the terms of the contract. Whenever the total amount payable, by the terms of the contract is more than $1,000,000 but not more than $5,000,000, the payment bond shall be 40 percent of the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract is more than $5,000,000 the payment bond shall be $2,500,000. §3-4.6008 Wage and labor standardsconstruction contracts. (a) All laborers and mechanics employed by tribal contractors or subcontractors in constructing, altering or repairing buildings or other facilities in connection with contracts under this Subpart shall be paid wages not less than those on similar construction in the locality as determined by the Secretary of Labor in accordance with the DavisBacon Act of March 3, 1931 (46 Stat. 1494), as amended. However, this requirement does not apply where the tribal contractor is the recognized governing body of the tribe and the construction, alteration, or repair work is being performed by the tribal organization or the tribe with its own regular employees. § 3-4.6009 Performance PROPOSED RULES (g) Retrocession. (h) Assumption and Reassumption of Contract Programs. § 3-4.6012 General Provisions. General Provisions are published in this regulations in order to respond to the expressed desire of the Indian people, to have published in one place, all of the terms and conditions applicable to contracts awarded under the Act. These General Provisions incorporate the special clauses whose titles are listed in 3-4.6011 above as well as applicable standard contract clauses. § 3-1.6013 General Provisions for Cost Reimbursement Contracts under the Indian Self-Determination Act (P.L. 93-638), Title I. Clause No and Title of personal 12. Government Property. 13. 14. 15. 16. 17. Rights in Data. 18 Reporting of Royalties. Authorization and Consent 20 21. Notice and Assistance Regarding Patent 22. Patent Rights. 23. Key Personnel. services. Any contract made under this subpart may include provisions for the performance of personal services which would otherwise be performed by Federal employees. Such services include, but are not limited to, performing the following functions in connection wiith the contract and applicable rules and regulations: (a) Determining the eligibility of applicants for assistance, benefits, services. § 3-4.6010 19. Litigation and Claims. Assignment of Claims. Contract Work Hours Standards Act- Walsh-Healey Public Contracts Act. 34. Equal Opportunity. 35. 36. 37. 38. 39. 33. Use of General Services Administration supply sources. Indian tribal organizations who are awarded cost reimbursement type contracts under this subpart, may be authorized to utilize GSA supply sources. Such authorization will conform with the policy and procedural requirements of 41 CFR 3-5.9. § 3-4.6011 Special Provision of Indian Self Determination Contracts. Contracts entered into pursuant to Section 103 of the Act must incorporate special clauses which are consistent with those prescribed in subpart I of Part 36 of 42 CFR on the following subjects: (a) Fair and Equal Treatment of Indian People. (b) Utilization of Indian Business Concerns. (e) Indian Preference in Training and Employment. (d) Indemnity and Insurance. Civil Rights Act of 1964. Certificate of Nonsegregated Facilities. Officials Not to Benefit, Buy American Act Supply and Service 40. Utilization of Small Business Concerns. Concerns. 45. 46. Fair and Equal Treatment of Indian 47. 48. 49. Price Reduction for Defective Cost or Subcontractor Cost and Pricing Data. 50. Effect on Existing Rights. Clause No. 1-Definitions. As used throughout this contract, the following terms shall have the meaning set forth below: 42675 the of and the (a) The term "Secretary" means Secretary, the Under Secretary, or any Assistant Secretary of the Department Health, Education, and Welfare; term "his duly authorized representative" means any person, persons, or board (other than the Contracting Officer) authorized to act for the Secretary. (b) The term "Contracting Officer" means the person executing this contract on behalf of the Government, and any other officer or employee who is properly designated Contracting Officer; and the term includes, except as otherwise provided in this contract, the authorized representative of the Contracting Officer acting within the limits of his authority. contract (C) The term "Project Officer" means the person representing the Government for the perpurpose of monitoring of formance. The Project Officer is not authorized to issue any instructions or directions which effect any increase or decrease in the cost of this contract or which change the period of this contract. (d) The term "Department" means the and Department Health, Education, of Welfare. (e) Except as otherwise provided in this contract, the term "subcontract" includes purchase orders under this contract. Clause No. 2-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 the otherwise furnish A copy thereof to Contractor. The decision of the Contracting Officer shall be final and conclusive unless within 30 days from the date of receipt of such copy, the Contractor malls or otherwise. furnishes to the Contracting Officer & 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 this with any appeal proceeding under 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 for in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative