In any area outside the United States, its possessions and Puerto Rico, "normal work week" and "normal work day" mean the work week hours and work day hours specified in the contract. As used in this part, the following additional terms shall have the meaning set forth: (a) "Compensable overtime" means authorized overtime which is to be compensated for by way of additional pay at a rate specified in the contract or an allowance of compensatory time off. (b) "Compensatory time off" means leave equal to overtime worked during which a contract employee may be allowed to absent himself from work by virtue of his having been authorized and required to work overtime and having previously worked such overtime, and which leave must be taken by the employee not later than the end of the calendar month following that in which he worked overtime and otherwise may never be compensated for by way of additional pay. § 7-12.102-2 ICA policy. (a) Practically all ICA contracts which involve the employment of persons are primarily concerned with the performance of professional, technical or construction services in foreign areas and the compensation of employees for such services is normally fixed on a contracts shall specify the minimum work week hours of employees performing overseas services. Under ICA policy, professional and technical employees do not normally receive compensable overtime. In particular contracts which require the employment of nontechnical or nonprofessional employees, a special provision may be included therein authorizing compensable overtime, preferably compensatory time off, whenever the Contracting Officer determines that such provision is in the best interests of the Government. Whenever compensable overtime is authorized in an ICA contract, the contract shall specify the necessary approvals that must be obtained. Compensable overtime in the form of additional pay will be reimbursed under ICA cost contracts only to the extent and as specifically provided for in the contract. (b) ICA contracts which involve the employment of any cooperating country nationals or other local labor shall require the contractor to consult with the USOM Director or such other official as the latter may designate, with respect to existing local labor laws, regulations and labor standards with a view to adopting and demonstrating good employment practices. § 7-12.102-4 Approvals. The provisions of FPR 1-12.102-4 are not applicable to ICA overseas service contracts. (a) The term "Secretary" means the Director, International Cooperation Administration or the Deputy Director, International Cooperation Administration; and the term "his duly authorized representative" means any person or persons or board (other than the Contracting Officer) authorized to act for the Secretary. (b) (No change from Standard Form 32). (c) (No change from Standard Form 32). (d) The terms "Government", "federal", "state", and "local" refer to political entities under the purview and subject to the Constitution of the United States of America and not to similar political entities constituted under a foreign authority. 2. CHANGES. If any or not The Contracting Officer may at any time, by a written order, and without notice to the sureties, make changes, within the general scope of this contract, in any one or more of the following: (1) Drawings, designs, or specifications, where the supplies to be furnished are to be specifically manufactured for the Government in accordance therewith; (ii) method of shipment or packing; and (iii) place of delivery. such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this contract, whether changed changed by any such order, an equitable adjustment shall be made in the contract price or delivery schedule, or both, and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within 60 days from the date of receipt by the Contractor of the notification of change: Provided, however, That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Where the cost of property made obsolete or excess as a result of a change is included in the Contractor's claim for adjustment, the Contracting Officer shall have the right to prescribe the manner of disposition of such property. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes". However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed. 8. ASSIGNMENT OF CLAIMS. (a) Pursuant to the provisions of the Assignment of Claims Act of 1940, as amended (31 U.S. Code 203, 41 U.S. Code 15), if this contract provides for payments aggregating $1,000 or more, claims for monies due or to become due the Contractor from the Government under this contract may be assigned to a bank, trust company, or other financing institution, including any Federal lending agency, and may thereafter be further assigned and reassigned to any such institution. Any such assignment or reassignment shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party, except that any such assignment or reassignment may be made to one party as agent or trustee for two or more parties participating in such financing. (b) In no event shall copies of this contract or of any plans, specifications, or other similar documents relating to work under this contract, if marked "Top Secret", "Secret", or "Confidential", be furnished to any assignee of any claim arising under this contract or to any other person not entitled to receive the same: Provided, That a copy of any part or all of this contract so marked may be furnished, or any information contained therein may be disclosed, to such assignee upon prior written authorization of the Contracting Officer. 