***This part consists of 252.219-7000 through 252.227-55
252.219-7000 [Removed and Reserved per DFARS Case 98-D007, D.L. 98-018, effective 1 Oct 98]
252.219-7001 [Removed and Reserved per DFARS Case 98-D007, D.L. 98-018, effective 1 Oct 98]
252.219-7002 [Removed and Reserved per DFARS Case 98-D007, D.L. 98-018, effective 1 Oct 98]
252.219-7003 Small, Small Disadvantaged and Women-owned Small Business Subcontracting Plan (DoD Contracts).
As prescribed in 219.708(b)(1)(A), use the following clause:
SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL
BUSINESS SUBCONTRACTING PLAN (DoD CONTRACTS) (APR 1996)
This clause supplements the Federal Acquisition Regulation 52.219-9, Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan, clause of this contract.
(a) Definitions.
"Historically black colleges and universities," as used in this clause, means institutions determined by the Secretary of Education to meet the requirements of 34 CFR Section 608.2. The term also means any nonprofit research institution that was an integral part of such a college or university before November 14, 1986.
"Minority institutions," as used in this clause, means institutions meeting the requirements of Section 1046(3) of the Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)). The term also include Hispanic-serving institutions as defined in Section 316(b)(1) of such Act (20 U.S.C. 1059c(b)(1)).
(b) Except for company or division-wide commercial items subcontracting plans, the term "small disadvantaged business," when used in the FAR 52.219-9 clause, includes historically black colleges and universities and minority institutions, in addition to small disadvantaged business concerns.
(c) Work under the contract or its subcontracts shall be credited toward meeting the small disadvantaged business concern goal required by paragraph (d) of the FAR 52.219-9 clause when:
(1) It is performed on Indian lands or in joint venture with an Indian tribe or a tribally-owned corporation, and
(2) It meets the requirements of 10 U.S.C. 2323a.
(d) Subcontracts awarded to workshops approved by the Committee for Purchase from People Who are Blind or Severely Disabled (41 U.S.C. 46-48), may be counted toward the Contractors small business subcontracting goal.
(e) A mentor firm, under the Pilot Mentor-Protege Program established under Section 831 of Pub. L. 101-510, as amended, may count toward its small disadvantaged business goal, subcontracts awarded--
(1) Protege firms which are qualified organizations employing the severely handicapped; and
(2) Former protege firms that meet the criteria in Section 831(g)(4) of Pub. L. 101-510.
(f) The master plan approval referred to in paragraph (f) of the FAR 52.219-9 clause is approval by the contractor's cognizant contract administration activity.
(g) In those subcontracting plans which specifically identify small, small disadvantaged, and women-owned small businesses, the Contractor shall notify the Administrative Contracting Officer of any substitutions of firms that are not small, small disadvantaged, or women-owned small businesses for the firms listed in the subcontracting plan. Notifications shall be in writing and shall occur within a reasonable period of time after award of the subcontract. Contractor-specified formats shall be acceptable.
(End of clause)
252.219-7004 Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan (Test Program).
As prescribed in 219.708(b)(1)(B), use the following clause:
SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
SUBCONTRACTING PLAN (TEST PROGRAM) (JUNE 1997)
(a) Definition.
"Subcontract," as used in this clause, means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor or subcontractor calling for supplies or services required for performance of the contract or subcontract.
(b) The Offeror's comprehensive small business subcontracting plan and its successors, which are authorized by and approved under the test program of Section 834 of Pub. L. 101-189, as amended, shall be included in and made a part of the resultant contract. Upon expulsion from the test program or expiration of the test program, the Contractor shall negotiate an individual subcontracting plan for all future contracts that meet the requirements of Section 211 of Pub. L. 95-507.
(c) The Contractor shall submit Standard Form (SF) 295, Summary Subcontract Report, in accordance with the instructions on the form, except--
(1) One copy of the SF 295 and attachments shall be submitted to Director, Small and Disadvantaged Business Utilization, Office of the Deputy Under Secretary of Defense (International and Commercial Programs), 3061 Defense Pentagon, Room 2A338, Washington, DC 20301- 3061; and
(2) Item 14, Remarks, shall be completed to include semi-annual cumulative--
(i) Small business, small disadvantaged business, and women-owned small business goals; and
(ii) Small business and small disadvantaged business goals, actual accomplishments, and percentages for each of the two designated industry categories.
(d) The failure of the Contractor or subcontractor to comply in good faith with (1) the clause of this contract entitled "Utilization of Small, Small Disadvantaged and Women-Owned Small Business Concerns," or (2) an approved plan required by this clause, shall be a material breach of the contract.
(End of clause)
252.219-7005 Incentive for Subcontracting with Small Businesses, Small Disadvantaged Businesses, Historically Black Colleges and Universities, and Minority Institutions.
As prescribed in 219.708(c)(1), use the following clause:
INCENTIVE FOR SUBCONTRACTING WITH SMALL BUSINESSES,
SMALL DISADVANTAGED BUSINESSES, HISTORICALLY BLACK COLLEGES
AND UNIVERSITIES, AND MINORITY INSTITUTIONS (NOV 1995)
(a) If the Contractor exceeds the small disadvantaged business, historically black college and university, minority institution goal of its subcontracting plan, at completion of contract performance, the Contractor will receive (Insert appropriate number between 1 and 10) percent of the excess.
(b) The Contractor will not receive this incentive if the Contracting Officer determines that exceeding the goal was not due to the Contractor's efforts (e.g., a subcontractor cost overrun or award of subcontracts planned but not disclosed in the subcontracting plan). Determinations made under this paragraph are not subject to the Disputes clause.
(c) If this is a cost contract, the limitations in FAR Subpart 15.9 may not be exceeded.
(d) This clause does not apply if the subcontracting plan is a plant, division, or company-wide commercial items plan.
(End of clause)
ALTERNATE I (DEC 1991)
As prescribed in 219.708(c)(1), add the following paragraph (b) to the basic clause and renumber theexisting paragraphs (b), (c), and (d) as (c), (d), and (e).
(b) If the Contractor exceeds the small business goal of its subcontracting plan, at completion of contract performance, the Contractor will receive (Insert appropriate number between 1 and 10) percent of the excess.
252.219-7006 [Removed and Reserved per DFARS Case 98-D007, D.L. 98-018, effective 1 Oct 98]
252.219-7007 Reserved.
252.219-7008 [Removed and Reserved per DFARS Case 98-D007, D.L. 98-018, effective 1 Oct 98]
[added per DL 98-015, DFARS Case 98-D011 dated/effective, June 19,1998]
[
252.219-7009 Section 8(a) Direct Award.
As prescribed in 219.811-3(1), use the following clause:
Section 8(a) Direct Award (Jun 1998)
(a) This contract is issued as a direct award between the contracting office and the 8(a) Contractor pursuant to the Memorandum of Understanding dated May 6, 1998, between the Small Business Administration (SBA) and the Department of Defense. Accordingly, the SBA is not a party to this contract. SBA does retain responsibility for 8(a) certification, for 8(a) eligibility determinations and related issues, and for providing counseling and assistance to the 8(a) Contractor under the 8(a) Program. The cognizant SBA district office is:
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[To be completed by the Contracting Officer at the time of award]
(b) The contracting office is responsible for administering the contract and for taking any action on behalf of the Government under the terms and conditions of the contract; provided that the contracting office shall give advance notice to the SBA before it issues a final notice terminating performance, either in whole or in part, under the contract. The contracting office also shall coordinate with the SBA prior to processing any novation agreement. The contracting office may assign contract administration functions to a contract administration office.
(c) The Contractor agrees that--
(1) It will notify the Contracting Officer, simultaneous with its notification to the SBA (as required by SBA's 8(a) regulations at 13 CFR 124.308), when the owner or owners upon whom 8(a) eligibility is based plan to relinquish ownership or control of the concern. Consistent with Section 407 of Pub. L. 100-656, transfer of ownership or control shall result in termination of the contract for convenience, unless the SBA waives the requirement for termination prior to the actual relinquishing of ownership and control; and
(2) It will not subcontract the performance of any of the requirements of this contract without the prior written approval of the SBA and the Contracting Officer.
(End of clause)
ALTERNATE A (Jun 1998)
As prescribed in 219.811-3(2), substitute the following paragraph (c) for paragraph (c) of the clause at FAR 52.219-18:
(c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror selected through the evaluation criteria set forth in this solicitation.]
252.219-7011 Notification to Delay Performance.
As prescribed in 219.811-3 (3), use the following clause
NOTIFICATION TO DELAY PERFORMANCE (JUN 1998)
The Contractor shall not begin performance under this purchase order until 2 working days have passed from the date of its receipt. Unless the Contractor receives notification from the Small Business Administration that it is ineligible for this 8(a) award, or otherwise receives instructions from the Contracting Officer, performance under this purchase order may begin on the third working day following receipt of the purchase order. If a determination of ineligibility is issued within the 2-day period, the purchase order shall be considered canceled.
(End of clause)
252.222-7000 Restrictions on Employment of Personnel.
As prescribed in 222.7003, use the following clause:
RESTRICTIONS ON EMPLOYMENT OF PERSONNEL (DEC 1991)
(a) The Contractor shall employ, for the purposes of performing that portion of the contract work in the State of (insert appropriate State), individuals who are residents of the State, and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills to perform the contract.
(b) The Contractor agrees to insert the substance of this clause, including this paragraph (b), in each subcontract.
(End of clause)
252.222-7001 Right of First Refusal of Employment--Closure of Military Installations.
As prescribed in 222.7102, use the following clause:
RIGHT OF FIRST REFUSAL OF EMPLOYMENT--CLOSURE OF MILITARY
INSTALLATIONS (APR 1993)
(a) The Contractor shall give Government employees, who have been or will be adversely affected by closure of the military installation where this contract will be performed, the right of first refusal for employment openings under the contract. This right applies to positions for which the employee is qualified, if consistent with post-Government employment conflict of interest standards.
(b) Government personnel seeking preference under this clause shall provide the Contractor with evidence of eligibility from the Government personnel office.
(End of clause)
252.222-7002 Compliance with local labor laws (overseas).
As prescribed in 222.7201(a), use the following clause:
COMPLIANCE WITH LOCAL LABOR LAWS (OVERSEAS) (JUN 1997)
(a) The Contractor shall comply with all--
(1) Local laws, regulations, and labor union agreements governing work hours; and
(2) Labor regulations including collective bargaining agreements, workers compensation, working conditions, fringe benefits, and labor standards or labor contract matters.
(b) The Contractor indemnifies and holds harmless the United States Government from all claims arising out of the requirements of this clause. This indemnity includes the Contractors obligation to handle and settle, without cost to the United States Government, any claims or litigation concerning allegations that the Contractor or the United States Government, or both, have not fully complied with local labor laws or regulations relating to the performance of work required by this contract.
(c) Notwithstanding paragraph (b) of this clause, consistent with paragraphs 31.205- 15(a) and 31.205-47(d) of the Federal Acquisition Regulation, the Contractor will be reimbursed for the costs of all fines, penalties, and reasonable litigation expenses incurred as a result of compliance with specific contract terms and conditions or written instructions from the Contracting officer.
(End of clause)
252.222-7003 Permit from Italian Inspectorate of Labor.
As prescribed in 222.7201(b), use the following clause:
PERMIT FROM ITALIAN INSPECTORATE OF LABOR (JUN 1997)
Prior to the date set for commencement of work and services under this contract, the Contractor shall obtain the prescribed permit from the Inspectorate of Labor having jurisdiction over the work site, in accordance with Article 5g of Italian Law Number 1369, dated October 23, 1960. The Contractor shall ensure that a copy of the permit is available at all reasonable times for inspection by the Contracting Officer or an authorized representative. Failure to obtain such permit may result in termination of the contract for the convenience of the United States Government, at no cost to the United States Government.
(End of clause)
252.222-7004 Compliance with Spanish Social Security Laws and Regulations.
As prescribed in 222.7201(c), use the following clause:
COMPLIANCE WITH SPANISH SOCIAL SECURITY LAWS AND REGULATIONS
(JUN 1997)
(a) The Contractor shall comply with all Spanish Government social security laws and regulations. Within 30 calendar days after the start of contract performance, the Contractor shall ensure that copies of the documents identified in paragraph (a)(1) through (a)(5) of this clause are available at all reasonable times for inspection by the Contracting Officer or an authorized representative. The Contractor shall retain the records in accordance with the Audit and Records clause of this contract.
(1) TC1-Certificate of Social Security Payments;
(2) TC2-List of Employees;
(3) TC2/1-Certificate of Social Security Payments for Trainees;
(4) Nominal (pay statements) signed by both the employee and the Contractor; and
(5) Informa de Situacion de Empressa (Report of the Condition of the Enterprise) from the Ministerio de Trabajo y S.S., Tesoreria General de la Seguridad Social (annotated with the pertinent contract number(s) next to the employees name).
(b) All TC1s, TC2s, and TC2/1s shall contain a representation that they have been paid by either the Social Security Administration Office or the Contractors bank or savings institution. Failure by the Contractor to comply with the requirements of this clause may result in termination of the contract under the clause of the contract entitled Default.
(End of clause)
[Added per DFARS Case 97-D318, D.L. 98-012 , effective 11 June 1998]
[
252.222-7005 Prohibition on Use of Nonimmigrant Aliens--Guam.
As prescribed in 222.7302, use the following clause:
PROHIBITION ON USE OF NONIMMIGRANT ALLIENS--GUAM (Jun 1998)
The work required by this contract shall not be performed by any alien who is issued a visa or otherwise provided nonimmigrant status under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)).
(End of clause)]
252.223-7001 Hazard Warning Labels.
As prescribed in 223.303, use the following clause:
HAZARD WARNING LABELS (DEC 1991)
(a) "Hazardous material," as used in this clause, is defined in the Hazardous Material Identification and Material Safety Data clause of this contract.
(b) The Contractor shall label the item package (unit container) of any hazardous material to be delivered under this contract in accordance with the Hazard Communication Standard (29 CFR 1910.1200 et seq). The Standard requires that the hazard warning label conform to the requirements of the standard unless the material is otherwise subject to the labelling requirements of one of the following statutes:
(1) Federal Insecticide, Fungicide and Rodenticide Act;
(2) Federal Food, Drug and Cosmetics Act;
(3) Consumer Product Safety Act;
(4) Federal Hazardous Substances Act; or
(5) Federal Alcohol Administration Act.
(c) The Offeror shall list which hazardous material listed in the Hazardous Material Identification and Material Safety Data clause of this contract will be labelled in accordance with one of the Acts in paragraphs (b)(1) through (5) of this clause instead of the Hazard Communication Standard. Any hazardous material not listed will be interpreted to mean that a label is required in accordance with the Hazard Communication Standard.
MATERIAL (If None, Insert "None.") ACT
(d) The apparently successful Offeror agrees to submit, before award, a copy of the hazard warning label for all hazardous materials not listed in paragraph (c) of this clause. The Offeror shall submit the label with the Material Safety Data Sheet being furnished under the Hazardous Material Identification and Material Safety Data clause of this contract.
(e) The Contractor shall also comply with MIL-STD-129, Marking for Shipment and Storage (including revisions adopted during the term of this contract).
(End of clause)
252.223-7002 Safety Precautions for Ammunition and Explosives.
As prescribed in 223.370-5, use the following clause:
SAFETY PRECAUTIONS FOR AMMUNITION AND EXPLOSIVES (MAY 1994)
(a) Definition.
"Ammunition and explosives," as used in this clause--
(1) Means liquid and solid propellants and explosives, pyrotechnics, incendiaries and smokes in the following forms:
(i) Bulk,
(ii) Ammunition;
(iii) Rockets;
(iv) Missiles;
(v) Warheads;
(vi) Devices; and
(vii) Components of (i) through (vi), except for wholly inert items.
(2) This definition does not include the following, unless the Contractor is using or incorporating these materials for initiation, propulsion, or detonation as an integral or component part of an explosive, an ammunition or explosive end item, or of a weapon system--
(i) Inert components containing no explosives, propellants, or pyrotechnics;
(ii) Flammable liquids;
(iii) Acids;
(iv) Oxidizers
(v) Powdered metals; or
(vi) Other materials having fire or explosive characteristics.
(b) Safety requirements.
(1) The Contractor shall comply with the requirements of the DoD Contractors' Safety Manual for Ammunition and Explosives, DoD 4145.26-M hereafter referred to as "the manual", in effect on the date of the solicitation for this contract. The Contractor shall also comply with any other additional requirements included in the schedule of this contract.
(2) The Contractor shall allow the Government access to the Contractor's facilities, personnel, and safety program documentation. The Contractor shall allow authorized Government representatives to evaluate safety programs, implementation, and facilities.
(c) Noncompliance with the manual.
(1) If the Contracting Officer notifies the Contractor of any noncompliance with the manual or schedule provisions, the Contractor shall take immediate steps to correct the noncompliance. The Contractor is not entitled to reimbursement of costs incurred to correct noncompliances unless such reimbursement is specified elsewhere in the contract.
(2) The Contractor has 30 days from the date of notification by the Contracting Officer to correct the noncompliance and inform the Contracting Officer of the actions taken. The Contracting Officer may direct a different time period for the correction of noncompliances.
(3) If the Contractor refuses or fails to correct noncompliances within the time period specified by the Contracting Officer, the Government has the right to direct the Contractor to cease performance on all or part of this contract. The Contractor shall not resume performance until the Contracting Officer is satisfied that the corrective action was effective and the Contracting Officer so informs the Contractor.
(4) The Contracting Officer may remove Government personnel at any time the Contractor is in noncompliance with any safety requirement of this clause.
(5) If the direction to cease work or the removal of Government personnel results in increased costs to the Contractor, the Contractor shall not be entitled to an adjustment in the contract price or a change in the delivery or performance schedule unless the Contracting Officer later determines that the Contractor had in fact complied with the manual or schedule provisions. If the Contractor is entitled to an equitable adjustment, it shall be made in accordance with the Changes clause of this contract.
(d) Mishaps.
If a mishap involving ammunition or explosives occurs, the Contractor shall--
(1) Notify the Contracting Officer immediately;
(2) Conduct an investigation in accordance with other provisions of this contract or as required by the Contracting Officer; and
(3) Submit a written report to the Contracting Officer.
(e) Contractor responsibility for safety.
(1) Nothing in this clause, nor any Government action or failure to act in surveillance of this contract, shall relieve the Contractor of its responsibility for the safety of--
(i) The Contractor's personnel and property;
(ii) The Government's personnel and property; or
(iii) The general public.
(2) Nothing in this clause shall relieve the Contractor of its responsibility for complying with applicable Federal, State, and local laws, ordinances, codes, and regulations (including those requiring the obtaining of licenses and permits) in connection with the performance of this contract.
(f) Contractor responsibility for contract performance.
(1) Neither the number or frequency of inspections performed by the Government, nor the degree of surveillance exercised by the Government, relieve the Contractor of its responsibility for contract performance.
(2) If the Government acts or fails to act in surveillance or enforcement of the safety requirements of this contract, this does not impose or add to any liability of the Government.
(g) Subcontractors.
(1) The Contractor shall insert this clause, including this paragraph (g), in every subcontract that involves ammunition or explosives.
(i) The clause shall include a provision allowing authorized Government safety representatives to evaluate subcontractor safety programs, implementation, and facilities as the Government determines necessary.
(ii) NOTE: The Government Contracting Officer or authorized representative shall notify the prime Contractor of all findings concerning subcontractor safety and compliance with the manual. The Contracting Officer or authorized representative may furnish copies to the subcontractor. The Contractor in turn shall communicate directly with the subcontractor, substituting its name for references to "the Government". The Contractor and higher tier subcontractors shall also include provisions to allow direction to cease performance of the subcontract if a serious uncorrected or recurring safety deficiency potentially causes an imminent hazard to DoD personnel, property, or contract performance.
(2) The Contractor agrees to ensure that the subcontractor complies with all contract safety requirements. The Contractor will determine the best method for verifying the adequacy of the subcontractor's compliance.
(3) The Contractor shall ensure that the subcontractor understands and agrees to the Government's right to access to the subcontractor's facilities, personnel, and safety program documentation to perform safety surveys. The Government performs these safety surveys of subcontractor facilities solely to prevent the occurrence of any mishap which would endanger the safety of DoD personnel or otherwise adversely impact upon the Government's contractual interests.
(4) The Contractor shall notify the Contracting Officer or authorized representative before issuing any subcontract when it involves ammunition or explosives. If the proposed subcontract represents a change in the place of performance, the Contractor shall request approval for such change in accordance with the clause of this contract entitled "Change in Place of Performance -Ammunition and Explosives".
(End of clause)
252.223-7003 Change in Place of Performance - Ammunition and Explosives.
As prescribed in 223.370-5, use the following clause:
CHANGE IN PLACE OF PERFORMANCE - AMMUNITION AND EXPLOSIVES
(DEC 1991)
(a) The Offeror shall identify, in the "Place of Performance" provision of this solicitation, the place of performance of all ammunition and explosives work covered by the Safety Precautions for Ammunition and Explosives clause of this solicitation. Failure to furnish this information with the offer may result in rejection of the offer.
(b) The Offeror agrees not to change the place of performance of any portion of the offer covered by the Safety Precautions for Ammunition and Explosives clause contained in this solicitation after the date set for receipt of offers without the written approval of the Contracting Officer. The Contracting Officer shall grant approval only if there is enough time for the Government to perform the necessary safety reviews on the new proposed place of performance.
(c) If a contract results from this offer, the Contractor agrees not to change any place of performance previously cited without the advance written approval of the Contracting Officer.
(End of clause)
252.223-7004 Drug-Free Work Force.
As prescribed in 223.570-4, use the following clause:
DRUG-FREE WORK FORCE (SEP 1988)
(a) Definitions.