ofActal, representative, or board on a question of law. Clause No. 3-Limitation of cost. (a) It is estimated that the total cost to the Government for the performance of this contract will not exceed the estimated cost set forth in this contract and the Contractor agrees to use its best efforts to perform all work and all obligations under this contract within such estimated costs. If at any to believe time the Contractor has reason that the costs which it expects to incur in the performance of this contract in the next succeeding sixty (60) days, when added to all costs previously incurred, will exceed seventy-five percent (75%) of the estimated Cost set forth in the contract, or, if at any time the Contractor has reason to believe that the total cost to the Government, for the performance of this contract, will be substantially greater or less than the esti 64-882 O 76-7 FEDERAL REGISTER, VOL. 40, NO. 179-MONDAY, SEPTEMBER 15, 1975 42676 mated cost thereof, the Contractor (b) The Government shall not be obligated to reimburse the Contractor for costa incurred in excess of the estimated cost set forth in the contract and the Contractor shall not be obligated to continue performance under the contract or to incur costs in excess of such estimated cost unless and until the Contracting Officer shall have not!fled the Contractor in writing that such estimated cost has been increased and shall have specified in such notice a revised estimated cost which shall thereupon constitute the estimated cost of performance of this contract. When and to the extent that the estimated cost set forth in this contract has been increased by the Contracting Officer in writ ing, any costs incurred by the Contractor in excess of such estimated cost prior to the increase in estimated cost shall be allowable to the same extent as if such costs had been incurred after such increase in estimated cost. Clause No. 4-Allowable cost. (a) Compensation for Contractor's performance. Payment for the allowable cost, as herein defined and as actually incurred by the contractor shall constitute full and complete compensation for the performance of the work under this contract. (b) Allowable cost. The allowable cost of performing the work under this contract shall be the cost actually incurred by the Contractor, either directly incident or properly allocable to the contract, in the performance of this contract in accordance with its terms. The allowable cost, direct and indirect, including acceptability of cost allocation methods, shall be determined by the Contracting Officer in accordance with: (1) (1) "A Guide for Nonprofit Institutions Establishing Indirect Cost Rates for Research Grants and Contracts with the Department of Health, Education, and Welfare, DHEW Publication OASC 5," or (11) "A Guide for Hospitals. Establishing Indirect Cost Rates for Research Grants and Contracts with the Department of Health, Education, and Welfare, DHEW Publication OASC 3," or (111) Subpart 1-15.7 of the Federal Procurement Regulations (41 CPR 1-15.7) if the contract la with a state or local government agency. (2) The terms of the contract. Clause No. 5-Negotiated overhead rates. (a) Notwithstanding the provisions of the clause of this contract entitled, "Allowable Cost," the allowable indirect costs shall be obtained by applying negotiated overhead rates to bases agreed upon by the parties, as specifed below. or (b) The Contractor, as soon as possible, but not later than six (6) months after the expiration of each of the Contractor's financial years or such period as may mutually be agreed upon by the Government and the Contractor, shall submit to the Contracting Officer, with a copy to the cognizant audit agency, a proposed final overhead rate rates for that period based on the Contractor's cost experience during that period, together with supporting cost data. Negotiation of final overhead rates by the Contractor and the Contracting Officer shall be undertaken as promptly as practicable after receipt of the Contractor's proposal. (c) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with the applicable cost principles set forth in paragraph (b) (1) of Clause 4, as in effect on the date of this contract, and the same hereby incorporated herein by reference. (d) The results of each negotiation shall be set forth in an amendment to this contract, which shall specify (1) the agreed PROPOSED RULES final rate, (2) the bases to which the rates (e) Pending establishment of final over- (f) Any failure by the parties to agree on (g) Submission of proposed provisional and/or final overhead rates, together with appropriate data in support thereof, to the Secretary or his duly authorized representative, and agreements on provisional and/or final overhead rates entered into between the Contractor and the Secretary or his duly authorized representative, as evidenced by Negotiated Overhead Rate Agreemente signed by both parties, shall be deemed to satisfy the requirements of (b), (d) and (e) above. Clause No. 6--Payment. (a) Payment on account of allowable costa. Once each month (or at more frequent intervals if approved by the Contracting Officer) the Contractor may submit to the Contracting Officer, in such form and reasonable detail as may be required, an invoice or voucher supported by a statement of costs incurred by the Contractor in the performance of this contract and claimed