10. EXAMINATION OF RECORDS. (a) The Contractor agrees that the Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of three years after final payment under this contract, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Contractor involving transactions related to this contract. (b) The Contractor further agrees to include in all his subcontracts hereunder a provision to the effect that the subcontractor agrees that the Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of three years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and records of such subcontractor, involving transactions related to the subcontract. The term "subcontract" as used in this clause excludes (1) purchase orders not exceeding $2,500; and (ii) subcontracts or purchase orders for public utility services at rates established for uniform applicability to the general public. (This General Provision No. 10 shall not be applicable if the contract price is $2,500 or less.) 12. DISPUTES. (a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Con tractor. The decision of the Contracting Officer shall be final and conclusive unless within 30 days from the date of receipt of such copy, or such greater time as the Contracting Officer may specify in his decision, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Secretary. The decision of the Secretary or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision. (b) This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law. 14. BUY AMERICAN ACT. This provision is not applicable. 15. CONVICT LABOR. This provision is applicable only with respect to contracts involving employment of labor within the United States. 18. NONDISCRIMINATION IN EMPLOYMENT. In connection with the performance of work under this contract, the Contractor agrees as follows: (a) The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicious places, available to employees and applicants for employment, notices to be provided by the Contracting Officer setting forth the provisions of this Nondiscrimination clause. (b) The Contractor will, 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, creed, color, or national origin. (c) The Contractor will send to each labor union or representative, of workers with which he has a collective bargaining agree ment or other contract or understanding, a notice, to be provided by the agency Contracting Officer, advising the said labor union or workers' representative of the Contractor's commitments under this Nondiscrimination clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (d) The Contractor will comply with all provisions of Executive Order No. 10925 of March 6, 1961, and of the rules, regulations, and relevant orders of the President's Committee on Equal Employment Opportunity created thereby. (e) The Contractor will furnish all information and reports required by Executive Order No. 10925 of March 6, 1961, and by the rules, regulations, and orders of the said Committee, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Committee for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (f) In the event of the Contractor's noncompliance with the Nondiscrimination clause of this contract or with any of the said rules, regulations, or orders, this contract may be cancelled in whole or in part and the Contractor may be declared ineligible for further government contracts in accordance with procedures authorized in Executive Order No. 10925 of March 6, 1961, and such other sanctions may be imposed and remedies invoked as provided in the said Executive order or by rule, regulation, or order of the President's Committee on Equal Employment Opportunity, or as otherwise provided by law. (g) The Contractor will include the provisions of the foregoing paragraphs (a) through (f) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the President's Committee on Equal Employment Opportunity issued pursuant to section 303 of Executive Order No. 10925 of March 6, 1961, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States. (This General Provision No. 18 shall not be applicable if (1) the performance of this contract does not involve the employment of persons; or (ii) it is to be performed outside the United States where no recruitment of workers within the limits of the United States is involved). 19. OFFICIALS NOT TO BENEFIT. No Member of the United States Congress, or United States Resident Commissioner, shall be admitted to any share or part of this contract, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to the contract if made with a corporation for its general benefit. 21. UTILIZATION OF SMALL BUSINESS CONCERNS. (a) It is the policy of the Government as declared by the Congress that a fair proportion of the purchases and contracts for supplies and services for the Government be placed with United States small business concerns. (b) The Contractor agrees to accomplish the maximum amount of subcontracting to United States small business concerns that the Contractor finds to be consistent with the efficient performance of this contract. 22. FEDERAL, STATE, AND LOCAL TAXES. (a) As used throughout this clause, the term "tax inclusive date" means the date of negotiated contracts and the date set for the opening of bids for contracts entered into through formal advertising. As to additional supplies or services procured by modification to this contract, the term "tax inclusive date" means the date of such modification. (b) Except as may be otherwise provided in this contract, the contract price includes all Federal, State, and local taxes and duties in effect and applicable to this contract on the tax inclusive date, except taxes from which the Government, the Contractor, or the transactions or property covered by this contract are then exempt. Unless specifically excluded, duties are included in the contract price. (c) (1) If the Contractor is required to pay or bear the burden (1) of any tax or duty, which either was not to be included in the contract price pursuant to the requirements of paragraph (b), or was specifically excluded from the contract price by a provision of this contract; or (ii) of an increase in rate of any tax or duty, whether or not such tax or duty was excluded from the contract price; or of any interest or penalty thereon, the contract price shall be correspondingly increased: Provided, That the Contractor warrants in writing that no amount for such tax, duty or rate increase was included in the contract price as a contingency reserve or otherwise: And, Provided further, That liability for such tax, duty, rate increase, interest, or penalty was not incurred through the fault or negligence of the Contractor or its failure to follow instructions of the Contracting Officer. (2) If the Contractor is