(1) "Employee in a sensitive position," as used in this clause, means an employee who has been granted access to classified information; or employees in other positions that the Contractor determines involve national security, health or safety, or functions other than the foregoing requiring a high degree of trust and confidence.
(2) "Illegal drugs," as used in this clause, means controlled substances included in Schedules I and II, as defined by section 802(6) of Title 21 of the United States Code, the possession of which is unlawful under Chapter 13 of that Title. The term "illegal drugs" does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by law.
(b) The Contractor agrees to institute and maintain a program for achieving the objective of a drug-free work force. While this clause defines criteria for such a program, contractors are encouraged to implement alternative approaches comparable to the criteria in paragraph (c) that are designed to achieve the objectives of this clause.
(c) Contractor programs shall include the following, or appropriate alternatives:
(1) Employee assistance programs emphasizing high level direction, education, counseling, rehabilitation, and coordination with available community resources;
(2) Supervisory training to assist in identifying and addressing illegal drug use by Contractor employees;
(3) Provision for self-referrals as well as supervisory referrals to treatment with maximum respect for individual confidentiality consistent with safety and security issues;
(4) Provision for identifying illegal drug users, including testing on a controlled and carefully monitored basis. Employee drug testing programs shall be established taking account of the following:
(i) The Contractor shall establish a program that provides for testing for the use of illegal drugs by employees in sensitive positions. The extent of and criteria for such testing shall by determined by the Contractor based on considerations that include the nature of thework being performed under the contract, the employee's duties, the efficient use of Contractor resources, and the risks to health, safety, or national security that could result from the failure of an employee adequately to discharge his or her position.
(ii) In addition, the Contractor may establish a program for employee drug testing--
(A) When there is a reasonable suspicion that an employee uses illegal drugs; or
(B) When an employee has been involved in an accident or unsafe practice;
(C) As part of or as a follow-up to counseling or rehabilitation for illegal drug use;
(D) As part of a voluntary employee drug testing program.
(iii) The Contractor may establish a program to test applicants for employment for illegal drug use.
(iv) For the purpose of administering this clause, testing for illegal drugs may be limited to those substances for which testing is prescribed by section 2.1 of Subpart B of the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" (53 FR 11980 (April 11, 1988)), issued by the Department of Health and Human Services.
(d) Contractors shall adopt appropriate personnel procedures to deal with employees who are found to be using drugs illegally. Contractors shall not allow any employee to remain on duty or perform in a sensitive position who is found to use illegal drugs until such time as the Contractor, in accordance with procedures established by the Contractor, determines that the employee may perform in such a position.
(e) The provisions of this clause pertaining to drug testing programs shall not apply to the extent they are inconsistent with state or local law, or with an existing collective bargaining agreement; provided that with respect to the latter, the Contractor agrees that those issues that are in conflict will be a subject of negotiation at the next collective bargaining session.
(End of clause)
252.223-7005 Hazardous Waste Liability.
As prescribed in 223.7002, use the following clause:
HAZARDOUS WASTE LIABILITY (OCT 1992)
(a) Definitions.
As used in this clause--
(1) "Hazardous waste" has the meaning given that term by section 1004(5) of the Solid Waste Disposal Act (42 U.S.C. 6903(5)), except that such term also includes polychlorinated biphenyls (PCB).
(2) "Polychlorinated biphenyls" (PCB) has the meaning given that term under section 6(e) of the Toxic Substances Control Act (15 U.S.C. 2605(e)).
(b) Upon receipt of hazardous waste properly characterized pursuant to applicable laws and regulations, the Contractor agrees that it shall reimburse the Government for any penalties assessed against, all liabilities incurred by, costs incurred by, and damages suffered by, the Government that are caused by-
(1) The Contractor's breach of any term of the contract; or
(2) Any negligent or willful act or omission of the Contractor or employees of the Contractor, in the performance of the contract.
(c) Not later than 30 days after the award date of the contract, the Contractor shall demonstrate the ability to reimburse the Government as provided in paragraph (b) of this clause, by providing evidence to the Contracting Officer that--
(1) The facility has liability insurance meeting the requirements of 40 CFR 264.147; or
(2) The facility meets the financial assurance requirements of 40 CFR 264.147 for sudden and nonsudden accidental occurrences.
(d) This clause does not apply to--
(1) Performance of remedial action or corrective action under--
(i) The Defense Environmental Restoration Program;
(ii) Other programs or activities of the Department of Defense; or
(iii) Authorized State hazardous waste programs;
(2) Disposal of hazardous waste when the generation of such waste is incidental to the performance of the contract; or
(3) Disposal of ammunition or solid rocket motors.
(e) The Contractor shall include this clause, including this paragraph (e), in each subcontract under which the subcontractor receives hazardous waste from a defense facility.
(End of clause)
252.223-7006 Prohibition on Storage and Disposal of Toxic and Hazardous Materials.
As prescribed in 223.7103(a), use the following clause:
PROHIBITION ON STORAGE AND DISPOSAL OF TOXIC AND HAZARDOUS
MATERIALS (APR 1993)
(a) Definitions.
As used in this clause--
(1) "Storage" means a non-transitory, semi-permanent or permanent holding, placement, or leaving of material. It does not include a temporary accumulation of a limited quantity of a material used in or a waste generated or resulting from authorized activities, such as servicing, maintenance, or repair of Department of Defense (DoD) items, equipment, or facilities.
(2) "Toxic or hazardous materials" means:
(i) Materials referred to in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 (42 U.S.C. 9601(14)) and materials designated under section 102 of CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
(ii) Materials that are of an explosive, flammable, or pyrotechnic nature; or
(iii) Materials otherwise identified by the Secretary of Defense as specified in DoD regulations.
(b) In accordance with 10 U.S.C. 2692, the Contractor is prohibited from storing or disposing of non-DoD-owned toxic or hazardous materials on a DoD installation, except to the extent authorized by a statutory exception to 10 U.S.C. 2692 or as authorized by the Secretary of Defense or his designee.
ALTERNATE I (NOV 1995)
As prescribed in 223.7103(b), add the following paragraphs (c) and (d) to the basic clause:
(c) With respect to treatment or disposal authorized pursuant to 10 U.S.C. 2692(b)(9), and notwithstanding any other provision of the contract, the Contractor assumes all financial and environmental responsibility and liability resulting from any treatment or disposal of non-DoD-owned toxic or hazardous materials on a military installation. The Contractor shall indemnify, defend, and hold the Government harmless for all costs, liability, or penalties resulting from the Contractor's treatment or disposal of non-DoD-owned toxic or hazardous materials on a military installation.
(d) The Contractor shall include this clause, including this paragraph (d), in each subcontract which requires, may require, or permits a subcontractor to treat or dispose of non-DoD-owned toxic or hazardous materials as defined in this clause.
252.223-7007 Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives.
As prescribed in 223.7203, use the following clause:
SAFEGUARDING SENSITIVE CONVENTIONAL ARMS, AMMUNITION,
AND EXPLOSIVES (FEB 1996)
(a) Definition.
"Arms, ammunition, and explosives (AA&E)," as used in this clause, means those items within the scope (chapter 1, paragraph B) of DoD 5100.76-M, Physical Security of Sensitive Conventional Arms, Ammunition, and Explosives.
(b) The requirements of DoD 5100.76-M apply to the following items of AA&E being developed, produced, manufactured, or purchased for the Government, or provided to the Contractor as Government-furnished property under this contract:
NOMENCLATURE |
NATIONAL STOCK NUMBER |
SENSITIVITY/CATEGORY |
(c) The Contractor shall comply with the requirements of DoD 5100.76-M, as specified in the statement of work. The edition of DoD 5100.76-M in effect on the date of issuance of the solicitation for this contract shall apply.
(d) The Contractor shall allow representatives of the Defense Investigative Service (DIS), and representatives of other appropriate offices of the Government, access at all reasonable times into its facilities and those of its subcontractors, for the purpose of performing surveys, inspections, and investigations necessary to review compliance with the physical security standards applicable to this contract.
(e) The Contractor shall notify the cognizant DIS field office of any subcontract involving AA&E within 10 days after award of the subcontract.
(f) The Contractor shall ensure that the requirements of this clause are included in all subcontracts, at every tier--
(1) For the development, production, manufacture, or purchase of AA&E; or
(2) When AA&E will be provided to the subcontractor as Government-furnished property.
(g) Nothing in this clause shall relieve the Contractor of its responsibility for complying with applicable Federal, state, and local laws, ordinances, codes, and regulations (including requirements for obtaining licenses and permits) in connection with the performance of this contract.
(End of clause)
252.225-7000 Buy American Act - Balance of Payments Program Certificate.
As prescribed in 225.109(a), use the following provision:
BUY AMERICAN ACT-BALANCE OF PAYMENTS PROGRAM CERTIFICATE (DEC 1991)
(a) Definitions.
"Domestic end product," "qualifying country," "qualifying country end product," and "nonqualifying country end product" have the meanings given in the Buy American Act and Balance of Payments Program clause of this solicitation.
(b) Evaluation.
Offers will be evaluated by giving preference to domestic end products and qualifying country end products over nonqualifying country end products.
(c) Certifications.
(1) The Offeror certifies that--
(i) Each end product, except those listed in paragraphs (c)(2) or (3) of this clause, is a domestic end product; and
(ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country.
(2) The Offeror certifies that the following end products are qualifying country end products:
Qualifying Country End Products
Line Item Number Country of Origin
(List only qualifying country end products.)
(3) The Offeror certifies that the following end products are nonqualifying country end products:
Nonqualifying Country End Products
Line Item Number Country of Origin (If known)
(End of provision)
252.225-7001 Buy American Act and Balance of Payments Program.
As prescribed in 225.109(d), use the following clause:
BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (MAR 1998)
(a) Definitions.
As used in this clause--
(1) Components means those articles, materials, and supplies directly incorporated into end products.
(2) Domestic end product means--
(i) An unmanufactured end product that has been mined or produced in the United States; or
(ii) An end product manufactured in the United States if the cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components shall include transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate may be issued). A component shall be considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind--
(A) Determined to be not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality; or
(B) That the Secretary concerned determines would be inconsistent with the public interest to apply the restrictions of the Buy American Act.
(3) End product means those articles, materials, and supplies to be acquired for public use under the contract. For this contract, the end products are the line items to be delivered to the Government (including supplies to be acquired by the Government for public use in connection with service contracts, but excluding installation and other services to be performed after delivery).
(4) Nonqualifying country end product means an end product that is neither a domestic end product nor a qualifying country end product.
(5) Qualifying country means any country set forth in subsection 225.872-1 of the Defense Federal Acquisition Regulation Supplement.
(6) Qualifying country component means an item mined, produced, or manufactured in a qualifying country.
(7) Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if the cost of the components mined, produced, or manufactured in the qualifying country and its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components.
(b) This clause implements the Buy American Act (41 U.S.C. Section 10a-d) in a manner that will encourage a favorable international balance of payments by providing a preference to domestic end products over other end products, except for end products which are qualifying country end products.
(c) The Contractor agrees that it will deliver only domestic end products unless, in its offer, it specified delivery of other end products in the Buy American Act--Balance of Payments Program Certificate provision of the solicitation. An offer certifying that a qualifying country end product will be supplied requires the Contractor to deliver a qualifying country end product or a domestic end product.
(d) The offered price of qualifying country end products should not include custom fees or duty. The offered price of nonqualifying country end products, and products manufactured in the United States that contain nonqualifying country components, must include all applicable duty. The award price will not include duty for end products or components that are to be accorded duty-free entry. Generally, when the Buy American Act is applicable, each nonqualifying country offer is adjusted for the purpose of evaluation by adding 50 percent of the offer, inclusive of duty.
(End of clause)
252.225-7002 Qualifying Country Sources as Subcontractors.
As prescribed in 225.109-70(a), use the following clause:
QUALIFYING COUNTRY SOURCES AS SUBCONTRACTORS (DEC 1991)
Subject to the restrictions in section 225.872 of the Defense FAR Supplement, the Contractor shall not preclude qualifying country sources and U.S. sources from competing for subcontracts under this contract.
(End of clause)
252.225-7003 Information for Duty-Free Entry Evaluation.
As prescribed in 225.605-70(d), use the following provision:
INFORMATION FOR DUTY-FREE ENTRY EVALUATION (MAR 1998)
(a) Does the offeror propose to furnish--
(1) A domestic end product with nonqualifying country components for which the offeror requests duty-free entry; or
(2) A foreign end product consisting of end items, components, or material of foreign origin other than those for which duty-free entry is to be accorded pursuant to the Duty-Free Entry--Qualifying Country Supplies (End Products and Components) clause or, if applicable, the Duty-Free Entry--Eligible End Products clause of this solicitation?
Yes ( ) No ( )
(b) If the answer in paragraph (a) is yes, answer the following questions:
(1) Are such foreign supplies now in the United States?
Yes ( ) No ( )
(2) Has the duty on such foreign supplies been paid?
Yes ( ) No ( )
(3) If the answer to paragraph (b)(2) is no, what amount is included in the offer to cover such duty? $________________
(c) If the duty has not been paid, the Government may elect to make award on a duty-free basis. If so,the offered price will be reduced in the contract award by the amount specified in paragraph (b)(3). The Offeror agrees to identify, at the request of the Contracting Officer, the foreign supplies which are subject to duty-free entry.
(End of provision)
ALTERNATE I (MAR 1998). As prescribed in 225.605-70(d), substitute the following paragraph (a) for paragraph (a) of the basic clause:
(a) Does the offeror propose to furnish a U.S. made end product with nonqualifying country components for which the offeror requests duty-free entry?
Yes ( ) No ( )
252.225-7005 Identification of Expenditures in the United States.
As prescribed in 225.305-70, use the following clause:
IDENTIFICATION OF EXPENDITURES IN THE UNITED STATES (DEC 1991)
(a) On each invoice, voucher, or other request for payment under this contract, the Contractor shall identify that part of the requested payment which represents estimated expenditures in the United States. The identification--
(1) May be expressed either as dollar amounts or as percentages of the total amount of the request for payment.
(2) Should be based on reasonable estimates.
(3) Shall consist of stating the full amount of the payment requested, subdivided into the following categories:
(i) U.S. products--expenditures for material and equipment manufactured or produced in the United States, excluding transportation;
(ii) U.S. services--expenditures for services performed in the United States, including charges for overhead, other indirect costs, and profit;
(iii) Transportation on U.S. carriers--expenditures for transportation furnished by U.S. flag, ocean, surface, and air carriers; and
(iv) Expenditures not identified under paragraphs (a)(1), (2), and (3).
(b) If this contract is principally for supplies or if the Contractor is not an incorporated concern incorporated in the United States, or an unincorporated concern having its principal place of business in the United States, the amounts identified under paragraphs (a)(3)(i), (ii), and (iii) will be limited to payments made pursuant to the requirements either of the United States Products and Services clause, if any, or of any other specific provision of this contract that obligates the Contractor to acquire certain materials, equipment, transportation, or services from U.S. sources.
(c) Nothing in this clause requires the establishment or maintenance of detailed accounting records or gives the U.S. Government any right to audit the Contractor's books or records.
(End of clause)
252.225-7006 Buy American Act - Trade Agreements - Balance of Payments Program Certificate.
As prescribed in 225.408(a)(i), use the following provision:
BUY AMERICAN ACT - TRADE AGREEMENTS - BALANCE OF PAYMENTS
PROGRAM CERTIFICATE (MAR 1998)
(a) Definitions.
Caribbean Basin country end product, designated country end product, domestic end product, NAFTA country end product, nondesignated country end product, qualifying country end product, and U.S. made end product have the meanings given in the Buy American Act-- TradeAgreements-- Balance of Payments Program clauses of this solicitation.
(b) Evaluation.
Offers will be evaluated in accordance with the policies and procedures of Part 225 of the Defense Federal Acquisition Regulation Supplement. Offers of foreign end products that are not U.S. made, qualifying country, designated country, Caribbean Basin country, or NAFTA country end products will not be considered for award, unless the Contracting Officer determines that there are no offers of such end products; or the offers of such end products are insufficient to fulfill the requirements; or a national interest exception to the Trade Agreements Act is granted.
(c) Certifications.
(1) The Offeror certifies that--
(i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and
(ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country.
(2) The Offeror must identify all end products that are not domestic end products.
(i) The Offeror certifies that the following supplies qualify as "U.S. made end products" but do not meet the definition of "domestic end product":
(insert line item number)
(ii) The Offeror certifies that the following supplies are qualifying country end products:
(insert line item number) (insert country of origin)
(iii) The Offeror certifies that the following supplies qualify as designated country end products:
(insert line item number) (insert country of origin)
(iv) The Offeror certifies that the following supplies qualify as Caribbean Basin country end products:
(insert line item number) (insert country of origin)
(v) The Offeror certifies that the following supplies qualify as NAFTA country end products:
(insert line item number) (insert country of origin)
(vi) The following supplies are other nondesignated country end products.
(insert line item number) (insert country of origin)
(End of provision)
252.225-7007 Buy American Act--trade agreements--Balance of Payments Program.
As prescribed in 225.408(a)(ii), use the following clause:
BUY AMERICAN ACT--TRADE AGREEMENTS--BALANCE OF PAYMENTS
PROGRAM (MAR 1998)
(a) Definitions. As used in this clause--
(1) Caribbean Basin country means--
Antigua and Barbuda
Aruba
Bahamas
Barbados
Belize
British Virgin Islands
Costa Rica
Dominica
Dominican Republic
El Salvador
Grenada
Guatemala
Guyana
Haiti
Honduras
Jamaica
Montserrat
Netherlands Antilles
Nicaragua
Panama
St. Kitts-Nevis
St. Lucia
St. Vincent and the Grenadines
Trinadad and Tobago
(2) Caribean Basin country end product--
(i) Means an article that--
(A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or
(B) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(ii) Excludes products, other than petroleum and any product derived from petroleum, that are not granted duty-free treatment under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These exclusions presently consist of--
(A) Textiles and apparel articles that are subject to textile agreements;
(B) Footwear, handbags, luggage, flat goods, work gloves, and leather wearing apparel not designated as eligible articles for the purpose of the Generalized System of Preferences under Title V of the Trade Act of 1974;
(C) Tuna, prepared or preserved in any manner in airtight containers; and
(D) Watches and watch parts (including cases, bracelets, and straps), of whatever type including, but not limited to mechanical, quartz digital, or quartz analog, if such watches or watch parts contain any material that is the product of any country to which Harmonized Tariff Schedule column 2 rates of duty apply.
(3) Components means those articles, materials, and supplies directly incorporated into end products..
(4) Designated country means:
Aruba
Austria
Bangladesh
Belgium
Benin
Bhutan
Botswana
Burkina Faso
Burundi
Canada
Cape Verde
Central African Republic
Chad
Comoros
Denmark
Djibouti
Equatorial Guinea
Finland
France
Gambia
Germany
Greece
Guinea
Guinea-Bissau
Haiti
Hong Kong
Ireland
Israel
Italy
Japan
Kiribati
Lesotho
Liechtenstein
Luxembourg
Malawi
Maldives
Mali
Mozambique
Nepal
Netherlands
Niger
Norway
Portugal
Republic of Korea
Rwanda
Sao Tome and Principe
Sierra Leone
Singapore
Somalia
Spain
Sweden
Switzerland
Tanzania U.R.
Togo
Tuvalu
Uganda
United Kingdom
Vanuatu
Western Samoa
Yemen
(5) Designated country end product means an article that--
(i) Is wholly the growth, product, or manufacture of the designated country; or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a designated country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(6) Domestic end product means--
(i) An unmanufactured end product that has been mined or produced in the United States; or
(ii) An end product manufactured in the United States if the cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components shall include transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certification may be issued). A component shall be considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind--
(A) Determined to be not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality; or
(B) That the Secretary concerned determines would be inconsistent with the public interest to apply the restrictions of the Buy American Act.
(7) End product means those articles, materials, and supplies to be acquired for public use under the contract. For this contract, the end products are the line items to be delivered to the Government (including supplies to be acquired by the Government for public use in connection with service contracts, but excluding installation and other services to be performed after delivery).
(8) NAFTA country end product means an article that--
(i) Is wholly the growth, product, or manufacture of the NAFTA country; or
(ii) In the case of an article which consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a NAFTA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(9) Nondesignated country end product means any end product which is not a U.S. made end product or a designated country end product.
(10) North American Free Trade Agreement (NAFTA) country means Canada or Mexico.
(11) Qualifying country means any country set forth in subsection 225.872-1 of the Defense Federal Acquisition Regulation Supplement.
(12) Qualifying country component means an item mined, produced, or manufactured in a qualifying country.
(13) Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if the cost of the components mined, produced, or manufactured in the qualifying country and its components mined, produced or manufactured in the United States exceeds 50 percent of the cost of all its components.
(14) United States means the United States, its possessions, Puerto Rico, and any other place subject to its jurisdiction, but does not include leased bases or trust territories.
(15) U.S. made end product means an article that--
(i) Is wholly the growth, product or manufacture of the United States, or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.
(b) Unless otherwise specified, the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.), the North American Free Trade Agreement Implementation Act of 1993 (19 U.S.C. 3301 note), and the Caribbean Basin Initiative apply to all items in the Schedule.
(c)(1) The Contractor agrees to deliver under this contract only domestic end products unless, in its offer, it specified delivery of U.S. made, qualifying country, designated country, Caribbean Basin country, NAFTA country, or other nondesignated country end products in the Buy American Act-Trade Agreements-Balance of Payments Program Certificate provision of the solicitation.
(2) The Contractor may not supply a nondesignated country end product unless--
(i) It is a qualifying country end product, a Caribbean Basin country end product, or a NAFTA country end product;
(ii) The Contracting Officer has determined that offers of U.S. made end products or qualifying, designated, NAFTA, or Caribbean Basin country end products from responsive, responsible offerors are either not received or are insufficient to fill the Governments requirements; or
(iii) A national interest waiver has been granted under section 302 of the Trade Agreements Act of 1979.