to constitute allowable costs. Promptly after receipt of each invoice or voucher the Government shall, subject to the provisions of (b) below, make payment thereon Ba approved by the Contracting Officer. (b) Audit adjustments. At any time or times prior to settlement under this contract the Contracting Officer may have invoices or vouchers and statements of cost audited. Each payment theretofore made shall be subJect to reduction for amounts included in the related invoice or voucher which are found by the Contracting Officer, on the basis of such audit, not to constitute allowable cost. Any payment may be reduced for overpayment, or increased for underpayments on preceding invoices or vouchers. (c) Completion voucher. On receipt and approval of the invoice or voucher designated by the Contractor as the "completion invoice" or "Completion voucher" and upon compliance by the Contractor with all the provisions of this contract (including without limita tion, the provisions relating to patents and provisions of (d) below) the Government shall promptly pay to the Contractor any balance of allowable cost. The completion invoice or voucher shall be submitted by the Contractor promptly following completion of the work under this contract but in no event later than 6 months (or such longer period as the Contracting Officer may in his discretion approve in writing) from the date of such completion. (d) Applicable credits. The Contractor agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Contractor or any assignee under this contract shall be paid by the Contractor to the Government, to the extent that they are properly allocable to costs for which the Contractor has been reimbursed by the Government under this contract. Reasonable expenses incurred by the Contractor for the purpose of securing (2) Financial settlement. Prior to final payment under this contract, the Contrac tor and each assignee under this contract whose assignment is in effect at the time of final payment under this contract 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 any interest thereon) 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, subject only to the following exceptions: (1) Specified claims in stated amounts or in estimated amounts where the amounts are susceptible to exact statement by the Contractor; (11) Claims, together with reasonable expenses incidental thereto, based upon liabilities of the Contractor to third parties arising out of the performance of this contract: Provided, That such claims are not known to the contractor on the date of the execution of the release: And provided further, That the Contractor gives notice of such claims in writing to the Contracting Officer not more than 6 years after the date of the release or the date of any notice to the Contractor that the Government 18 prepared to make final payment, whichever is earlier; and the (1) Claims for reimbursement of costs (other than expenses of the Contractor by reason of its indemnification of the Government against patent liability), including reasonable expenses incidental thereto, incurred by the Contractor under visions of this contract relating to patents. the proClause No. 7-Advance Payments. (a) Amount of Advance. At the request of the contractor, and subject to the conditions hereinafter set forth, the Government shall make an advance payment, or advance payments from time to time, to the Contractor. No advance payment shall be made (1) without the approval of the officer administering advance payments (hereinafter called "Administering Office" and designated in paragraph (k) (4) hereof) as with all advance payments theretofore made, shall exceed the amount stated in paragraph (k) (1) hereof; and (3) without a properly certified involo or invoices. (b) Special Bank advance Account. Until payments all made hereunder liquidated and the Administering Office apare proves in writing the release of any funds due and payable to the Contractor, all advance payments and all other payments under the contract shall be made by check payable to the Contractor, and be marked for deposit only in a Special Bank Account with the bank designated in paragraph (k) (2) hereof. No part of the funds in the Special Bank Account shall be mingled with other funds of the Contractor prior to withdrawal thereof from the Special Bank Account as hereinafter provided. Except as hereinafter provided, each withdrawal shall be made only by check of the Contractor countersigned on behalf of the Government by the Contracting Officer or such other person or persons as he may designate in writing (hereinafter called the "Countersigning Agent"). Until otherwise determined by the Administering Office, countersignature on behalf of the Government will not be required. (c) Use of Funds. The funds in the Special Bank Account may be withdrawn by the Contractor solely for the purposes of making payments for items of allowable cost or to reimburse the Contractor for such items of FEDERAL REGISTER, VOL. 40, NO. 179-MONDAY, SEPTEMBER 15, 1975 allowable cost, and for such other purposes as the Administering Office may approve in writing. Any interpretation required as to the proper use of funds shall be made in writing by the Administering Office. (d) Return of Funds. The Contractor may at any time repay all or any part of the funds advanced hereunder. Whenever so requested in writing by