forced or
indentured child labor.
Listed End Product
________________________________________________________________________
________________________________________________________________________
Listed Countries of Origin
________________________________________________________________________
________________________________________________________________________
(c) Certification. The Government will not make award to an offeror
unless the offeror, by checking the appropriate block, certifies to
either paragraph (c)(1) or paragraph (c)(2) of this provision.
[squ] (1) The offeror will not supply any end product listed in
paragraph (b) of this provision that was mined, produced, or
manufactured in a corresponding country as listed for that end product.
[squ] (2) The offeror may supply an end product listed in paragraph
(b) of this provision that was mined, produced, or manufactured in the
corresponding country as listed for that product. The offeror certifies
that it has made a good faith effort to determine whether forced or
indentured child labor was used to mine, produce, or manufacture such
end product. On the basis of those efforts, the offeror certifies that
it is not aware of any such use of child labor.
(End of provision)
[66 FR 5349, Jan. 18, 2001]
52.222-19 Child Labor--Cooperation with Authorities and Remedies.
As prescribed in 22.1505(b), insert the following clause:
Child Labor--Cooperation With Authorities and Remedies (SEP 2002)
(a) Applicability. This clause does not apply to the extent that the
Contractor is supplying end products mined, produced, or manufactured
in--
(1) Canada, and the anticipated value of the acquisition is $25,000
or more;
(2) Israel, and the anticipated value of the acquisition is $50,000
or more;
(3) Mexico, and the anticipated value of the acquisition is $56,190
or more; or
(4) Aruba, Austria, Belgium, Denmark, Finland, France, Germany,
Greece, Hong Kong, Iceland, Ireland, Italy, Japan, Korea, Liechtenstein,
Luxembourg, Netherlands, Norway, Portugal, Singapore, Spain, Sweden,
Switzerland, or the United Kingdom and the anticipated value of the
acquisition is $169,000 or more.
(b) Cooperation with Authorities. To enforce the laws prohibiting
the manufacture or importation of products mined, produced, or
manufactured by forced or indentured child labor, authorized officials
may need to conduct investigations to determine whether forced or
indentured child labor was used to mine, produce, or manufacture any
product furnished under this contract. If the solicitation includes the
provision 52.222-18, Certification Regarding Knowledge of Child Labor
for Listed End Products, or the equivalent at
[[Page 131]]
52.212-3(i), the Contractor agrees to cooperate fully with authorized
officials of the contracting agency, the Department of the Treasury, or
the Department of Justice by providing reasonable access to records,
documents, persons, or premises upon reasonable request by the
authorized officials.
(c) Violations. The Government may impose remedies set forth in
paragraph (d) for the following violations:
(1) The Contractor has submitted a false certification regarding
knowledge of the use of forced or indentured child labor for listed end
products.
(2) The Contractor has failed to cooperate, if required, in
accordance with paragraph (b) of this clause, with an investigation of
the use of forced or indentured child labor by an Inspector General,
Attorney General, or the Secretary of the Treasury.
(3) The Contractor uses forced or indentured child labor in its
mining, production, or manufacturing processes.
(4) The Contractor has furnished under the contract end products or
components that have been mined, produced, or manufactured wholly or in
part by forced or indentured child labor. (The Government will not
pursue remedies at paragraph (d)(2) or paragraph (d)(3) of this clause
unless sufficient evidence indicates that the Contractor knew of the
violation.)
(d) Remedies. (1) The Contracting Officer may terminate the
contract.
(2) The suspending official may suspend the Contractor in accordance
with procedures in FAR Subpart 9.4.
(3) The debarring official may debar the Contractor for a period not
to exceed 3 years in accordance with the procedures in FAR Subpart 9.4.
(End of clause)
[66 FR 5349, Jan. 18, 2001, as amended at 66 FR 65371, Dec. 18, 2001; 67
FR 56124, Aug. 30, 2002]
52.222-20 Walsh-Healey Public Contracts Act.
As prescribed in 22.610, insert the following clause in
solicitations and contracts covered by the Act:
Walsh-Healey Public Contracts Act (DEC 1996)
If this contract is for the manufacture or furnishing of materials,
supplies, articles or equipment in an amount that exceeds or may exceed
$10,000, and is subject to the Walsh-Healey Public Contracts Act, as
amended (41 U.S.C. 35-45), the following terms and conditions apply:
(a) All stipulations required by the Act and regulations issued by
the Secretary of Labor (41 CFR chapter 50) are incorporated by
reference. These stipulations are subject to all applicable rulings and
interpretations of the Secretary of Labor that are now, or may
hereafter, be in effect.
(b) All employees whose work relates to this contract shall be paid
not less than the minimum wage prescribed by regulations issued by the
Secretary of Labor (41 CFR 50-202.2). Learners, student learners,
apprentices, and handicapped workers may be employed at less than the
prescribed minimum wage (see 41 CFR 50-202.3) to the same extent that
such employment is permitted under Section 14 of the Fair Labor
Standards Act (41 U.S.C. 40).
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 67411, Dec. 20, 1996]
52.222-21 Prohibition of segregated facilities.
As prescribed in 22.810(a)(1), insert the following clause:
Prohibition of Segregated Facilities (FEB 1999)
(a) Segregated facilities, as used in this clause, means any waiting
rooms, work areas, rest rooms and wash rooms, restaurants and other
eating areas, time clocks, locker rooms and other storage or dressing
areas, parking lots, drinking fountains, recreation or entertainment
areas, transportation, and housing facilities provided for employees,
that are segregated by explicit directive or are in fact segregated on
the basis of race, color, religion, sex, or national origin because of
written or oral policies or employee custom. The term does not include
separate or single-user rest rooms or necessary dressing or sleeping
areas provided to assure privacy between the sexes.
(b) The Contractor agrees that it does not and will not maintain or
provide for its employees any segregated facilities at any of its
establishments, and that it does not and will not permit its employees
to perform their services at any location under its control where
segregated facilities are maintained. The Contractor agrees that a
breach of this clause is a violation of the Equal Opportunity clause in
this contract.
(c) The Contractor shall include this clause in every subcontract
and purchase order that is subject to the Equal Opportunity clause of
this contract.
(End of clause)
[53 FR 70285, Dec. 18, 1998]
[[Page 132]]
52.222-22 Previous Contracts and Compliance Reports.
As prescribed in 22.810(a)(2), insert the following provision:
Previous Contracts and Compliance Reports (FEB 1999)
The offeror represents that--
(a) It squ; has, [squ] has not participated in a previous contract
or subcontract subject to the Equal Opportunity clause of this
solicitation;
(b) It [squ] has, [squ] has not, filed all required compliance
reports; and
(c) Representations indicating submission of required compliance
reports, signed by proposed subcontractors, will be obtained before
subcontract awards.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 63 FR 70286, Dec. 18, 1998]
52.222-23 Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity for Construction.
As prescribed in 22.810(b), insert the following provision:
Notice of Requirement for Affirmative Action To Ensure Equal Employment
Opportunity for Construction (FEB 1999)
(a) The offeror's attention is called to the Equal Opportunity
clause and the Affirmative Action Compliance Requirements for
Construction clause of this solicitation.
(b) The goals for minority and female participation, expressed in
percentage terms for the Contractor's aggregate workforce in each trade
on all construction work in the covered area, are as follows:
------------------------------------------------------------------------
Goals for minority participation Goals for female participation for
for each trade each trade
------------------------------------------------------------------------
---------------- ----------------
[Contracting Officer shall insert [Contracting Officer shall insert
goals] goals]
------------------------------------------------------------------------
These goals are applicable to all the Contractor's construction work
performed in the covered area. If the Contractor performs construction
work in a geographical area located outside of the covered area, the
Contractor shall apply the goals established for the geographical area
where the work is actually performed. Goals are published periodically
in the Federal Register in notice form, and these notices may be
obtained from any Office of Federal Contract Compliance Programs office.
(c) The Contractor's compliance with Executive Order 11246, as
amended, and the regulations in 41 CFR 60-4 shall be based on (1) its
implementation of the Equal Opportunity clause, (2) specific affirmative
action obligations required by the clause entitled Affirmative Action
Compliance Requirements for Construction, and (3) its efforts to meet
the goals. The hours of minority and female employment and training must
be substantially uniform throughout the length of the contract, and in
each trade. The Contractor shall make a good faith effort to employ
minorities and women evenly on each of its projects. The transfer of
minority or female employees or trainees from Contractor to Contractor,
or from project to project, for the sole purpose of meeting the
Contractor's goals shall be a violation of the contract, Executive Order
11246, as amended, and the regulations in 41 CFR 60-4. Compliance with
the goals will be measured against the total work hours performed.