(d) The offered price of qualifying country end products and the offered price of designated country end products, NAFTA country end products, and Caribbean Basin country end products, for line items subject to the Trade Agreements Act or the North American Free Trade Agreement Implementation Act, should not include custom fees or duty. The offered price of end products listed in paragraph (c)(2)(vi) of the Buy American Act--Trade Agreements--Balance of Payments Program Certificate provision of the solicitation, or the offered price of U.S. made end products that contain nonqualifying country components, must include all applicable duty. The award price will not include duty for end products or components that are to be accorded duty-free entry. Generally, each offer of a U.S. made end product that does not meet the definition of ``domestic end product'' is adjusted for the purpose of evaluation by adding 50 percent of the offered price, inclusive of duty.
(End of clause)
ALTERNATE I (MAR 1998). As prescribed in 225.408(a)(ii), delete Singapore from the list of designated countries in paragraph (a)(4) of the basic clause.
252.225-7008 Supplies to be Accorded Duty-Free Entry.
As prescribed in 225.605-70(e), use the following clause:
SUPPLIES TO BE ACCORDED DUTY-FREE ENTRY (MAR 1998)
In accordance with paragraph (b) of the Duty-Free Entry clause of this contract,in addition to duty-free entry for all qualifying country supplies (end products and components) and all eligible end products subject to applicable trade agreements (if this contract contains the Buy American Act--Trade Agreements--Balance of Payments Program clause or the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program clause), the following foreign end products that are neither qualifying country end products nor eligible end products under a trade agreement, and the following nonqualifying country components, are accorded duty-free entry.
(End of clause)
252.225-7009 Duty-free entry--qualifying country supplies (end products and components).
As prescribed in 225.605-70(a), use the following clause:
DUTY-FREE ENTRY--QUALIFYING COUNTRY SUPPLIES (END PRODUCTS
AND COMPONENTS) (MAR 1998)
(a) Definitions. Qualifying country and qualifying country end products have the meaning given in the Buy American Act and Balance of Payments Program clause, Buy American Act--Trade Agreements--Balance of Payments Program clause, Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program clause, or Trade Agreements clause of this contract.
(b) The requirements of this clause apply to this contract and subcontracts, including purchase orders, that involve supplies to be accorded duty-free entry whether placed--
(1) Directly with a foreign concern as a prime contract; or
(2) As a subcontract or purchase order under a contract with a domestic concern.
(c) Except as otherwise approved by the Contracting Officer, or unless supplies were imported into the United States before the date of this contract or, in the case of supplies imported by a first or lower tier subcontractor, before the date of the subcontract, no amount is or will be included in the contract price for duty for--
(1) End items that are qualifying country end products; or
(2) Components (including, without limitation, raw materials and intermediate assemblies) produced or made in qualifying countries, that are to be incorporated in the end items to be delivered under this contract, provided that the end items are manufactured in the United States or in a qualifying country.
(d) The Contractor warrants that--
(1) All qualifying country supplies, for which duty-free entry is to be claimed, are intended to be delivered to the Government or incorporated in the end items to be delivered under this contract; and
(2) The Contractor will pay duty to the extent that such supplies, or any portion thereof (if not scrap or salvage) are diverted to nongovernmental use, other than as a result of a competitive sale made, directed, or authorized by the Contracting Officer.
(e) The Government agrees to execute duty-free entry certificates and to afford such assistance as appropriate to obtain the duty-free entry of qualifying country supplies for which the shipping documents bear the notation specified in paragraph (f) of this clause, except as the Contractor may otherwise agree.
(f) All shipping documents submitted to Customs, covering foreign end products or supplies for which duty-free entry certificates are to be issued under this clause, shall--
(1) Consign the shipments to the appropriate--
(i) Military department in care of the Contractor, including the Contractor's delivery address; or
(ii) Military installation; and
(2) Include the following information--
(i) Prime contract number, and delivery order if applicable;
(ii) Number of the subcontract/purchase order for foreign supplies if applicable;
(iii) Identification of carrier;
(iv)(A) For direct shipments to a U.S. military installation, the notation:
UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE Duty-Free Entry to be claimed pursuant to Section XXII, Chapter 98, Subchapter VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of the United States. Upon arrival of shipment at the appropriate port of entry, District Director of Customs, please release shipment under 19 CFR part 142 and notify Commander, Defense Contract Management Command (DCMC) New York, ATTN: Customs Team, DCMDN-GNIC, 207 New York Avenue, Staten Island, New York, 10305-5013, for execution of Customs Forms 7501, 7501A, or 7506 and any required duty-free entry certificates.
(B) In cases where the shipment will be consigned to other than a military installation e.g., a domestic contractor's plant, the shipping document notation shall be altered to insert the name and address of the contractor, agent or broker who will notify Commander, Defense Contract Management Command (DCMC) New York, for execution of the duty-free certificate.
(v) Gross weight in pounds (if freight is based on space tonnage, state cubic feet in addition to gross shipping weight);
(vi) Estimated value in U.S. dollars; and
(vii) Activity Address Number of the contract administration office actually administering the prime contract, e.g., for DCMC Dayton, S3065A.
(g) Preparation of customs forms.
(1) Except for shipments consigned to military installation, the Contractor shall prepare, or authorize an agent to prepare, any customs forms required for the entry of foreign supplies in connection with DoD contracts into the United States, its possessions, or Puerto Rico. The completed customs forms shall be submitted to the District Director of Customs with a copy to DCMC NY for execution of any required duty-free entry certificates. Shipments consigned directly to a military installation will be released in accordance with 10.101 and 10.102 of the U.S. Custom regulations.
(2) For shipments containing both supplies which are to be accorded duty-free entry and supplies which are not, the Contractor shall identify on the customs forms those items that are eligible for duty-free entry.
(h) The contractor agrees--
(1) To prepare (if this contract is placed directly with a foreign supplier), or to instruct the foreign supplier to prepare, a sufficient number of copies of the bill of lading (or other shipping document) so that at least two of the copies accompanying the shipment will be available for use by the District Director of Customs at the port of entry;
(2) To consign the shipment as specified in paragraph (f) of this clause; and
(3) To mark the exterior of all packages as follows:
(i) "UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE;" and
(ii) The activity address number of the contract administration office actually administering the prime contract.
(i) The Contractor agrees to notify the Contracting Officer administering the prime contract in writing of any purchase under the contract of qualifying country supplies to be accorded duty-free entry that are to be imported into the United States for delivery to the Government or for incorporation in end items to be delivered to the Government. The notice shall be furnished to the contract administration office immediately upon award to the qualifying country supplier. The notice shall contain--
(1) Prime contractor's name, address, and CAGE code;
(2) Prime contract number, and delivery order number if applicable;
(3) Total dollar value of the prime contract or delivery order;
(4) Expiration date of the prime contract or delivery order;
(5) Foreign supplier's name and address;
(6) Number of the subcontract/purchase order for foreign supplies;
(7) Total dollar value of the subcontract for foreign supplies;
(8) Expiration date of the subcontract for foreign supplies;
(9) List of items purchased;
(10) An agreement by the Contractor that duty shall be paid by the Contractor to the extent that such supplies, or any portion (if not scrap or salvage) are diverted to nongovernmental use other than as a result of a competitive sale made, directed or authorized by the Contracting Officer;
(11) The qualifying country; and
(12) The scheduled delivery date(s).
(j) This clause does not apply to purchases of qualifying country supplies in connection with this contract if--
(1) The qualifying country supplies are identical in nature to supplies purchased by the Contractor or any subcontractor in connection with its commercial business; and
(2) It is not economical or feasible to account for such supplies so as to ensure that the amount of the supplies for which duty-free entry is claimed does not exceed the amount purchased in connection with this contract.
(k) The Contractor agrees to insert the substance of this clause, including this paragraph (k) in all subcontracts for supplies. Each subcontract shall require the subcontractor to identify this contract by including its contract number on any shipping documents submitted to Customs covering supplies for which duty-free entry is to be claimed pursuant to this clause. The Contractor also agrees that the name and address of the Contracting Officer administering the prime contract (name and address of the contract administration office cognizant of the prime contract), and its activity address number (Appendix G of the Defense FAR Supplement), and the information required by paragraphs (i)(1), (2), and (3) of this clause will be included in applicable subcontracts.
(End of clause)
252.225-7010 Duty-Free Entry--Additional Provisions.
As prescribed in 225.605-70(c), use the following clause:
DUTY-FREE ENTRY--ADDITIONAL PROVISIONS (MAR 1998)
(a) The requirements of this clause supplement the Duty-Free Entry clause of this contract. Both of these clauses apply to this contract and subcontracts, including purchase orders, that involve supplies to be accorded duty-free entry whether placed--
(1) Directly with a foreign concern as a prime contract; or
(2) As a subcontractor purchase order under a contract with a domestic concern.
(b) The Contractor shall send the notification required by paragraph (b)(1) of the Duty-Free Entry clause of this contract to the Contracting Officer administering this contract.
(c) In addition to any data required by paragraph (b)(1) of the Duty-Free Entry clause, the Contractorshall furnish the following for all foreign supplies to be imported pursuant to paragraphs (a) or (b) of the Duty-Free Entry clause. The Contractor shall furnish this information to the Contracting Officer administering the prime contract immediately upon award of any contract or subcontract involving supplies to be accorded duty-free entry.
(1) Prime contractor's name, address, and CAGE code;
(2) Prime contract number plus delivery order number, if applicable;
(3) Total dollar value of the prime contract or delivery order;
(4) Expiration date of the prime contract or delivery order;
(5) Foreign supplier's name and address;
(6) Number of the subcontract/purchase order for foreign supplies;
(7) Total dollar value of the subcontract for foreign supplies;
(8) Expiration date of the subcontract for foreign supplies;
(9) List of items purchased; and
(10) An agreement by the Contractor that duty shall be paid by the Contractor to the extent that such supplies, or any portion (if not scrap or salvage) are diverted to nongovernmental use other than as a result of a competitive sale made, directed, or authorized by the Contracting Officer.
(d) The Contractor agrees to incorporate the substance of this clause, including this paragraph (d), in any subcontract (including purchase orders) in accordance with paragraph (i) of the Duty-Free Entry clause of this contract. The Contractor agrees that the name and address of the Contracting Officer administering the prime contract (name and address of the contract administration office cognizant of the prime contract and its activity address number (Appendix G of the Defense FAR Supplement)) and the information required by paragraphs (c)(1), (2), and (3) of this clause will be included in applicable subcontracts.
(e) To properly complete the shipping document instructions as required by paragraph (f) of the Duty-Free Entry clause, the Contractor shall insert Defense Contract Management command (DCMC) New York, ATTN: Customs team, DCMDN-GNIC, 207 New York Avenue, Staten Island, New York,10305-5013 as the cognizant contract administration office (for paragraph (f) only) in those cases when the shipment is consigned directly to a military installation. When the shipment will be consigned to a location other than a military installation, e.g., a domestic contractor's plant, change the shipping document notation required by paragraph (f) of the clause to insert the name and address of the Contractor, agent or broker that will prepare the customs documentation for execution of the Duty-Free Entry certificates. In either case, the shipping documents will contain the following items in addition to those required by paragraph (f) of the Duty-Free Entry clause:
(1) Delivery order number on the Government prime contract, if applicable;
(2) Number of the subcontract/purchase order for foreign supplies, if applicable;
(3) Activity address number of the contract administration office actually administering the prime contract, e.g., for DCMC Dayton, S3605A.
(f) Except for shipments consigned to a military installation, the Contractor shall prepare, or authorize an agent to prepare, any customs forms required for the entry into the United States, its possessions, or Puerto Rico of foreign supplies in connection with DoD contracts. The Contractor shall submit the completed customs forms to the District Director of Customs with a copy to DCMAO New York for execution of any required duty-free entry certificates. For shipments containing both supplies which are to be accorded duty-free entry and supplies which are not, the Contractor shall identify on the customs forms those items which are eligible for duty-free entry under the provisions of the Duty-Free Entry clause. Shipments consigned directly to a military installation will be released in accordance with Section 10.101 and 10.102 of the U.S. Customs regulations.
(g) The Contractor shall ensure that all exterior containers are marked in accordance with paragraph (g)of the Duty-Free Entry clause, including the following additional data--
(1) "UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE;" and
(2) The activity address number for the contract administration office actually administering the prime contract.
(End of clause)
252.225-7011 Restriction on Acquisition of Supercomputers.
As prescribed in 225.7023-3, use the following clause:
RESTRICTION ON ACQUISITION OF SUPERCOMPUTERS (JULY 1995)
The contractor agrees that any supercomputers furnished under this contract have been manufactured in the United States.
(End of Clause)
252.225-7012 Preference for Certain Domestic Commodities.
As prescribed in 225.7002-3(a), use the following clause:
PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES (SEP 1997)
(a) The Contractor agrees to deliver under this contract only such of the following articles that have been grown, reprocessed, reused, or produced in the United States, its possessions, or Puerto Rico--
(1) Food;
(2) Clothing;
(3) Tents, tarpaulins, or covers;
(4) Cotton and other natural fiber products;
(5) Woven silk or woven silk blends;
(6) Spun silk yarn for cartridge cloth;
(7) Synthetic fabric, and coated synthetic fabric, including all textile fibers and yarns that are for use in such fabrics;
(8) Canvas products;
(9) Wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or
(10) Any item of individual equipment (Federal Supply Class 8465) manufactured from or containing such fibers, yarns, fabrics, or materials.
(b) This clause does not apply--
(1) To supplies listed in FAR 25.108(d)(1), or other supplies for which the Government has determined that a satisfactory quality and sufficient quantity cannot be acquired as and when needed at U.S. market prices;
(2) To foods which have been manufactured or processed in the United States, its possessions, or Puerto Rico;
(3) To chemical warfare protective clothing produced in the countries listed in subsection 225.872-1 of the Defense FAR Supplement; or
(4) To purchases of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric (but not the purchase of the synthetic or coated synthetic itself), if such fabric is to be used as a component of an end item that is not a textile product. Examples of textile products, made in whole or in part of fabric, include--
(i) Draperies, floor coverings, furnishings, and bedding (Federal Supply Group 72, Household and Commercial Furnishings and Appliances);
(ii) Items made in whole or in part of fabric in Federal Supply Group 83, Textile/leather/furs/apparel/findings/tents/ flags, or Federal Supply Group 84, Clothing, Individual Equipment and Insignia.
(iii) Upholstered seats (whether for household, office, or other use); and
(iv) Parachutes (Federal Supply Class 1670).
(End of clause)
252.225-7014 Preference for Domestic Specialty Metals.
As prescribed in 225.7002-3(b), use the following clause:
PREFERENCE FOR DOMESTIC SPECIALTY METALS (MAR 1998)
(a) Definitions.
As used in this clause--
(1) Qualifying country means any country set forth in subsection 225.872-1 of the Defense Federal Acquisition Regulation Supplement.
(2) Specialty metals means--
(i) Steel--
(A) Where the maximum alloy content exceeds one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or
(B) That contains more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten, or vanadium;
(ii) Metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10 percent;
(iii) Titanium and titanium alloys; or
(iv) Zirconium and zirconium base alloys.
(b) The Contractor agrees that any specialty metals incorporated in articles delivered under this contract will be melted in the United States, its possessions, or Puerto Rico.
(c) This clause does not apply to the extent that--
(1) The Secretary or designee determines that a satisfactory quality and sufficient quantity of such articles cannot be acquired when needed at U.S. market prices;
(2) The specialty metal is melted in a qualifying country or is incorporated in an article manufactured in a qualifying country;
(3) The acquisition is necessary to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources to offset sales made by the U.S. Government or U.S. firms under approved programs; or
(4) The specialty metal is purchased by a subcontractor at any tier.
(End of clause)
ALTERNATE I (MAR 1998)
As prescribed in 225.7002-3(b), substitute the following paragraph (c) for paragraph (c) of the basic clause, and add the following paragraph (d) to the basic clause:
(c) This clause does not apply to the extent that--
(1) The Secretary or designee determines that a satisfactory quality and sufficient quantity of such articles cannot be acquired when needed at U.S. market prices;
(2) The specialty metal is melted in a qualifying country or is incorporated in an article manufactured in a qualifying country; or
(3) The acquisition is necessary to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources to offset sales made by the U.S.Government or U.S. firms under approved programs.
(d) The Contractor agrees to include the terms of this clause, including this paragraph (d), in everysubcontract or purchase order awarded under this contract unless the item being purchased contains no specialty metals.
252.225-7015 Preference for Domestic Hand or Measuring Tools.
As prescribed in 225.7002-3(c), use the following clause:
PREFERENCE FOR DOMESTIC HAND OR MEASURING TOOLS (DEC 1991)
The Contractor agrees to deliver under this contract only hand or measuring tools produced in the United States or its possessions.
(End of clause)
[amended per DFARS Case 97-D321, D.L. 98-001, 4 Feb 98]
[*further amended per D.L. 98-019, Effective 17 Aug 1998]
252.225-7016 Restriction on Acquisition of Ball and Roller Bearings.
As prescribed in 225.7019-4, use the following clause:
RESTRICTION ON ACQUISITION OF BALL AND ROLLER BEARINGS ([*AUG 1998])
(a) Definitions.
As used in this clause--
(1) "Bearing components" means the bearing element, retainer, inner race, or outer race.
(2) "Miniature and instrument ball bearings" means all rolling contact ball bearings with a basic outside diameter (exclusive of flange diameters) of 30 millimeters or less, regardless of material, tolerance, performance, or quality characteristics.
(b) The Contractor agrees that, except as provided in paragraph (c) of this clause, all ball and roller bearings and ball and roller bearing components (including miniature and instrument ball bearings) delivered under this contract, either as end items or components of end items, shall be wholly manufactured in the United States or Canada. Unless otherwise specified, raw materials, such as preformed bar, tube, or rod stock and lubricants, need not be mined or produced in the United States or Canada.
(c) (1) The restriction in paragraph (b) of this clause does not apply to the extent that[*-]
[*(i) T]he end items or components containing ball or roller bearings are commercial items[*;or
(ii) The ball or roller bearings are commercial items manufactured in the United Kingdom]
(2) The commercial item exception in paragraph (c)(1) of this clause does not include items designed or developed under a Government contract or contracts where the end item is bearings and bearing components.
(d) The restriction in paragraph (b) of this clause may be waived upon request from the Contractor in accordance with subsection 225.7019-3 of the Defense Federal Acquisition Regulation Supplement. If the restriction is waived for miniature and instrument ball bearings, the Contractor agrees to acquire a like quantity and type of domestic manufacture for nongovernmental use.
(e) The Contractor agrees to retain records showing compliance with this restriction until 3 years after final payment and to make records available upon request of the Contracting Officer.
(f) The Contractor agrees to insert this clause, including this paragraph (f), in every subcontract and purchase order issued in performance of this contract, unless items acquired are--
(1) Commercial items other than ball or roller bearings; or
(2) Items that do not contain ball or roller bearings.
(End of clause)
252.225-7018 Notice of Prohibition of Certain Contracts with Foreign Entities for the Conduct of Ballistic Missile Defense RDT&E.
As prescribed in 225.7011-5, use the following provision:
NOTICE OF PROHIBITION OF CERTAIN CONTRACTS WITH FOREIGN ENTITIES
FOR THE CONDUCT OF BALLISTIC MISSILE DEFENSE RDT&E (JAN 1997)
(a) Definitions.
(1) "Competent" means the ability of an offeror to satisfy the requirements of the solicitation. This determination is based on a comprehensive assessment of each offeror's proposal including consideration of the specific areas of evaluation criteria in the relative order of importance described in the solicitation.
(2) "Foreign firm" means a business entity owned or controlled by one or more foreign nationals or a business entity in which more than 50 percent of the stock is owned or controlled by one or more foreign nationals.
(3) "U.S. firm" means a business entity other than a foreign firm.
(b) This provision implements Section 222 of the Defense Authorization Act for FYs 1988 and 1989 (Pub. L. 100-180) prohibiting the award of certain contracts, for the conduct of Ballistic Missile Defense (BMD) Program research, development, test, or evaluation (RDT&E), to foreign governments or firms.
(c) Except as provided in paragraph (d) of this provision, any funds appropriated to, or for the use of, the DoD, may not be used to enter into or carry out any contract, including any contract awarded as a result of a broad agency announcement (BAA), with a foreign government or firm if the contract provides for the conduct of RDT&E in connection with the BMD. Foreign governments and firms, however, are encouraged to submit offers since this provision is not intended to restrict BMD access to unique foreign expertise when contract performance requires a level of competency unavailable in the United States.
(d) The prohibition does not apply to a foreign government or firm if--
(1) The contract will be performed within the United States;
(2) The contract is exclusively for RDT&E in connection with antitactical ballistic missile systems;
(3) The foreign government or firm agrees to share a substantial portion of the total contract cost. The foreign share is considered substantial where it is equitable with respect to the relative benefits to be derived from the contract by the United States and the foreign parties. For example, if the contract is more beneficial to the foreign party, its share of the costs should be correspondingly higher; or
(4) The U.S. Government determines that the contract cannot be competently performed by a U.S. firm at a price equal to or less than the price at which the RDT&E can be performed by a foreign government or firm.
(e) The Offeror ( ) is ( ) is not a U.S. firm.
(End of provision)
252.225-7019 Restriction on Acquisition of Foreign Anchor and Mooring Chain.
As prescribed in 225.7012-3, use the following clause:
RESTRICTION ON ACQUISITION OF FOREIGN ANCHOR AND MOORING CHAIN
(DEC 1991)
(a) Welded shipboard anchor and mooring chain, four inches in diameter and under, delivered under this contract--
(1) Shall be manufactured in the United States, including cutting, heat treating, quality control, testing, and welding (both forging and shot blasting process); and
(2) The cost of the components manufactured in the United States shall exceed 50 percent of the total cost of components.
