reached on any proposed contract cost or price.

11. CERTIFICATION OF INDEPENDENT PRICE
DETERMINATION

a. By submission of this proposal, each offeror certifies and in the case of a joint bid or proposal, each party thereto, certifies as to its own organizations, that in connection with this procurement:

(1) The prices in this proposal have been arrived at independently, without consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other offeror or with any competition;

(2) Unless otherwise required by law, the prices which have been quoted in this proposal have not been knowingly disclosed by the offeror and will not knowingly be disclosed by the prior to award, directly or indirectly to any other offeror or to any competitor; and

(3) No attempt has been made or will be made by the offeror to induce any other person or firm to submit or not to submit a proposal for the purpose of restricting competition.

b. Each person signing this proposal certifies that:

(1) He is the person in the offeror's organization responsible within that organization for the decision as to the prices being offered herein and that he has not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above; or

(2) He is not the person in the offeror's organization responsible within that organization for the decision as to prices being offered herein but that he has been authorized in writing to act as agent for the persons responsible for such decision in certifying that such persons have not participated, and will not participate, in any action contrary to (a)(1) 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 offeror submitting a proposal for a contract which requires performance or delivery outside the United States, its possessions, and Puerto Rico.

d. A 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 proposal will not be considered for award unless the offeror furnishes with the 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.

12. PRICE STABILIZATION CERTIFICATION (a) The offeror (Contractor) certifies that he is in compliance with the price stabilization requirements of Executive Order 11723, dated June 13, 1973, and amendments thereof, and the regulations of the Cost of Living Council as set forth in title 6, Code of Federal Regulations, Part 140, or any additions or revisions to title 6.

13. DISCLOSURE STATEMENT-COST ACCOUNTING

PRACTICES AND CERTIFICATION

Any contract in excess of $100,000 resulting from this solicitation, except when the price negotiated is based on: (a) Established catalog or market prices of commercial items sold in substantial quantities to the general public, or (b) prices set by law or regulation, shall be subject to the requirements of the Cost Accounting Standards Board. Any offeror submitting a proposal which, if accepted, will result in a contract subject to the requirements of the Cost Accounting Standards Board must, as a condition of contracting, submit a disclosure statement as required by regulations of the Board. The disclosure statement must be submitted as a part of the offeror's proposal under this solicitation (see 1, below) unless (i) the offeror, together with all divisions, subsidiaries, and affiliates under common control, did not receive net awards of negotiated defense prime contracts during the period July 1, 1970, through June 30, 1971, totaling more than $30 million (see 2, below), (ii) the offeror has already submitted a disclosure statement disclosing the practices used in connection with the pricing of this proposal (see 3, below) or (iii) postaward submission has been authorized by the contracting officer.

CAUTION.-A practice disclosed in a disclosure statement shall not, by virtue of such disclosure, be deemed to be a proper, approved, or agreed to practice for pricing proposals or accumulating and reporting contract performance cost data.

14. CLEAN AIR AND WATER CERTIFICATION

(Applicable if the bid or offer exceeds $100,000, or the contracting officer has determined that orders under an indefinite quantity contract in any year will exceed $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1)) or the Federal Water Pollution Control Act (33 U.S.C. 1319(c)) and is listed by EPA, or is not otherwise exempt.)

The bidder or offeror certifies as follows: (a) Any facility to be utilized in the performance of this proposed contract has (), has not (), been listed on the Environmental Protection Agency List of Violating Facilities.

(b) He will promptly notify the contracting officer, prior to award, of the receipt of any communication from the Director, Office of Federal Activities, Environmental Protection Agency, indicating that any facility which he proposes to use for the performance of the contract is under consideration to be listed on the EPA List of Violating Facilities.

(c) He will include substantially this certification, including this paragraph (c), in every nonexempt subcontract.

( ) 1. CERTIFICATION OF CONCURRENT SUBMISSION OF DISCLOSURE STATEMENTS The offeror hereby certifies that he has submitted, as a part of his proposal under this solicitation, copies of the disclosure statements as follows: (i) Original and one copy to the cognizant contracting officer; (ii) one copy to the cognizant contract auditor; and (iii) one copy to the Cost Accounting Standards Board, 441 G Street NW., Washington, D.C. 20548.

following are the minimum instructions that should be included in the RFP.