(d) The Contractor shall provide written notification to the Deputy
Assistant Secretary for Federal Contract Compliance, U.S. Department of
Labor, within 10 working days following award of any construction
subcontract in excess of $10,000 at any tier for construction work under
the contract resulting from this solicitation. The notification shall
list the --
(2) Name, address, and telephone number of the subcontractor;
(i) Employer's identification number of the subcontractor;
(3) Estimated dollar amount of the subcontract;
(4) Estimated starting and completion dates of the subcontract; and
(5) Geographical area in which the subcontract is to be performed.
(e) As used in this Notice, and in any contract resulting from this
solicitation, the covered area is ------ [Contracting Officer shall
insert description of the geographical areas where the contract is to be
performed, giving the State, county, and city].
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 38518, Sept. 18, 1990;
63 FR 70286, Dec. 18, 1998]
52.222-24 Preaward On-Site Equal Opportunity Compliance Evaluation.
As prescribed in 22.810(c), insert the following provision:
Preaward On-Site Equal Opportunity Compliance Evaluation (FEB 1999)
If a contract in the amount of $10 million or more will result from
this solicitation, the prospective Contractor and its known first-tier
subcontractors with anticipated subcontracts of $10 million or more
shall be subject to a preaward compliance evaluation by the Office of
Federal Contract Compliance
[[Page 133]]
Programs (OFCCP), unless, within the preceding 24 months, OFCCP has
conducted an evaluation and found the prospective Contractor and
subcontractors to be in compliance with Executive Order 11246.
(End of provision)
[63 FR 70286, Dec. 18, 1998]
52.222-25 Affirmative Action Compliance.
As prescribed in 22.810(d), insert the following provision:
Affirmative Action Compliance (APR 1984)
The offeror represents that (a) it [squ] has developed and has on
file, [squ] has not developed and does not have on file, at each
establishment, affirmative action programs required by the rules and
regulations of the Secretary of Labor (41 CFR 60-1 and 60-2), or (b) it
[squ] has not previously had contracts subject to the written
affirmative action programs requirement of the rules and regulations of
the Secretary of Labor.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 63 FR 70286, Dec. 18, 1998]
52.222-26 Equal Opportunity.
As prescribed in 22.810(e), insert the following clause:
Equal Opportunity (APR 2002)
(a) Definition. United States, as used in this clause, means the 50
States, the District of Columbia, Puerto Rico, the Northern Mariana
Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.
(b) If, during any 12-month period (including the 12 months
preceding the award of this contract), the Contractor has been or is
awarded nonexempt Federal contracts and/or subcontracts that have an
aggregate value in excess of $10,000, the Contractor shall comply with
paragraphs (b)(1) through (b)(11) of this clause, except for work
performed outside the United States by employees who were not recruited
within the United States. Upon request, the Contractor shall provide
information necessary to determine the applicability of this clause.
(1) The Contractor shall not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or
national origin. However, it shall not be a violation of this clause for
the Contractor to extend a publicly announced preference in employment
to Indians living on or near an Indian reservation, in connection with
employment opportunities on or near an Indian reservation, as permitted
by 41 CFR 60-1.5.
(2) The Contractor shall take affirmative action to ensure that
applicants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex, or
national origin. This shall include, but not be limited to, (i)
employment, (ii) upgrading, (iii) demotion, (iv) transfer, (v)
recruitment or recruitment advertising, (vi) layoff or termination,
(vii) rates of pay or other forms of compensation, and (viii) selection
for training, including apprenticeship.
(3) The Contractor shall post in conspicuous places available to
employees and applicants for employment the notices to be provided by
the Contracting Officer that explain this clause.
(4) The Contractor shall, in all solicitations or advertisements for
employees placed by or on behalf of the Contractor, state that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin.
(5) The Contractor shall send, to each labor union or representative
of workers with which it has a collective bargaining agreement or other
contract or understanding, the notice to be provided by the Contracting
Officer advising the labor union or workers' representative of the
Contractor's commitments under this clause, and post copies of the
notice in conspicuous places available to employees and applicants for
employment.
(6) The Contractor shall comply with Executive Order 11246, as
amended, and the rules, regulations, and orders of the Secretary of
Labor.
(7) The Contractor shall furnish to the contracting agency all
information required by Executive Order 11246, as amended, and by the
rules, regulations, and orders of the Secretary of Labor. The Contractor
shall also file Standard Form 100 (EEO-1), or any successor form, as
prescribed in 41 CFR part 60-1. Unless the Contractor has filed within
the 12 months preceding the date of contract award, the Contractor
shall, within 30 days after contract award, apply to either the regional
Office of Federal Contract Compliance Programs (OFCCP) or the local
office of the Equal Employment Opportunity Commission for the necessary
forms.
(8) The Contractor shall permit access to its premises, during
normal business hours, by the contracting agency or the OFCCP for the
purpose of conducting on-site compliance evaluations and complaint
investigations. The Contractor shall permit the Government to inspect
and copy any books, accounts, records (including computerized records),
and other material that may be relevant to the matter under
investigation and pertinent to compliance with Executive Order 11246, as
amended, and rules and regulations that implement the Executive Order.
[[Page 134]]
(9) If the OFCCP determines that the Contractor is not in compliance
with this clause or any rule, regulation, or order of the Secretary of
Labor, this contract may be canceled, terminated, or suspended in whole
or in part and the Contractor may be declared ineligible for further
Government contracts, under the procedures authorized in Executive Order
11246, as amended. In addition, sanctions may be imposed and remedies
invoked against the Contractor as provided in Executive Order 11246, as
amended; in the rules, regulations, and orders of the Secretary of
Labor; or as otherwise provided by law.
(10) The Contractor shall include the terms and conditions of
subparagraphs (b)(1) through (11) of this clause in every subcontract or
purchase order that is not exempted by the rules, regulations, or orders
of the Secretary of Labor issued under Executive Order 11246, as
amended, so that these terms and conditions will be binding upon each
subcontractor or vendor.
(11) The Contractor shall take such action with respect to any
subcontract or purchase order as the contracting officer may direct as a
means of enforcing these terms and conditions, including sanctions for
noncompliance; provided, that if the Contractor becomes involved in, or
is threatened with, litigation with a subcontractor or vendor as a
result of any direction, the Contractor may request the United States to
enter into the litigation to protect the interests of the United States.
(c) Notwithstanding any other clause in this contract, disputes
relative to this clause will be governed by the procedures in 41 CFR 60-
1.1.
(End of clause)
Alternate I (FEB 1999). As prescribed in 22.810(e), add the
following as a preamble to the clause:
Notice. The following terms of this clause are waived for this
contract: ------ [Contracting Officer shall list terms].
[48 FR 42478, Sept. 19, 1983, as amended at 63 FR 70286, Dec. 18, 1998;
67 FR 13067, Mar. 20, 2002]
52.222-27 Affirmative Action Compliance Requirements for Construction.
As prescribed in 22.810(f), insert the following clause:
Affirmative Action Compliance Requirements for Construction (FEB 1999)
(a) Definitions.
Covered area, as used in this clause, means the geographical area
described in the solicitation for this contract.
Deputy Assistant Secretary, as used in this clause, means the Deputy
Assistant Secretary for Federal Contract Compliance, U.S. Department of
Labor, or a designee.
Employer identification number, as used in this clause, means the
Federal Social Security number used on the employer's quarterly
Federaltax return, U.S. Treasury Department Form 941.
Minority, as used in this clause, means--
(1) American Indian or Alaskan Native (all persons having origins in
any of the original peoples of North America and maintaining
identifiable tribal affiliations through membership and participation or
community identification).
(2) Asian and Pacific Islander (all persons having origins in any of
the original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands);
(3) Black (all persons having origins in any of the black African
racial groups not of Hispanic origin); and
(4) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central
or South American, or other Spanish culture or origin, regardless of
race).
(b) If the Contractor, or a subcontractor at any tier, subcontracts
a portion of the work involving any construction trade, each such
subcontract in excess of $10,000 shall include this clause and the
Notice containing the goals for minority and female participation stated
in the solicitation for this contract.
(c) If the Contractor is participating in a Hometown Plan (41 CFR
60-4) approved by the U.S. Department of Labor in a covered area, either
individually or through an association, its affirmative action
obligations on all work in the plan area (including goals) shall comply
with the plan for those trades that have unions participating in the
plan. Contractors must be able to demonstrate participation in, and
compliance with, the provisions of the plan. Each Contractor or
subcontractor participating in an approved plan is also required to
comply with its obligations under the Equal Opportunity clause, and to
make a good faith effort to achieve each goal under the plan in each
trade in which it has employees. The overall good-faith performance by
other Contractors or subcontractors toward a goal in an approved plan
does not excuse any Contractor's or subcontractor's failure to make
good-faith efforts to achieve the plan's goals.
(d) The Contractor shall implement the affirmative action procedures
in subparagraphs (g)(1) through (16) of this clause. The goals stated in
the solicitation for this contract are expressed as percentages of the
total hours of employment and training of minority and female
utilization that the Contractor should reasonably be able to achieve in
each construction trade in which it has employees in the covered area.
