PM - Purchasing Manual - Appendix B - Contract Clauses - USPS.com

198 Pages·2004·0.84 MB·English

Contents
Contract Clauses B.1.2
Appendix B
Contract Clauses
B.1 General
Introduction
B.1.1
This Appendix sets forth the general clauses to be included in solicitations
and contracts and clauses that (1) may be included at the discretion of the
purchase team or (2) must be included due to the type of contract used, the
commodity being purchased, or due to other policies, laws or Executive
Orders discussed in Purchasing Manual Chapters 1 through 9. Special
clauses may be prescribed and set forth in handbooks or directives
implementing or supplementing this manual (see 1.1.1.b).
Numbering of Clauses
B.1.2
Purchasing Manual clauses are numbered by the Purchasing Manual chapter
in which their use is discussed. Thus Clause 8-6, Rights in Technical Data, is
prescribed in Chapter 8. Some clauses are not discussed in PM Chapters 1
through 9 or are discussed as alternates to the term and conditions contained
in Clause 4-1, General Terms and Conditions, but are included in this
Appendix and may be used in contracts as deemed appropriate by the
purchase team; these clauses are identified by a “B” prefix. In addition,
clauses unique to design and construction and mail transportation highway
contracts are also included, and these are also identified by the “B” prefix. In
parentheses to the right of the clause title is a reference to the chapter,
section, and part where the clause is discussed.
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Contents
B.2 Purchasing Manual
B.2 Basic Contract Clauses
Clause 4-1, General Terms and Conditions;
B.2.1
Modifications of Clauses
Clause 4-1, General Terms and Conditions, contains the basic terms and
conditions of Postal Service contracts. Its terms and conditions are modeled
on those used in the private sector, and are intended to minimize
administrative effort, thereby reducing costs. As discussed in 4.2.7.d, and
subject to the restrictions in 1.3.1, these terms and conditions may be
modified, added to, or supplemented as required. In addition, subject to
4.2.7.d, 1.3.1, and B.2.2 below, the other clauses in this Appendix may be
modified, added to, or supplemented when doing so would ensure the
success of the purchase. Assigned counsel must be consulted before
modifying, adding to or supplementing PM clauses, unless a clause
contained in the PM is used to replace a paragraph in Clause 4-1 addressing
a similar subject. Purchase teams should remember that less onerous terms
and conditions usually result in lower overall cost.
Clause 4-2, Contract Terms and Conditions
B.2.2
Required to Implement Policies, Statutes, or
Executive Orders
Clause 4-2, Contract Terms and Conditions Required to Implement Policies,
Statutes, or Executive Orders, contains several clauses, some of which are
incorporated by reference, enforcing certain policies, statutes or Executive
Orders applicable to Postal Service contracts. Clause 4-2 also contains a
series of clauses which, depending on the nature of the purchase, may apply
to a given contract, and which are checked-off by the contracting officer when
they do. Neither Clause 4-2 nor any of the clauses incorporated by reference
in it may be modified or replaced unless (1) a deviation has been granted
(see 1.3.1.b) or the PM discussion of the clause provides instructions for
such action (see, for example, PM 9.3.2 regarding exceptions granted by the
Secretary of Labor). In addition, no change may be made to paragraph (b)
(Examination of Records) of this clause before (1) consulting with assigned
counsel and the office of the Inspector General and (2) having a deviation
reviewed and approved by a higher level than the contracting officer who
holds deviation approval authority. See PM 1.3.2.b.