the Administering Office. the Contractor shall repay to the Government such part of the unliquidated balance of advance paymenst as shall in the opinion of the Administering Office be in excess of current requirements, or (when added to total advance previously made and liquidated) in excess of the amount specifled in paragraph (k) (1) hereof. In the event the Contractor falls to repay such part of the unliquidated balance of advance pay. ments when so requested by the Adrainiatering Office, all or any part thereof may be withdrawn from the Special Bank Account by checks payable to the Treasurer of the United States signed solely by the Countersigning Agent and applied in reduction of advance payments then outstanding hereunder. (e) Liquidation. If not otherwise liquidated. the advance payments made hereunder shall be liquidated as herein provided. When the sum of all payments under this contract, other than advance payments, plus the unliquidated amount of advance payments are equal to the total estimated cost for the work under this contract or such lesser amount to which the total estimated east under this contract may have been reduced, plus increases, if any, in this total estimated cost not exceeding, in the aggregate, (including, without limitation, reimbursable costs incident to termination for cause and retrocession as estimated by the Contracting Officer), the Government shall thereafter withhold further payments to the Contractor and apply the amounts withheld against the Contractor's obligation to repay such advance payments until such advance payments shall have been fully liquidated. If upon completion, termination, or retrocession of the contract all advance payments have not been fully liquidated, the balances therefore shall be deducted from any sums otherwise due or which may become due to the Contractor from the Government, and any deficiency shall be paid by the Contractor to the Government upon demand. (f) Bank Agreement. Before an advance payment is made hereunder, the Contractor shall transmit to the Administering Office, In the form prescribed by such office, an Agreement in triplicate from the bank in which the Special Bank Account is established, clearly setting forth the special character of the account and the responsibilities of the bank thereunder. Wherever possible, Buch bank shall be a member bank of the Federal Resrve System, or an "insured" bank within the meaning of the Act creating the Federal Deposit Insurance Corporation Act of August 23, 1935, 49 Stat. 685, as amended (12 US.C. 264). (g) Lien on Special Bank Account. The Government shall have B len upon any balance in the Special Bank Account paramount to all other liens, which len shall secure the repayment of any advance payments made hereunder. (b) Lien on Property Under Contract. Any and all advance payments made under this contract shall be secured, when made, by alien in favor of the Government, paramount to all other liens, upon the supplies or other things covered by this contract and on all material and other property acquired for or allocated to the performance of this contract, except to the extent that the Government by virtue of any other provision of this contract, or otherwise, shall have valid PROPOSED RULES title to such supplies, materials, or other property as against other creditors of the Contractor. The Contractor shall identify, by marking or segregation, all property which is subject to a lien in favor of the Government by virtue of any provision of this contract in such a way as to indicate that it is subject to such lien and that it has been acquired for or allocated to the performance of this contract. If for any reason such supplies, materials, or other property are not identiñed by marking or segregation, the Government shall be deemed to have a lien to the extent of the Government's interest under this contract on any mass of property with which such supplies, materials, or other property are commingled. The Contractor shall maintain adequate accounting control over such property on his books and records. If at any time during the progress of the work on the contract it becomes necessary to deliver any item or items and materials upon which the Government has a lien as aforesaid to a third person, the Contractor shall notify such third person of the lien herein provided and shall obtain from such third person a receipt, in duplicate, acknowledging, inter alia, the existence of such lien. A copy of each receipt shall be delivered by the Contractor to the Contracting Officer. If this contract is terminated in whole or in part and the Contractor is authorized to sell or retain termination inventory acquired for or allocated to this contract, such sale or retention shall be made only if approved by the Contracting Officer, which approval shall constitute a release of the Government's lien hereunder to the extent that such termination inventory is sold or retained, and to the extent that the proceeds of the sale, or the credit allowed for such retention on the Contractor's termination claim, is applied in reduction of advance payments then outstanding hereunder. (1) Insurance. The Contractor represents and warrants that he is now maintaining with responsible insurance carriers, (1) insurance upon his own plant and equipment against fire and other hazards to the extent that like properties are