If the Contractor performs construction work in a
[[Page 135]]
geographical area located outside of the covered area, it shall apply
the goals established for the geographical area where that work is
actually performed. The Contractor is expected to make substantially
uniform progress toward its goals in each craft.
(e) Neither the terms and conditions of any collective bargaining
agreement, nor the failure by a union with which the Contractor has a
collective bargaining agreement, to refer minorities or women shall
excuse the Contractor's obligations under this clause, Executive Order
11246, as amended, or the regulations thereunder.
(f) In order for the nonworking training hours of apprentices and
trainees to be counted in meeting the goals, apprentices and trainees
must be employed by the Contractor during the training period, and the
Contractor must have made a commitment to employ the apprentices and
trainees at the completion of their training, subject to the
availability of employment opportunities. Trainees must be trained
pursuant to training programs approved by the U.S. Department of Labor.
(g) The Contractor shall take affirmative action to ensure equal
employment opportunity. The evaluation of the Contractor's compliance
with this clause shall be based upon its effort to achieve maximum
results from its actions. The Contractor shall document these efforts
fully and implement affirmative action steps at least as extensive as
the following:
(1) Ensure a working environment free of harassment, intimidation,
and coercion at all sites and in all facilities where the Contractor's
employees are assigned to work. The Contractor, if possible, will assign
two or more women to each construction project. The Contractor shall
ensure that foremen, superintendents, and other onsite supervisory
personnel are aware of and carry out the Contractor's obligation to
maintain such a working environment, with specific attention to minority
or female individuals working at these sites or facilities.
(2) Establish and maintain a current list of sources for minority
and female recruitment. Provide written notification to minority and
female recruitment sources and community organizations when the
Contractor or its unions have employment opportunities available, and
maintain a record of the organizations' responses.
(3) Establish and maintain a current file of the names, addresses,
and telephone numbers of each minority and female off-the-street
applicant, referrals of minorities or females from unions, recruitment
sources, or community organizations, and the action taken with respect
to each individual. If an individual was sent to the union hiring hall
for referral and not referred back to the Contractor by the union or, if
referred back, not employed by the Contractor, this shall be documented
in the file, along with whatever additional actions the Contractor may
have taken.
(4) Immediately notify the Deputy Assistant Secretary when the union
or unions with which the Contractor has a collective bargaining
agreement has not referred back to the Contractor a minority or woman
sent by the Contractor, or when the Contractor has other information
that the union referral process has impeded the Contractor's efforts to
meet its obligations.
(5) Develop on-the-job training opportunities and/or participate in
training programs for the area that expressly include minorities and
women, including upgrading programs and apprenticeship and trainee
programs relevant to the Contractor's employment needs, especially those
programs funded or approved by the Department of Labor. The Contractor
shall provide notice of these programs to the sources compiled under
subparagraph (g)(2) of this clause.
(6) Disseminate the Contractor's equal employment policy by--
(i) Providing notice of the policy to unions and to training,
recruitment, and outreach programs, and requesting their cooperation in
assisting the Contractor in meeting its contract obligations;
(ii) Including the policy in any policy manual and in collective
bargaining agreements;
(iii) Publicizing the policy in the company newspaper, annual
report, etc.;
(iv) Reviewing the policy with all management personnel and with all
minority and female employees at least once a year; and
(v) Posting the policy on bulletin boards accessible to employees at
each location where construction work is performed.
(7) Review, at least annually, the Contractor's equal employment
policy and affirmative action obligations with all employees having
responsibility for hiring, assignment, layoff, termination, or other
employment decisions. Conduct review of this policy with all on-site
supervisory personnel before initiating construction work at a job site.
A written record shall be made and maintained identifying the time and
place of these meetings, persons attending, subject matter discussed,
and disposition of the subject matter.
(8) Disseminate the Contractor's equal employment policy externally
by including it in any advertising in the news media, specifically
including minority and female news media. Provide written notification
to, and discuss this policy with, other Contractors and subcontractors
with which the Contractor does or anticipates doing business.
(9) Direct recruitment efforts, both oral and written, to minority,
female, and community organizations, to schools with minority and female
students, and to minority and female recruitment and training
organizations serving the Contractor's recruitment area and employment
needs. Not later than 1
[[Page 136]]
month before the date for acceptance of applications for apprenticeship
or training by any recruitment source, send written notification to
organizations such as the above, describing the openings, screening
procedures, and tests to be used in the selection process.
(10) Encourage present minority and female employees to recruit
minority persons and women. Where reasonable, provide after-school,
summer, and vacation employment to minority and female youth both on the
site and in other areas of the Contractor's workforce.
(11) Validate all tests and other selection requirements where
required under 41 CFR 60-3.
(12) Conduct, at least annually, an inventory and evaluation at
least of all minority and female personnel for promotional
opportunities. Encourage these employees to seek or to prepare for,
through appropriate training, etc., opportunities for promotion.
(13) Ensure that seniority practices, job classifications, work
assignments, and other personnel practices, do not have a discriminatory
effect by continually monitoring all personnel and employment-related
activities to ensure that the Contractor's obligations under this
contract are being carried out.
(14) Ensure that all facilities and company activities are
nonsegregated except that separate or single-user rest rooms and
necessary dressing or sleeping areas shall be provided to assure privacy
between the sexes.
(15) Maintain a record of solicitations for subcontracts for
minority and female construction contractors and suppliers, including
circulation of solicitations to minority and female contractor
associations and other business associations.
(16) Conduct a review, at least annually, of all supervisors'
adherence to and performance under the Contractor's equal employment
policy and affirmative action obligations.
(h) The Contractor is encouraged to participate in voluntary
associations that may assist in fulfilling one or more of the
affirmative action obligations contained in subparagraphs (g)(1) through
(16) of this clause. The efforts of a contractor association, joint
contractor-union, contractor-community, or similar group of which the
contractor is a member and participant may be asserted as fulfilling one
or more of its obligations under subparagraphs (g)(1) through (16) of
this clause, provided the Contractor--
(1) Actively participates in the group;
(2) Makes every effort to ensure that the group has a positive
impact on the employment of minorities and women in the industry;
(3) Ensures that concrete benefits of the program are reflected in
the Contractor's minority and female workforce participation;
(4) Makes a good-faith effort to meet its individual goals and
timetables; and
(5) Can provide access to documentation that demonstrates the
effectiveness of actions taken on behalf of the Contractor. The
obligation to comply is the Contractor's, and failure of such a group to
fulfill an obligation shall not be a defense for the Contractor's
noncompliance.
(i) A single goal for minorities and a separate single goal for
women shall be established. The Contractor is required to provide equal
employment opportunity and to take affirmative action for all minority
groups, both male and female, and all women, both minority and
nonminority. Consequently, the Contractor may be in violation of
Executive Order 11246, as amended, if a particular group is employed in
a substantially disparate manner.
(j) The Contractor shall not use goals or affirmative action
standards to discriminate against any person because of race, color,
religion, sex, or national origin.
(k) The Contractor shall not enter into any subcontract with any
person or firm debarred from Government contracts under Executive Order
11246, as amended.
(l) The Contractor shall carry out such sanctions and penalties for
violation of this clause and of the Equal Opportunity clause, including
suspension, termination, and cancellation of existing subcontracts, as
may be imposed or ordered under Executive Order 11246, as amended, and
its implementing regulations, by the OFCCP. Any failure to carry out
these sanctions and penalties as ordered shall be a violation of this
clause and Executive Order 11246, as amended.
(m) The Contractor in fulfilling its obligations under this clause
shall implement affirmative action procedures at least as extensive as
those prescribed in paragraph (g) of this clause, so as to achieve
maximum results from its efforts to ensure equal employment opportunity.
If the Contractor fails to comply with the requirements of Executive
Order 11246, as amended, the implementing regulations, or this clause,
the Deputy Assistant Secretary shall take action as prescribed in 41 CFR
60-4.8.
(n) The Contractor shall designate a responsible official to--
(1) Monitor all employment-related activity to ensure that the
Contractor's equal employment policy is being carried out;
(2) Submit reports as may be required by the Government; and
(3) Keep records that shall at least include for each employee the
name, address, telephone number, construction trade, union affiliation
(if any), employee identification number, social security number, race,
sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer),
dates of changes in status, hours worked per week in the indicated
trade, rate of pay, and locations at which the
[[Page 137]]
work was performed. Records shall be maintained in an easily
understandable and retrievable form; however, to the degree that
existing records satisfy this requirement, separate records are not
required to be maintained.
(o) Nothing contained herein shall be construed as a limitation upon
the application of other laws that establish different standards of
compliance or upon the requirements for the hiring of local or other
area residents (e.g., those under the Public Works Employment Act of
1977 and the Community Development Block Grant Program).