not required to pay or bear the burden, or obtains a refund or drawback, in whole or in part, of any tax, duty, interest, or penalty which (i) was to be included in the contract price pursuant to the requirements of paragraph (b); (ii) was included in the contract price; or (iii) was the basis of an increase in the contract price, the contract price shall be correspondingly decreased or the amount of such relief, refund, or drawback shall be paid to the Government, as directed by the Contracting Officer. The contract price also shall be correspondingly decreased if the Contractor through its fault or negligence or of its failure to follow instructions of the Contracting Officer, is required to pay or bear the burden, or does not obtain a refund or drawback of any such tax, duty, interest, or penalty. Interest paid or credited to the Contractor incident to a refund of taxes shall inure to the benefit of the Government to the extent that such interest was earned after the Contractor was paid or reimbursed by the Government for such taxes. (3) Invoices or vouchers covering any adjustment of the contract price pursuant to this paragraph (c) shall set forth the amount thereof as a separate item and shall identify the particular tax involved. (4) Nothing in this paragraph (c) shall be applicable to social security taxes; net income taxes; excess profit taxes; capital stock taxes; unemployment compensation taxes; or any state and local taxes, except those levied on or measured by the contract or sales price of the services or completed supplies furnished under this contract, including gross income taxes, gross receipts taxes, sales and use taxes, excise taxes, or franchise or occupation taxes measured by sales or receipts from sales. (5) No adjustment of less than $100 shall be made in the contract price pursuant to this paragraph. (d) Unless there does not exist any reasonable basis to sustain an exemption, the Government agrees upon request of the Contractor, without further liability except as otherwise provided in this contract, to furnish evidence appropriate to establish exemption from (1) any Federal tax, which the Contractor warrants in writing was excluded from the contract price or (ii) any state or local tax: Provided, That evidence appropriate to establish exemption from duties will be furnished, and Government bills of lading will be issued, only at the discretion of the Contracting Officer. In addition, the Contracting Officer may furnish evidence appropriate to establish exemption from any tax that may, pursuant to this clause, give rise to either an increase or decrease in the contract price. (e) (1) The Contractor shall promptly notify the Contracting Officer of all matters pertaining to Federal, state and local taxes and duties that reasonably may result in either an increase or decrease in the contract price. (2) Whenever an increase or decrease in the contract price may be required under this clause, the Contractor shall take action as directed by the Contracting Officer and the contract price shall be equitably adjusted to cover the costs of such action, including any interest, penalty, and reasonable attorney's fees. 23. WORKMEN'S COMPENSATION INSURANCE. (a) Except as this contract may provide exclusively for the furnishing of materials or supplies, the Contractor before commencing performance under this contract shall provide and thereafter maintain Workmen's Compensation Insurance or security as is required by the Defense Base Act, as amended (United States Public Law 208, 77th Congress, as amended, 42 U.S.C. 1651 et seq.), for all employees engaged in performance of work under the contract outside the continental United States who are or were hired in the United States or who are American citizens or bona fide residents of the United States. (b) For all other employees of the Contractor who are engaged in performance of work under the contract outside the continental United States (other than those who are or were hired in the United States or who are American citizens or bona fide residents of the United States), the Contractor shall, pursuant to the applicable law of the country in which such work is performed, provide security for compensation benefits for injury to or death of such employees sustained in the course of such employment, or in the absence of such law, adequate employer's liability insurance. (c) In the event Contractor employs or contemplates the employment of any person in the category and for the purpose set forth in paragraph (b) above, he agrees to notify the Director, Office of Contract Relations, International Cooperation Administration, Washington 25, D.C., in order that a waiver of the application of the Defense Base Act may be obtained with respect to such person or persons. (d) The Contractor further agrees to insert the provisions of this clause, including this paragraph (d), in all subcontracts or subordinate contracts hereunder, except subcontracts or subordinate contracts exclusively for the furnishing of materials or supplies. 24. GRATUITIES. (a) The Contracting Officer may, by written notice to the Contractor, terminate the right of the Contractor to proceed under this contract if it is found, after notice and hearing by the Director of the International Cooperation Administration (ICA) or his duly authorized representative, that gratuities (in the form of gifts, entertainment, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor to any officer or employee of the U.S. Government with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such contract; provided, that the existence of the facts upon which the Director of ICA or his duly authorized representative makes such findings shall be in issue and may be reviewed in any competent court. (b) In the event this contract is terminated as provided in paragraph (a) hereof, ICA shall be entitled to pursue the same remedies against the Contractor as it could pursue in the event of a breach of the contract by the Contractor. The rights and remedies of ICA 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. [26 F.R. 6300, July 14, 1961] Subpart 7-16.8-Miscellaneous § 7-16.801 Bond forms-use by |