(b) The Contractor may request a waiver of this restriction if adequate domestic supplies meeting the above requirements are not available to meet the contract delivery schedule.
(c) The Contractor shall include this clause, including this paragraph (c), in all subcontracts, unless the items acquired contain none of the restricted welded shipboard anchor and mooring chain.
(End of clause)
252.225-7020 Trade Agreements Certificate.
As prescribed in 225.408(a)(iii), use the following provision:
TRADE AGREEMENTS CERTIFICATE (MAR 1998)
(a) Definitions.
Caribbean Basin country end product, designated country end product, NAFTA country end product, nondesignated country end product, qualifying country end product, and U.S. made end product have the meanings given in the Trade Agreements clause of this solicitation.
(b) Evaluation. Offers will be evaluated in accordance with the policies and procedures of part 225 of the Defense Federal Acquisition Regulation Supplement. Offers of foreign end products that are not U.S. made, qualifying country, designated country, Caribbean Basin country, or NAFTA country end products will not be considered for award, unless the Contracting Officer determines that there are not offers of such end products; or the offers of such end products are insufficient to fulfill the requirements; or a national interest exception to the Trade Agreements Act is granted.
(c) Certifications.
(1) The offeror certifies that each end product to be delivered under this contract, except those listed in paragraph (c)(2) of this provision, is a U.S. made, qualifying country, designated country, Caribbean Basin country, or NAFTA country end product.
(2) The following supplies are other nondesignated country end products:
insert line item number insert country of origin
(End of provision)
252.225-7021 Trade Agreements.
As prescribed in 225.408(a)(iv), use the following clause:
TRADE AGREEMENTS (MAR 1998)
(a) Definitions. As used in this clause--
(1) Caribbean Basin country means--
Antigua and Barbuda
Aruba
Bahamas
Barbados
Belize
British Virgin Islands
Costa Rica
Dominica
Dominican Republic
El Salvador
Grenada
Guatemala
Guyana
Haiti
Honduras
Jamaica
Montserrat
Netherlands Antilles
Nicaragua
Panama
St. Kitts-Nevis
St. Lucia
St. Vincent and the Grenadines
Trinidad and Tobago
(2) Caribbean Basin country end product--
(i) Means an article that--
(A) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or
(B) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(ii) Excludes products, other than petroleum and any product derived from petroleum, that are not granted duty-free treatment under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These exclusions presently consist of--
(A) Textiles and apparel articles that are subject to textile agreements;
(B) Footwear, handbags, luggage, flat goods, work gloves, and leather wearing apparel not designated as eligible articles for the purpose of the Generalized System of Preferences under Title V of the Trade Act of 1974;
(C) Tuna, prepared or preserved in any manner in airtight containers; and
(D) Watches and watch parts (including cases, bracelets, and straps) of whatever type, including, but not limited to, mechanical, quartz digital, or quartz analog, if such watches or watch parts contain any material that is the product of any country to which Harmonized Tariff Schedule column 2 rates of duty apply.
(3) Components means those articles, materials, and supplies directly incorporated into end products.
(4) Designated country means--
Aruba
Austria
Bangladesh
Belgium
Benin
Bhutan
Botswana
Burkina Faso
Burundi
Canada
Cape Verde
Central African Republic
Chad
Comoros
Denmark
Dijbouti
Equatorial Guinea
Finland
France
Gambia
Germany
Greece
Guinea
Guinea-Bissau
Haiti
Hong Kong
Ireland
Israel
Italy
Japan
Kiribati
Lesotho
Liechtenstein
Luxembourg
Malawi
Maldives
Mali
Mozambique
Nepal
Netherlands
Niger
Norway
Portugal
Republic of Korea
Rwanda
Sao Tome and Principe
Sierra Leone
Singapore
Somalia
Spain
Sweden
Switzerland
Tanzania U.R.
Togo
Tuvalu
Uganda
United Kingdom
Vanuatu
Western Samoa
Yemen
(5) Designated country end product means an article that--
(i) Is wholly the growth, product, or manufacture of the designated country; or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a designated country into a new and different article of commerce with a name, character, or use distinct from that of thearticle or articles from which it was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(6) End product means those articles, materials, and supplies to be acquired for public use under the contract. For this contract, the end products are the line items to be delivered to the Government (including supplies to be acquired by the Government for pubic use in connection with service contracts, but excluding installation and other services to be performed after delivery).
(7) NAFTA country end product means an article that--
(i) Is wholly the growth, product, or manufacture of the NAFTA country; or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a NAFTA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(8) Nondesignated country end product means any end product that is not a U.S. made end product or a designated country end product.
(9) North American Free Trade Agreement (NAFTA) country means Canada or Mexico.
(10) Qualifying country means any country set forth in subsection 225.872-1 of the Defense Federal Acquisition Regulation Supplement.
(11) Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if the cost of the components mined, produced, or manufactured in the qualifying country and its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components.
(12) United States means the United States, its possessions, Puerto Rico, and any other place subject to its jurisdiction, but does not include leased bases or trust territories.
(13) U.S. made end product means an article that--
(i) Is wholly the growth, product, or manufacture of the United States; or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.
(b) Unless otherwise specified, the Trade Agreements Act of 1979 (19 U.S.C. 2501, et seq.), the North American Free Trade Agreement Implementation Act of 1993 (19 U.S.C. 3301 note), and the Caribbean Basin Initiative apply to all items in the Schedule.
(c)(1) The Contractor agrees to deliver under this contract only U.S. made, qualifying country, designated country, Caribbean Basin country or NAFTA country end product unless, in its offer, it specified delivery of other nondesignated country end products in the Trade Agreements Certificate provision of the solicitation.
(2) The Contractor may not supply a nondesignated country end product other than a qualifying country end product, a Caribbean Basin country end product, or a NAFTA country end product, unless--
(i) The Contracting Officer has determined that offers of U.S. made end products or qualifying, designated, Caribbean Basin, or NAFTA country end products from responsive, responsibleofferors are either not received or are insufficient to fill the Government's requirements; or
(ii) A national interest waiver has been granted under section 302 of the Trade Agreements Act of 1979.
(d) The offered price of end products listed in paragraph (c)(2) of the Trade Agreements Certificate provision of the solicitation must include all applicable duty, whether or not a duty-free entry certificate will be granted. The offered price of qualifying country, designated country, Caribbean Basin country, or NAFTA country end products, for line items subject to the Trade Agreements Act or the North American Free Trade Agreement Implementation Act, should not include custom fees or duty. The offered price of U.S. made end products should not include duty for qualifying country components.
(End of clause)
ALTERNATE I (MAR 1998).
As prescribed in 225.408(a)(iv), delete Singapore from the list of designated countries in paragraph (a)(4)
of the basic clause.
252.225-7022 Restriction on Acquisition of Polyacrylonitrile (PAN) Based Carbon Fiber.
As prescribed in 225.7013-2, use the following clause:
RESTRICTION ON ACQUISITION OF POLYACRYLONITRILE (PAN) BASED
CARBON FIBER (JUN 1997)
(a) This clause applies only if the end product furnished under this contract contains polyacrylonitrile carbon fibers (alternatively referred to as PAN-based fibers or PAN-based graphite fibers).
(b) PAN carbon fibers contained in the end product shall be manufactured in the United States or Canada using PAN precursor produced in the United States or Canada.
(c) The Contracting Officer may waive the requirement in paragraph (b) in whole or in part. The Contractor may request a waiver from the Contracting Officer by identifying the circumstances and including a plan to qualify domestic or Canadian sources expeditiously.
(End of clause)
252.225-7024 Restriction on Acquisition of Night Vision Image Intensifier Tubes and Devices.
As prescribed in 225.7015-3, use the following clause:
RESTRICTION ON ACQUISITION OF NIGHT VISION IMAGE INTENSIFIER TUBES
AND DEVICES (DEC 1991)
All second and third generation night vision image intensifier tubes and devices provided under this contract shall be manufactured in the United States or Canada.
(End of clause)
252.225-7025 Restriction on Acquisition of Forgings.
As prescribed in 225.7102-4, use the following clause:
RESTRICTION ON ACQUISITION OF FORGINGS (JUN 1997)
(a) Definitions.
As used in this clause--
(1) "Domestic manufacture" means manufactured in the United States or Canada if the Canadian firm--
(i) Normally produces similar items or is currently producing the item in support of DoD contracts (as prime or subcontractor); and
(ii) Agrees to become (upon receiving a contract/order) a planned producer under DoD'sIndustrial Preparedness Production Planning Program, if it is not already a planned producer for the item.
(2) "Forging items" means--
ITEMS |
CATEGORIES |
Ship propulsion shafts |
Excludes service and landing craft shafts |
Periscope tubes |
All |
Ring forgings for bull gears |
All greater than 120 inches in diameter |
(b) The Contractor agrees that end items and their components delivered under this contract shall contain forging items that are of domestic manufacture only.
(c) The restriction in paragraph (b) of this clause may be waived upon request from the Contractor in accordance with section 225.7102-3 of the Defense Federal Acquisition Regulation Supplement.
(d) The Contractor agrees to retain records showing compliance with this restriction until 3 years after final payment and to make records available upon request of the Contracting Officer.
(e) The Contractor agrees to insert this clause, including this paragraph (e), in subcontracts and purchase orders issued in performance of this contract, when products purchased contain restricted forging items.
(End of clause)
252.225-7026 Reporting of Contract Performance Outside the United States.
As prescribed in 225.7203, use the following clause:
REPORTING OF CONTRACT PERFORMANCE OUTSIDE THE UNITED STATES
(MAR 1998)
(a) Reporting criteria.
Reporting under this clause is required for--
(1) Offers exceeding $10 million, if the Offeror is aware at the time the offer is submitted that it or its first-tier subcontractor intends to perform any part of the contract that exceeds $500,000 outside the United States and Canada, if that part could be performed inside the United States or Canada;
(2) Contracts exceeding $10 million, when any part that exceeds $500,000 could be performed inside the United States or Canada, but will be performed outside the United States and Canada. If the information was submitted with the offer, it need not be resubmitted unless it changes; and
(3) Contracts exceeding $500,000, when any part that exceeds the simplified acquisition threshold in Part 2 of the Federal Acquisition Regulation will be performed outside the United States, unless a foreign place of performance is--
(i) The principal place of performance; and
(ii) Indicated by the Offerors entry in the Place of Performance provision of the solicitation.
(b) Submission of reports.
(1) The Offeror shall submit reports required by paragraph (a)(1) of this clause with its offer.
(2) The Contractor shall submit reports required by paragraph (a)(2) of this clause to the Contracting Officer as soon as the information is known, with a copy to the addressee in paragraph (b)(3) of this clause. With respect to performance by a first-tier subcontractor, this information shall be reported, to the maximum extent practicable, at least 30 days before award of the subcontract.
(3) The Contractor shall submit reports required by paragraph (a)(3) of this clause within 10 days of the end of each Government quarter to--
Deputy Director of Defense Procurement (Foreign Contracting)
OUSD(A&T)DP(FC)
Washington, DC 20301-3060
(4) The Offeror/Contractor shall submit reports on DD Form 2139 Report of Contract Performance Outside the United States. Computer generated reports are acceptable, provided the report contains all the information required by DD Form 2139. Copies of Form 2139 may be obtained from the Contracting Officer.
(c) Flowdown requirements.
(1) The Contractor shall include a clause substantially the same as this one in all first-tier subcontracts exceeding $500,000, except subcontracts for commercial items, construction, ores, natural gases, utilities, petroleum products and crudes, timber (logs), or subsistence.
(2) The Contractor shall provide the prime contract number to subcontractors for reporting purposes.
(d) Information required.
Information to be reported on the part of this contract performed outside the United States (or outside the United States and Canada for reports required by paragraphs (a)(1) and (a)(2) of this clause) includes that for--
(i) Subcontracts;
(ii) Purchases; and
(iii) Intracompany transfers when transfers originate in a foreign location.
(End of Clause)
252.225-7027 Restriction on Contingent Fees for Foreign Military Sales.
As prescribed in 225.7308(a), use the following clause. Insert in paragraph (b)(1) of the caluse the name(s) of any foreign country customer(s) listed in 225.7303-4(b).
RESTRICTIONS ON CONTINGENT FEES FOR FOREIGN MILITARY SALES (MAR 1998)
(a) Except as provided in paragraph (b) of this clause, contingent fees, as defined in the Covenant Against Contingent Fees clause of this contract, are generally an allowable cost, provided the fees are paid to a bona fide employee of the Contractor or to a bona fide established commercial or selling agency maintained by the Contractor for the purpose of securing business.
(b) For foreign military sales, unless the contingent fees have been identified and payment approved in writing by the foreign customer before contract award, the following contingent fees are
unallowable under this contract:
(1) For sales to the Government(s) of , contingent fees in any amount.
(2) For sales to Governments not listed in paragraph (b)(1) of this clause, contingent fees exceeding $50,000 per foreign military sale case.
(End of clause)
252.225-7028 Exclusionary Policies and Practices of Foreign Governments.
As prescribed in 225.7308(b), use the following clause:
EXCLUSIONARY POLICIES AND PRACTICES OF FOREIGN GOVERNMENTS
(DEC 1991)
No person, partnership, corporation, or other entity performing functions pursuant to this contract, shall, in employing or assigning personnel to participate in the performance of any such function, whether in the United States or abroad, take into account the exclusionary policies or practices of any foreign government where such policies or practices are based on race, religion, national origin, or sex.
(End of clause)
[amended per DFARS Case 97-D321, D.L. 98-001, 4 Feb 98]
[*further amended per D.L. 98-019, Effective 17 Aug 1998]
252.225-7029 Preference for United States or Canadian Air Circuit Breakers.
As prescribed in 225.7016-4, use the following clause:
PREFERENCE FOR UNITED STATES OR CANADIAN AIR
CIRCUIT BREAKERS ([*AUG 1998])
(a) Unless otherwise specified in its offer, the Contractor agrees that air circuit breakers for naval vessels provided under this contract shall be manufactured in the United States [,][Canada][*, or the United Kingdom].
(b) Unless an exception applies [*under Defense Federal Acquisition Regulation Supplement (DFARS) 225.7016-2]or a waiver is granted under [*DFARS] 225.7005[(a)[*(1)] or][*2][ ] of the [Defense Federal Acquisition Regulation Supplement], preference will be given to air circuit breakers manufactured in the United States or Canada by adding 50 percent for evaluation purposes to the offered price of all other air circuit breakers[][*, except those manufactured in the United Kingdom].
(End of clause)
252.225-7030 Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate.
As prescribed in 225.7017-4, use the following clause:
RESTRICTION ON ACQUISITION OF CARBON, ALLOY, AND ARMOR STEEL PLATE
(OCT 1992)
The Contractor agrees that all carbon, alloy, and armor steel plate in Federal supply class 9515, or described by American Society for Testing Materials (ASTM) or American Iron and Steel Institute (AISI) specifications, furnished as a deliverable under this contract, or purchased by the contractor as a raw material, for use in a Government-owned facility or a facility under the control of the Department of Defense, shall be melted and rolled in the United States or Canada.
(End of clause)
252.225-7031 Secondary Arab Boycott of Israel.
As prescribed in 225.770-5, use the following clause:
SECONDARY ARAB BOYCOTT OF ISRAEL (JUN 1992)
(a) Definitions.
As used in this clause--
(1) "Foreign person" means any person other than a United States person as defined in Section 16(2) of the Export Administration Act of 1979 (50 U.S.C. App. Sec 2415).
(2) "United States person" is defined in Section 16(2) of the Export Administration Act of 1979 and means any United States resident or national (other than an individual resident outside the United States and employed by other than a United States person), any domestic concern (including any permanent domestic establishment of any foreign concern), and any foreign subsidiary or affiliate (including any foreign establishment) of any domestic concern which is controlled in fact by such domestic concern, as determined under regulations of the President.
(b) Certification.
By submitting this offer, the Offeror, if a foreign person, company, company or entity, certifies that it--
(1) Does not comply with the Secondary Arab Boycott of Israel; and
(2) Is not taking or knowingly agreeing to take any action, with respect to the Secondary Boycott of Israel by Arab countries, which 50 U.S.C. App. Sec 2407(a) prohibits a United States person from taking.
(End of clause)
252.225-7032 Waiver of United Kingdom Levies.
As prescribed in 225.873-3, use the following clause:
WAIVER OF UNITED KINGDOM LEVIES (OCT 1992)
(a) Offered prices for contracts and subcontracts with United Kingdom (U.K.) firms may contain commercial exploitation levies assessed by the Government of the U.K. The Offeror shall identify to the Contracting Officer all levies included in the offered price by describing--
(1) The name of the U.K. firm;
(2) The item to which the levy applies and quantity; and
(3) The amount of levy plus any associated indirect costs and profit or fee.
(b) If, after award of the prime contract, the Contractor contemplates award of a subcontract over $1million to a U.K. firm, the Contractor shall identify any levy before award of the subcontract and shall provide the following information to the Contracting Officer--
(1) Name of the U.K. firm;
(2) Prime contract number;
(3) Description of item to which levy applies;
(4) Quantity being acquired; and
(5) Amount of levy plus any associated indirect costs and profit or fee.
(c) The Offeror/Contractor should obtain assistance in identifying the levy from the U.K. firm. In the event of difficulty, the Offeror/Contractor may seek advice through Director of Procurement, United Kingdom Defence Procurement Office, British Embassy, 3100 Massachusetts Avenue, NW, Washington, DC 20006.
(d) The U.S. Government may attempt to obtain a waiver of levies pursuant to the U.S./U.K. reciprocal waiver agreement of July 1987.
(1) Where levies are waived before contract award, the offer will be evaluated without the levy.
(2) Where levies are identified but not waived before contract award, the offer will be evaluated inclusive of the levies.
(3) Where a waiver of the levy is obtained after award, the U.S. Government reserves the right to reduce the contract price by the amount of the levy waived plus associated indirect costs, profit or fee.
(e) The Contractor agrees to insert the substance of this clause, including this paragraph (e), in any subcontract for supplies where a lower tier subcontract over $1 million with a U.K. firm is anticipated.
(End of clause)
252.225-7033 Restriction on Acquisition of Four Ton Dolly Jacks.
As prescribed in 225.7018-3, use the following clause:
RESTRICTION ON ACQUISITION OF FOUR TON DOLLY JACKS (APR 1993)
Four ton dolly jacks delivered under this contract shall be manufactured in the United States unless a waiver is granted in accordance with subsection 225.7018-2 of the Defense Federal Acquisition Regulation Supplement.
(End of clause)
252.225-7035 Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate.
As prescribed in 225.408(a)(v), use the following provision:
BUY AMERICAN ACT--NORTH AMERICAN FREE TRADE AGREEMENT
IMPLEMENTATION ACT--BALANCE OF PAYMENTS PROGRAM CERTIFICATE
(MAR 1998)
(a) Definitions.
Domestic end product, qualifying country end product, foreign end product, NAFTA country end product and "U.S. made end product" have the meanings given in the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program clauses of this solicitation.
(b) Evaluation.
Offers will be evaluated in accordance with the policies and procedures of Part 225 of the Defense Federal Acquisition Regulation Supplement. For line items subject to the North American FreeTrade Agreement Implementation Act, offers of qualifying country end products or NAFTA country end products will be evaluated without regard to the restrictions of the Buy American
Act or the Balance of Payments Program
. (c) Certifications.
(1) The Offeror certifies that--
(i) Each end product, except the end products listed in paragraph (c)(2) of this provision, is a domestic end product; and
(ii) Components of unknown origin are considered to have been mined, produced, or manufactured outside the United States or a qualifying country.
(2) The Offeror must identify all end products that are not domestic end products.
(i) The Offeror certifies that the following supplies qualifying country (except Canada) end products:
------------------------------------------------------------------------
insert line item number insert country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
(ii) The Offeror certifies that the following supplies qualify as NAFTA country end products:
------------------------------------------------------------------------
insert line item number insert country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
(iii) The following supplies are other foreign end products:
------------------------------------------------------------------------
insert line item number insert country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
(End of provision)
ALTERNATE I (MAR 1998)
As prescribed in 225.408(a)(v)(B)(2), substitute the phrase ``Canadian end product'' for the phrase ``NAFTA country end product'' in paragraph (a); and substitute the phrase ``Canadian end products'' for the phrase ``NAFTA country end products'' in paragraphs (b) and (c)(2)(ii) of the basic clause.
252.225-7036 Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program
As prescribed in 225.408(a)(vi), use the following clause:
BUY AMERICAN ACT-- NORTH AMERICAN FREE TRADE AGREEMENT IMPLEMENTATION ACT-- BALANCE OF PAYMENTS PROBRAM (MAR 1998)
(a) Definitions.
As used in this clause--
(1) Components means those articles, materials, and supplies directly incorporated into end products.
(2) Domestic end product means--
(i) An unmanufactured end product that has been mined or produced in the United States; or
(ii) An end product manufactured in the United States if the cost of its qualifying countrycomponents and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components shall include transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate may be issued). A component shall be considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind--
(A) Determined to be not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality; or
(B) That the Secretary concerned determines would be inconsistent with the public interest to apply the restrictions of the Buy American Act.
(3) End product means those articles, materials, and supplies to be acquired for public use under the contract. For this contract, the end products are the line items to be delivered to the Government (including supplies to be acquired by the Government for public use in connection with service contracts, but excluding installation and other services to be performed after delivery).
(4) Foreign end product means an end product other than a domestic end product.
(5) North American Free Trade Agreement (NAFTA) country means Canada or Mexico.
(6) NAFTA country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a NAFTA country; or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a NAFTA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(7) Qualifying country means any country set forth in subsection 225.872-1 of the Defense Federal Acquisition Regulation Supplement.