INSTRUCTIONS TO OFFEROR

The following instructions establish the acceptable minimum requirements for the format and content of proposals. Special attention is directed to the requirements for technical and business proposals to be submitted in accordance with instructions herein.

GENERAL INSTRUCTIONS

(1) The proposal shall be based on a type of contract. In addition to the special provisions of this solicitation, any ensuing contract will include the general provisions for

Any additional clauses required by public law, Executive order, or procurement regulations, in effect at the time of execution of the proposed contract, will be included.

(2) The proposal shall be signed by an official authorized to bind your organization. copies of your proposal shall be sub

mitted to: (Insert complete address as to where the proposal is to be sent and mailing instructions.)

(3) You may, at your discretion, submit alternative proposals, or proposals which deviate from the requirements: Provided, That you also submit a proposal for performance of the work as specified in the statement of work. Such proposals may be considered if overall performance would be improved or not compromised; and if they are in the best interests of the Government. Alternative proposals, or deviations from any requirements of this solicitation shall be clearly identified.

(4) The proposal submitted in response to the request for proposal may contain technical data which you or your subcontractor(s) do not want used or disclosed for any purpose other than evaluation of your proposal. The use and disclosure of any such data may be so restricted; Provided, That you mark the cover sheet of the proposal with the following legend, specifying the pages of the proposal which are to be restricted in accordance with the conditions of the legend.

"Technical data contained in pages of this proposal shall not be used or disclosed, except for evaluation purposes, Provided, That if a contract is awarded to this offeror as a result of or in connection with the submission of this proposal the Government shall have the right to use or disclose this technical data to the extent provided in the contract. This restriction does not limit the Government's right to use or disclose

technical data obtained from another source without restriction."

The Government assumes no liability for disclosure or use of unmarked technical data and may use or disclose the data for any purpose and may consider that the proposal was not submitted in confidence and therefore releasable under the Freedom of Information Act (5 U.S.C. 552).

(5) The Government reserves the right to reject any or all proposals received. It is understood that your proposal will become a part of the official file on this matter without obligation to the Government.

[38 FR 24644, Sept. 10, 1973, as amended at 39 FR 43545, Dec. 16, 1974; 40 FR 29722, July 15, 1975; 41 FR 19106, May 10, 1976; 42 FR 2684, Jan.13, 1977]

§ 3-16.5002 Contract forms.

§ 3-16.5002-1 Negotiated Contract (Form HEW-554).

Negotiated Contract, Form HEW554, is the cover page of the contract and must be executed to reflect mutual agreement by the contracting parties.

§ 3-16.5002-2 Contents of Contract (Form HEW-555).

Contents of Contract, Form HEW555, shall be used to list the contents of the contract including applicable "Special Provisions" by article number and name, and "General Provisions" (Forms HEW-313, 314, 315, 316, or others) which are appropriate to the type of contract consummated.

§ 3-16.5002-3 Special Provisions (Form HEW-556).

Each contract shall include a section headed "Special Provisions" (Form HEW-556 is optional for this purpose) to describe the scope of work, schedulings, special terms, conditions, and additions, modification, and substitutions, to General Provisions, if any, as authorized by § 3-16.5003.

§ 3-16.5002-4 General Provisions.

The appropriate General Provisions shall be incorporated by the contracting officer in all contracts to which this Subpart 3-16.50 applies.

(a) Form HEW-314 (Rev. 9/76), General Provisions (Negotiated Fixed Price Research and Development Contract).

(Note: This form with the deletion of Clause 17, "Patent Rights" should also be used in other types of nonpersonal service contracts, e.g., studies, surveys, and demonstrations in socio-economic areas.)

(b) Form HEW-315 (Rev. 7/76), General Provisions (Negotiated Cost-Reimbursement Contract with Educational Institutions.

(c) Form HEW-315A (Rev. 7/76), General Provisions (Negotiated CostReimbursement Contract with Nonprofit Institutions Other Than Educational Institutions).

(d) Form HEW-316 (Rev. 7/76), General Provisions (Negotiated Cost-PlusFixed Fee Contract).

[41 FR 42200, Sept. 27, 1976]

§ 3-16.5002-5 Standard Form 30, Amendment of Solicitation/Modification of Contract.