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 38518, Sept. 18, 1990;
63 FR 70286, Dec. 18, 1998]
52.222-28 [Reserved]
52.222-29 Notification of visa denial.
As prescribed in 22.810(g), insert the following clause:
Notification of Visa Denial (FEB 1999)
It is a violation of Executive Order 11246, as amended, for a
Contractor to refuse to employ any applicant or not to assign any person
hired in the United States, on the basis that the individual's race,
color, religion, sex, or national origin is not compatible with the
policies of the country where the work is to be performed or for whom
the work will be performed (41 CFR 60-1.10). The Contractor agrees to
notify the U.S. Department of State, Assistant Secretary, Bureau of
Political-Military Affairs (PM), 2201 C Street NW, Room 7325,
Washington, DC 20520, and the U.S. Department of Labor, Deputy Assistant
Secretary for Federal Contract Compliance, when it has knowledge of any
employee or potential employee being denied an entry visa to a country
in which the Contractor is required to perform this contract, and it
believes the denial is attributable to the race, color, religion, sex,
or national origin of the employee or potential employee.
(End of clause)
[63 FR 70286, Dec. 18, 1998]
52.222-30 Davis-Bacon Act--Price Adjustment (None or Separately Specified Method).
As prescribed in 22.407(e), insert the following clause:
Davis-Bacon Act--Price Adjustment (None or Separately Specified Method)
(DEC 2001)
(a) The wage determination issued under the Davis-Bacon Act by the
Administrator, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, that is effective for an
option to extend the term of the contract, will apply to that option
period.
(b) The Contracting Officer will make no adjustment in contract
price, other than provided for elsewhere in this contract, to cover any
increases or decreases in wages and benefits as a result of--
(1) Incorporation of the Department of Labor's wage determination
applicable at the exercise of the option to extend the term of the
contract;
(2) Incorporation of a wage determination otherwise applied to the
contract by operation of law; or
(3) An increase in wages and benefits resulting from any other
requirement applicable to workers subject to the Davis-Bacon Act.
(End of clause)
[66 FR 53482, Oct. 22, 2001]
52.222-31 Davis-Bacon Act--Price Adjustment (Percentage Method).
As prescribed in 22.407(f), insert the following clause:
Davis-Bacon Act--Price Adjustment (Percentage Method) (DEC 2001)
(a) The wage determination issued under the Davis-Bacon Act by the
Administrator, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, that is effective for an
option to extend the term of the contract, will apply to that option
period.
(b) The Contracting Officer will adjust the portion of the contract
price or contract unit price(s) containing the labor costs subject to
the Davis-Bacon Act to provide for an increase in wages and fringe
benefits at the exercise of each option to extend the term of the
contract in accordance with the following procedures:
(1) The Contracting Officer has determined that the portion of the
contract price or contract unit price(s) containing labor costs subject
to the Davis-Bacon Act is ------------ [Contracting Officer insert
percentage rate] percent.
(2) The Contracting Officer will increase the portion of the
contract price or contract unit price(s) containing the labor costs
subject to the Davis-Bacon Act by the percentage rate published in
[[Page 138]]
------------[ContractingOfficer insert publication].
(c) The Contracting Officer will make the price adjustment at the
exercise of each option to extend the term of the contract. This
adjustment is the only adjustment that the Contracting Officer will make
to cover any increases in wages and benefits as a result of--
(1) Incorporation of the Department of Labor's wage determination
applicable at the exercise of the option to extend the term of the
contract;
(2) Incorporation of a wage determination otherwise applied to the
contract by operation of law; or
(3) An increase in wages and benefits resulting from any other
requirement applicable to workers subject to the Davis-Bacon Act.
(End of clause)
[66 FR 53482, Oct. 22, 2001]
52.222-32 Davis-Bacon Act--Price Adjustment (Actual Method).
As prescribed in 22.407(g), insert the following clause:
Davis-Bacon Act--Price Adjustment (Actual Method) (DEC 2001)
(a) The wage determination issued under the Davis-Bacon Act by the
Administrator, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, that is effective for an
option to extend the term of the contract, will apply to that option
period.
(b)(1) The Contractor states that if the prices in this contract
contain an allowance for wage or benefit increases, such allowance will
not be included in any request for contract price adjustment submitted
under this clause.
(2) The Contractor shall provide with each request for contract
price adjustment under this clause a statement that the prices in the
contract do not include any allowance for any increased cost for which
adjustment is being requested.
(c) The Contracting Officer will adjust the contract price or
contract unit price labor rates to reflect the Contractor's actual
increase or decrease in wages and fringe benefits to the extent that the
increase is made to comply with, or the decrease is voluntarily made by
the Contractor as a result of--
(1) Incorporation of the Department of Labor's Davis-Bacon Act wage
determination applicable at the exercise of an option to extend the term
of the contract; or
(2) Incorporation of a Davis-Bacon Act wage determination otherwise
applied to the contract by operation of law.
(d) Any adjustment will be limited to increases or decreases in
wages and fringe benefits as described in paragraph (c) of this clause,
and the accompanying increases or decreases in social security and
unemployment taxes and workers' compensation insurance, but will not
otherwise include any amount for general and administrative costs,
overhead, or profit.
(e) The Contractor shall notify the Contracting Officer of any
increase claimed under this clause within 30 days after receiving a
revised wage determination unless this notification period is extended
in writing by the Contracting Officer. The Contractor shall notify the
Contracting Officer promptly of any decrease under this clause, but
nothing in this clause precludes the Government from asserting a claim
within the period permitted by law. The notice shall contain a statement
of the amount claimed and any relevant supporting data, including
payroll records that the Contracting Officer may reasonably require.
Upon agreement of the parties, the Contracting Officer will modify the
contract price or contract unit price in writing. The Contractor shall
continue performance pending agreement on or determination of any such
adjustment and its effective date.
(f) Contract price adjustment computations shall be computed as
follows:
(1) Computation for contract unit price per single craft hour for
schedule of indefinite-quantity work. For each labor classification, the
difference between the actual wage and benefit rates (combined) paid and
the wage and benefit rates (combined) required by the new wage
determination shall be added to the original contract unit price if the
difference results in a combined increase. If the difference computed
results in a combined decrease, the contract unit price shall be
decreased by that amount if the Contractor provides notification as
provided in paragraph (e) of this clause.
[[Page 139]]
(2) Computation for contract unit price containing multiple craft
hours for schedule of indefinite-quantity work. For each labor
classification, the difference between the actual wage and benefit rates
(combined) paid and the wage and benefit rates (combined) required by
the new wage determination shall be multiplied by the actual number of
hours expended for each craft involved in accomplishing the unit-priced
work item. The product of this computation will then be divided by the
actual number of units ordered in the preceding contract period. The
total of these computations for each craft will be added to the current
contract unit price to obtain the new contract unit price. The extended
amount for the contract line item will be obtained by multiplying the
new unit price by the estimated quantity. If actual hours are not
available from the preceding contract period for computation of the
adjustment for a specific contract unit of work, the Contractor, in
agreement with the Contracting Officer, shall estimate the total hours
per craft per contract unit of work.
[[Page 140]]
Example: Asphalt Paving--Current Price $3.38 per Square Yard
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hourly Increase/
DBA craft New WD rate paid Diff. Actual hrs. Actual units (sq. yard) sq. yard
--------------------------------------------------------------------------------------------------------------------------------------------------------
Equip. Opr.......................... $18.50 - $18.00 = $.50 x 600 hrs./ 3,000 sq. yrd. = $.10
Truck Driver........................ $19.00 - $18.25 = $.75 x 525 hrs./ 3,000 sq. yrd. = $.13
Laborer............................. $11.50 - $11.25 = $.25 x 750 hrs./ 3,000 sq. yrd. = $.06
-----------
Total increase per square yard.......................................................................................................... * $.29
* Note: Adjustment for labor rate increases or decreases may be accompanied by social security and unemployment taxes and workers' compensation
insurance.
Current unit price (per square yard) $3.38
Add DBA price adj................... +.29
New unit price (per square yard).... $3.67
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 141]]
(End of clause)
[66 FR 53482, Oct. 22, 2001]
52.222-33--52.222-34 [Reserved]
52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans.
As prescribed in 22.1310(a)(1), insert the following clause:
Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam
Era, and Other Eligible Veterans (DEC 2001)
(a) Definitions. As used in this clause--
All employment openings means all positions except executive and top
management, those positions that will be filled from within the
Contractor's organization, and positions lasting 3 days or less. This
term includes full-time employment, temporary employment of more than 3
days duration, and part-time employment.