usually insured by others operating plants and properties of similar character in the same general locality; (2) adequate insurance against liability on account of damage to persons or property: and (3) adequate insurance under all applicable workmen's compensation laws. The Contractor agrees that, until work under this contract has been completed and all advance payments made hereunder have been liquidated, he will (1) maintain such insurance; (1) maintain adequate insurance upon any materials, parts, assemblies, subassemblies, supplies, equipment and other property acquired for or allocable to this contract and subject to the Government lien hereunder; and (1) furnish such certifcates with respect to his insurance as the Administering Office may from time to time require. (1) Prohibition Against Assignment. Notwithstanding any other provision of this contract, the Contractor shall not transfer, pledge, or otherwise assign this contract, or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company, or other financing institution. (k) Designations and Determinations. (1) Amount. The amount of advance payments at any time outstanding hereunder shall not exceed 8. (2) Depository. The bank designated for the deposit of payments made hereunder shall be: (3) Interest Charge. No interest shall be charged for advance payments made hereunder. The Contractor shall charge interest at the rate of 6 percent per annum on subadvances or down payments to subcontractors, 42677 and such interest will be credited to the account of the Government. However, interest need not be charged on subadvances on nonprofit subcontracts with nonprofit educational or research institutions for experimental, research or development work. (4) Administering Office. The office administering advance payments shall be the office designated as having responsibility for awarding the contract. (1) Other Security. The terms of this contract shall be considered adequate security for advance payments hereunder, except that if at any time the administering office deems the security furnished by the Contractor to be inadequate, the Contractor shall furnish such additional security as may be satisfactory to the administering office, to the extent that such additional security is available. Clause No. 8-Examination of records. (8) This clause la applicable if the amount of this contract exceeds $2,500 and was entered into by means of negotiation including small business restricted advertising, but is not applicable if this contract was entered into by means of formal advertising. (b) The Contractor agrees that the Comptroller General of the United States and the Secretary, or any of their duly authorized representatives, shall until expiration of 3 years after final payment under this contract or of the time period for the particular records in Part 1-20 of the Federal Procurement Regulations (41 CFR Part 1-20), whichever expires earlier, 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. (c) 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 his duly authorized representatives shall, until exptration of 3 years after final payment under the subcontract, or of the time periods for the particular records specified in Part 1-20 of the Federal Procurement Regulations (41 CFR Part 1-20) whichever expires earlier, 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 (2) subcontracts or purchase orders for public utility services at rates established for uniform applicability to the general public. (d) The periods of access and examination described in (b) and (c) above. for records which relate to (1) appeals under the "Disputes" cause of this contract, (2) litigation or the settlement of claims arising out of the performance of this contract, or (3) costs and expenses of this contract as to which exception has been taken by the Comptroller General or any of his duly authorized representatives, shall continue until such appeals, litigation, claims, or exceptions have been disposed of. Clause No. 9-Inspection and reports. (a) Inspection of work. The Government shall have the right to Inspect the work and activities under this contract, including, without limitation, premises where any Government property may be located at such reasonable times and in such manner as it may deem appropirate and the Contractor shall afford the Government proper facilities and assistance for such inspection. (b) Reports. The Contractor shall furnish such progress reports, schedules, financial and cost reports, and other reports concerning the work under this contract as specified elsewhere in this contract. Cost and other financial data and projections furnished pursuant to this paragraph (b) shall not relieve FEDERAL REGISTER, VOL. 40, NO. 179MONDAY, SEPTEMBER 15, 1975 42678 the Contractor of the requirements for furnishing notice specified in the clause of this contract entitled "Limitation of Cost." (c) In addition, where Federal Financial assistance is involved in the contract effort, the following clause will apply: Reports to the Indian People The contractor, as a recipient of Federal financial assistance, shall make reports and information available to the Indian people served or represented by the contractor. Such reports will reflect how the Federal assistance funds were utilized to the benefit of the Indian people served or represented as follows: (specific reporting