(8) Qualifying country component means an item mined, produced, or manufactured in a qualifying country.
(9) Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if the cost of the components mined, produced, or manufactured in the qualifying country and its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components.
(b) Unless otherwise specified, the North American Free Trade Agreement Implementation Act of 1993 (19 U.S.C. 3301 note) applies to all items in the Schedule.
(c) The Contractor agrees to deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country, NAFTA country, or other foreign end products in the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate provision of the solicitation. An offer certifying that a qualifying country end product or a NAFTA country end product will be supplied requires the Contractor to supply a qualifying country end product or a NAFTA country end product, whichever is certified, or, at the Contractor's option, a domestic end product.
(d) The offered price of qualifying country end products, or NAFTA country end products for line items subject to the North American Free Trade Agreement Implementation Act, should not include custom fees or duty. The offered price of foreign end products listed in paragraph (c)(2)(iii) of theBuy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate provision of the solicitation, or the offered price of domestic end products that contain nonqualifying country components, must include all applicable duty. The award price will not include duty for end products or components that are to be accorded duty-free entry. Generally, each foreign end product listed in paragraph (c)(2)(iii) of the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate provision of the solicitation is adjusted for the purpose of evaluation by adding 50 percent of the offered price, inclusive of duty.
(End of clause)
ALTERNATE 1 (MAR 1998)
As prescribed in 225.408(A)(vi)(B)(2), substitute the following paragraphs (a)(4), (c), and (d) for paragraphs (a)(4), (c), and (d) of the basic clause
(a)(4) "Canadian end product," means an article that--
(i) Is wholly the growth, product, or manufacture of Canada; or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in Canada into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it so was so transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed that of the product itself.
(c) The Contractor agrees to deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country, Canadian, or other foreign end products in the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate provision of the solicitation. An offer certifying that a qualifying country end product or a Canadian end product will be supplied requires the Contractor to supply a qualifying country end product or a Canadian end product, whichever is certified, or, at the Contractor's option, a domestic end product.
(d) The offered price of qualifying country end products, or Canadian end products for line items subject to the North American Free Trade Agreement Implementation Act, should not include custom fees or duty. The offered price of foreign end products listed in paragraph (c)(2)(iii) of the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate provision of the solicitation, or the offered price of domestic end products that contain nonqualifying country components, must include all applicable duty. The award price will not include duty for end products or components that are to be accorded duty- free entry. Generally, each foreign end product listed in paragraph (c)(2)(iii) of the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program Certificate provision of the solicitation is adjusted for the purpose of evaluation by adding 50 percent of the offered price, inclusive of duty.
252.225-7037Duty-Free Entry--Eligible End Products.
As prescribed in 225.605-70(b), use the following clause:
DUTY-FREE ENTRY--ELIGIBLE END PRODUCTS (Mar 1998)
(a) Definition.
Eligible end product, as used in this clause, means--
(1) Designated country end product, Caribbean Basin country end product, or NAFTA country end product, as defined in the Trade Agreements clause of this contract;
(2) NAFTA country end product, as defined in the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program clause of this contract; or
(3) Canadian end product, as defined in Alternate I of the Buy American Act--North American Free Trade Agreement Implementation Act--Balance of Payments Program clause of this contract.
(b) The requirements of this clause apply to this contract and subcontracts, including purchase orders, that involve delivery of eligible end products to be accorded duty-free entry whether placed--
(1) Directly with a foreign concern as a prime contract; or
(2) As a subcontract or purchase order under a contract with a domestic concern.
(c) Except as otherwise approved by the Contracting Officer, no amount is or will be included in the contract price for duty for eligible end products.
(d) The Contractor warrants that--
(1) All eligible end products, for which duty-free entry is to be claimed under this clause, are intended to be delivered to the Government; and
(2) The Contractor will pay any applicable duty to the extent that such eligible end products, or any portion thereof (if not scrap or salvage) are diverted to nongovernmental use, other than as a result of a competitive sale made, directed, or authorized by the Contracting Officer.
(e) The Government agrees to execute duty-free certificates and to afford such assistance as appropriate to obtain the duty-free entry of eligible end products for which the shipping documents bear the notation specified in paragraph (f) of this clause, except as the Contractor may otherwise agree.
(f) All shipping documents submitted to Customs, covering eligible end products for which duty-free entry certificates are to be issued under this clause, shall--
(1) Consign the shipments to the appropriate--
(i) Military department in care of the Contractor, including the Contractor's delivery address; or
(ii) Military installation; and
(2) Include the following information--
(i) Prime contract number, and delivery order if applicable;
(ii) Number of the subcontract/purchase order for foreign supplies if applicable;
(iii) Identification of carrier;
(iv)(A) For direct shipments to a U.S. military installation, the notation: UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE Duty-Free Entry to be claimed pursuant to Section XXII, Chapter 98, Subchapter VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of the United States. Upon arrival of shipment at the appropriate port of entry, District Director of Customs, please release shipment under 19 CFR part 142, and notify Commander, Defense Contract Management Command (DCMC) New York, ATTN: Customs Team, DCMDN-GNIC, 207 New York Avenue, Staten Island, New York 10305-5013, for execution of Customs Forms 7501, 7501A, or 7506 and any required duty-free entry certificates.
(B) In cases where the shipment will be consigned to other than a military installation, e.g., a domestic contractor's plant, the shipping document notation shall be altered to insert the name and address of the contractor, agent or broker who will notify Commander, DCMC, NY, for execution of the duty-free certificate. (Note: In those instances where the shipment will be consigned to a contractor's plant and no duty-free entry certificate is required, the contractor or its agent shall claim duty-free entry under NAFTA or other trade agreement and shall comply with the U.S. Customs Service requirements. No notification to Commander, CDMC, NY, is required.
(v) Gross weight in pounds (if freight is based on space tonnage, state cubic feet in addition to gross shipping weight);
(vi) Estimated value in U.S. dollars; and
(vii) Activity Address Number of the contract administration office actually administering the prime contract, e.g., for DCMC Dayton, S3605A.
(g) Preparation of customs forms.
(1) Except for shipments consigned to a military installation, the Contractor shall prepare, or authorize an agent to prepare, any customs forms required for the entry of eligible end products in connection with DoD contracts into the United States, its possessions, or Puerto Rico. The completed customs forms shall be submitted to the District Director of Customs with a copy to DCMC NY for execution of any required duty-free entry certificates. Shipments consigned directly to a military installation will be released in accordance with 10.101 and 10.102 of the U.S. Customs regulations.
(2) For shipments containing both supplies that are to be accorded duty-free entry and supplies that are not, the Contractor shall identify on the customs forms those items that are eligible for duty-free entry.
(h) The Contractor agrees--
(1) To prepare (if this contract is placed directly with a foreign supplier), or to instruct the foreign supplier to prepare, a sufficient number of copies, of the bill of lading (or other shipping document) so that at least two of the copies accompanying the shipment will be available for use by the District Director of Customs at the port of entry;
(2) To consign the shipment as specified in paragraph (f) of this clause; and
(3) To mark the exterior of all packages as follows:
(i) UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE;'' and
(ii) The activity address number of the contract administration office actually administering the prime contract.
(i) The Contractor agrees to notify the Contracting Officer administering the prime contract in writing of any purchase under the contract of eligible end products to be accorded duty-free entry that are to be imported into the United States for delivery to the Government or for incorporation in end items to be delivered to the Government. The notice shall be furnished to the contract administration office immediately upon award to the supplier of the eligible end products. The notice shall contain--
(1) Prime contractor's name, address, and CAGE code;
(2) Prime contract number, and delivery order number if applicable;
(3) Total dollar value of the prime contract or delivery order;
(4) Expiration date of the prime contract or delivery order;
(5) Foreign supplier's name and address;
(6) Number of the subcontract/purchase order for eligible end products;
(7) Total dollar value of the subcontract for eligible end products;
(8) Expiration date of the subcontract for eligible end products;
(9) List of items purchased;
(10) An agreement by the Contractor that any applicable duty shall be paid by the Contractor to the extent that such eligible end products are diverted to nongovernmental use other than as a result of a competitive sale made, directed, or authorized by the Contracting Officer; and
(11) The scheduled delivery date(s).
(End of clause)
252.225-7038 Restriction on Acquisition of Aircraft Fuel Cells.
As prescribed in 225.7021-3, use the following clause:
RESTRICTION ON ACQUISITION OF AIRCRAFT FUEL CELLS (MAR 1994)
The Contractor agrees that all aircraft fuel cells furnished under this contract have been produced or manufactured in the United States by a domestic-operated entity.
(End of clause)
252.225-7039 Restriction on Acquisition of Totally Enclosed Lifeboat Survival Systems.
As prescribed in 225.7022-4, use the following clause:
RESTRICTION ON ACQUISITION OF TOTALLY ENCLOSED LIFEBOAT SURVIVAL
SYSTEMS (APR 1996)
For totally enclosed lifeboat systems furnished under this contract, which consist of lifeboat and associated davits and winches, the Contractor agrees that--
(a) 50 percent or more of the components have been manufactured in the United States; and
(b) 50 percent or more of the labor in the manufacture and assembly of the entire system has been performed in the United States.
(End of clause)
252.225-7041 Correspondence in English.
As prescribed in 225.971, use the following clause:
CORRESPONDENCE IN ENGLISH (JUN 1997)
The Contractor shall ensure that all contract correspondence that is addressed to the United States Government is submitted in English or with an English translation.
(End of clause)
252.225-7042 Authorization to perform.
As prescribed in 225.97, use the following clause:
AUTHORIZATION TO PERFORM (JUN 1997)
The Contractor represents that it has been duly authorized to operate and to do business in the country or countries in which this contract is to be performed. The Contractor also represents that it will fully comply with all laws, decrees, labor standards, and regulations of such country or countries, during the performance of this contract.
(End of clause)
[Added per DFARS Case 96-D016, D.L. 98-011 , effective 11 June 1998]
[
252.225-7043 Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States.
As prescribed in 225.7402, use the following clause:
ANTITERRORISM/FORCE PROTECTION POLICY FOR DEFENSE CONTRACTORS OUTSIDE THE UNITED STATES (JUN 1998)
(a) Except as provided in paragraph (b) of this clause, the Contractor and its subcontractors, if performing or traveling outside the United States under this contract, shall--
(1) Affiliate with the Overseas Security Advisory Council, if the Contractor or subcontractor is a U.S. entity;
(2) Ensure that Contractor and subcontractor personnel who are U.S. nationals and are in-country on a non-transitory basis, register with the U.S. Embassy, and that Contractor and subcontractor personnel who are third country nationals comply with any security related requirements of the Embassy of their nationality;
(3) Provide, to Contractor and subcontractor personnel, antiterrorism/force protection awareness information commensurate with that which the Department of Defense (DoD)provides to its military and civilian personnel and their families, to the extent such information can be made available prior to travel outside the United States; and
(4) Obtain and comply with the most current antiterrorism/force protection guidance for Contractor and subcontractor personnel.
(b) The requirements of this clause do not apply to any subcontractor that is--
(1) A foreign government;
(2) A representative of a foreign government; or
(3) A foreign corporation wholly owned by a foreign government.
(c) Information and guidance pertaining to DoD antiterrorism/ force protection can be obtained from Contracting Officer to insert applicable information cited in 225.7401.
(End of clause)]
252.226-7000 Notice of Historically Black College or University and Minority Institution Set-Aside.
As prescribed in 226.7008(a), use the following clause:
NOTICE OF HISTORICALLY BLACK COLLEGE OR UNIVERSITY AND MINORITY
INSTITUTION SET-ASIDE (APR 1994)
(a) Definitions.
"Historically black colleges and universities," as used in this clause, means institutions determined by the Secretary of Education to meet the requirements of 34 CFR Section 608.2. The term also means any nonprofit research institution that was an integral part of such a college or university before November 14, 1986.
"Minority institutions," as used in this clause, means institutions meeting the requirements of Section 1046(3) of the Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)). The term also includes Hispanic-serving institutions as defined in Section 316(b)(1) of such Act (20 U.S.C. 1059c(b)(1)).
(b) General.
(1) Offers are solicited only from historically black colleges or universities and minority institutions.
(2) Any award resulting from this solicitation will be made only to an offeror which is a historically black college or university or a minority institution both at the time of submission of its initial offer including price.
(c) Agreements.
The offeror will--
(1) Perform at least 50 percent of the cost of contract performance incurred for personnel with its own employees; and
(2) Upon request by the Contracting Officer, provide evidence prior to award that the Secretary of Education has determined the offeror to be a historically black college or university or minority institution.
(End of clause)
252.226-7001 Historically Black College or University and Minority Institution Status.
As prescribed in 226.7008(b), use the following provision:
HISTORICALLY BLACK COLLEGE OR UNIVERSITY AND MINORITY
INSTITUTION STATUS (JAN 1997)
(a) Definitions.
"Historically black colleges and universities," as used in this provision, means institutionsdetermined by the Secretary of Education to meet the requirements of 34 CFR Section 608.2. The term also means any nonprofit research institution that was an integral part of such a college or university before November 14, 1986.
"Minority institutions," as used in this provision, means institutions meeting the requirements of Section 1046(3) of the Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)). The term also includes Hispanic-serving institutions as defined in Section 316(b)(1) of such Act (20 U.S.C. 1059c(b)(1)).
(b) Status.
If applicable, the offeror shall check the appropriate space below:
A historically black college or university
A minority institution
(End of provision)
252.227-7000 Non-Estoppel.
As prescribed at 227.7009-1, insert the following clause in patent releases, license agreements, and assignments:
NON-ESTOPPEL (OCT 1966)
The Government reserves the right at any time to contest the enforceability, validity, scope of, or the title to any patent or patent application herein licensed without waiving or forfeiting any right under this contract.
(End of clause)
252.227-7001 Release of Past Infringement.
As prescribed at 227.7009-2(a), insert the following clause in patent releases, license agreements, and assignments:
RELEASE OF PAST INFRINGEMENT (AUG 1984)
The Contractor hereby releases each and every claim and demand which he now has or may hereafter have against the Government for the manufacture or use by or for the Government prior to the effective date of this contract, of any inventions covered by (i) any of the patents and applications for patent identified in this contract, and (ii) any other patent or application for patent owned or hereafter acquired by him, insofar as and only to the extent that such other patent or patent application covers the manufacture, use, or disposition of (description of subject matter). *
(End of clause)
*Bracketed portions of the clause may be omitted when not appropriate or not encompassed by the release as negotiated.
252.227-7002 Readjustment of Payments.
As prescribed at 227.7009-2(b), insert the following clause in patent releases, license agreements, and assignments:
READJUSTMENT OF PAYMENTS (OCT 1966)
(a) If any license, under substantially the same patents and authorizing substantially the same acts which are authorized under this contract, has been or shall hereafter be granted within the United States, on royalty terms which are more favorable to the licensee than those contained herein, the Governmentshall be entitled to the benefit of such more favorable terms with respect to all royalties accruing under this contract after the date such more favorable terms become effective, and the Contractor shall promptly notify the Secretary in writing of the granting of such more favorable terms.
(b) In the event any claim of any patent hereby licensed is construed or held invalid by decision of a court of competent jurisdiction, the requirement to pay royalties under this contract insofar as its arises solely by reason of such claim, and any other claim not materially different therefrom, shall be interpreted in conformity with the court's decision as to the scope of validity of such claims; Provided, however, that in the event such decision is modified or reversed on appeal, the requirement to pay royalties under this contract shall be interpreted in conformity with the final decision rendered on such appeal.
(End of clause)
252.227-7003 Termination.
As prescribed at 227.7009-2(c), insert the following clause in patent releases, license agreements, and assignments:
TERMINATION (AUG 1984)
Notwithstanding any other provision of this contract, the Government shall have the right to terminate the within license, in whole or in part, by giving the Contractor not less than thirty (30) days notice in writing of the date such termination is to be effective; provided, however, that such termination shall not affect the obligation of the Government to pay royalties which have accrued prior to the effective date of such termination.
(End of clause)
252.227-7004 License Grant.
As prescribed at 227.7009-3(a), insert the following clause in patent releases, license agreements, and assignments:
LICENSE GRANT (AUG 1984)
(a) The Contractor hereby grants to the Government an irrevocable, nonexclusive, nontransferable, and paid up license under the following patents, applications for patent, and any patents granted on such applications, and under any patents which may issue as the result of any reissue, division or continuation thereof, to practice by or cause to be practiced for the Government throughout the world, any and all of the inventions thereunder, in the manufacture and use of any article or material, in the use of any method or process, and in the disposition of any article or material in accordance with law:
U.S. Patent No Date
Application Serial No Filing Date
together with corresponding foreign patents and foreign applications for patents, insofar as the Contractor has the right to grant licenses thereunder without incurring an obligation to pay royalties or other compensation to others solely on account of such grant.
(b) No rights are granted or implied by the agreement under any other patents other than as provided above or by operation of law.
(c) Nothing contained herein shall limit any rights which the Government may have obtained by virtue of prior contracts or by operation of law or otherwise.
(End of clause)
252.227-7005 License Term.
As prescribed at 227.7009-3(b), insert one of the following clauses in patent releases, licenseagreements, and assignments:
LICENSE TERM (AUG 1984)
ALTERNATE I (AUG 1984)
The license hereby granted shall remain in full force and effect for the full term of each of the patents referred to in the "License Grant" clause of this contract and any and all patents hereafter issued on applications for patent referred to in such "License Grant" clause.
ALTERNATE II (AUG 1984)
The license hereby granted shall terminate on the ______day of _________ 19____; Provided, however, that said termination shall be without prejudice to the completion of any contract entered into by the Government prior to said date of termination or to the use or disposition thereafter of any articles or materials manufactured by or for the Government under this license.
252.227-7006 License Grant - Running Royalty.
As prescribed at 227.7009-4(a), insert the following clause in patent releases, license agreements, and assignments:
LICENSE GRANT - RUNNING ROYALTY (AUG 1984)
(a) The Contractor hereby grants to the Government, as represented by the Secretary of ................., an irrevocable, nonexclusive, nontransferable license under the following patents, applications for patent, and any patents granted on such applications, and under any patents which may issue as the result of any reissue, division, or continuation thereunder to practice by or cause to be practiced for the Department of ................., throughout the world, any and all of the inventions thereunder in the manufacture and use of any article or material, in the use of any method or process, and in the disposition of any article or material in accordance with law:
U.S. Patent No. ..................... Date ..................
Application Serial No. .............. Filing Date.........
together with corresponding foreign patents and foreign applications for patent, insofar as the Contractor has the right to grant licenses thereunder without incurring an obligation to pay royalties or other compensation to others solely on account of such grant.
(b) No rights are granted or implied by the agreement under any other patents other than as provided above or by operation of law.
(c) Nothing contained herein shall limit any rights which the Government may have obtained by virtue of prior contracts or by operation of law or otherwise.
(End of clause)
252.227-7007 License Term - Running Royalty.
As prescribed at 227.7009-4(b), insert the following clause in patent releases, license agreements, and assignments:
LICENSE TERM - RUNNING ROYALTY (AUG 1984)
The license hereby granted shall remain in full force and effect for the full term of each of the patents referred to in the "License Grant" clause of this contract and any and all patents hereafter issued on applications for patent referred to above unless sooner terminated as elsewhere herein provided.
(End of clause)
252.227-7008 Computation of Royalties.
As prescribed at 227.7009-4(c), insert the following clause in patent releases, license agreements, and assignments:
COMPUTATION OF ROYALTIES (AUG 1984)
Subject to the conditions hereinafter stated, royalties shall accrue to the Contractor under this agreement on all articles or materials embodying, or manufactured by the use of, any or all inventions claimed under any unexpired United States patent licensed herein, upon acceptance thereof by the Department of ..............., at the rate of ..... percent of the net selling price of such articles or materials (amount) per (name of item) * whether manufactured by the Government or procured under a fixed price contract, and at the rate of (amount) per (name of item) acquired or manufactured by a Contractor performing under a cost-reimbursement contract. With respect to such articles or materials made by the Department of ............, "net selling price," as used in this paragraph, means the actual cost of direct labor and materials without allowance for overhead and supervision.
(End of clause)
*Use bracketed matter as appropriate.
252.227-7009 Reporting and Payment of Royalties.
As prescribed at 227.7009-4(d), insert the following clause in patent releases, license agreements, and assignments:
REPORTING AND PAYMENT OF ROYALTIES (AUG 1984)
(a) The (procuring office) shall, on or before the sixtieth (60th) day next following the end of each yearly* period ending ...........during which royalties have accrued under this license, deliver to the Contractor, subject to military security regulations, a report in writing furnishing necessary information relative to royalties which have accrued under this contract.
(b) Royalties which have accrued under this contract during the yearly* period ending ............ shall be paid to the Contractor (if appropriations therefor are available or become available) within sixty (60) days next following the receipt of a voucher from the Contractor submitted in accordance with the report referred to in (a) of this clause; Provided, that the Government shall not be obligated to pay, in respect of any such yearly period, on account of the combined royalties accruing under this contract directly and under any separate licenses granted pursuant to the "License to Other Government Agencies" clause (if any) of this contract, an amount greater than ........... dollars ($..........), and if such combined royalties exceed the said maximum yearly obligation, each department or agency shall pay a pro rata share of the said maximum yearly obligation as determined by the proportion its accrued royalties bear to the combined total of accrued royalties.
(End of clause)
*The frequency, date, and length of reporting periods should be selected as appropriate to the particular circumstances of the contract.
252.227-7010 License to Other Government Agencies.