Executive and top management means any employee--
(1) Whose primary duty consists of the management of the enterprise
in which the individual is employed or of a customarily recognized
department or subdivision thereof;
(2) Who customarily and regularly directs the work of two or more
other employees;
(3) Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other
employees will be given particular weight;
(4) Who customarily and regularly exercises discretionary powers;
and
(5) Who does not devote more than 20 percent or, in the case of an
employee of a retail or service establishment, who does not devote more
than 40 percent of total hours of work in the work week to activities
that are not directly and closely related to the performance of the work
described in paragraphs (1) through (4) of this definition. This
paragraph (5) does not apply in the case of an employee who is in sole
charge of an establishment or a physically separated branch
establishment, or who owns at least a 20 percent interest in the
enterprise in which the individual is employed.
Other eligible veteran means any other veteran who served on active
duty during a war or in a campaign or expedition for which a campaign
badge has been authorized.
Positions that will be filled from within the Contractor's
organization means employment openings for which the Contractor will
give no consideration to persons outside the Contractor's organization
(including any affiliates, subsidiaries, and parent companies) and
includes any openings the Contractor proposes to fill from regularly
established ``recall'' lists. The exception does not apply to a
particular opening once an employer decides to consider applicants
outside of its organization.
Qualified special disabled veteran means a special disabled veteran
who satisfies the requisite skill, experience, education, and other job-
related requirements of the employment position such veteran holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position.
Special disabled veteran means--
(1) A veteran who is entitled to compensation (or who but for the
receipt of military retired pay would be entitled to compensation) under
laws administered by the Department of Veterans Affairs for a
disability--
(i) Rated at 30 percent or more; or
(ii) Rated at 10 or 20 percent in the case of a veteran who has been
determined under 38 U.S.C. 3106 to have a serious employment handicap
(i.e., a significant impairment of the veteran's ability to prepare for,
obtain, or retain employment consistent with the veteran's abilities,
aptitudes, and interests); or
(2) A person who was discharged or released from active duty because
of a service-connected disability.
Veteran of the Vietnam era means a person who--
(1) Served on active duty for a period of more than 180 days and was
discharged or released from active duty with other than a dishonorable
discharge, if any part of such active duty occurred--
(i) In the Republic of Vietnam between February 28, 1961, and May 7,
1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases; or
(2) Was discharged or released from active duty for a service-
connected disability if any part of the active duty was performed--
(i) In the Republic of Vietnam between February 28, 1961, and May 7,
1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases.
(b) General. (1) The Contractor shall not discriminate against the
individual because the individual is a special disabled veteran, a
veteran of the Vietnam era, or other eligible veteran, regarding any
position for which the employee or applicant for employment is
qualified. The Contractor shall take affirmative action to employ,
advance in employment, and otherwise treat qualified special disabled
veterans, veterans of the Vietnam era, and other eligible veterans
without discrimination based upon their disability or veterans' status
in all employment practices such as--
(i) Recruitment, advertising, and job application procedures;
[[Page 142]]
(ii) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and rehiring;
(iii) Rate of pay or any other form of compensation and changes in
compensation;
(iv) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(v) Leaves of absence, sick leave, or any other leave;
(vi) Fringe benefits available by virtue of employment, whether or
not administered by the Contractor;
(vii) Selection and financial support for training, including
apprenticeship, and on-the-job training under 38 U.S.C. 3687,
professional meetings, conferences, and other related activities, and
selection for leaves of absence to pursue training;
(viii) Activities sponsored by the Contractor including social or
recreational programs; and
(ix) Any other term, condition, or privilege of employment.
(2) The Contractor shall comply with the rules, regulations, and
relevant orders of the Secretary of Labor issued under the Vietnam Era
Veterans' Readjustment Assistance Act of 1972 (the Act), as amended (38
U.S.C. 4211 and 4212).
(c) Listing openings. (1) The Contractor shall immediately list all
employment openings that exist at the time of the execution of this
contract and those which occur during the performance of this contract,
including those not generated by this contract, and including those
occurring at an establishment of the Contractor other than the one where
the contract is being performed, but excluding those of independently
operated corporate affiliates, at an appropriate local public employment
service office of the State wherein the opening occurs. Listing
employment openings with the U.S. Department of Labor's America's Job
Bank shall satisfy the requirement to list jobs with the local
employment service office.
(2) The Contractor shall make the listing of employment openings
with the local employment service office at least concurrently with
using any other recruitment source or effort and shall involve the
normal obligations of placing a bona fide job order, including accepting
referrals of veterans and nonveterans. This listing of employment
openings does not require hiring any particular job applicant or hiring
from any particular group of job applicants and is not intended to
relieve the Contractor from any requirements of Executive orders or
regulations concerning nondiscrimination in employment.
(3) Whenever the Contractor becomes contractually bound to the
listing terms of this clause, it shall advise the State public
employment agency in each State where it has establishments of the name
and location of each hiring location in the State. As long as the
Contractor is contractually bound to these terms and has so advised the
State agency, it need not advise the State agency of subsequent
contracts. The Contractor may advise the State agency when it is no
longer bound by this contract clause.
(d) Applicability. This clause does not apply to the listing of
employment openings that occur and are filled outside the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Mariana Islands, American Samoa, Guam, the Virgin
Islands of the United States, and Wake Island.
(e) Postings. (1) The Contractor shall post employment notices in
conspicuous places that are available to employees and applicants for
employment.
(2) The employment notices shall--
(i) State the rights of applicants and employees as well as the
Contractor's obligation under the law to take affirmative action to
employ and advance in employment qualified employees and applicants who
are special disabled veterans, veterans of the Vietnam era, and other
eligible veterans; and
(ii) Be in a form prescribed by the Deputy Assistant Secretary for
Federal Contract Compliance Programs, Department of Labor (Deputy
Assistant Secretary of Labor), and provided by or through the
Contracting Officer.
(3) The Contractor shall ensure that applicants or employees who are
special disabled veterans are informed of the contents of the notice
(e.g., the Contractor may have the notice read to a visually disabled
veteran, or may lower the posted notice so that it can be read by a
person in a wheelchair).
(4) The Contractor shall notify each labor union or representative
of workers with which it has a collective bargaining agreement, or other
contract understanding, that the Contractor is bound by the terms of the
Act and is committed to take affirmative action to employ, and advance
in employment, qualified special disabled veterans, veterans of the
Vietnam era, and other eligible veterans.
(f) Noncompliance. If the Contractor does not comply with the
requirements of this clause, the Government may take appropriate actions
under the rules, regulations, and relevant orders of the Secretary of
Labor issued pursuant to the Act.
(g) Subcontracts. The Contractor shall insert the terms of this
clause in all subcontracts or purchase orders of $25,000 or more unless
exempted by rules, regulations, or orders of the Secretary of Labor. The
Contractor shall act as specified by the Deputy Assistant Secretary of
Labor to enforce the terms, including action for noncompliance.
[[Page 143]]
(End of clause)
Alternate I (Dec 2001). As prescribed in 22.1310(a)(2), add the
following as a preamble to the clause:
Notice: The following term(s) of this clause are waived for this
contract:----------------[List term(s)].
[66 FR 53490, Oct. 22, 2001]
52.222-36 Affirmative Action for Workers With Disabilities.
As prescribed in 22.1408(a), insert the following clause:
Affirmative Action for Workers With Disabilities (JUN 1998)
(a) General. (1) Regarding any position for which the employee or
applicant for employment is qualified, the Contractor shall not
discriminate against any employee or applicant because of physical or
mental disability. The Contractor agrees to take affirmative action to
employ, advance in employment, and otherwise treat qualified individuals
with disabilities without discrimination based upon their physical or
mental disability in all employment practices such as--
(i) Recruitment, advertising, and job application procedures;
(ii) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(iii) Rates of pay or any other form of compensation and changes in
compensation;
(iv) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(v) Leaves of absence, sick leave, or any other leave;
(vi) Fringe benefits available by virtue of employment, whether or
not administered by the Contractor;
(vii) Selection and financial support for training, including
apprenticeships, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(viii) Activities sponsored by the Contractor, including social or
recreational programs; and
(ix) Any other term, condition, or privilege of employment.
(2) The Contractor agrees to comply with the rules, regulations, and
relevant orders of the Secretary of Labor (Secretary) issued under the
Rehabilitation Act of 1973 (29 U.S.C. 793) (the Act), as amended.
(b) Postings. (1) The Contractor agrees to post employment notices
stating--
(i) The Contractor's obligation under the law to take affirmative
action to employ and advance in employment qualified individuals with
disabilities; and
(ii) The rights of applicants and employees.
(2) These notices shall be posted in conspicuous places that are
available to employees and applicants for employment. The Contractor
shall ensure that applicants and employees with disabilities are
informed of the contents of the notice (e.g., the Contractor may have
the notice read to a visually disabled individual, or may lower the
posted notice so that it might be read by a person in a wheelchair). The
notices shall be in a form prescribed by the Deputy Assistant Secretary
for Federal Contract Compliance of the U.S. Department of Labor (Deputy
Assistant Secretary) and shall be provided by or through the Contracting
Officer.