Modifications of existing contracts shall be accomplished by the use of change orders and/or supplemental agreements. Standard Form 30, Amendment of Solicitation/Modification of Contract, may be used for these purposes (see § 1-16.901-30 of this title for illustration of form).

§ 3-16.5003 Additions, modifications, and substitutions to General Provisions.

(a) Contracting officers shall include additional clauses or substitute alternate clauses for those included in the four General Provisions (Forms 313316) in accordance with applicable instructions in this § 3-16.5003 and the FPR. Written deviation requests shall be submitted, through procurement channels, to the Director, Division of Procurement Policy and Regulations Development, Office of Grants and Procurement Management (DPPRDOGPM), Office of the Assistant Secretary for Administration and Management, Office of the Secretary (OASAM-OS). He will inform the contracting officer, through procurement channels, of the disposition of the request. In the event expeditious action is required, contracting officers are authorized to request oral or written approval directly from the Director, DPPRD-OGPM, who will notify the contracting officer of the disposition of the request. This procedure will be followed in all deviation requests

30-133 0 - 78 - 15

except those related to the "Patents Rights" and "Rights-in-Data" clauses. In those cases, the deviation request shall be submitted through procurement channels directly to the Chief, Patent Branch, Business and Administrative Law Division, Office of General Counsel (BAL-OCG), OS, with a copy to the DPPRD-OGPM. The approval shall be transmitted by BAL-OGC through procurement channels to the contracting officer with a copy to DPPRD-OGPM. In the event expeditious action is required, contracting officers are authorized to request oral or written approval directly from BAL. If oral approval is received from BAL, contracting officers must, however, submit a confirming letter of approval to DPPRD-OGPM.

(1) The "Small Business Subcontracting Program" clause set forth in § 1-1.710-3(b) of this title shall be included in all contracts under the circumstances set forth in that section.

(2) The "Labor Surplus Area Subcontracting Program" clause set forth in § 1-1.805-3(b) of this title shall be included in all contracts under circumstances set forth in that section.

(3) The following "Patent Indemnity" clause shall be used in contracts exceeding $5,000 which call for the delivery of supplies (or supplies with relatively minor modifications made thereto) which normally are or have been sold to the public in the commercial open market:

PATENT INDEMNITY

The Contractor agrees to indemnify the Government and its officers, agents, and employees against liability, including costs, for infringements of any United States letters patent (except letters patent issued upon an application which is now or may hereafter be kept secret or otherwise withheld from issue by order of the Government) arising out of the performance of this contract, or out of the use of or disposal by or for the account of the Government, of supplies furnished hereunder. The foregoing indemnity shall not apply unless the Contractor shall have been informed as soon as practicable by the Government of the suit or action alleging such infringement, and shall have been given such opportunity as is afforded by applicable laws, rules, or regulations to participate in the defense thereof; and further, such indemnity shall not apply if: (i) The infringement re

sults from compliance with specific written instructions of the Contracting Officer directing a change in the supplies to be delivered or in the materials or equipment to be used; or (ii) the infringement results from addition to, or change in, such supplies or components furnished which addition or change was made subsequent to delivery or performance by the Contractor; or (iii) the claimed infringement is settled without the consent of the Contractor, unless required by final decree or a court of competent jurisdiction.

(For the purpose of excluding from patent indemnification such items as normally are not or have not been sold or offered for sale by any supplier to the public in the commercial open market, the following sentence may be added to the end of the clause:

"The foregoing shall not apply to the following items: (list the items to be excluded).")

(4) Where the primary objective of the contract is the delivery of end items other than designs, drawings, or reports, the following "Inspection" clause shall be used in lieu of the "Inspection" clause in HEW Forms 313 and 314, unless the contracting officer determines that the use of such clause is impracticable:

INSPECTION

(a) All work under this contract shall be subject to inspection and test by the Government, to the extent practicable, at all times (including the period of performance) and places, and in any event prior to acceptance. The Government through any authorized representative may inspect the premises of the Contractor or any subcontractor engaged in the performance of this contract.

(b) The Government may reject any work that is defective or otherwise not in coniormity with the requirements of this contract. If the Contractor fails or is unable to correct or to replace such work, the Contacting Officer may accept such work at a reduction in price which is equitable under the circumstances. Failure to agree on the reduction in price shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes."

