through (a)(3) above, and as their agent does hereby so certify; and (ii) he has not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above.

(c) This certification is not applicable to a foreign bidder or offeror submitting a bid or proposal for a contract which requires performance or delivery outside the United States, its possessions, and Puerto Rico.

(d) A bid or proposal will not be considered for award where (a)(1), (a)(3), or (b) above has been deleted or modified. Where (a)(2) above has been deleted or modified, the bid or proposal will not be considered for award unless the bidder or offeror furnishes with the bid or proposal a signed statement which sets forth in detail the circumstances of the disclosure and the head of the agency, or his designee, determines that such disclosure was not made for the purpose of restricting competition.

(b) The fact that a firm: (1) Has published pricelists, rates, or tariffs covering items being procured by the Government, (2) has informed prospective customers of proposed or pending publication of new or revised pricelists for such items, or (3) has sold the same items to commercial customers at the same prices being offered the Government does not constitute, without more, a disclosure within the meaning of paragraph (a)(2) of the Certificate.

(c) It is not required that a separate written authorization be given to the signer of the bid or proposal for each procurement involved where the signer makes the certification provided in paragraph (b)(2) of the Certificate: Provided, That with respect to any blanket authorization given: (1) The procurement to which the Certificate applies is clearly within the scope of such authorization, and (2) the person giving such authorization is the person responsible within the bidder's or offeror's organization for the decision as to the prices being bid or offered at the time the Certificate is made in a particular procurement.

(d) After the execution of an initial certificate and the award of a contract in connection therewith, the contractor need not submit additional certificates in connection with proposals submitted on "work orders" or similar ordering instruments issued pursuant to the terms of that contract, where the government's requirements cannot be met from another source.

(e) The authority to make the determination described in paragraph (d) of the above certification shall not be delegated to an official below the level of the head of a procuring activity of the agency.

(f) Where a certification is suspected of being false or there is indication of collusion, the matter shall be processed in accordance with Subpart 1-1.9 and appropriate agency procedures. For rejection of bids which are suspected of being collusive and for the negotiation of procurements subsequent to such rejection, see §§ 1-2.4041(b)(6) and 1-3.214.

[29 FR 10104, July 24, 1964, as amended at 30 FR 9589, July 31, 1965; 40 FR 60020, Dec. 31, 1975]

The Contract Disputes Act of 1978 (Pub. L. 95-563; November 1, 1979, 41 U.S.C. 601-613) provides a statutory basis for the resolution of disputes under Government contracts. It is the Government's policy, consistent with that Act, to try to resolve all disputes by mutual agreement at the contracting officer's level without litigation. In appropriate circumstances, before issuance of a contracting officer's decision, informal discussions between the parties, conducted to the extent feasible by individuals who have not participated substantially in the matter in dispute, could aid in the resolution of differences by mutual agreement and should be considered. The contracting officer is authorized (within any specific limitations in his or her warrant) to settle all disputes relating to a contract containing the Disputes clause prescribed by § 1-1.318-7.

[45 FR 10789, Feb. 19, 1980]

§ 1-1.318-2 Applicability of Act and exceptions.

(a) Applicability. (1) Unless otherwise specifically provided herein, the Contract Disputes Act of 1978 applies to any express or implied contract entered into by an executive agency for the procurement of:

(i) Property, other than real property in being,

(ii) Services, or

(iii) Construction, alteration, repair, or maintenance of real property.

(2) The contracts to which the Act applies include the contracts of:

(i) The nonappropriated fund activities described in 28 U.S.C. 1346 and 1491.

(ii) The Tennessee Valley Authority which contain a disputes clause requiring that a contract dispute be resolved through an agency administrative process (see exception in § 1-1.3182(b)).

(3) The Act also applies to certain kinds of relief, such as alleged legal entitlement to revision or reformation for mutual mistake, which formerly were: (i) Available within an agency only under Pub. L. 85-804 (50 U.S.C. 1431-1435) and (ii) not within the contracting officer's authority. Contracting officers should obtain legal advice regarding their authority to settle or decide these claims.

(4) Maritime contracts are subject to the Act to the extent provided in 41 U.S.C. 603.

(b) Exceptions. The Act does not apply to:

(1) Contracts with a foreign government or an agency thereof, or with an international organization or a subsidiary body thereof, if the head of the agency determines that application of the Contract Disputes Act of 1978 to the contract would not be in the public interest;

(2) Any claim or dispute for penalties or forfeitures prescribed by statute or regulation which another Federal agency is specifically authorized to administer, settle, or determine;

(3) Any claim involving fraud;

(4) Requests for relief under Pub. L. 85-804 because they are not considered claims under the Act (see § 11.318-2(a)); or

Any contractor claim over $50,000 (either initially or as amended) must be certified under paragraph (c) of the Disputes clause before settlement or decision on the claim (see § 1-7.10212).

[45 FR 10789, Feb. 19, 1980]

§ 1-1.318-4 Contracting officer's decision. (a) When a claim cannot be satisfied or settled by agreement and a decision on the claim is necessary, the contracting officer shall:

(1) Review the facts pertinent to the claim,

(2) Secure assistance from legal and other advisors, and

(3) Coordinate with the contract administration office or contracting office, when appropriate.