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Contents
Contract Clauses B.3
B.3 Clauses
No. Title Page
B-1 Definitions 298
B-2 (Reserved) 298
B-3 Contract Type 298
B-4 Variation in Quantity 298
B-5 Certificate of Conformance 299
B-6 (Reserved) 299
B-7 Responsibility for Supplies 299
B-8 (Reserved) 300
B-9 Claims and Disputes 300
B-10 Pricing of Adjustments 301
B-11 (Reserved) 301
B-12 Termination for Convenience or Default 301
B-13 (Reserved) 305
B-14 (Reserved) 305
B-15 Notice of Delay 305
B-16 Suspensions and Delays 305
B-17 Disallowance of Costs 306
B-18 Subcontracts 306
B-19 Excusable Delays 308
B-20 Invoices 309
B-21 Change-Order Accounting 309
B-22 Interest 309
B-23 Guaranteed Shipping Weight 310
B-24 Frequency Authorization 310
B-25 Advertising of Contract Awards 310
B-26 Protection of Postal Service Buildings, Equipment, and Vegetation 311
B-27 Performance at Occupied Postal Premises 311
B-28 Safety and Health Standards 311
B-29 (Reserved) 312
B-30 Permits and Responsibilities 312
B-31 (Reserved) 312
B-32 Differing Site Conditions 312
B-33 Inspection and Acceptance (Construction) 313
B-34 Notice to Proceed and Commencement, Prosecution and Completion of Work 314
B-35 Specifications and Drawings 314
B-36 Postal Service Partial Occupancy 315
B-37 Changes (Construction) 315
B-38 Accident Prevention 316
B-39 Indemnification 316
B-40 Construction Cost Breakdown 316
B-41 Conditions Affecting the Work 317
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B.3 Purchasing Manual
No. Title Page
B-42 Performance of Work by Supplier 317
B-43 Superintendence by Supplier 317
B-44 Use of Premises 317
B-45 Other Contracts 318
B-46 Subcontracts (Construction) 318
B-47 Permits and Responsibilities (Construction) 318
B-48 Payment (Construction) 318
B-49 Building Codes, Fees, and Charges 319
B-50 Protection of Existing Vegetation, Structures, Utilities, and Improvements 320
B-51 Heat 320
B-52 Debris and Cleanup 320
B-53 Survey Monuments and Bench Marks 321
B-54 (Reserved) 321
B-55 Standard References 321
B-56 Shop Drawings, Coordination Drawings, and Schedules 322
B-57 Record “As Built” Drawings 324
B-58 Spare-Parts Data 324
B-59 Construction Progress Chart 324
B-60 (Reserved) 325
B-61 Warranty (Construction) 325
B-62 Samples 326
B-63 Materials and Workmanship 327
B-64 Accountability of the Supplier (Highway) 328
B-65 Adjustments to Compensation 328
B-66 (Reserved) 329
B-67 Changes (Transportation) 329
B-68 Changes in Corporate Ownership or Officers 331
B-69 Events of Default 331
B-70 Release of Supplier 332
B-71 Termination for Convenience (Transportation) 332
B-72 Termination for Convenience — Emergency Contracts 333
B-73 Trailer Damage 333
B-74 Payment (Highway) 333
B-75 Accountability of the Supplier (Non-Highway) 334
B-76 Excusable Delays (Mail Transportation Non-Highway) 335
B-77 Protection of the Mail 336
B-78 Renewal 336
B-79 Forfeiture of Compensation 336
B-80 Laws and Regulations Applicable 336
B-81 Information or Access by Third Parties 336
B-82 Access by Officials 336
B-83 Payment (Air Taxi) 337
1-1 Privacy Protection 337
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Contract Clauses B.3
No. Title Page
1-2 Advance Payments 339
1-3 Progress Payments 344
1-4 (Reserved) 347
1-5 Gratuities or Gifts 347
1-6 Contingent Fees 347
1-7 Organizational Conflicts of Interest 348
1-8 (Reserved) 349
1-9 Preference for Domestic Supplies 349
1-10 Preference for Domestic Construction Materials 350
1-11 Prohibition Against Contracting with Former Officers or PCES Executives 350
1-12 Use of Former Postal Service Employees 351
2-1 Inspection and Acceptance 351
2-2 Quality Management System 351
2-3 Reserved 352
2-4 First Article Approval — Supplier Testing 352
2-5 First Article Approval — Postal Service Testing 354
2-6 Delayed Acceptance 355
2-7 Incorporation of Warranty 355
2-8 Warranty 355
2-9 Definition of Delivery Terms and Supplier’s Responsibilities 356
2-10 Liquidated Damages 359
2-11 Postal Service Property — Fixed-Price 359
2-12 Postal Service Property — Short Form 363
2-13 Postal Service Property — Non-Fixed-Price 364
2-14 Postal Service Property Furnished “As Is” 370
2-15 Special Tooling 371
2-16 Special Test Equipment 374
2-17 Option for Increased Quantity 375
2-18 Option Item 375
2-19 Option to Extend (Services Contract) 376
2-20 Option to Renew (with Preliminary Notice) 376
2-21 Component Parts 376
2-22 Value Engineering Incentive 377
2-23 Reimbursement — Postal Service Testing 380
2-24 Reserved 380
2-25 Unpriced Options 380
2-26 Payment — Fixed Price 380
2-27 Incentive Price Revision 380
2-28 Economic Price Adjustment — Labor and Materials 385
2-29 Economic Price Adjustment (Index Method) 386