As prescribed at 227.7009-4(e), insert the following clause in patent releases, license agreements, and assignments:
LICENSE TO OTHER GOVERNMENT AGENCIES (AUG 1984)
The Contractor hereby agrees to grant a separate license under the patents, applications for patents, and improvements referred to in the "License Grant" clause of this contract, on the same terms and conditions as appear in this license contract, to any other department or agency of the Government at any time on receipt of a written request for such a license from such department or agency; Provided, however, that as to royalties which accrue under such separate licenses, reports and payments shall be made directly to the Contractor by each such other department or agency pursuant to the terms of such separate licenses. The Contractor shall notify the Licensee hereunder promptly upon receipt of any request for license hereunder.
(End of clause)
252.227-7011 Assignments.
As prescribed at 227.7010, insert the following clause in assignments.
ASSIGNMENT (AUG 1984)
The Contractor hereby conveys to the Government, as represented by the Secretary of ............, the entire right, title, and interest in and to the following patents (and applications for patent), in and to the inventions thereof, and in and to all claims and demands whatsoever for infringement thereof heretofore accrued, the same to be held and enjoyed by the Government through its duly appointed representatives to the full end of the term of said patents (and to the full end of the terms of all patents which may be granted upon said applications for patent, or upon any division, continuation- in-part or continuation thereof):
U.S. Patent No.....................Date.......................
Name of Inventor..............................................
U.S .Application Serial No.........Filing Date...............
Name of Inventor ............................................
together with corresponding foreign patents and applications for patent insofar as the Contractor has the right to assign the same.
(End of clause)
252.227-7012 Patent License and Release Contract.
As prescribed at 227.7012, insert the following clause in patent releases, license agreements, and assignments:
..................(Contract No.)
PATENT LICENSE AND RELEASE CONTRACT (AUG 1984)
THIS CONTRACT is effective as of the ____ day of .............. 19___, between the UNITED STATES OF AMERICA (hereinafter called the Government), and ................ (hereinafter called the Contractor), a corporation organized and existing under the laws of the State of .................), (a partnership consisting of ...................), (an individual trading as .................) , of the City of ................., in the State of ...................... .
WHEREAS, Contractor warrants that he has the right to grant the within license and release, and the Government desires to procure the same, and
WHEREAS, this contract is authorized by law, including 10 U.S.C. 2386.
NOW THEREFORE, in consideration of the grant, release and agreements hereinafter recited, the parties have agreed as follows:
ARTICLE l. License Grant.*
(Insert the clause at 252.227-7004 for a paid up license, or the clause at 252.227-7006 for a license on a running royalty basis.)
ARTICLE 2. License Term.*
(Insert the appropriate alternative clause at 252.227-7005 for a paid up license, or the clause at 252.227-7007 for a license on a running royalty basis.)
ARTICLE 3. Release of Past Infringement.
(Insert the clause at 252.227-7001.)
ARTICLE 4. Non-Estoppel.
(Insert the clause at 252.227-7000.)
ARTICLE 5. Payment.
The Contractor shall be paid the sum of .......... Dollars ($...........) in full compensation for the rights herein granted and agreed to be granted. (For a license on a running royalty basis, insert the clause at 252.227-7006 in accordance with the instructions therein, and also the clause as specified at 252.227-7002 and 252.227-7009 and 252.227-7010.)
ARTICLE 6. Officials Not to Benefit.
(Insert the clause at FAR 52.203-1.)
ARTICLE 7. Covenant Against Contingent Fees.
(Insert the clause at FAR 52.203-5.)
ARTICLE 8. Assignment of Claims.
(Insert the clause at FAR 52.232-23.)
ARTICLE 9. Gratuities.
(Insert the clause at FAR 52.203-3.)
ARTICLE 10. Disputes.
(Insert the clause at FAR 52.233-1.)
ARTICLE 11. Successors and Assignees.
This Agreement shall be binding upon the Contractor, his successors** and assignees, but nothing contained in this Article shall authorize an assignment of any claim against the Government otherwise than as permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this contract.
THE UNITED STATES OF AMERICA
By.........................
Date........................
(Signature and Title of Contractor)............
By.........................
Date........................
*If only a release is procured, delete this article; if an assignment is procured, use the clause at 252.227-7011.
**When the Contractor is an individual, change "successors" to "heirs"; if a partnership, modify appropriately.
(End of clause)
252.227-7013 Rights in Technical Data--Noncommercial Items.
As prescribed at 227.7103-6(a), use the following clause:
RIGHTS IN TECHNICAL DATA--NONCOMMERCIAL ITEMS (NOV 1995)
(a) Definitions.
As use in this clause:
(1) "Computer data base" means a collection of data recorded in a form capable of being processed by a computer. The term does not include computer software.
(2) "Computer program" means a set of instructions, rules, or routines recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.
(3) "Computer software" means computer programs, source code, source code listings,objectcod listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation.
(4) "Computer software documentation" means owner's manuals, user's manuals, installationinstructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.
(5) "Detailed manufacturing or process data" means technical data that describe the steps, sequences, and conditions of manufacturing, processing or assembly used by the manufacturer to produce an item or component or to perform a process.
(6) "Developed" means that an item, component, or process exists and is workable. Thus, the item or component must have been constructed or the process practiced. Workability is generally established when the item, component, or process has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. To be considered "developed," the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component, or process be actually reduced to practice within the meaning of Title 35 of the United States Code.
(7) "Developed exclusively at private expense" means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract, or any combination thereof.
(i) Private expense determinations should be made at the lowest practicable level.
(ii) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.
(8) "Developed exclusively with government funds" means development was not accomplished exclusively or partially at private expense.
(9) "Developed with mixed funding" means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.
(10) "Form, fit, and function data" means technical data that describes the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.
(11) "Government purpose" means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations, or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so.
(12) "Government purpose rights" means the rights to--
(i) Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and
(ii) Release or disclose technical data outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for United States government purposes.
(13) "Limited rights" means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government mayreproduce, release or disclose such data or authorize the use or reproduction of the data by persons outside the Government if reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the Government and is required for evaluational or informational purposes;
(iii) Subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and
(iv) The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.
(14) "Technical data" means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.
(15) "Unlimited rights" means rights to use, modify, reproduce, perform, display, release, or disclose technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.
(b) Rights in technical data.
The Contractor grants or shall obtain for the Government the following royalty free, world-wide, nonexclusive, irrevocable license rights in technical data other than computer software documentation (see the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause of this contract for rights in computer software documentation):
(1) Unlimited rights.
The Government shall have unlimited rights in technical data that are--
(i) Data pertaining to an item, component, or process which has been or will be developed exclusively with Government funds;
(ii) Studies, analyses, test data, or similar data produced for this contract, when the study, analysis, test, or similar work was specified as an element of performance;
(iii) Created exclusively with Government funds in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes;
(iv) Form, fit, and function data;
(v) Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data);
(vi) Corrections or changes to technical data furnished to the Contractor by the Government;
(vii) Otherwise publicly available or have been released or disclosed by the Contractor or subcontractor without restrictions on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data to another party or the sale or transfer of some or all of a business entity or its assets to another party;
(viii) Data in which the Government has obtained unlimited rights under another Government contract or as a result of negotiations; or
(ix) Data furnished to the Government, under this or any other Government contract or subcontract thereunder, with--
(A) Government purpose license rights or limited rights and the restrictive condition(s) has/have expired; or
(B) Government purpose rights and the Contractor's exclusive right to use such data for commercial purposes has expired.
(2) Government purpose rights.
(i) The Government shall have government purpose rights for a five-year period, or such other period as may be negotiated, in technical data--
(A) That pertain to items, components, or processes developed with mixed funding except when the Government is entitled to unlimited rights in such data as provided in paragraphs (b)(ii) and (b)(iv) through (b)(ix) of this clause; or
(B) Created with mixed funding in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes.
(ii) The five-year period, or such other period as may have been negotiated, shall commence upon execution of the contract, subcontract, letter contract (or similar contractual instrument), contract modification, or option exercise that required development of the items, components, or processes or creation of the data described in paragraph (b)(2)(i)(B) of this clause. Upon expiration of the five-year or other negotiated period, the Government shall have unlimited rights in the technical data.
(iii) The Government shall not release or disclose technical data in which it has government purpose rights unless--
(A) Prior to release or disclosure, the intended recipient is subject to the non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS); or
(B) The recipient is a Government contractor receiving access to the data for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.
(iv) The Contractor has the exclusive right, including the right to license others, to use technical data in which the Government has obtained government purpose rights under this contract for any commercial purpose during the time period specified in the government purpose rights legend prescribed in paragraph (f)(2) of this clause.
(3) Limited rights.
(i) Except as provided in paragraphs (b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix) of this clause, the Government shall have limited rights in technical data--
(A) Pertaining to items, components, or processes developed exclusively at private expense and marked with the limited rights legend prescribed in paragraph (f) of this clause; or
(B) Created exclusively at private expense in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes.
(ii) The Government shall require a recipient of limited rights data for emergency repair or overhaul to destroy the data and all copies in its possession promptly following completion of the emergency repair/overhaul and to notify the Contractor that the data have been destroyed.
(iii) The Contractor, its subcontractors, and suppliers are not required to provide the Government additional rights to use, modify, reproduce, release, perform, display, or disclose technical data furnished to the Government with limited rights. However, if the Government desires to obtain additional rights in technical data in which it has limited rights, the Contractor agrees to promptly enter into negotiations with the Contracting Officer to determine whether there are acceptable terms for transferring such rights. All technical data in which the Contractor has granted the Government additional rights shall be listed or described in a license agreement made part of the contract. The license shallenumerate the additional rights granted the Government in such data.
(4) Specifically negotiated license rights.
The standard license rights granted to the Government under paragraphs (b)(1) through (b)(3) of this clause, including the period during which the Government shall have government purpose rights in technical data, may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights than are enumerated in paragraph (a)(13) of this clause. Any rights so negotiated shall be identified in a license agreement made part of this contract.
(5) Prior government rights.
Technical data that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.
(6) Release from liability.
The Contractor agrees to release the Government from liability for any release or disclosure of technical data made in accordance with paragraph (a)(13) or (b)(2)(iii) of this clause, in accordance with the terms of a license negotiated under paragraph (b)(4) of this clause, or by others to whom the recipient has released or disclosed the data and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor data marked with restrictive legends.
(c) Contractor rights in technical data.
All rights not granted to the Government are retained by the Contractor.
(d) Third party copyrighted data.
The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted data in the technical data to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data of the appropriate scope set forth in paragraph (b) of this clause, and has affixed a statement of the license or licenses obtained on behalf of the Government and other persons to the data transmittal document.
(e) Identification and delivery of data to be furnished with restrictions on use, release, or disclosure.
(1) This paragraph does not apply to restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause, technical data that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure are identified in an attachment to this contract (the Attachment). The Contractor shall not deliver any data with restrictive markings unless the data are listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision. Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled date for delivery of the data, in the following format, and signed by an official authorized to contractually obligate the Contractor:
Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Technical Data.
The Contractor asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data should be restricted--
Technical data to be Furnished With Restrictions* |
Basis for Assertion** |
Asserted Rights Category*** |
Name of Person Asserting Restrictions
|
(LIST) |
(LIST) |
(LIST) |
(LIST) |
*If the assertion is applicable to items, components or processes developed at private expense, identify both the data and each such item, component, or process.
** Generally, the development of an item, component, or process at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose technical data pertaining to such items, components, or processes. Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.
*** Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract, limited or government purpose rights under this or a prior contract, or specifically negotiated licenses).
**** Corporation, individual, or other person, as appropriate.
Date ______________________________
Printed Name and Title ______________________________
______________________________
Signature ______________________________
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate the Contractor's assertions. The Contracting Officer reserves the right to add the Contractor's assertions to the Attachment and validate any listed assertion, at a later date, in accordance with the procedures of the Validation of Restrictive Markings on Technical Data clause of this contract.
(f) Marking requirements.
The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data to be delivered under this contract by marking the deliverable data subject to restriction. Except as provided in paragraph (f)(5) of this clause, only the following legends are authorized under this contract: the government purpose rights legend at paragraph (f)(2) of this clause; the limited rights legend at paragraph (f)(3) of this clause; or the special license rights legend at paragraph (f)(4) of this clause; and/or a notice of copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions.
The Contractor, or its subcontractors or suppliers, shall conspicuously and legibly mark the appropriate legend on all technical data that qualify for such markings. The authorized legends shall be placed on the transmittal document or storage container and, for printed material, each page of the printed material containing technical data for which restrictions are asserted. When only portions of a page of printed material are subject to the asserted restrictions, such portions shall be identified by circling, underscoring, with a note, or other appropriate identifier. Technical data transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions.Reproductions of technical data or any portions thereof subject to asserted restrictions shall also reproduce the asserted restrictions.
(2) Government purpose rights markings.
Data delivered or otherwise furnished to the Government purpose rights shall be marked as follows:
GOVERNMENT PROPOSED RIGHTS
Contract No._____________________________
Contractor Name__________________________
Contractor Address_______________________
_______________________________________
Expiration Date__________________________
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(2) of the Rights in Technical Data--Noncommercial Items clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.
(End of legend)
(3) Limited rights markings.
Data delivered or otherwise furnished to the Government with limited rights shall be marked with the following legend:
LIMITED RIGHTS
Contract No._______________________________
ContractorName____________________________
Contractor Address_________________________
___________________________________________
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(3) of the Rights in Technical Data--Noncommercial Items clause contained in the above identified contract. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.
(End of legend)
(4) Special license rights markings.
(i) Data in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:
SPECIAL LICENSE RIGHTS
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these data are restricted by Contract No. ________________ (Insert contract number) ________________, License No. ________________ (Insert license identifier) _______________. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (b)(5) of this clause).
(5) Pre-existing data markings.
If the terms of a prior contract or license permitted the Contractor to restrict the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data deliverable under this contract, and those restrictions are still applicable, the Contractor may mark such data with the appropriate restrictive legend for which the data qualified under the prior contract or license. The marking procedures in paragraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records.
Throughout performance of this contract, the Contractor and its subcontractors or suppliers that will deliver technical data with other than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any restrictive markings on technical data delivered under this contract.
(h) Removal of unjustified and nonconforming markings.
(1) Unjustified technical data markings.
The rights and obligations of the parties regarding the validation of restrictive markings on technical data furnished or to be furnished under this contract are contained in the Validation of Restrictive Markings on Technical Data clause of this contract. Notwithstanding any provision of this contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the procedures in the Validation of Restrictive Markings on Technical Data clause of this contract, a restrictive marking is determined to be unjustified.
(2) Nonconforming technical data markings.
A nonconforming marking is a marking placed on technical data delivered or otherwise furnished to the Government under this contract that is not in the format authorized by this contract. Correction of nonconforming markings is not subject to the Validation of Restrictive Markings on Technical Data clause of this contract. If the Contracting Officer notifies the Contractor of a nonconforming marking and the Contractor fails to remove or correct such marking within sixty (60) days, the Government may ignore or, at the Contractor's expense, remove or correct any nonconforming marking.
(i) Relation to patents.
Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.
(j) Limitation on charges for rights in technical data.
(1) The Contractor shall not charge to this contract any cost, including, but not limited to, license fees, royalties, or similar charges, for rights in technical data to be delivered under this contract when--
(i) The Government has acquired, by any means, the same or greater rights in the data; or
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at any tier, or costs incurred by the Contractor to acquire rights in subcontractor or supplier technical data, if the subcontractor or supplier has been paid for such rights under any other Government contract or under a license conveying the rights to the Government; and
(ii) Does not include the reasonable costs of reproducing, handling, or mailing the documentsor other media in which the technical data will be delivered.
(k) Applicability to subcontractors or suppliers.
(1) The Contractor shall ensure that the rights afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion, and delivery processes of paragraph (e) of this clause are recognized and protected.
(2) Whenever any technical data for noncommercial items is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties. No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher-tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data.
(3) Technical data required to be delivered by a subcontractor or supplier shall normally be delivered to the next higher-tier contractor, subcontractor, or supplier. However, when there is a requirement in the prime contract for data which may be submitted with other than unlimited rights by a subcontractor or supplier, then said subcontractor or supplier may fulfill its requirement by submitting such data directly to the Government, rather than through a higher-tier contractor, subcontractor, or supplier.
(4) The Contractor and higher-tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in technical data from their subcontractors or suppliers.
(5) In no event shall the Contractor use its obligation to recognize and protect subcontractor or supplier rights in technical data as an excuse for failing to satisfy its contractual obligations to the Government.
(End of clause)
ALTERNATE I (JUN 1995)
As prescribed in 227.7103-6(b), add the following paragraph (l) to the basic clause:
(l) Publication for sale.
(1) This paragraph only applies to technical data in which the Government has obtained unlimited rights or a license to make an unrestricted release of technical data.
(2) The Government shall not publish a deliverable technical data item or items identified in this contract as being subject to paragraph (l) of this clause or authorize others to publish such data on its behalf if, prior to publication for sale by the Government and within twenty-four (24) months following the date specified in this contract for delivery of such data or the removal of any national security or export control restrictions, whichever is later, the Contractor publishes that item or items for sale and promptly notifies the Contracting Officer of such publication(s). Any such publication shall include a notice identifying the number of this contract and the Government's rights in the published data.
(3) This limitation on the Government's right to publish for sale shall continue as long as the data are reasonably available to the public for purchase.
252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.
As prescribed in 227.7203-6(a)(1), use the following clause.
RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL
COMPUTER SOFTWARE DOCUMENTATION (JUN 1995)
(a) Definitions.
As used in this clause:
(1) "Commercial computer software" means software developed or regularly used for non-governmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or
(iv) Satisfies a criterion expressed in paragraph (a)(1)(i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this contract.
(2) "Computer database" means a collection of recorded data in a form capable of being processed by a computer. The term does not include computer software.
(3) "Computer program" means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.
(4) "Computer software" means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer databases or computer software documentation.
(5) "Computer software documentation" means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.
(6) "Developed" means that--
(i) A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;
(ii) Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or
(iii) Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.
(7) "Developed exclusively at private expense" means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract, or any combination thereof.
(i) Private expense determinations should be made at the lowest practicable level.
(ii) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.
(8) "Developed exclusively with government funds" means development was not accomplished exclusively or partially at private expense.
(9) "Developed with mixed funding" means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.
(10) "Government purpose" means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation for commercial purposes or authorize others to do so.
(11) "Government purpose rights" means the rights to--
(i) Use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation within the Government without restriction; and
(ii) Release or disclose computer software or computer software documentation outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the software or documentation for United States government purposes.
(12) "Minor modification" means a modification that does not significantly alter the nongovernmental function or purpose of the software or is of the type customarily provided in the commercial marketplace.
(13) "Noncommercial computer software" means software that does not qualify as commercial computer software under paragraph (a)(1) of this clause.
(14) "Restricted rights" apply only to noncommercial computer software and mean the Government's rights to--
(i) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;
(ii) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause;
(iii) Make the minimum number of copies of the computer software required forsafekeeping (archive), backup, or modification purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs (a)(14)(i) and (iii) of this clause; and
(B) Not release or disclose the modified software except as provided in paragraphs (a)(14) (ii), (v) and (vi) of this clause;
(v) Permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that--
(A) The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made;
(B) Such contractors or subcontractors are subject to the use and non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS) or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;
(C) The Government shall not permit the recipient to decompile, disassemble, or software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(14)(iv) of this clause, for any other purpose; and
(D) Such use is subject to the limitation in paragraph (a)(14)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use the computer software when necessary to perform the repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that--
(A) The intended recipient is subject to the use and non-disclosure agreement at DFARS 227.7103-7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends; and
(B) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(14)(iv) of this clause, for any other purpose.
(15) "Unlimited rights" means rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.
(b) Rights in computer software or computer software documentation.
The Contractor grants or shall obtain for the Government the following royalty free, world-wide, nonexclusive, irrevocable license rights in noncommercial computer software or computer software documentation. All rights not granted to the Government are retained by the Contractor.
(1) Unlimited rights.
The Government shall have unlimited rights in--
(i) Computer software developed exclusively with Government funds;
(ii) Computer software documentation required to be delivered under this contract;
(iii) Corrections or changes to computer software or computer software documentation furnished to the Contractor by the Government;
(iv) Computer software or computer software documentation that is otherwise publicly available or has been released or disclosed by the Contractor or subcontractor without restriction on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the software to another party or the sale or transfer of some or all of a business entity or its assets to another party;
(v) Computer software or computer software documentation obtained with unlimited rights under another Government contract or as a result of negotiations; or
(vi) Computer software or computer software documentation furnished to the Government, under this or any other Government contract or subcontract thereunder with--
(A) Restricted rights in computer software, limited rights in technical data, or government purpose license rights and the restrictive conditions have expired; or
(B) Government purpose rights and the Contractor's exclusive right to use such software or documentation for commercial purposes has expired.
(2) Government purpose rights.
(i) Except as provided in paragraph (b)(1) of this clause, the Government shall have government purpose rights in computer software development with mixed funding.
(ii) Government purpose rights shall remain in effect for a period of five years unless a different period has been negotiated. Upon expiration of the five-year or other negotiated period, the Government shall have unlimited rights in the computer software or computer software documentation. The government purpose rights period shall commence upon execution of the contract, subcontract, letter contract (or similar contractual instrument), contract modification, or option exercise that required development of the computer software.
(iii) The Government shall not release or disclose computer software in which it has government purpose rights to any other person unless--
(A) Prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at DFARS 227.7103-7; or
(B) The recipient is a Government contractor receiving access to the software or documentation for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends.
(3) Restricted rights.
(i) The Government shall have restricted rights in noncommercial computer software required to be delivered or otherwise provided to the Government under this contract that were developed exclusively at private expense.
(ii) The Contractor, its subcontractors, or suppliers are not required to provide the Government additional rights in noncommercial computer software delivered or otherwise provided to the Government with restricted rights. However, if the Government desires to obtain additional rights in such software, the Contractor agrees to promptly enter into negotiations with the Contracting Officer to determine whether there are acceptable terms for transferring such rights. All noncommercial computer software in which the Contractor has granted the Government additional rights shall be listed or described in a license agreement made part of the contract (see paragraph (b)(4) of this clause). The license shall enumerate the additional rights granted the Government.