requirements, formats and methods of distribution to the Indian people will be prescribed in the scope of the contract.) (d) Annual Reporting. (1) For each scal year during which a tribal organization receives or expends funds pursuant to a contract under this Part, the tribs which requested the contract must submit a report to the Contracting Officer. The report shall include, but not be limited to, an accounting of the amounts and purposes for which the contract funds were expended and information on the conduct of the program or services involved. The reports shall include any other information requested by the Contracting Oficer and may be submitted as follows: (1) When the contract is with the governing body of an Indian tribe, the tribe shall submit the report to the Contracting Officer. (11) When the contract is with a tribal organization other than the governing body of the tribe, the tribe has the option of having the tribal organization prepare the report and submit it to the tribe for review and approval before the tribe submits it to the Contracting Officer. (111) When the contract benefits more than one tribe, the tribal organization shall prepare and submit the report to each of the tribes benefiting under the contract. Each tribe shall endorse the report before submitting it to the Contracting Officer. (2) The annual report shall be submitted to the Contracting Officer within 60 days of the end of the fiscal year in which the contract was performed. However, the period for submitting the report may be extended if there is just cause for such extension. (3) In addition to the yearly reporting requirement given in paragraphs (a) and (b) of this section, the tribal contractor shall furnish other reports when and as required by, the Contracting Officer. Clause No. 10 Subcontracting. (a) Prior approval required. Except as provided in (c) below, the Contractor shall not enter into any subcontract or purchase order not otherwise expressly authorized elsewhere in this contract without the prior written approval of the Contracting Officer and subject to such conditions as the Contracting Officer may require. (b) Request for approval. The Contractor's request for approval to enter into a suboontract pursuant to this clause shall include: (1) a description of the supplies or services to be called for by the subcontract; (2) identification of the proposed subcontractor and an explanation of why and how the proposed subcontractor was selected, including the degree of competition obtained; (3) the proposed subcontract price, together with the Contractor's cost or price analysts thereof; (4) Identification of the type of subcontract to be used; (5) a copy or draft of the proposed subcontract, if available; and (6) any other information which the Contracting Officer may require. (e) Certain purchases of property and services. Prior written approval shall not be required for Arm Axed-price subcontracts for PROPOSED RULES (B) litigation or the settlement of claims tract, or (C) costs and expenses of this conarising out of the performance of this contract to which exception has been taken by until such appeals, litigation, claims, or exauthorized representatives, shall be retained the Contracting Officer or any of his duly ceptions have been disposed of. (d) The Contractor shall insert the substance of this clause, including this paragraph (d), in each subcontract hereunder that is not firm fixed-price or fixed-price with escalation. When so inserted, changes shall be made to designate the higher-tier subcontractor at this level involved in place tract" in (B) of subparagraph (e) (11) above. Clause No. 12-Government property. of the Contractor; to add "of the Government prime contract" in place of "this con (a) Government furnished property. (1) The Government reserves the right to furnish any property or services required for the performance of the work under this contract. (2) The Government shall deliver to the under the terms of this contract, the propContractor, for use in connection with and tion as the Contractor may request and as together with such related data and informamay reasonably be required for the intended erty described elsewhere in this contract, use of such property (such property to be referred to as "Government furnished property"). In the event that Government furnished property is not delivered to the contractor stated, in sufficient time to enable the conby such time or times as stated, or if not tractor to meet such delivery or performance dates under this contract, the Contracting Officer shall, upon timely written request made by the Contractor, make a determination of the delay occasioned the Contractor and make appropriate equitable adjustments to any contractual provisions affected by any such delay in accordance with the provisions of the clause of this contract entitled "Changes." In the event that Government furnished visions of the clause of this contract en- suitable for its intended use. (b) Title. (1) Title to all property furnished by the Government shall remain in the Government. Title to all property purchased by the Contractor, the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass to and vest in the Government upon delivery of such property by the vendor. Title to other property, the cost of which is reimbursable to the Contractor under this ment upon (1) Issuance for