2-30 Allowable Cost and Payment 387
2-31 Limitation of Cost 390
2-32 Limitation of Funds 391
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B.3 Purchasing Manual
No. Title Page
2-33 Cost Contract — No Fee 392
2-34 Cost-Sharing Contract — No Fee 393
2-35 Incentive Fee 393
2-36 Fixed Fee 395
2-37 Award Fee 395
2-38 Payment (Time-and-Materials and Labor-Hour Contracts) 396
2-39 Ordering 398
2-40 Delivery-Order Limitations 398
2-41 Definite Quantity 399
2-42 Indefinite Quantity 399
2-43 Requirements 400
2-44 Contract Definitization 401
2-45 Execution and Commencement of Work 402
2-46 Limitation of Postal Service Liability 402
2-47 Payment of Allowable Costs Before Definitization 402
2-48 Most Favored Customer Pricing 403
2-49 Cost/Price Reduction 403
3-1 Small, Minority, and Woman-owned Business Subcontracting Requirements 404
3-2 Participation of Small, Minority, and Woman-owned Businesses 405
4-1 General Terms and Conditions 406
4-2 Contract Terms and Conditions Required to Implement Policies, 410
Statutes, or Executive Orders
4-3 (Reserved) 412
4-4 Nondisclosure (Professional Services) 412
4-5 Inspection of Professional Services 413
4-6 Invoices (Professional Services) 413
4-7 Records Ownership 413
4-8 Key Personnel 413
4-9 Inspection and Acceptance — Systems 414
4-10 Liquidated Damages — Industrial Supply or Service Items Not Ready for Use 416
4-11 Use of Hardware or Software Monitors 417
4-12 Site Preparation 417
4-13 Software License Warranty and Indemnification 418
4-14 Software Development Warranty 418
4-15 Warranty Exclusion and Limitation of Damages 419
4-16 Substitution of Information Technology 419
4-17 Technology Enhancement 419
4-18 Information Technology Accessibility Standards 421
5-1 Price Reduction for Defective Cost or Pricing Data 421
5-2 Subcontractor Cost or Pricing Data 421
5-3 Predetermined Indirect Cost Rates 422
6-1 Contracting Officer’s Representative 422
7-1 Patent Infringement Bond Requirements 422
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Contract Clauses B.3
No. Title Page
7-2 Additional Bond Security 423
7-3 Deposit of Assets Instead of Surety Bonds 423
7-4 Insurance 423
7-5 Errors and Omissions 424
7-6 Federal, State, and Local Taxes 424
7-7 Federal, State, and Local Taxes (Short Form) 425
7-8 Federal, State, and Local Taxes (Noncompetitive Contract) 426
7-9 State and Local Taxes (Indefinite Delivery Equipment Rental) 427
8-1 Patent Rights 427
8-2 Authorization and Consent 432
8-3 Notice and Assistance Regarding Patent and Copyright Infringement 433
8-4 Patent Indemnity 433
8-5 Waiver of Indemnity 434
8-6 Rights in Technical Data 434
8-7 Withholding Payment (Technical Data and Computer Software) 438
8-8 Additional Data Requirements 438
8-9 Rights in Computer Software 439
8-10 Rights in Data — Special Works 443
8-11 Rights in Data — Existing Works 444
8-12 Refund of Royalties 445
8-13 Intellectual Property Rights 445
8-14 Acquisition of Additional Rights in Data 445
8-15 Patent Rights — Supplier Retention 446
8-16 Postal Service Title in Technical Data and Computer Software 455
8-17 Delivery of Limited Rights and Restricted Computer Software 461
8-18 Manufacture of Repair Parts 461
9-1 Convict Labor 462
9-2 Contract Work Hours and Safety Standards Act — Overtime Compensation 462
9-3 Davis-Bacon Act 463
9-4 Compliance by States with Labor Standards 468
9-5 Contract Work Hours and Safety Standards Act — Safety Standards 468
9-6 Walsh-Healey Public Contracts Act 468
9-7 Equal Opportunity 469
9-8 Affirmative Action Compliance Requirements for Construction 470
9-9 Equal Opportunity Preaward Compliance of Subcontracts 475
9-10 Service Contract Act 475
9-11 Service Contract Act — Short Form 484
9-12 Fair Labor Standards Act and Service Contract Act — Price Adjustment 484
9-13 Affirmative Action for Handicapped Workers 485
9-14 Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era 486
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Contents
B.3 Purchasing Manual
Clause B-1 Definitions (January 1997) (B.1.2)
As used in this contract, the following terms have the following meanings:
a. Contracting officer. The person executing this contract on behalf of the
Postal Service, and any other officer or employee who is a properly
designated contracting officer; the term includes, except as otherwise
provided in the contract, the authorized representative of a contracting
officer acting within the limits of the authority conferred upon that
person.
b. Subcontracts. Except as otherwise provided in the contract, the term
includes purchase orders under this contract.
Clause B-2 (Reserved)
Clause B-3 Contract Type (January 1997) (B.1.2)
This is a contract.