(4) Specifically negotiated license rights.
(i) The standard license rights granted to the Government under paragraphs (b)(1) through (b)(3) of this clause, including the period during which the Government shall have government purpose rights in computer software, may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in computer software than are enumerated in paragraph (a)(14) of this clause or lesser rights in computer software documentation than are enumerated in paragraph (a)(13) of the Rights in Technical Data--Noncommercial Items clause of this contract.
(ii) Any rights so negotiated shall be identified in a license agreement made part of this contract.
(5) Prior government rights.
Computer software or computer software documentation that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.
(6) Release from liability.
The Contractor agrees to release the Government from liability for any release or disclosure of computer software made in accordance with paragraph (a)(14) or (b)(2)(iii) of this clause, in accordance with the terms of a license negotiated under paragraph (b)(4) of this clause, or by others to whom the recipient has released or disclosed the software, and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor software marked with restrictive legends.
(c) Rights in derivative computer software or computer software documentation.
The Government shall retain its rights in the unchanged portions of any computer software or computer software documentation delivered under this contract that the Contractor uses to prepare, or includes in, derivative computer software or computer software documentation.
(d) Third party copyrighted computer software or computer software documentation.
The Contractor shall not, without the written approval of the Contracting Officer, incorporate anycopyrighted computer software or computer software documentation in the software or documentation to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable software or documentation of the appropriate scope set forth in paragraph (b) of this clause, and prior to delivery of such--
(1) Computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer; or
(2) Computer software documentation, has affixed to the transmittal document a statement of the license rights obtained.
(e) Identification and delivery of computer software and computer software documentation to be furnished with restrictions on use, release, or disclosure.
(1) This paragraph does not apply to restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause, computer software that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure is identified in an attachment to this contract (the Attachment). The Contractor shall not deliver any software with restrictive markings unless the software is listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision. Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled data for delivery of the software, in the following format, and signed by an official authorized to contractually obligate the Contractor:
Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Computer Software.
The Contractor asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following computer software should be restricted:
Computer Software to be Furnished With Restrictions* |
Basis for Assertion** |
Asserted Rights Category** |
Name of Person Asserting Restrictions**** |
(LIST) |
(LIST) |
(LIST) |
(LIST) |
* Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose computer software.
** Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.
*** Enter asserted rights category (e.g., restricted or government purpose rights in computer software, government purpose license rights from a prior contract, rights in SBIR software generated under another contract, or specifically negotiated licenses).
**** Corporation, individual, or other person, as appropriate.
Date ____________________________
Printed Name and Title _____________________________
_____________________________
Signature _____________________________
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate the Contractor's assertions. The Contracting Officer reserves the right to add the Contractor's assertions to the Attachment and validate any listed assertion, at a later date, in accordance with the procedures of the Validation of Asserted Restrictions--Computer Software clause of this contract.
(f) Marking requirements.
The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software by marking the deliverable software or documentation subject to restriction. Except as provided in paragraph (f)(5) of this clause, only the following legends are authorized under this contract; the government purpose rights legend at paragraph (f)(2) of this clause; the restricted rights legend at paragraph (f)(3) of this clause; or the special license rights legend at paragraph (f)(4) of this clause; and/or a notice of copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions.
The Contractor, or its subcontractors or suppliers, shall conspicuously and legibly mark the appropriate legend on all computer software that qualify for such markings. The authorized legends shall be placed on the transmitted document or software storage container and each page, or portions thereof, of printed material containing computer software for which restrictions are asserted. Computer software transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions. However, instructions that interfere with or delay the operation of computer software in order to display a restrictive rights legend or other license statement at any time prior to or during use of the computer software, or otherwise cause such interference or delay, shall not be inserted in software that will or might be used in combat or situations that simulate combat conditions, unless the Contracting Officer's written permission to deliver such software has been obtained prior to delivery. Reproductions of computer software or any portions thereof subject to asserted restrictions, shall also reproduce the asserted restrictions.
(2) Government purpose rights markings.
Computer software delivered or otherwise furnished to the Government with government purpose rights shall be marked as follows:
GOVERNMENT PURPOSE RIGHTS
Contract No. ______________________
Contractor Name ______________________
Contractor Address ______________________
______________________
Expiration Date ______________________
The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(2) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of the software or portions thereof marked with this legend must also reproduce the markings.
(End of legend)
(3) Restricted rights markings.
Software delivered or otherwise furnished to the Government with restricted rights shall be marked with the following legend:
RESTRICTED RIGHTS
Contract No. ______________________
Contractor Name ______________________
Contractor Address______________________
______________________
The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(3) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause contained in the above identified contract. Any reproduction of computer software or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such software must promptly notify the above named Contractor.
(End of legend)
(4) Special license rights markings.
(i) Computer software or computer documentation in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:
SPECIAL LICENSE RIGHTS
The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by Contract No. ________(Insert contract number)________, License No.________(Insert license identifier)________. Any reproduction of computer software, computer software documentation, or portions thereof marked with this legend must also reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (b)(5) of this clause).
(5) Pre-existing markings.
If the terms of a prior contract or license permitted the Contractor to restrict the Government's rights to use, modify, release, perform, display, or disclose computer software or computer software documentation and those restrictions are still applicable, the Contractor may mark such software or documentation with the appropriate restrictive legend for which the software qualified under the prior contract or license. The marking procedures in paragraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records.
Throughout performance of this contract, the Contractor and its subcontractors or suppliers that will deliver computer software or computer software documentation with other than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any restrictive markings on computer software or computer software documentation delivered under this contract.
(h) Removal of unjustified and nonconforming markings.
(1) Unjustified computer software or computer software documentation markings. The rights and obligations of the parties regarding the validation of restrictive markings on computer software orcomputer software documentation furnished or to be furnished under this contract are contained in the Validation of Asserted Restrictions--Computer Software and the Validation of Restrictive Markings on Technical Data clauses of this contract, respectively. Notwithstanding any provision of this contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the procedures of those clauses, a restrictive marking is determined to be unjustified.
(2) Nonconforming computer software or computer software documentation markings. A nonconforming marking is a marking placed on computer software or computer software documentation delivered or otherwise furnished to the Government under this contract that is not in the format authorized by this contract. Correction of nonconforming markings is not subject to the Validation of Asserted Restrictions--Computer Software or the Validation of Restrictive Markings on Technical Data clause of this contract. If the Contracting Officer notifies the Contractor of a nonconforming marking or markings and the Contractor fails to remove or correct such markings within sixty (60) days, the Government may ignore or, at the Contractor's expense, remove or correct any nonconforming markings.
(i) Relation to patents.
Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.
(j) Limitation on charges for rights in computer software or computer software documentation.
(1) The Contractor shall not charge to this contract any cost, including but not limited to license fees, royalties, or similar charges, for rights in computer software or computer software documentation to be delivered under this contract when--
(i) The Government has acquired, by any means, the same or greater rights in the software or documentation; or
(ii) The software or documentation are available to the public without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at any tier, or costs incurred by the Contractor to acquire rights in subcontractor or supplier computer software or computer software documentation, if the subcontractor or supplier has been paid for such rights under any other Government contract or under a license conveying the rights to the Government; and
(ii) Does not include the reasonable costs of reproducing, handling, or mailing the documents or other media in which the software or documentation will be delivered.
(k) Applicability to subcontractors or suppliers.
(1) Whenever any noncommercial computer software or computer software documentation is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in its subcontracts or other contractual instruments, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties. No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher tier subcontractor's or supplier's rights in a subcontractor's or supplier's computer software or computer software documentation.
(2) The Contractor and higher tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in computer software or computer software documentation from their subcontractors or suppliers.
(3) The Contractor shall ensure that subcontractor or supplier rights are recognized and protected in the identification, assertion, and delivery processes required by paragraph (e) of this clause.
(4) In no event shall the Contractor use its obligation to recognize and protect subcontractor or supplier rights in computer software or computer software documentation as an excuse for failingto satisfy its contractual obligation to the Government.
(End of clause)
ALTERNATE I (JUN 1995)
As prescribed in 227.7203-6(a)(2), add the following paragraph (l) to the basic clause:
(l) Publication for sale.
(1) This paragraph only applies to computer software or computer software documentation in which the Government has obtained unlimited rights or a license to make an unrestricted release of the software or documentation.
(2) The Government shall not publish a deliverable item or items of computer software or computer software documentation identified in this contract as being subject to paragraph (l) of this clause or authorize others to publish such software or documentation on its behalf if, prior to publication for sale by the Government and within twenty-four (24) months following the date specified in this contract for delivery of such software or documentation, or the removal of any national security or export control restrictions, whichever is later, the Contractor publishes that item or items for sale and promptly notifies the Contracting Officer of such publication(s). Any such publication shall include a notice identifying the number of this contract and the Government's rights in the published software or documentation.
(3) This limitation on the Government's rights to publish for sale shall continue as long as the software or documentation are reasonably available to the public for purchase.
252.227-7015 Technical Data--Commercial Items.
As prescribed in 227.7102-3, use the following clause:
TECHNICAL DATA--COMMERCIAL ITEMS (NOV 1995)
(a) Definitions.
As used in this clause:
(1) "Commercial item" does not include commercial computer software.
(2) "Form, fit, and function data" means technical data that describes the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.
(3) The term "item" includes components or processes.
(4) "Technical data" means recorded information, regardless of the form or method of recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.
(b) License.
(1) The Government shall have the unrestricted right to use, modify, reproduce, release, perform, display, or disclose technical data, and to permit others to do so, that--
(i) Have been provided to the Government or others without restrictions on use, modification, reproduction, release, or further disclosure other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data to another party or the sale or transfer of some or all of a business entity or its assets to another party;
(ii) Are form, fit, and function data;
(iii) Are a correction or change to technical data furnished to the Contractor by the Government;
(iv) Are necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data); or
(v) Have been provided to the Government under a prior contract or licensing agreement through which the Government has acquired the rights to use, modify, reproduce, release, perform, display, or disclose the data without restrictions.
(2) Except as provided in paragraph (b)(1) of this clause, the Government may use, modify, reproduce, release, perform, display, or disclose technical data within the Government only. The Government shall not--
(i) Use the technical data to manufacture additional quantities of the commercial items; or
(ii) Release, perform, display, disclose, or authorize use of the technical data outside the Government without the Contractor's written permission unless a release, disclosure or permitted use is necessary for emergency repair or overhaul of the commercial items furnished under this contract.
(c) Additional license rights.
The Contractor, its subcontractors, and suppliers are not required to provide the Government additional rights to use, modify, reproduce, release, perform, display, or disclose technical data. However, if the Government desires to obtain additional rights in technical data, the Contractor agrees to promptly enter into negotiations with the Contracting Officer to determine whether there are acceptable terms for transferring such rights. All technical data in which the Contractor has granted the Government additional rights shall be listed or described in a special license agreement made part of this contract. The license shall enumerate the additional rights granted the Government in such data.
(d) Release from liability.
The Contractor agrees that the Government, and other persons to whom the Government may have released or disclosed technical data delivered or otherwise furnished under this contract, shall have no liability for any release or disclosure of technical data that are not marked to indicate that such data are licensed data subject to use, modification, reproduction, release, performance, display, or disclosure restrictions.
(End of clause)
252.227-7016 Rights in Bid or Proposal Information.
As prescribed in 227.7103-6(e)(1), 227.7104(e)(1), or 227.7203-6(b), use the following clause:
RIGHTS IN BID OR PROPOSAL INFORMATION (JUN 1995)
(a) Definitions.
(1) For contracts that require the delivery of technical data, the terms "technical data" and "computer software" are defined in the Rights in Technical Data--Noncommercial Item clause of this contract or, if this is a contract awarded under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause of this contract.
(2) For contracts that do not require the delivery of technical data, the term "computer software" is defined in the Rights in Noncommercial Computer and Noncommercial Computer Software Documentation clause of this contract or, if this is a contract awarded under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause of this contract.
(b) Government rights prior to contract award.
By submission of its offer, the Offeror agrees that the Government--
(1) May reproduce the bid or proposal, or any portions thereof, to the extent necessary to evaluate the offer.
(2) Except as provided in paragraph (d) of this clause, shall use information contained in the bid or proposal only for evaluational purposes and shall not disclose, directly or indirectly, such information to any person including potential evaluators, unless that person has been authorizedby the head of the agency, his or her designee, or the Contracting Officer to receive such information.
(c) Government rights subsequent to contract award--
The Contractor agrees--
(1) Except as provided in paragraphs (c)(2), (d), and (e) of this clause, the Government shall have the rights to use, modify, reproduce, release, perform, display, or disclose information contained in the Contractor's bid or proposal within the Government. The Government shall not release, perform, display, or disclose such information outside the Government without the Contractor's written permission.
(2) The Government's right to use, modify, reproduce, release, perform, display, or disclose information that is technical data or computer software required to be delivered under this contract are determined by the Rights in Technical Data--Noncommercial Items, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, or Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause(s) of this contract.
(d) Government-furnished information.
The Government's rights with respect to technical data or computer software contained in the Contractor's bid or proposal that were provided to the Contractor by the Government are subject only to restrictions on use, modification, reproduction, release, performance, display, or disclosure, if any, imposed by the developer or licensor of such data or software.
(e) Information available without restrictions.
The Government's rights to use, modify, reproduce, release, perform, display, or, disclose information contained in a bid or proposal, including technical data or computer software, and to permit others to do so, shall not be restricted in any manner if such information has been released or disclosed to the Government or to other persons without restrictions other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the information to another party or the sale or transfer of some or all of a business entity or its assets to another party.
(f) Flowdown.
Contractor shall include this clause in all subcontracts or similar contractual instruments and require its subcontractors or suppliers to do so without alteration, except to identify the parties.
(End of clause)
252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions.
As prescribed in 227.7103-3(b), 227.7104(e)(2), or 227.7203-3(a), use the following provision:
IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE
RESTRICTIONS (JUN 1995)
(a) The terms used in this provision are defined in following clause or clauses contained in this solicitation--
(1) If a successful offeror will be required to deliver technical data, the Rights in Technical Data--Noncommercial Items clause, or, if this solicitation contemplates a contract under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause.
(2) If a successful offeror will not be required to deliver technical data, the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause, or, if this solicitation contemplates a contract under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause.
(b) The identification and assertion requirements in this provision apply only to technical data, including computer software documents, or computer software to be delivered with other than unlimited rights.For contracts to be awarded under the Small Business Innovative Research Program, the notification requirements do not apply to technical data or computer software that will be generated under the resulting contract. Notification and identification is not required for restrictions based solely on copyright.
(c) Offers submitted in response to this solicitation shall identify, to the extent known at the time an offer is submitted to the Government, the technical data or computer software that the Offeror, its subcontractors or suppliers, or potential subcontractors or suppliers, assert should be furnished to the Government with restrictions on use, release, or disclosure.
(d) The Offeror's assertions, including the assertions of its subcontractors or suppliers or potential subcontractors or suppliers shall be submitted as an attachment to its offer in the following format, dated and signed by an official authorized to contractually obligate the Offeror:
Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Technical Data or Computer Software.
The Offeror asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data or computer software should be restricted:
Technical Data or Computer Software to be Furnished With Restrictions* |
Basis for Assertion** |
Asserted Rights Category*** |
Name of Person Asserting Restrictions**** |
(LIST)***** |
(LIST) |
(LIST) |
(LIST) |
* For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify both the deliverable technical data and each such items, component, or process. For computer software or computer software documentation identify the software or documentation.
** Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions. For technical data, other than computer software documentation, development refers to development of the item, component, or process to which the data pertain. The Government's rights in computer software documentation generally may not be restricted. For computer software, development refers to the software. Indicate whether development was accomplished exclusively or partially at private expense. I development was not accomplished at private expense, or for computer software documentation, enter the specific basis for asserting restrictions.
*** Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract, limited, restricted, or government purpose rights under this or a prior contract, or specially negotiated licenses).
**** Corporation, individual, or other person, as appropriate.
***** Enter "none" when all data or software will be submitted without restrictions.
Date
Printed Name and Title
Signature
(End of identification and assertion)
(e) An offeror's failure to submit, complete, or sign the notification and identification required byparagraph (d) of this provision with its offer may render the offer ineligible for award.
(f) If the Offeror is awarded a contract, the assertions identified in paragraph (d) of this provision shall be listed in an attachment to that contract. Upon request by the Contracting Officer, the Offeror shall provide sufficient information to enable the Contracting Officer to evaluate any listed assertion.
(End of provision)
252.227-7018 Rights in Noncommercial Technical Data and Computer Software--Small Business Innovation Research (SBIR) Program.
As prescribed in 227.7104(a), use the following clause:
RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND COMPUTER
SOFTWARE--SMALL BUSINESS INNOVATION RESEARCH (SBIR)
PROGRAM (JUN 1995)
(a) Definitions.
As used in this clause:
(1) "Commercial computer software" means software developed or regularly used for nongovernmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or
(iv) Satisfies a criterion expressed in paragraph (a)(1)(i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this contract.
(2) "Computer database" means a collection of recorded data in a form capable of being processed by a computer. The term does not include computer software.
(3) "Computer program" means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.
(4) "Computer software" means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, re-created, or recompiled. Computer software does not include computer databases or computer software documentation.
(5) "Computer software documentation" means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.
(6) "Detailed manufacturing or process data" means technical data that describe the steps, sequences, and conditions of manufacturing, processing or assembly used by the manufacturer to produce an item or component or to perform a process.
(7) "Developed" means--
(i) (Applicable to technical data other than computer software documentation.) An item, component, or process, exists and is workable. Thus, the item or component must have been constructed or the process practiced. Workability is generally established when the item, component, or process has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. To be considered ``developed,'' the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component or process be actually reduced to practice within the meaning of Title 35 of the United States Code;
(ii) A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;
(iii) Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or
(iv) Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.
(8) "Developed exclusively at private expense" means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract, or any combination thereof.
(i) Private expense determinations should be made at the lowest practicable level.
(ii) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.
(9) "Developed exclusively with government funds" means development was not accomplished exclusively or partially at private expense.
(10) Developed with mixed funding means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.
(11) "Form, fit, and function data" means technical data that describe the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.
(12) "Generated" means technical data or computer software first created in the performance of this contract.
(13) "Government purpose" means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software for commercial purposes or authorize others to do so.
(14) "Limited rights" means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or permit the technical data to be used by another party, except that the Government may reproduce, release or disclose such data or permit the use or reproduction of the data by persons outside the Government if reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the Government and is required for evaluational or informational purposes;
(iii) Subject to a prohibition on the further reproduction, release disclosure, or use of the technical data; and
(iv) The Contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.
(15) "Minor modification" means a modification that does not significantly alter the nongovernmental function or purpose of computer software or is of the type customarily provided in the commercial marketplace.
(16) "Noncommercial computer software" means software that does not qualify as commercial computer software under paragraph (a)(1) of this clause.
(17) "Restricted rights" apply only to noncommercial computer software and mean the Government's rights to--
(i) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;
(ii) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause;
(iii) Make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs (a)(17) (i) and (iii) of this clause; and
(B) Not release or disclose the modified software except as provided in paragraphs (a)(17) (ii), (v) and (vi) of this clause;
(v) Permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that--
(A) The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made;
(B) Such contractors or subcontractors are subject to the non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government- Furnished Information Marked with Restrictive Legends;
(C) The Government shall not permit the recipient to decompile disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(17)(iv) of this clause, for any other purpose; and
(D) Such use is subject to the limitation in paragraph (a)(17)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items, procured under this or a related contract to use the computer software when necessary to perform the repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that--
(A) The intended recipient is subject to the non-disclosure agreement at DFARS 227.7103-7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends; and
(B) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(17)(iv) of this clause, for any other purpose.
(18) "SBIR data rights" means a royalty-free license for the Government, including its support service contractors, to use, modify, reproduce, release, perform, display, or disclose technical data or computer software generated and delivered under this contract for any United States Government purpose.
(19) "Technical data" means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.
(20) "Unlimited rights" means rights to use, modify, reproduce, release, perform, display, or disclose, technical data or computer software in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.
(b) Rights in technical data and computer software.
The Contractor grants or shall obtain for the Government the following royalty-free, world-wide, nonexclusive, irrevocable license rights in technical data or noncommercial computer software. All rights not granted to the Government are retained by the Contractor.
(1) Unlimited rights.
The Government shall have unlimited rights in technical data, including computer software documentation, or computer software generated under this contract that are--
(i) Form, fit, and function data;
(ii) Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data);
(iii) Corrections or changes to Government-furnished technical data or computer software;
(iv) Otherwise publicly available or have been released or disclosed by the Contractor or a subcontractor without restrictions on further use, release or disclosure other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data or computer software to another party or the sale or transfer of some or all of a business entity or its assets to another party;
(v) Data or software in which the Government has acquired previously unlimited rights under another Government contract or through a specific license; and
(vi) SBIR data upon expiration of the SBIR data rights period.
(2) Limited rights.
The Government shall have limited rights in technical data, that were not generated under this contract, pertain to items, components or processes developed exclusively at private expense, and are marked, in accordance with the marking instructions in paragraph (f)(1) of this clause, with the legend prescribed in paragraph (f)(2) of this clause.
(3) Restricted rights in computer software.
The Government shall have restricted rights in noncommercial computer software required to be delivered or otherwise furnished to the Government under this contract that were developed exclusively at private expense and were not generated under this contract.
(4) SBIR data rights.
(i) Except for technical data, including computer software documentation, or computer software in which the Government has unlimited rights under paragraph (b)(1) of this clause, the Government shall have SBIR data rights in all technical data or computer software generated under this contract during the period commencing with contract award and ending upon the date five years after completion of the project from which such datawere generated.