(3) The Contractor shall notify each labor union or representative
of workers with which it has a collective bargaining agreement or other
contract understanding, that the Contractor is bound by the terms of
Section 503 of the Act and is committed to take affirmative action to
employ, and advance in employment, qualified individuals with physical
or mental disabilities.
(c) Noncompliance. If the Contractor does not comply with the
requirements of this clause, appropriate actions may be taken under the
rules, regulations, and relevant orders of the Secretary issued pursuant
to the Act.
(d) Subcontracts. The Contractor shall include the terms of this
clause in every subcontract or purchase order in excess of $10,000
unless exempted by rules, regulations, or orders of the Secretary. The
Contractor shall act as specified by the Deputy Assistant Secretary to
enforce the terms, including action for noncompliance.
(End of clause)
Alternate I (Jun 1998). As prescribed in 22.1408(b), add the
following as a preamble to the clause:
Notice: The following term(s) of this clause are waived for this
contract:
________________________________________________________________________
[List term(s)].
[63 FR 34075, June 22, 1998]
52.222-37 Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans.
As prescribed in 22.1310(b), insert the following clause:
[[Page 144]]
Employment Reports on Special Disabled Veterans, Veterans of the Vietnam
Era, and Other Eligible Veterans (DEC 2001)
(a) Unless the Contractor is a State or local government agency, the
Contractor shall report at least annually, as required by the Secretary
of Labor, on--
(1) The number of special disabled veterans, the number of veterans
of the Vietnam era, and other eligible veterans in the workforce of the
Contractor by job category and hiring location; and
(2) The total number of new employees hired during the period
covered by the report, and of the total, the number of special disabled
veterans, the number of veterans of the Vietnam era, and the number of
other eligible veterans; and
(3) The maximum number and the minimum number of employees of the
Contractor during the period covered by the report.
(b) The Contractor shall report the above items by completing the
Form VETS-100, entitled ``Federal Contractor Veterans'' Employment
Report (VETS-100 Report)''.
(c) The Contractor shall submit VETS-100 Reports no later than
September 30 of each year beginning September 30, 1988.
(d) The employment activity report required by paragraph (a)(2) of
this clause shall reflect total hires during the most recent 12-month
period as of the ending date selected for the employment profile report
required by paragraph (a)(1) of this clause. Contractors may select an
ending date--
(1) As of the end of any pay period between July 1 and August 31 of
the year the report is due; or
(2) As of December 31, if the Contractor has prior written approval
from the Equal Employment Opportunity Commission to do so for purposes
of submitting the Employer Information Report EEO-1 (Standard Form 100).
(e) The Contractor shall base the count of veterans reported
according to paragraph (a) of this clause on voluntary disclosure. Each
Contractor subject to the reporting requirements at 38 U.S.C. 4212 shall
invite all special disabled veterans, veterans of the Vietnam era, and
other eligible veterans who wish to benefit under the affirmative action
program at 38 U.S.C. 4212 to identify themselves to the Contractor. The
invitation shall state that--
(1) The information is voluntarily provided;
(2) The information will be kept confidential;
(3) Disclosure or refusal to provide the information will not
subject the applicant or employee to any adverse treatment; and
(4) The information will be used only in accordance with the
regulations promulgated under 38 U.S.C. 4212.
(f) The Contractor shall insert the terms of this clause in all
subcontracts or purchase orders of $25,000 or more unless exempted by
rules, regulations, or orders of the Secretary of Labor.
(End of clause)
[66 FR 53491, Oct. 22, 2001]
52.222-38 Compliance with Veterans' Employment Reporting Requirements.
As prescribed in 22.1310(c), insert the following provision:
Compliance With Veterans' Employment Reporting Requirements (DEC 2001)
By submission of its offer, the offeror represents that, if it is
subject to the reporting requirements of 38 U.S.C. 4212(d) (i.e., if it
has any contract containing Federal Acquisition Regulation clause
52.222-37, Employment Reports on Special Disabled Veterans, Veterans of
the Vietnam Era, and Other Eligible Veterans), it has submitted the most
recent VETS-100 Report required by that clause.
(End of provision)
[66 FR 53491, Oct. 22, 2001]
52.222-39--52.222-40 [Reserved]
52.222-41 Service Contract Act of 1965, as Amended.
As prescribed in 22.1006(a), insert the following clause:
Service Contract Act of 1965, as Amended (MAY 1989)
(a) Definitions. Act, as used in this clause, means the Service
Contract Act of 1965, as amended (41 U.S.C. 351, et seq.).
Contractor, as used in this clause or in any subcontract, shall be
deemed to refer to the subcontractor, except in the term Government
Prime Contractor.
Service employee, as used in this clause, means any person engaged
in the performance of this contract other than any person employed in a
bona fide executive, administrative, or professional capacity, as these
terms are defined in part 541 of title 29, Code of Federal Regulations,
as revised. It includes all such persons regardless of any contractual
relationship that may be alleged to exist between a Contractor or
subcontractor and such persons.
(b) Applicability. This contract is subject to the following
provisions and to all other applicable provisions of the Act and
regulations of the Secretary of Labor (29 CFR part
[[Page 145]]
4). This clause does not apply to contracts or subcontracts
administratively exempted by the Secretary of Labor or exempted by 41
U.S.C. 356, as interpreted in subpart C of 29 CFR part 4.
(c) Compensation. (1) Each service employee employed in the
performance of this contract by the Contractor or any subcontractor
shall be paid not less than the minimum monetary wages and shall be
furnished fringe benefits in accordance with the wages and fringe
benefits determined by the Secretary of Labor, or authorized
representative, as specified in any wage determination attached to this
contract.
(2)(i) If a wage determination is attached to this contract, the
Contractor shall classify any class of service employee which is not
listed therein and which is to be employed under the contract (i.e., the
work to be performed is not performed by any classification listed in
the wage determination) so as to provide a reasonable relationship
(i.e., appropriate level of skill comparison) between such unlisted
classifications and the classifications listed in the wage
determination. Such conformed class of employees shall be paid the
monetary wages and furnished the fringe benefits as are determined
pursuant to the procedures in this paragraph (c).
(ii) This conforming procedure shall be initiated by the Contractor
prior to the performance of contract work by the unlisted class of
employee. The Contractor shall submit Standard Form (SF) 1444, Request
for Authorization of Additional Classification and Rate, to the
Contracting Officer no later than 30 days after the unlisted class of
employee performs any contract work. The Contracting Officer shall
review the proposed classification and rate and promptly submit the
completed SF 1444 (which must include information regarding the
agreement or disagreement of the employees' authorized representatives
or the employees themselves together with the agency recommendation),
and all pertinent information to the Wage and Hour Division, Employment
Standards Administration U.S. Department of Labor. The Wage and Hour
Division will approve, modify, or disapprove the action or render a
final determination in the event of disagreement within 30 days of
receipt or will notify the Contracting Officer within 30 days of receipt
that additional time is necessary.
(iii) The final determination of the conformance action by the Wage
and Hour Division shall be transmitted to the Contracting Officer who
shall promptly notify the Contractor of the action taken. Each affected
employee shall be furnished by the Contractor with a written copy of
such determination or it shall be posted as a part of the wage
determination.
(iv)(A) The process of establishing wage and fringe benefit rates
that bear a reasonable relationship to those listed in a wage
determination cannot be reduced to any single formula. The approach used
may vary from wage determination to wage determination depending on the
circumstances. Standard wage and salary administration practices which
rank various job classifications by pay grade pursuant to point schemes
or other job factors may, for example, be relied upon. Guidance may also
be obtained from the way different jobs are rated under Federal pay
systems (Federal Wage Board Pay System and the General Schedule) or from
other wage determinations issued in the same locality. Basic to the
establishment of any conformable wage rate(s) is the concept that a pay
relationship should be maintained between job classifications based on
the skill required and the duties performed.
(B) In the case of a contract modification, an exercise of an
option, or extension of an existing contract, or in any other case where
a Contractor succeeds a contract under which the classification in
question was previously conformed pursuant to paragraph (c) of this
clause, a new conformed wage rate and fringe benefits may be assigned to
the conformed classification by indexing (i.e., adjusting) the previous
conformed rate and fringe benefits by an amount equal to the average
(mean) percentage increase (or decrease, where appropriate) between the
wages and fringe benefits specified for all classifications to be used
on the contract which are listed in the current wage determination, and
those specified for the corresponding classifications in the previously
applicable wage determination. Where conforming actions are accomplished
in accordance with this paragraph prior to the performance of contract
work by the unlisted class of employees, the Contractor shall advise the
Contracting Officer of the action taken but the other procedures in
subdivision (c)(2)(ii) of this clause need not be followed.
(C) No employee engaged in performing work on this contract shall in
any event be paid less than the currently applicable minimum wage
specified under section 6(a)(1) of the Fair Labor Standards Act of 1938,
as amended.
