(iii) In all cases except those to be disposed of under Rule 31, the trial attorney will forward to the Counsel, DSA, copies of the Trial Memorandum, documents that have been filed under Rule 6 or are to be introduced in evidence at the hearing, and, if not included in the Trial Memorandum, a summary of the testimony of proposed witnesses. This information will be forwarded ten days prior to the date set for the hearing. (3) Review of ASBCA decisions. If, after review of a Board decision on contracts of his Procuring Activity, Counsel for the activity is of the opinion that the decision is erroneous, a motion for reconsideration should be filed. If the Board denies the motion or sustains its previous decision and a decision by the Comptroller General is desired prior to payment, the request for such a decision will be forwarded to the Counsel, DSA. § 1207.105 Additional clauses. The clauses set forth in § 7.105 of this title shall be inserted in fixed-price supply contracts in accordance with the instructions of each procuring activity where necessary or desirable to cover the subject matter contained in such clauses. Subpart B-Clauses for Cost-Reimbursement Type Supply Contracts § 1207.203 Required clauses. § 1207.203-4 Allowable cost, fee, and payment. Contracting Officers may substitute the alternate text provided by § 7.203-4 (c) (3) of this title, where applicable. § 1207.205 Additional clauses. Subpart D-Clauses for Cost-Reimbursement Type Research and Development Contracts § 1207.402 Required clauses. § 1207.402-8 Subcontracts. The Subcontracts clause contained in § 7.402-8(a) of this title may be modified in accordance with § 7.402-8(b) of this title by the contracting officer when he deems it appropriate in the case of an individual contract. However, the clause shall not be modified for general application affecting more than one contract without obtaining the approval of the head of the procuring activity. The same requirements as to level of approval shall apply to modification of the other version of the Subcontracts clause provided by § 7.402-8 (c) of this title for contracts without fee with educational institutions, except where a modification is specifically stated in § 7.402-8 (c) of this title to be in the discretion of the contracting officer. PART 1208-TERMINATION OF Subpart A-Definition of Terms [Reserved] Subpart B-General Principles Applicable to the Settlement of Fixed-Price Type Contracts Terminated for Convenience and to the Settlement of All Terminated Cost-Reimbursement Type Contracts Sec. 1208.201 Authority of contracting officers. 1208.208 Settlement of subcontract claims. 1208.208-8 Assignment of rights under sub contracts. 1208.209 Settlement agreements. 1208.209-6 Joint settlement of two or more claims. 1208.212 Payment. 1208.212-1 Partial payment upon termi nation. 1208.250 Contracts with Canadian Commercial Corporation. Subpart G-Clauses [Reserved] Subpart H-Forms [Reserved] AUTHORITY: The provisions of Part 1208 issued under R.S. 161, sec. 2(a), 72 Stat. 514, secs. 2202, 2301, 2314, 70A Stat. 120, 127; 5 U.S.C. 22, 171a (c), 10 U.S.C. 2202, 2301-2314; DoD Directive 5105.22, Nov. 6, 1961. SOURCE: The provisions of this Part 1208 appear at 28 F.R. 2645, Mar. 19, 1963, unless otherwise noted. Subpart A-Definition of Terms Subpart B-General Principles Applicable to the Settlement of FixedPrice Type Contracts Terminated for Convenience and to the Settlement of All Terminated Cost-Reimbursement Type Contracts § 1208.201 Authority of contracting officers. The head of the procuring activity shall prescribe procedures under which contracting officers may terminate contracts for the convenience of the Government and in the case of cost-reimbursement type contracts for the default of the contractor. Notwithstanding a change in requirements a contract is not to be terminated for convenience (except at no cost to the Government as provided in § 8.602-4 (c)) of this title if the contractor is in unexcusable default and the Government has a legal right to terminate such contract for default. § 1208.208 claims. Settlement of subcontract § 1208.208-8 Assignment of rights under subcontracts. The head of the procuring activity, his deputy, or principal assistant responsible for procurement is authorized to approve direct settlement and payment of subcontractor's termination claims. § 1208.209 Settlement agreements. § 1208.209-6 Joint settlement of two or more claims. Joint settlements shall not be undertaken with respect to any contract on which all contract actions applicable to the terminated portion of the contract have not been completed (e.g., price redetermination, change order, etc.). § 1208.212 Payment. § 1208.212-1 Partial payment upon termination. Other means of protecting the interests of the Government in connection with partial payments, as authorized by § 8.212-1 (d) of this title may be prescribed by the head of the procuring activity. § 1208.250 Contracts with Canadian Commercial Corporation. (a) Contracts placed with the Canadian Commercial Corporation