use of such propcontract, shall pass and vest in the Governerty in the performance of this contract, or (11) commencement of processing or use of such property in the performance of this contract, or (111) reimbursement of the cost thereof by the Government in whole or in part, whichever first occurs. All Government furnished property, together with all propwhich vests in the Government under this erty acquired by the Contractor, title to FEDERAL REGISTER, VOL. 40, NO. 179-MONDAY, SEPTEMBER 15, 1975 paragraph, are subject to the provisions of this clause and are hereinafter collectively referred to as "Government property." (2) Title to the Government property shall not be affected by the incorporation or attachment thereof to any property now owned by the Government, nor shall such Government property; or any part thereof, be or become a fixture or lose its identity of personality by reason of amxation to any realty. (c) Use of Government property. Government property shall, unless otherwise provided herein or approved by the Contracting Officer, be used only for the performance of this contract. (d) Property management and control. The Contractor shall maintain and administer in accordance with sound business practice a program for the maintenance, repair, protection, and preservation, control of and accountability for Government property, so as to assure its full availability and usefulness for the performance of this contract. The Contractor agrees to promptly receipt for all Government property in a form and mander as prescribed by the Contracting Officer. The Contractor further agrees to take all reasonable steps to comply with all dtreotions or instructions which the Contracting Officer may prescribe regarding the management and control of Government property. (e) Risk or loss. (1) The Contractor shall not be liable for any loss of or damage to Government property, or for expenses incidental to such loss or damage, except that the Contractor shall be responsible for any such loss or damage (including expenses incidental thereto): (1) Which results from willful misconduct or lack of good faith on the part of any of the Contractor's directors or officers, or on the part of any of its managers, superintendents, or other equivalent representatives, who have supervision or direction of (A) all or substantially all of the Contractor's operations at any one plant, laboratory or separate location in which this contract is being performed or (B) a separate and complete major organization, industrial or otherwise in connection with the performance of this contract; (11) Which results from a failure on the part of the Contractor, due to willful misconduct or lack of good faith on the part of any of its directors, officers, or other representatives mentioned in subparagraph (1) above. (A) to maintain and administer, in accordance with sound business practice, the program for maintenance, repair, protection, and preservation of Government property sa required by paragraph (d) hereof, or (B) to take all reasonable steps to comply with any appropriate written directions of the Contracting Officer under paragraph (4) hereof; (11) For which the Contractor is otherwise responsible under the express terms of this contract; (iv) Which results from a risk expressly required to be insured under this contract, but only to the extent of the insurance so required to be procured and maintained, or to the extent of insurance actually procured and maintained, whichever is greater; or () Which results from a risk which is in fact covered by insurance or for which the Contractor is otherwise reimbursed, but only to the extent of such insurance or reimbursement: Provided That, if more than one of the above exceptions shall be applicable in any case, the Contractor's liability under any one exception shall not be limited by any other exception. (2) If the Contractor transfers Government property to the possession and control of a subcontractor the transfer shall not af fect the liability of the Contractor for loss or destruction of or damage to Government property as set forth in (1) above. The Con PROPOSED RULES tractor shall require the subcontractor to assume the risk of and be responsible for any loss or destruction of or damage to Government property while in the latter's possession or control, and the subcontract shall contain appropriate provisions requiring the return of all Government property in as good condition as when received (except for reasonable wear and tear or for the utilization of the property in accordance with the provisions of this contract). Provided, however, That the subcontractor may be relieved from such liability only to the extent that the subcontract, with the prior approval of the Contracting Officer, so provides. (3) The Contractor shall not be reimbursed for, and shall not include as an item of overhead, the cost of insurance, or any provisions for a reserve, covering the risk of loss or damage to the Government property, except to the extent that the Government may have required the Contractor to carry such insurance under any other provision of this contract. (4) Upon the happening of loss or destruction of or damage to the Government property, the Contractor shall notify the Contracting Officer thereof, and shall take all reasonable steps to protect the Government property from further damage, separate