(v) The wage rate and fringe benefits finally determined under this
subparagraph (c)(2) of this clause shall be paid to all employees
performing in the classification from the first day on which contract
work is performed by them in the classification. Failure to pay the
unlisted employees the compensation agreed upon by the interested
parties and/or finally determined by the Wage and Hour Division
retroactive to the date such class of employees commenced contract work
shall be a violation of the Act and this contract.
(vi) Upon discovery of failure to comply with subparagraph (c)(2) of
this clause, the
[[Page 146]]
Wage and Hour Division shall make a final determination of conformed
classification, wage rate, and/or fringe benefits which shall be
retroactive to the date such class or classes of employees commenced
contract work.
(3) Adjustment of Compensation. If the term of this contract is more
than 1 year, the minimum monetary wages and fringe benefits required to
be paid or furnished thereunder to service employees under this contract
shall be subject to adjustment after 1 year and not less often than once
every 2 years, under wage determinations issued by the Wage and Hour
Division.
(d) Obligation to Furnish Fringe Benefits. The Contractor or
subcontractor may discharge the obligation to furnish fringe benefits
specified in the attachment or determined under subparagraph (c)(2) of
this clause by furnishing equivalent combinations of bona fide fringe
benefits, or by making equivalent or differential cash payments, only in
accordance with subpart D of 29 CFR part 4.
(e) Minimum Wage. In the absence of a minimum wage attachment for
this contract, neither the Contractor nor any subcontractor under this
contract shall pay any person performing work under this contract
(regardless of whether the person is a service employee) less than the
minimum wage specified by section 6(a)(1) of the Fair Labor Standards
Act of 1938. Nothing in this clause shall relieve the Contractor or any
subcontractor of any other obligation under law or contract for payment
of a higher wage to any employee.
(f) Successor Contracts. If this contract succeeds a contract
subject to the Act under which substantially the same services were
furnished in the same locality and service employees were paid wages and
fringe benefits provided for in a collective bargaining agreement, in
the absence of the minimum wage attachment for this contract setting
forth such collectively bargained wage rates and fringe benefits,
neither the Contractor nor any subcontractor under this contract shall
pay any service employee performing any of the contract work (regardless
of whether or not such employee was employed under the predecessor
contract), less than the wages and fringe benefits provided for in such
collective bargaining agreement, to which such employee would have been
entitled if employed under the predecessor contract, including accrued
wages and fringe benefits and any prospective increases in wages and
fringe benefits provided for under such agreement. No Contractor or
subcontractor under this contract may be relieved of the foregoing
obligation unless the limitations of 29 CFR 4.1b(b) apply or unless the
Secretary of Labor or the Secretary's authorized representative finds,
after a hearing as provided in 29 CFR 4.10 that the wages and/or fringe
benefits provided for in such agreement are substantially at variance
with those which prevail for services of a character similar in the
locality, or determines, as provided in 29 CFR 4.11, that the collective
bargaining agreement applicable to service employees employed under the
predecessor contract was not entered into as a result of arm's length
negotiations. Where it is found in accordance with the review procedures
provided in 29 CFR 4.10 and/or 4.11 and parts 6 and 8 that some or all
of the wages and/or fringe benefits contained in a predecessor
Contractor's collective bargaining agreement are substantially at
variance with those which prevail for services of a character similar in
the locality, and/or that the collective bargaining agreement applicable
to service employees employed under the predecessor contract was not
entered into as a result of arm's length negotiations, the Department
will issue a new or revised wage determination setting forth the
applicable wage rates and fringe benefits. Such determination shall be
made part of the contract or subcontract, in accordance with the
decision of the Administrator, the Administrative Law Judge, or the
Board of Service Contract Appeals, as the case may be, irrespective of
whether such issuance occurs prior to or after the award of a contract
or subcontract (53 Comp. Gen. 401 (1973)). In the case of a wage
determination issued solely as a result of a finding of substantial
variance, such determination shall be effective as of the date of the
final administrative decision.
(g) Notification to Employees. The Contractor and any subcontractor
under this contract shall notify each service employee commencing work
on this contract of the minimum monetary wage and any fringe benefits
required to be paid pursuant to this contract, or shall post the wage
determination attached to this contract. The poster provided by the
Department of Labor (Publication WH 1313) shall be posted in a prominent
and accessible place at the worksite. Failure to comply with this
requirement is a violation of section 2(a)(4) of the Act and of this
contract.
(h) Safe and Sanitary Working Conditions. The Contractor or
subcontractor shall not permit any part of the services called for by
this contract to be performed in buildings or surroundings or under
working conditions provided by or under the control or supervision of
the Contractor or subcontractor which are unsanitary, hazardous, or
dangerous to the health or safety of the service employees. The
Contractor or subcontractor shall comply with the safety and health
standards applied under 29 CFR part 1925.
(i) Records. (1) The Contractor and each subcontractor performing
work subject to the Act shall make and maintain for 3 years from the
completion of the work, and make them available for inspection and
transcription by authorized representatives of
[[Page 147]]
the Wage and Hour Division, Employment Standards Administration, a
record of the following:
(i) For each employee subject to the Act--
(A) Name and address and social security number;
(B) Correct work classification or classifications, rate or rates of
monetary wages paid and fringe benefits provided, rate or rates of
payments in lieu of fringe benefits, and total daily and weekly
compensation;
(C) Daily and weekly hours worked by each employee; and
(D) Any deductions, rebates, or refunds from the total daily or
weekly compensation of each employee.
(ii) For those classes of service employees not included in any wage
determination attached to this contract, wage rates or fringe benefits
determined by the interested parties or by the Administrator or
authorized representative under the terms of paragraph (c) of this
clause. A copy of the report required by subdivision (c)(2)(ii) of this
clause will fulfill this requirement.
(iii) Any list of the predecessor Contractor's employees which had
been furnished to the Contractor as prescribed by paragraph (n) of this
clause.
(2) The Contractor shall also make available a copy of this contract
for inspection or transcription by authorized representatives of the
Wage and Hour Division.
(3) Failure to make and maintain or to make available these records
for inspection and transcription shall be a violation of the regulations
and this contract, and in the case of failure to produce these records,
the Contracting Officer, upon direction of the Department of Labor and
notification to the Contractor, shall take action to cause suspension of
any further payment or advance of funds until the violation ceases.
(4) The Contractor shall permit authorized representatives of the
Wage and Hour Division to conduct interviews with employees at the
worksite during normal working hours.
(j) Pay Periods. The Contractor shall unconditionally pay to each
employee subject to the Act all wages due free and clear and without
subsequent deduction (except as otherwise provided by law or
Regulations, 29 CFR part 4), rebate, or kickback on any account. These
payments shall be made no later than one pay period following the end of
the regular pay period in which the wages were earned or accrued. A pay
period under this Act may not be of any duration longer than semi-
monthly.
(k) Withholding of Payments and Termination of Contract. The
Contracting Officer shall withhold or cause to be withheld from the
Government Prime Contractor under this or any other Government contract
with the Prime Contractor such sums as an appropriate official of the
Department of Labor requests or such sums as the Contracting Officer
decides may be necessary to pay underpaid employees employed by the
Contractor or subcontractor. In the event of failure to pay any
employees subject to the Act all or part of the wages or fringe benefits
due under the Act, the Contracting Officer may, after authorization or
by direction of the Department of Labor and written notification to the
Contractor, take action to cause suspension of any further payment or
advance of funds until such violations have ceased. Additionally, any
failure to comply with the requirements of this clause may be grounds
for termination of the right to proceed with the contract work. In such
event, the Government may enter into other contracts or arrangements for
completion of the work, charging the Contractor in default with any
additional cost.
(l) Subcontracts. The Contractor agrees to insert this clause in all
subcontracts subject to the Act.
(m) Collective Bargaining Agreements Applicable to Service
Employees. If wages to be paid or fringe benefits to be furnished any
service employees employed by the Government Prime Contractor or any
subcontractor under the contract are provided for in a collective
bargaining agreement which is or will be effective during any period in
which the contract is being performed, the Government Prime Contractor
shall report such fact to the Contracting Officer, together with full
information as to the application and accrual of such wages and fringe
benefits, including any prospective increases, to service employees
engaged in work on the contract, and a copy of the collective bargaining
agreement. Such report shall be made upon commencing performance of the
contract, in the case of collective bargaining agreements effective at
such time, and in the case of such agreements or provisions or
amendments thereof effective at a later time during the period of
contract performance such agreements shall be reported promptly after
negotiation thereof.
(n) Seniority List. Not less than 10 days prior to completion of any
contract being performed at a Federal facility where service employees
may be retained in the performance of the succeeding contract and
subject to a wage determination which contains vacation or other benefit
provisions based upon length of service with a Contractor (predecessor)
or successor (29 CFR 4.173), the incumbent Prime Contractor shall
furnish the Contracting Officer a certified list of the names, of all
service employees on the Contractor's or subcontractor's payroll during
the last month of contract performance. Such list shall also contain
anniversary dates of employment on the contract either with the current
or predecessor Contractors of each such service employee. The
Contracting Officer shall turn over such list to
[[Page 148]]
the successor Contractor at the commencement of the succeeding contract.