in accordance with Subpart E of Part 6 of this title, shall be terminated by notice of termination to the Corporation. That Corporation shall continue to administer the contract and settle all subcontracts terminated thereunder, including subcontracts placed in the United States. (b) The Canadian Commercial Corporation's termination claim will be submitted by the presentation of an invoice setting forth the amount claimed with an accompanying certificate stating that the amount claimed is true and correct and includes only those costs necessary and properly apportionable to the terminated contract. Subpart C-Additional Principles Applicable to the Settlement of Terminated Fixed-Price Contracts [Reserved] Subpart D-Additional Principles Applicable to the Settlement of Terminated Cost-Reimbursement Type Contracts [Reserved] Subpart E-Disposition of Termination The decision as to the type of termination action to be taken (i.e., for default, for convenience, or a no-cost settlement) shall be made only after a review by cognizant experienced procurement and technical personnel, and by counsel assigned or available to the particular procuring activity or purchasing office. Under no circumstances should any notice of termination be furnished to the contractor until this review has been made. Careful consideration should be given to the Government's interests whenever small business guaranteed loans (see § 1201.705-6(c)), progress payments, or advance payments are involved. § 1208.602 Termination of fixed-price supply contracts for default. § 1208.602-3 Procedure for default. The following procedures, prescribed by the General Services Administration, shall be followed in terminating for default delivery orders placed against Federal Supply Schedule contracts. (a) Ordering office. Before declaring a contractor in default, ordering offices should ordinarily notify the contractor in writing that unless satisfactory performance occurs by a specified date, which should allow a reasonable time for performance, his right to proceed further under the delivery order will be considered terminated and he will be held liable for any excess costs resulting from purchasing the supplies or services elsewhere. This step will not be taken when the default involves an attempted fraud on the United States, or when it obviously would be futile, as for example, when the contractor has already declined to perform. When excess costs are anticipated, the ordering office may withhold sufficient funds due to contractor as offset security. Ordering offices will endeavor to minimize excess costs to be charged against the contractor and to collect, by check or setoff, excess costs owed. (b) Federal Supply Service. Where ordering offices are notified by the Federal Supply Service that it has declared the contractor in default, ordering offices will thereafter refuse to accept further performance by the contractor or place further delivery orders with it. Ordering offices will thereafter purchase against the account of the contractor from replacing contractors designated by the Federal Supply Service or in such other manner as directed by the Federal Supply Service. 1209.103-50 Indemnification of contractor by the Government. 1209.105 Processing of infringement claims. 1209.105-50 Reporting of patent, trade mark, or copyright infringements. 1209.105-51 Acquisition of release of past infringement and licenses. 1209.106 Classified contracts. 1209.110 Reporting of royalties; furnishing copy of reports. 1209.111 Adjustment of royalties. Subpart B-Data and Copyrights 1209.202 Acquisition and use of data. 1209.202-1 Acquisition of data. 1209.202-3 Multiple sources of supplies. 1209.203 Contract clauses-general. 1209.203-1 Basic data clause. 1209.203-3 Limited rights provision for addition to basic data clause. 1209.205 Contracts for acquisition of existing works. 1209.205-2 Contracts for existing motion pictures. 1209.207-2 Data-Withholding of payments. Subpart C-Foreign License and Technical Sec. Assistance Agreements 1209.304 Foreign license and technical assistance agreements between domestic concern and foreign Government of concern. 1209.304-2 Review of agreements. AUTHORITY: The provisions of this Part 1209 issued under R.S. 161, sec. 2(a), 72 Stat. 514, secs. 2202, 2301, 2314, 70A Stat. 120, 127; 5 U.S.C. 22, 171a(c), 10 U.S.C. 2202, 23012314; DoD Directive 5105.22, Nov. 6, 1961. SOURCE: The provisions of this Part 1209 appear at 28 F.R. 2646, Mar. 19, 1963, unless otherwise noted. § 1209.102 Authorization and consent. § 1209.102-1 Authorization and consent in contracts for supplies. The use of the Authorization and Consent clause (§ 9.102-1 of this title) is optional in supply contracts of $5,000 or less, including purchase orders, but normally shall be included in supply contracts over $5,000, including construction work, except as provided in § 9.102 (b), and § 9.102-2 of this title. § 1209.103 Patent indemnification of Government by contractor. § 1209.103-1 Patent indemnification in formally advertised