(c) If any inspection or test is made by the Government on the premises of the Contractor or a subcontractor, the Contractor shall provide, without additional charge, all reasonable facilities and assistance for the safety and convenience of the Government inspectors in the performance of their duties. If the Government inspection or test is made at a point other than the premises of the Contractor or subcontractor, it shall

be at the expense of the Government. All inspections and tests by the Government shall be performed in such a manner as not unduly to delay the work. Final inspection and acceptance or rejection of the work shall be made as promptly as practicable after delivery except as otherwise provided in this contract; but failure to inspect and accept, or reject the work shall neither relieve the Contractor from responsibility for such of the work as is not in accordance with the contract requirements nor impose liability on the Government therefor.

(d) The inspection and test by the Government of any work shall not relieve the Contractor from any responsibility regarding defects or other failures to meet the contract requirements which may be discovered prior to acceptance. Except as otherwise provided in this contract, acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud.

(e) The Contractor shall provide and maintain an inspection system acceptable to the Government covering the work hereunder. Records of all inspection work by the Contractor shall be kept complete and available to the Government during the performance of this contract and for such longer period as may be specified elsewhere in this contract.

(5) Where the primary objective of the contract is the delivery of end items other than designs, drawings, or reports, the following “Inspection and Correction of Defects" clause shall be used in lieu of the "Inspection" clause in HEW Form 316 unless the contracting officer determines that the use of such clause is impracticable:

INSPECTION AND CORRECTION OF DEFECTS (a) All work under this contract shall be subject to inspection and test by the Government (to the extent practicable) at all times (including the period of performance) and places, and in any event prior to acceptance. The Contractor shall provide and maintain an inspection system acceptable to the Government covering the work hereunder. The Government, through any authorized representative, may inspect the plant or plants of the Contractor or of any of his subcontractors engaged in the performance of this contract. If any inspection or test is made by the Government on the premises of the Contractor or a subcontractor, the Contractor shall provide and shall require subcontractors to provide all reasonable facilities and assistance for the safety and convenience of the Government inspectors in the performance of their duties. All inspections and tests by the Government shall be performed in such a manner as will not

unduly delay the work. Except as otherwise provided in this contract, final inspection and acceptance shall be made at the place of delivery as promptly as practicable after delivery and shall be deemed to have been made no later than ninety (90) days after the date of such delivery, if acceptance has not been made earlier within such period.

(b) At any time during performance of this contract, but not later than six (6) months (or such other time as may be provided in the contract) after acceptance of all of the end items (other than designs, drawings, or reports) to be delivered under this contract, the Government may require the Contractor to remedy by correction or replacement, as directed by the Contracting Officer, any failure by the Contractor to comply with the requirements of this contract. Any time devoted to such correction or replacement shall not be included in the computation of the period of time specified in the preceding sentence, except as provided in (d) below. Except as otherwise provided in paragraph (c) below, the allowability of the cost of any such replacement or correction shall be determined as provided in the clause of this contract entitled "Allowable Cost, Fixed Fee, and Payment," but no additional fee shall be payable with respect thereto. Corrected articles shall not be tendered again for acceptance unless the former tender and the requirement of correction is disclosed. If the Contractor fails to proceed with reasonable promptness to perform such replacement or correction, the Government (i) may by contract or otherwise perform such replacement or correction and charge to the Contractor any increased cost occasioned the Government thereby, or may reduce any fixed fee payable under the contract (or require repayment of any fixed fee theretofore paid) in such amount as may be equitable under the circumstances; or (ii) in the case of articles not delivered, may require the delivery of such articles, and shall have the right to reduce any fixed fee payable under this contract (or to require repayment of any fixed fee theretofore paid) in such amount as may be equitable under the circumstances; or (iii) may terminate this contract for default. Failure to agree to the amount of any such increased cost to be charged to the Contractor or to such reduction in, or repayment of, the fixed fee shall be deemed to be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes."

(c) Notwithstanding the provisions of paragraph (b) above, the Government may at any time require the Contractor to remedy by correction or replacement, without cost to the Government, any failure by the Contractor to comply with the requirements of this contract, if such failure is due