(b) The contracting officer shall furnish a copy of the decision to the contractor by certified mail-return receipt requested or any other method that provides evidence of receipt. The decision shall include:

(1) A paragraph substantially as follows:

This is the final decision of the contracting officer. This decision may be appealed to (insert the address of the cognizant Board of Contract Appeals). If you decide to make such an appeal, you must mail or otherwise furnish written notice thereof to the Board of Contract Appeals within 90 days from the date you receive this decision. A copy thereof shall be furnished to the contracting officer from whose decision the appeal is taken. The notice shall indicate that an appeal is intended, should reference this decision, and identify the contract number. Instead of appealing to the Board of Contract Appeals, you may bring an action directly to the U.S. Court of Claims within 12 months of the date you receive this decision

(2) A description of the claim or dispute;

(3) A reference to pertinent contract provisions;

(4) A statement of the factual areas of agreement or disagreement;

(5) A statement of the contracting officer's decision, with supporting rationale;

(6) A notification that the small claims procedure of the cognizant

Board of Contract Appeals is applicable at the sole election of the contractor in the event the amount in dispute as a result of the final decision is $10,000 or less; and

(7) A notification that the accelerated procedure of the cognizant Board of Contract Appeals is applicable at the sole election of the contractor in the event the amount in dispute as a result of the final decision is $50,000 or less.

(c) The contracting officer shall issue the decision within the following time limitations:

(1) For submitted claims not exceeding $50,000, within 60 days after the Contracting Officer receives a written request for a decision.

(2) For submitted certified claims exceeding $50,000, within 60 days after the Contracting Officer receives a certified claim. However, if a decision is not to be issued within 60 days, the contracting officer shall notify the contractor, within the 60 days, of the time within which the contracting officer will make the decision. The decision of the contracting officer on submitted claims shall be issued within a reasonable time. The reasonableness of this time period will depend on the size and complexity of the claim and the adequacy of the contractor's supporting data and any other relevant factors.

(d) (1) Within 30 days of receipt of an appeal, or notice that an appeal has been filed, the contracting officer shall assemble and transmit to the cognizant Board (through the agency's General Counsel) an appeal file consisting of all documents pertinent to the appeal, including:

(i) The decision from which the appeal is taken;

(ii) The contract, including specifications and pertinent amendments, plans, and drawings;

(iii) All correspondence between the parties relevant to the appeal, including the letter or letters of claim in response to which the decision was issued;

(iv) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute

made prior to the filing of the notice of appeal with the Board; and

(v) Any additional information considered relevant to the appeal.

(2) Documents in the appeal file may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file.

(3) Within the same 30 days as specified for furnishing the appeal file to the cognizant Board, the contracting officer shall also furnish a copy of the appeal file to the appellant. However, the contracting officer may substitute a list of specific contractual documents in place of the documents themselves as required in paragraph (d)(1)(ii) of this section.

(4) Upon request by either party, the Board may waive the requirement to furnish to the other party copies of bulky, lengthy, or out-of-size documents in the appeal file when inclusion would be burdensome. At the time a party files with the Board a document as to which such a waiver has been granted, he or she shall notify the other party that the document or a copy is available for inspection at its own offices or at the offices of the Board.

(e) The amount determined payable under the decision, less any portion already paid, normally should be paid without awaiting contractor action concerning appeal. The payment shall be without prejudice to the rights of either party.

[45 FR 10789, Feb. 19, 1980]

§ 1-1.318-5 Government claims against the contractor.

All claims asserted by the Government against a contractor relating to a contract that cannot be settled by agreement shall be the subject of a decision by the contracting officer and shall be processed in accordance with § 1-1.318-4.

[45 FR 10790, Feb. 19, 1980]

The contracting officer shall insert the Disputes clause set forth in § 17.102-12 in all contracts to which the Contract Disputes Act of 1978 applies (see § 1-1.318-2).

[45 FR 10790, Feb. 19, 1980]

§ 1-1.318-8 Applicability of clause.

(a) With respect to contracts awarded before the effective date of the Act (March 1, 1979), the contractor may elect to proceed under the Disputes clause included in the contract or the clause in § 1-7.102-12, if:

(1) The claim was initiated before the effective date of the Act and the contracting officer has not rendered a final decision, or

(2) The claim was initiated on or after the effective date of the Act.

(b) With respect to processing claims asserted after the effective date of the Act, the clause set forth in § 1-7.10212 applies. The clause was prescribed by the Office of Federal Procurement Policy on February 26, 1979 (44 FR 12519, March 7, 1979).

[45 FR 10790, Feb. 19, 1980]

§ 1-1.319 Procurement of items using jewel bearings.

(a) General. To maintain a jewel bearing production facility in the United States as a part of the industrial mobilization base, the Government owns and, through a contractor, operates the William Langer Jewel Bearing Plant at Rolla, N. Dak. The Director, Office of Emergency Preparedness, has requested that agencies use this source in order to promote the use of this plant as an established domestic source of jewel bearings.