(ii) The Government may not release or disclose SBIR data to any person, other than its support services contractors, except--
(A) As expressly permitted by the Contractor;
(B) For evaluation purposes; or
(C) A release, disclosure, or use that is necessary for emergency repair or overhaul of items operated by the Government.
(iii) A release or disclosure of SBIR data to the Government's support services contractors, or a release or disclosure under paragraph (b)(4)(ii)(B) or (C) of this clause, may be made only if, prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at DFARS 227.7103-7 or is a Government contractor receiving access to the technical data or software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use of Disclosure of Government-Furnished Information Marked with Restrictive Legends.
(5) Specifically negotiated license rights.
The standard license rights granted to the Government under paragraphs (b)(1) through (b)(4) of this clause may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in technical data, including computer software documentation, than are enumerated in paragraph (a)(14) of this clause or lesser rights in computer software than are enumerated in paragraph (a)(17) of this clause. Any rights so negotiated shall be identified in a license agreement made part of this contract.
(6) Prior government rights.
Technical data, including computer software documentation, or computer software that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify, release, perform, display, or disclose the technical data or computer software have expired or no longer apply.
(7) Release from liability.
The Contractor agrees to release the Government from liability for any release or disclosure of technical data, computer software, or computer software documentation made in accordance with paragraph (a)(14), (a)(17), or (b)(4) of this clause, or in accordance with the terms of a license negotiated under paragraph (b)(5) of this clause, or by others to whom the recipient has released or disclosed the data, software, or documentation and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor data or software marked with restrictive legends.
(c) Rights in derivative computer software or computer software documentation.
The Government shall retain its rights in the unchanged portions of any computer software or computer software documentation delivered under this contract that the Contractor uses to prepare, or includes in, derivative software or documentation.
(d) Third party copyrighted technical data and computer software.
The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted technical data, including computer software documentation, or computer software in the data or software to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data or software of the appropriate scope set forth in paragraph (b) of this clause and, prior to delivery of such--
(1) Technical data, has affixed to the transmittal document a statement of the license rights obtained;or
(2) Computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer.
(e) Identification and delivery of technical data or computer software to be furnished with restrictions on use, release, or disclosure.
(1) This paragraph does not apply to technical data or computer software that were or will be generated under this contract or to restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause, technical data or computer software that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure is identified in an attachment to this contract (the Attachment). The Contractor shall not deliver any technical data or computer software with restrictive markings unless the technical data or computer software are listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision. Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled date for delivery of the technical data or computer software, in the following format, and signed by an official authorized to contractually obligate the Contractor:
Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Technical Data or Computer Software.
The Contractor asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data or computer software should be restricted:
Technical Data or Computer Software to be Furnished With Restrictions* |
Basis for Assertion** |
Asserted Rights Category*** |
Name of person Asserting Restrictions**** |
(LIST) |
(LIST) |
(LIST) |
(LIST) |
* If the assertion is applicable to items, components, or processes developed at private expense, identify both the technical data and each such item, component, or process.
** Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose technical data or computer software. Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.
*** Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or government purpose license rights from a prior contract, SBIR data rights under another contract, or specifically negotiated licenses).
**** Corporation, individual, or other person, as appropriate.
Date
Printed Name and Title
Signature
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor shall provide sufficient information toenable the Contracting Officer to evaluate the Contractor's assertions. The Contracting Officer reserves the right to add the Contractor's assertions to the Attachment and validate any listed assertions, at a later date, in accordance with the procedures of the Validation of Asserted Restrictions--Computer Software and/or Validation of Restrictive Markings on Technical Data clauses of this contract.
(f) Marking requirements.
The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software to be delivered under this contract by marking the deliverable data or software subject to restriction. Except as provided in paragraph (f)(6) of this clause, only the following markings are authorized under this contract: the limited rights legend at paragraph (f)(2) of this clause; the restricted rights legend at paragraph (f)(3) of this clause, the SBIR data rights legend at paragraph (f)(4) of this clause, or the special license rights legend at paragraphs (f)(5) of this clause; and/or a notice of copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions.
The Contractor, or its subcontractors or suppliers, shall conspicuously and legibly mark the appropriate legend to all technical data and computer software that qualify for such markings. The authorized legends shall be placed on the transmittal document or storage container and, for printed material, each page of the printed material containing technical data or computer software for which restrictions are asserted. When only portions of a page of printed material are subject to the asserted restrictions, such portions shall be identified by circling, underscoring, with a note, or other appropriate identifier. Technical data or computer software transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions. However, instructions that interfere with or delay the operation of computer software in order to display a restrictive rights legend or other license statement at any time prior to or during use of the computer software, or otherwise cause such interference or delay, shall not be inserted in software that will or might be used in combat or situations that simulate combat conditions, unless the Contracting Officer's written permission to deliver such software has been obtained prior to delivery. Reproductions of technical data, computer software, or any portions thereof subject to asserted restrictions shall also reproduce the asserted restrictions.
(2) Limited rights markings.
Technical data not generated under this contract that pertain to items, components, or processes developed exclusively at private expense and delivered or otherwise furnished with limited rights shall be marked with the following legend:
LIMITED RIGHTS
Contract No.
Contractor Name
Contractor Address
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(2) of the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause contained in the above identified contract. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.
(End of legend)
(3) Restricted rights markings.
Computer software delivered or otherwise furnished to the Government with restricted rightsshall be marked with the following legend:
RESTRICTED RIGHTS
Contract No.
Contractor Name
Contractor Address
The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(3) of the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause contained in the above identified contract. Any reproduction of computer software or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.
(End of legend)
(4) SBIR data rights markings.
Except for technical data or computer software in which the Government has acquired unlimited rights under paragraph (b)(1) of this clause, or negotiated special license rights as provided in paragraph (b)(5) of this clause, technical data or computer software generated under this contract shall be marked with the following legend. The Contractor shall enter the expiration date for the SBIR data rights period on the legend:
SBIR DATA RIGHTS
Contract No.
Contractor Name
Address
Expiration of SBIR Data Rights Period
The Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software marked with this legend are restricted during the period shown as provided in paragraph (b)(4) of the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.
(End of legend)
(5) Special license rights markings.
(i) Technical data or computer software in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:
SPECIAL LICENSE RIGHTS
The Government's rights to use, modify, reproduce, release, perform, display, or disclose this technical data or computer software are restricted by Contract No. ________________ (Insert contract number) ________________, License No. ________________ (Insert license identifier) ________________. Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (b)(6) of this clause).
(6) Pre-existing data markings.
If the terms of a prior contract or license permitted the Contractor to restrict the Government'srights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software, and those restrictions are still applicable, the Contractor may mark such data or software with the appropriate restrictive legend for which the data or software qualified under the prior contract or license. The marking procedures in paragraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records.
Throughout performance of this contract, the Contractor, and its subcontractors or suppliers that will deliver technical data or computer software with other than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any restrictive markings on technical data or computer software delivered under this contract.
(h) Removal of unjustified and nonconforming markings.
(1) Unjustified markings.
The rights and obligations of the parties regarding the validation of restrictive markings on technical data or computer software furnished or to be furnished under this contract are contained in the Validation of Restrictive Markings on Technical Data and the Validation of Asserted Restrictions--Computer Software clauses of this contract, respectively. Notwithstanding any provision of this contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the applicable procedures of those clauses, a restrictive marking is determined to be unjustified.
(2) Nonconforming markings.
A nonconforming marking is a marking placed on technical data or computer software delivered or otherwise furnished to the Government under this contract that is not in the format authorized by this contract. Correction of nonconforming markings is not subject to the Validation of Restrictive Markings on Technical Data or the Validation of Asserted Restrictions--Computer Software clause of this contract. If the Contracting Officer notifies the Contractor of a nonconforming marking or markings and the Contractor fails to remove or correct such markings within sixty (60) days, the Government may ignore or, at the Contractor's expense, remove or correct any nonconforming markings.
(i) Relation to patents.
Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.
(j) Limitation on charges for rights in technical data or computer software.
(1) The Contractor shall not charge to this contract any cost, including but not limited to, license fees, royalties, or similar charges, for rights in technical data or computer software to be delivered under this contract when--
(i) The Government has acquired, by any means, the same or greater rights in the data or software; or
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at any tier, or costs incurred by the Contractor to acquire rights in subcontractor of supplier technical data or computer software, if the subcontractor or supplier has been paid for such rights under any other Government contract or under a license conveying the rights to the Government; and
(ii) Does not include the reasonable costs of reproducing, handling, or mailing the documents or other media in which the technical data or computer software will be delivered.
(k) Applicability to subcontractors or suppliers.
(1) The Contractor shall assure that the rights afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion, and delivery processes required by paragraph (e) of this clause are recognized and protected.
(2) Whenever any noncommercial technical data or computer software is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties. The Contractor shall use the Technical Data--Commercial Items clause of this contract to obtain technical data pertaining to commercial items, components, or processes. No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data or computer software.
(3) Technical data required to be delivered by a subcontractor or supplier shall normally be delivered to the next higher tier contractor, subcontractor, or supplier. However, when there is a requirement in the prime contract for technical data which may be submitted with other than unlimited rights by a subcontractor or supplier, then said subcontractor or supplier may fulfill its requirement by submitting such technical data directly to the Government, rather than through a higher tier contractor, subcontractor, or supplier.
(4) The Contractor and higher tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in technical data or computer software from their subcontractors or suppliers.
(5) In no event shall the Contractor use its obligation to recognize and protect subcontractor or supplier rights in technical data or computer software as an excuse for failing to satisfy its contractual obligation to the Government.
(End of clause)
ALTERNATE I (JUN 1995)
As prescribed in 227.7104(d), add the following paragraph (l) to the basic clause:
(l) Publication for sale.
(1) This paragraph applies only to technical data or computer software delivered to the Government with SBIR data rights.
(2) Upon expiration of the SBIR data rights period, the Government will not exercise its right to publish or authorize others to publish an item of technical data or computer software identified in this contract as being subject to paragraph (l) of this clause if the Contractor, prior to the expiration of the SBIR data rights period, or within two years following delivery of the data or software item, or within twenty-four months following the removal of any national security or export control restrictions, whichever is later, publishes such data or software item(s) and promptly notifies the Contracting Officer of such publication(s). Any such publication(s) shall include a notice identifying the number of this contract and the Government's rights in the published data.
(3) This limitation on the Government's right to publish for sale shall continue as long as the technical data or computer software are reasonably available to the public for purchase.
252.227-7019 Validation of Asserted Restrictions--Computer Software.
As prescribed in 227.7104(e)(3) or 227.7203-6(c), use the following clause:
VALIDATION OF ASSERTED RESTRICTIONS--COMPUTER SOFTWARE
(JUN 1995)
(a) Definitions.
(1) As used in this clause, unless otherwise specifically indicated, the term "Contractor" means the Contractor and its subcontractors or suppliers.
(2) Other terms used in this clause are defined in the Rights in Noncommercial Computer Softwareand Noncommercial Computer Software Documentation clause of this contract.
(b) Justification.
The Contractor shall maintain records sufficient to justify the validity of any markings that assert restrictions on the Government's rights to use, modify, reproduce, perform, display, release, or disclose computer software delivered or required to be delivered under this contract and shall be prepared to furnish to the Contracting Officer a written justification for such restrictive markings in response to a request for information under paragraph (d) or a challenge under paragraph (f) of this clause.
(c) Direct contact with subcontractors or suppliers.
The Contractor agrees that the Contracting Officer may transact matters under this clause directly with subcontractors or suppliers at any tier who assert restrictions on the Government's right to use, modify, reproduce, release, perform, display, or disclose computer software. Neither this clause, nor any action taken by the Government under this clause, creates or implies privity of contract between the Government and the Contractor's subcontractors or suppliers.
(d) Requests for information.
(1) The Contracting Officer may request the Contractor to provide sufficient information to enable the Contracting Officer to evaluate the Contractor's asserted restrictions. Such information shall be based upon the records required by this clause or other information reasonably available to the Contractor.
(2) Based upon the information provided, if the--
(i) Contractor agrees that an asserted restriction is not valid, the Contracting Officer may--
(A) Strike or correct the unjustified marking at the Contractor's expense; or
(B) Return the computer software to the Contractor for correction at the Contractor's expense. If the Contractor fails to correct or strike the unjustified restrictions and return the corrected software to the Contracting Officer within sixty (60) days following receipt of the software, the Contracting Officer may correct the strike the markings at the Contractor's expense.
(ii) Contracting Officer concludes that the asserted restriction is appropriate for this contract, the Contracting Officer shall so notify the Contractor in writing.
(3) The Contractor's failure to provide a timely response to a Contracting Officer's request for information or failure to provide sufficient information to enable the Contracting Officer to evaluate an asserted restriction shall constitute reasonable grounds for questioning the validity of an asserted restriction.
(e) Government right to challenge and validate asserted restrictions.
(1) The Government, when there are reasonable grounds to do so, has the right to review and challenge the validity of any restrictions asserted by the Contractor on the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software delivered, to be delivered under this contract, or otherwise provided to the Government in the performance of this contract. Except for software that is publicly available, has been furnished to the Government without restrictions, or has been otherwise made available without restrictions, the Government may exercise this right only within three years after the date(s) the software is delivered or otherwise furnished to the Government, or three years following final payment under this contract, whichever is later.
(2) The absence of a challenge to an asserted restriction shall not constitute validation under this clause. Only a Contracting Officer's final decision or actions of an agency Board of Contract Appeals or a court of competent jurisdiction that sustain the validity of an asserted restriction constitute validation of the restriction.
(f) Challenge procedures.
(1) A challenge must be in writing and shall--
(i) State the specific grounds for challenging the asserted restriction;
(ii) Require the Contractor to respond within sixty (60) days;
(iii) Require the Contractor to provide justification for he assertion based upon records kept in accordance with paragraph (b) of this clause and such other documentation that are reasonably available to the Contractor, in sufficient detail to enable the Contracting Officer to determine the validity of the asserted restrictions; and
(iv) State that a Contracting Officer's final decision, during the three-year period preceding this challenge, or action of a court of competent jurisdiction or Board of Contract Appeals that sustained the validity of an identical assertion made by the Contractor (or a licensee) shall serve as justification for the asserted restriction.
(2) The Contracting Officer shall extend the time for response if the Contractor submits a written request showing the need for additional time to prepare a response.
(3) The Contracting Officer may request additional supporting documentation if, in the Contracting Officer's opinion, the Contractor's explanation does not provide sufficient evidence to justify the validity of the asserted restrictions. The Contractor agrees to promptly respond to the Contracting Officer's request for additional supporting documentation.
(4) Notwithstanding challenge by the Contracting Officer, the parties may agree on the disposition of an asserted restriction at any time prior to a Contracting Officer's final decision or, if the Contractor has appealed that decision, filed suit, or provided notice of an intent to file suit, at any time prior to a decision by a court of competent jurisdiction or Board of Contract Appeals.
(5) If the Contractor fails to respond to the Contracting Officer's request for information or additional information under paragraph (f)(1) of this clause, the Contracting Officer shall issue a final decision, in accordance with the Disputes clause of this contract, pertaining to the validity of the asserted restriction.
(6) If the Contracting Officer, after reviewing the written explanation furnished pursuant to paragraph (f)(1) of this clause, or any other available information pertaining to the validity of an asserted restriction, determines that the asserted restriction has--
(i) Not been justified, the Contracting Officer shall issue promptly a final decision, in accordance with the Disputes clause of this contract, denying the validity of the asserted restriction; or
(ii) Been justified, the Contracting Officer shall issue promptly a final decision, in accordance with the Disputes clause of this contract, validating the asserted restriction.
(7) A Contractor receiving challenges to the same asserted restriction(s) from more than one Contracting Officer shall notify each Contracting Officer of the other challenges. The notice shall also state which Contracting Officer initiated the first in time unanswered challenge. The Contracting Officer who initiated the first in time unanswered challenge, after consultation with the other Contracting Officers who have challenged the restrictions and the Contractor, shall formulate and distribute a schedule that provides the contractor a reasonable opportunity for responding to each challenge.
(g) Contractor appeal - Government obligation.
(1) The Government agrees that, notwithstanding a Contracting Officer's final decision denying the validity of an asserted restriction and except as provided in paragraph (g)(3) of this clause, it will honor the asserted restriction--
(i) For a period of ninety (90) days from the date of the Contracting Officer's final decision to allow the Contractor to appeal to the appropriate Board of Contract Appeals or to file suit in an appropriate court;
(ii) For a period of one year from the date of the Contracting Officer's final decision if, within the first ninety (90) days following the Contracting Officer's final decision, the Contractor has provided notice of an intent to file suit in an appropriate court; or
(iii) Until final disposition by the appropriate Board of Contract Appeals or court of competent jurisdiction, if the Contractor has: (A) appealed to the Board of Contract Appeals or filed suit an appropriate court within ninety (90) days; or (B) submitted, within ninety (90) days, a notice of intent to file suit in an appropriate court and filed suit within one year.
(2) The Contractor agrees that the Government may strike, correct, or ignore the restrictive markings if the Contractor fails to--
(i) Appeal to a Board of Contract Appeals within ninety (90) days from the date of the Contracting Officer's final decision;
(ii) File suit in an appropriate court within ninety (90) days from such date; or
(iii) File suit within one year after the date of the Contracting Officer's final decision if the Contractor had provided notice of intent to file suit within ninety (90) days following the date of the Contracting Officer's final decision.
(3) The agency head, on a nondelegable basis, may determine that urgent or compelling circumstances do not permit awaiting the filing of suit in an appropriate court, or the rendering of a decision by a court of competent jurisdiction or Board of Contract Appeals. In that event, the agency head shall notify the Contractor of the urgent or compelling circumstances. Notwithstanding paragraph (g)(1) of this clause, the Contractor agrees that the agency may use, modify, reproduce, release, perform, display, or disclose computer software marked with (i) government purpose legends for any purpose, and authorize others to do so; or (ii) restricted or special license rights for government purposes only. The Government agrees not to release or disclose such software unless, prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS), or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. The agency head's determination may be made at any time after the date of the Contracting Officer's final decision and shall not affect the Contractor's right to damages against the United States, or other relief provided by law, if its asserted restrictions are ultimately upheld.
(h) Final disposition of appeal or suit.
If the Contractor appeals or files suit and if, upon final disposition of the appeal or suit, the Contracting Officer's decision is:
(1) Sustained--
(i) Any restrictive marking on such computer software shall be struck or corrected at the contractor's expense or ignored; and
(ii) If the asserted restriction is found not to be substantially justified, the Contractor shall be liable to the Government for payment of the cost to the Government of reviewing the asserted restriction and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in challenging the restriction, unless special circumstances would make such payment unjust.
(2) Not sustained--
(i) The Government shall be bound by the asserted restriction; and
(ii) If the challenge by the Government is found not to have been made in good faith, the Government shall be liable to the Contractor for payment of fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Contractor in defending the restriction.
(i) Flowdown.
The Contractor shall insert this clause in all contracts, purchase orders, and other similar instrumentswith its subcontractors or suppliers, at any tier, who will be furnishing computer software to the Government in the performance of this contract. The clause may not be altered other than to identify the appropriate parties.
(End of clause)
252.227-7020 Rights in Special Works.
As prescribed in 227.7105-3, 227.7106(a) or 227.7205(a), use the following clause:
RIGHTS IN SPECIAL WORKS (JUN 1995)
(a) Applicability.
This clause applies to works first created, generated, or produced and required to be delivered under this contract.
(b) Definitions.
As used in this clause:
(1) "Computer data base" means a collection of data recorded in a form capable of being processed by a computer. The term does not include computer software.
(2) "Computer program" means a set of instructions, rules, or routines recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.
(3) "Computer software" means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation.
(4) "Computer software documentation" means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.
(5) "Unlimited rights" means the rights to use, modify, reproduce, perform, display, release, or disclose a work in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.
(6) The term "works" includes computer data bases, computer software, or computer software documentation; literary, musical, choreographic, or dramatic compositions; pantomimes; pictorial, graphic, or sculptural compositions; motion pictures and other audiovisual compositions; sound recordings in any medium; or, items of similar nature.
(c) License rights.
(1) The Government shall have unlimited rights in works first produced, created, or generated and required to be delivered under this contract.
(2) When a work is first produced, created, or generated under this contract, and such work is required to be delivered under this contract, the Contractor shall assign copyright in those works to the Government. The Contractor, unless directed to the contrary by the Contracting Officer, shall place the following notice on such works:
"© (Year date of delivery) United States Government, as represented by the Secretary of (department). All rights reserved."
For phonorecords, the "©" markings shall be replaced by a "P".
(3) The Contractor grants to the Government a royalty-free, world-wide, nonexclusive, irrevocable license to reproduce, prepare derivative works from, distribute, perform, or display, and to have or authorize others to do so, the Contractor's copyrighted works not first produced, created, or generated under this contract that have been incorporated into the works deliverable under thiscontract.
(d) Third party copyrighted data.
The Contractor shall not incorporate, without the written approval of the Contracting Officer, any copyrighted works in the works to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license of the scope identified in paragraph (c)(3) of this clause and, prior to delivery of such works--
(1) Has affixed to the transmittal document a statement of the license rights obtained; or
(2) For computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer.
(e) Indemnification.
The Contractor shall indemnify and save and hold harmless the Government, and its officers, agents and employees acting for the Government, against any liability, including costs and expenses, (1) for violation of proprietary rights, copyrights, or rights of privacy or publicity, arising out of the creation, delivery, use, modification, reproduction, release, performance, display, or disclosure of any works furnished under this contract, or (2) based upon any libelous or other unlawful matter contained in such works.
(f) Government-furnished information.
Paragraphs (d) and (e) of this clause are not applicable to information furnished to the Contractor by the Government and incorporated in the works delivered under this contract.
(End of clause)