(o) Rulings and Interpretations. Rulings and interpretations of the
Act are contained in Regulations, 29 CFR part 4.
(p) Contractor's Certification. (1) By entering into this contract,
the Contractor (and officials thereof) certifies that neither it (nor he
or she) nor any person or firm who has a substantial interest in the
Contractor's firm is a person or firm ineligible to be awarded
Government contracts by virtue of the sanctions imposed under section 5
of the Act.
(2) No part of this contract shall be subcontracted to any person or
firm ineligible for award of a Government contract under section 5 of
the Act.
(3) The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
(q) Variations, Tolerances, and Exemptions Involving Employment.
Notwithstanding any of the provisions in paragraphs (b) through (o) of
this clause, the following employees may be employed in accordance with
the following variations, tolerances, and exemptions, which the
Secretary of Labor, pursuant to section 4(b) of the Act prior to its
amendment by Pub. L. 92-473, found to be necessary and proper in the
public interest or to avoid serious impairment of the conduct of
Government business.
(1) Apprentices, student-learners, and workers whose earning
capacity is impaired by age, physical or mental deficiency or injury may
be employed at wages lower than the minimum wages otherwise required by
section 2(a)(1) or 2(b)(1) of the Act without diminishing any fringe
benefits or cash payments in lieu thereof required under section 2(a)(2)
of the Act, in accordance with the conditions and procedures prescribed
for the employment of apprentices, student-learners, handicapped
persons, and handicapped clients of sheltered workshops under section 14
of the Fair Labor Standards Act of 1938, in the regulations issued by
the Administrator (29 CFR parts 520, 521, 524, and 525).
(2) The Administrator will issue certificates under the Act for the
employment of apprentices, student-learners, handicapped persons, or
handicapped clients of sheltered workshops not subject to the Fair Labor
Standards Act of 1938, or subject to different minimum rates of pay
under the two acts, authorizing appropriate rates of minimum wages (but
without changing requirements concerning fringe benefits or
supplementary cash payments in lieu thereof), applying procedures
prescribed by the applicable regulations issued under the Fair Labor
Standards Act of 1938 (29 CFR parts 520, 521, 524, and 525).
(3) The Administrator will also withdraw, annul, or cancel such
certificates in accordance with the regulations in 29 CFR parts 525 and
528.
(r) Apprentices. Apprentices will be permitted to work at less than
the predetermined rate for the work they perform when they are employed
and individually registered in a bona fide apprenticeship program
registered with a State Apprenticeship Agency which is recognized by the
U.S. Department of Labor, or if no such recognized agency exists in a
State, under a program registered with the Bureau of Apprenticeship and
Training, Employment and Training Administration, U.S. Department of
Labor. Any employee who is not registered as an apprentice in an
approved program shall be paid the wage rate and fringe benefits
contained in the applicable wage determination for the journeyman
classification of work actually performed. The wage rates paid
apprentices shall not be less than the wage rate for their level of
progress set forth in the registered program, expressed as the
appropriate percentage of the journeyman's rate contained in the
applicable wage determination. The allowable ratio of apprentices to
journeymen employed on the contract work in any craft classification
shall not be greater than the ratio permitted to the Contractor as to
his entire work force under the registered program.
(s) Tips. An employee engaged in an occupation in which the employee
customarily and regularly receives more than $30 a month in tips may
have the amount of these tips credited by the employer against the
minimum wage required by section 2(a)(1) or section 2(b)(1) of the Act,
in accordance with section 3(m) of the Fair Labor Standards Act and
Regulations 29 CFR part 531. However, the amount of credit shall not
exceed $1.34 per hour beginning January l, 1981. To use this provision--
(1) The employer must inform tipped employees about this tip credit
allowance before the credit is utilized;
(2) The employees must be allowed to retain all tips (individually
or through a pooling arrangement and regardless of whether the employer
elects to take a credit for tips received);
(3) The employer must be able to show by records that the employee
receives at least the applicable Service Contract Act minimum wage
through the combination of direct wages and tip credit; and
(4) The use of such tip credit must have been permitted under any
predecessor collective bargaining agreement applicable by virtue of
section 4(c) of the Act.
(t) Disputes Concerning Labor Standards. The U.S. Department of
Labor has set forth in 29 CFR parts 4, 6, and 8 procedures for resolving
disputes concerning labor standards requirements. Such disputes shall be
resolved in accordance with those procedures and not the Disputes clause
of this contract. Disputes within the meaning of this clause include
disputes between the Contractor (or
[[Page 149]]
any of its subcontractors) and the contracting agency, the U.S.
Department of Labor, or the employees or their representatives.
(End of clause)
[54 FR 19828, May 8, 1989]
52.222-42 Statement of Equivalent Rates for Federal Hires.
As prescribed in 22.1006(b), insert the following clause:
Statement of Equivalent Rates for Federal Hires (MAY 1989)
In compliance with the Service Contract Act of 1965, as amended, and
the regulations of the Secretary of Labor (29 CFR part 4), this clause
identifies the classes of service employees expected to be employed
under the contract and states the wages and fringe benefits payable to
each if they were employed by the contracting agency subject to the
provisions of 5 U.S.C. 5341 or 5332.
This Statement is for Information Only: It Is Not a Wage Determination
Monetary wage--Fringe
Employee class benefits
.......................
.......................
.......................
.......................
.......................
.......................
(End of clause)
[54 FR 19831, May 8, 1989]
52.222-43 Fair Labor Standards Act and Service Contract Act--Price Adjustment (Multiple Year and Option Contracts).
As prescribed in 22.1006(c)(1), insert the following clause:
Fair Labor Standards Act and Service Contract Act--Price Adjustment
(Multiple Year and Option Contracts) (MAY 1989)
(a) This clause applies to both contracts subject to area prevailing
wage determinations and contracts subject to collective bargaining
agreements.
(b) The Contractor warrants that the prices in this contract do not
include any allowance for any contingency to cover increased costs for
which adjustment is provided under this clause.
(c) The wage determination, issued under the Service Contract Act of
1965, as amended, (41 U.S.C. 351, et seq.), by the Administrator, Wage
and Hour Division, Employment Standards Administration, U.S. Department
of Labor, current on the anniversary date of a multiple year contract or
the beginning of each renewal option period, shall apply to this
contract. If no such determination has been made applicable to this
contract, then the Federal minimum wage as established by section
6(a)(1) of the Fair Labor Standards Act of 1938, as amended, (29 U.S.C.
206) current on the anniversary date of a multiple year contract or the
beginning of each renewal option period, shall apply to this contract.
(d) The contract price or contract unit price labor rates will be
adjusted to reflect the Contractor's actual increase or decrease in
applicable wages and fringe benefits to the extent that the increase is
made to comply with or the decrease is voluntarily made by the
Contractor as a result of:
(1) The Department of Labor wage determination applicable on the
anniversary date of the multiple year contract, or at the beginning of
the renewal option period. For example, the prior year wage
determination required a minimum wage rate of $4.00 per hour. The
Contractor chose to pay $4.10. The new wage determination increases the
minimum rate to $4.50 per hour. Even if the Contractor voluntarily
increases the rate to $4.75 per hour, the allowable price adjustment is
$.40 per hour;
(2) An increased or decreased wage determination otherwise applied
to the contract by operation of law; or
(3) An amendment to the Fair Labor Standards Act of l938 that is
enacted after award of this contract, affects the minimum wage, and
becomes applicable to this contract under law.
(e) Any adjustment will be limited to increases or decreases in
wages and fringe benefits as described in paragraph (c) of this clause,
and the accompanying increases or decreases in social security and
unemployment taxes and workers' compensation insurance, but shall not
otherwise include any amount for general and administrative costs,
overhead, or profit.
(f) The Contractor shall notify the Contracting Officer of any
increase claimed under this clause within 30 days after receiving a new
wage determination unless this notification period is extended in
writing by the Contracting Officer. The Contractor shall promptly notify
the Contracting Officer of any decrease under this clause, but nothing
in the clause shall preclude the Government from asserting a claim
within the period permitted by law. The notice shall contain a statement
of the amount claimed and any relevant supporting data, including
payroll records, that the Contracting Officer may reasonably require.
Upon agreement of the parties, the contract price or contract
[[Page 150]]
unit price labor rates shall be modified in writing. The Contractor
shall continue performance pending agreement on or determination of any
such adjustment and its effective date.
(g) The Contracting Officer or an authorized representative shall
have access to and the right to examine any directly pertinent books,
documents, papers and records of the Contractor until the expiration of
3 years after final payment under the contract.
(End of clause)
[54 FR 19831, May 8, 1989]