(b) Definitions. As used in this subpart the following terms have the meanings set forth in this paragraph:

(1) "Jewel bearing" means a piece of synthetic sapphire or ruby of any

shape, except a phonograph needle, which has one or more polished surfaces and which is suitable for use in an instrument, mechanism, subassembly, or part without any additional processing. A jewel bearing may be either unmounted or mounted into a ring or bushing. Examples of jewel bearings are: Watch holes-olive, watch holes-straight, pallet stones, roller jewels (jewel pins), end stones (caps), vee (cone) jewels, instrument rings, cups, double cups, and orifice jewels. As used herein, the term "jewel bearings" includes "related items."

(2) "Related items" means other synthetic sapphire or ruby components. Examples of related items are pivots, knife edges, insulators, spacers, windows, and striking surfaces other than pallet stones.

(3) "Price list" is the official U.S. Government Jewel Bearing Price List for jewel bearings produced by the William Langer Jewel Bearing Plant. This list is issued periodically by the General Services Administration.

(4) "Plant" means the Governmentowned William Langer Jewel Bearing Plant, Rolla, N. Dak.

(5) "Military Standard Jewel Bearing" means a jewel bearing conforming to Military Specification No. MILB-27497 (latest revision) entitled "Bearings, Jewel, Sapphire or Ruby, Synthetic."

(c) Policy. (1) The Office of Emergency Preparedness has determined that the William Langer Jewel Bearing Plant is an essential part of the national mobilization base and that its continued operation as a domestic source of jewel bearings is in the interest of the United States. Therefore, all direct Government purchases of jewel bearings shall be made from the Plant. In addition, all procurements of items in the Federal Supply Classes and Groups listed in paragraph (d) of this section, or subassembly, component, or part thereof, whether procured by the Government direct or through contractors, shall provide a requirement in the solicitations and resulting contracts that jewel bearings in the quantities and of the types and sizes (including tolerances) necessary for the end items to be supplied under the contract must be purchased from the

Plant and be incorporated in the delivered items, except:

(i) In small purchases using small purchase procedures other than in purchases of jewel bearings as end items;

(ii) For jewel bearings used in items that are to be procured and used outside the United States, its possessions, and Puerto Rico;

(iii) When the procuring contracting officer has positive knowledge that the item being procured does not contain jewel bearings;

(iv) When quality standards and requirements are beyond the production capabilities of the Plant as evidenced by a written statement to that effect from the management of the Plant;

(v) In the case of requirements contracts (see § 1-3.409(b)) and indefinite quantity contracts (see § 1-3.409(c)) which authorize more than one activity to place orders upon the contractor. It is not practicable for a contractor to place an order with the Plant within 90 calendar days after the effective date of his contract for the entire amount of jewel bearings and related items that will be required for the performance of the contract. Where such contracts are involved, the clause in § 1-1.319(e) may be changed by modifying paragraphs (b) and (c) to provide for procurement, on a quarterly or other periodic basis, of an amount of jewel bearings and related items equal to the amount (by type and size) of jewel bearings and related items actually used by the contractor in the performance of the contract during the period immediately preceding the ordering date. In addition, jewel bearings and related items so obtained shall be placed in the contractor's inventory for use in the performance of current or future Government contracts or for use in commercial production. Contracts which provide for periodic ordering on an actual use basis shall not be subject to the equitable adjustment provisions of paragraph (e) of the clause in § 1-1.319(e). Accordingly, the clause may be further modified to delete paragraph (e).

(vi) When the Plant's backlog of current business precludes delivery of the bearings within reasonable time limits,

as confirmed in writing by the management of the Plant; or

(vii) When the urgency of the requirement for all or part of the procurement of a jeweled item is such that delivery of prefabricated end items available from the stock of any dealer, wholesaler, distributor, or manufacturer offers the best possible solution. In this event, however, the required source provisions of this § 11.319 will be exempted only to the extent that immediate deliveries are to be made of the specified quantity of end items. The required source provisions shall apply to any quantity in excess of that specified for immediate delivery.

(2) Whenever it is necessary to redesign or reengineer jeweled items to satisfy specific performance requirements, the manufacturer of an item shall be required to use military standard jewel bearings in the redesign. This requirement may be excepted only when the dimensional tolerances or configurations of the military standard jewel bearings are such that their use in the product would prevent attainment of the required level of performance specified for the items. However, when one or more nonstandard bearings must be used to satisfy the performance requirements of certain applications of a jeweled item but military standard jewel bearings will function satisfactorily for other applications of that item, the item shall be redesigned to provide for the use of military standard jewel bearings. In no instance shall a manufacturer be required to redesign a jeweled item solely for the purpose of converting from the use of nonstandard to military standard jewel bearings. This requirement is not intended to prevent any manufacturer from voluntarily redesigning a jeweled item solely to accommodate the use of military standard jewel bearings. A voluntarily redesigned bearing may be economically advantageous because of the unit price of military standard jewel bearings at the Plant.

(3) The cost differential between Langer-made bearings and imported bearings shall not be used as justification to avoid the purchase and use of jewel bearings from the Plant.