the damaged and undamaged Government property, put all the Government property in the best order, and furnish to the Contracting Officer a statement of: (1) The lost, destroyed, and damaged Government property. (11) The time and origin of the loss, destruction or damage; (11) All known interests in commingled property of which the Government property is a part and (iv) The insurance, if any, covering any part of or interest in such commingled property. The Contractor shall make repairs and renovation of the damaged Government property, or take such other action as the Contracting Officer directs. com (5) In the event the Contractor is indemnified, reimbursed, or otherwise pensated for any loss or destruction of or damage to the Government property, it shall use the proceeds to repair, renovate, or replace the Government property involved, or shall credit such proceeds against the cost of the work covered by the contract, or shall otherwise reimburse the Government, as directed by the Contracting Officer. The loss, destruction or damage and, upon the request of the Contracting Officer, ahall, at the Government's expense, furnish to the Government all reasonable assistance and cooperation (including assistance in the prosecution of sult and the execution of instruments of assignment in favor of the Government) in obtaining recovery. In addition, where a subcontractor has not been relieved from liability for any loss or destruction of or damage to Government property, the Contractor shall enforce the liability of the subcontractor for such loss or destruction of or damage to the Government property for the benefit of the Government (f) Disposition of Government property. (1) During the period of performance of this contract, the Contractor shall promptly and regularly report to the Contracting Officer, in such form and manner as the Contracting Officer may direct, concerning the status of Government property under the contract, including all Government property in the Contractor's possession which is not in use or which is excess to the needs of the contract. The Contractor shall make such disposition of Government property as the Contracting Officer may direct. The Contractor shall in no way be relieved of responsibility for Government property without the prior written approval of the Contracting Officer. 42679 (2) Upon completion or expiration of this contract, or at such earlier date as may be Axed by the Contracting Officer, the Contractor shall render an accounting, as prescribed by the Contracting Officer, of all Government property which had come into the possession or custody of the Contractor under this contract. Such accounting shall include inventory schedules covering all Items of Government property not consumed in the performance of this contract, or not theretofore delivered to the Government, or for which the Contractor has not otherwise been relieved of responsibility. The Contractor shall deliver or make such other disposition of Government property covered in such inventory schedules as the Contracting Officer may direct. (3) The net proceeds of any disposition of Government property, in accordance with (1) and (2) above, shall be credited to the cost of the work covered by the contract or shall be paid in such manner as the Contracting Officer may direct. (g) Restoration of premises. Unless otherwise provided herein, the Government shall not be under any duty or obligation to restore or rehabilitate, or to pay the costs of the restoration or rehabilitation of the Contractor's facility or any portion thereof which is affected by removal of any Government property. Clause No. 13-Changes. The Contracting Officer may at any time, by a written order, and without notice to the sureties, if any, make changes, within the general scope of this contract, in any one or more of the following: (a) Drawings, designs, or specifications; (b) method of shipment or packing: (e) place of inspection, delivery, or acceptance; and (d) the amount of Government furnished property. If any such change causes an increase or decrease in the estimated cost of, or the time required for performance of this contract, or otherwise affects any other provisions of this contract, whether changed or not by any such order, an equitable adjustment shall be made (a) in the estimated cost or delivery schedule, or both, and (b) in such other provisions of the contract as may be so affected, and the contract shall be modified in Writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within thirty (30) days from the date of receipt by the Contractor of the notification of change: Provided, however. That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. 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. Clause No. 14-Notice to the Government of delays. Whenever the Contractor has knowledge that any actual or potential situation, including, but not limited to, labor disputes, is delaying or threatens to delay the timely performance of the work under this contract, the Contractor shall immediately give written notice thereof, including all relevant information with respect thereto, to the Contracting Officer. Clause No. 15-Retrocession. (a) The Indian tribe that initially requested this contract may also request Ita retrocession, notwithstanding the fact that FEDERAL REGISTER, VOL. 40, NO. 179-MONDAY, SEPTEMBER 15, 1975 |