(Insert type of contract)
Clause B-4 Variation in Quantity (January 1997) (B.1.2)
a. No variation in the quantity of any item called for by this contract will be
accepted unless caused by conditions of loading, shipping, or packing,
or allowances in the manufacturing process, and then only to any
extent specified elsewhere in the contract.
b. The supplier is responsible for delivering each item quantity within any
allowable variations. If the supplier delivers, and the Postal Service
receives, quantities of any item in excess of the quantity called for (after
considering any allowable variation in quantity), these excess quantities
will be treated as being delivered for the supplier’s convenience.
c. The Postal Service may retain excess quantities up to $100 in value
without compensating the supplier for them, and the supplier waives all
right, title, or interests in them. Quantities in excess of $100 will, at the
option of the Postal Service, either be returned at the supplier’s
expense or retained and paid for at the contract unit price.
d. If this contract calls for deliveries at different times, this clause applies
to each delivery rather than to the aggregate of all deliveries under the
contract.
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Contents
Contract Clauses B.3
Clause B-5 Certificate of Conformance (January 2000) (B.1.2)
a. When authorized in writing by the contracting officer, the supplier may
use a Certificate of Conformance for supplies or services that would
otherwise require inspection. The right of inspection under the
inspection provisions of this contract is not prejudiced by this
procedure.
b. The supplier’s signed certificate must be attached to the inspection or
receiving report.
c. The Postal Service has the right to reject defective supplies or services
within a reasonable time after delivery, by written notification to the
supplier. The supplier must promptly replace, correct, or repair the
rejected supplies or services at the supplier’s expense.
d. “I certify that on (supplier insert date), the (insert
supplier’s name) furnished the supplies called for by Contract No.
(supplier check which is applicable) by shipment via
(carrier) on (identify the bill of lading or shipping
document) or by placing them in local inventory. I
further certify that the supplies are of the quality specified and conform
in all respects with the contract requirements.”
Date of Execution:
Signature:
Title:
Clause B-6 (Reserved)
Clause B-7 Responsibility for Supplies (January 1997) (B.1.2)
Except as otherwise provided in this contract:
a. The supplier is responsible for the supplies covered by the contract until
they are delivered at the designated delivery point, regardless of the
point of inspection;
b. After delivery and before Postal Service acceptance or rejection and
notification, the Postal Service is responsible for loss or destruction of
or damage to the supplies only if it results from the negligence of
officers, agents, or employees of the Postal Service acting within the
scope of their employment; and
c. The supplier bears all risks as to rejected supplies after notice of
rejection, except that the Postal Service is responsible for loss,
destruction, or damage resulting from the negligence of officers,
agents, or employees of the Postal Service acting within the scope of
their employment.
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Contents
B.3 Purchasing Manual
Clause B-8 (Reserved)
Clause B-9 Claims and Disputes (January 1997) (B.1.2)
a. This contract is subject to the Contract Disputes Act of 1978
(41 U.S.C. 601-613) (“the Act”).
b. Except as provided in the Act, all disputes arising under or relating to
this contract must be resolved under this clause.
c. “Claim,” as used in this clause, means a written demand or written
assertion by one of the contracting parties seeking, as a matter of right,
the payment of money in a sum certain, the adjustment or interpretation
of contract terms, or other relief arising under or relating to this
contract. However, a written demand or written assertion by the supplier
seeking the payment of money exceeding $100,000 is not a claim
under the Act until certified as required by subparagraph d.2 below. A
voucher, invoice, or other routine request for payment that is not in
dispute when submitted is not a claim under the Act. The submission
may be converted to a claim under the Act by complying with the
submission and certification requirements of this clause, if it is disputed
either as to liability or amount is not acted upon in a reasonable time.
d.
(1) A claim by the supplier must be made in writing and submitted to
the contracting officer for a written decision. A claim by the Postal
Service against the supplier is subject to a written decision by the
contracting officer.
(2) For supplier claims exceeding $100,000, the supplier must submit
with the claim the following certification:
“I certify that the claim is made in good faith, that the supporting
data are accurate and complete to the best of my knowledge and
belief, that the amount requested accurately reflects the contract
adjustment for which the supplier believes the Postal Service is
liable, and that I am duly authorized to certify the claim on behalf
of the supplier.”
(3) The certification may be executed by any person duly authorized
to bind the supplier with respect to the claim.
e. For supplier claims of $100,000 or less, the contracting officer must, if
requested in writing by the supplier, render a decision within 60 days of
the request. For supplier-certified claims over $100,000, the contracting
officer must, within 60 days, decide the claim or notify the supplier of
the date by which the decision will be made.
f. The contracting officer’s decision is final unless the supplier appeals or
files a suit as provided in the Act.
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