contracts-commercial status predetermined. (a) In supply contracts of $5,000 or more to be awarded as a result of formal advertising, the contracting officer shall make a determination prior to issuance of the invitation for bids whether the supplies to be procured (or such supplies apart from relatively minor modifications to be made thereto) normally are, or have been, sold or offered for sale by any supplier to the public in the commercial open market. If it is determined that the supplies are, or have been, sold or offered for sale, except as prohibited by § 9.103 of this title, the contract shall include the clause set forth in § 9.103-1 of this title. (b) Any items to be excluded in accordance with § 9.103-1(b) of this title shall be listed in detail rather than in general terms. § 1209.103–2 Patent indemnification in formally advertised contracts-commercial status not predetermined. The clause set forth in § 9.103-2 of this title shall not be included in a contract without prior approval of the Counsel, DSA, or the Patent Counsel, DSA. § 1209.103-4 Waiver of indemnity by the Government. Specific patents may be excluded in accordance with § 9.103-4 of this title only with the prior approval of the Counsel, DSA, or the Patent Counsel, DSA. § 1209.103-50 Indemnification of contractor by the Government. No provision whereby the Government expressly agrees to indemnify the contractor against liability for patent infringement shall be included in any contract. Ordinarily, any demands of a contractor in this respect can be satisfied by the modification or elimination of the patent indemnity clause (when authorized by § 9.103 of this title and § 1209.103) and insertion of the Authorization and Consent clause § 9.102-1 of this title. § 1209.105 Processing of infringement claims. § 1209.105-50 Reporting of patent, trade mark, or copyright infringe 2386 and to enter into agreements in settlement of claims under section 517 of the Mutual Security Act of 1951 and Section 506 of the Mutual Security Act of 1954, and 35 U.S.C. 181-188. Coordination with the Department of the Army, Navy and Air Force in the processing and final disposition of each claim shall be effected by the Counsel, or the Patent Counsel, DSA. § 1209.106 Classified contracts. (a) Upon receipt from the contractor of a patent application not yet filed which has been submitted by the contractor in compliance with § 9.106(a) of this title the contracting officer shall immediately refer the application to the counsel for his activity for assistance in determining within the 30 day period referred to in § 9.106(a) of this title, the proper security classification of the patent application. Upon such a determination, counsel shall inform the contractor of any instructions deemed necessary or advisable relating to transmittal of the application to the United States Patent Office. In determining the necessity or advisability of such instructions, the following factors should be considered. (1) If the patent application is classified TOP SECRET, the contractor shall be notified immediately, and advised that transmittal shall be handled in accordance with applicable procedures such as are set forth in the Department of Defense Industrial Security Manual for Safeguarding Classified Security Information. (2) If the patent application receives a classification lower than TOP SECRET or is determined to be unclassified, the contractor may be advised accordingly so as to facilitate transmittal of the application to the Patent Office in accordance with applicable procedures such as are set forth in the Department of Defense Industrial Security Manual for Safeguarding Classified Security Information. (b) In the case of all applications filed under the provisions of § 9.106 and § 9.106-1 of this title, the counsel for the activity concerned should secure the application serial number and filing date from the contractor and submit such information to the Counsel, DSA promptly after the filing of the application in order that necessary steps may be taken to place the application under a secrecy order pursuant to 35 U.S.C. 181, if such action appears to be advisable. § 1209.110 Reporting of royalties; furnishing copy of reports. Counsel for the procuring activity concerned will forward to the Counsel, DSA, a copy of each royalty report received in accordance with § 9.110 (b) of this title which indicates that royalties in excess of $250 have been paid or are to be paid to any person or firm. The dollar amount and the date of the contract also should be furnished. § 1209.111 Adjustment of royalties. The report required by § 9.111 of this title shall be made to counsel for the procuring activity concerned who shall forward the report to the Counsel, DSA, for appropriate action. Subpart B-Data and Copyright § 1209.202 Acquisition and use of data. § 1209.202-1 Acquisition of data. (a) General (1) Data pricing requirements. Where data is to be required under a contract, Invitations for Bids and Requests for Proposals shall include the following clause: DATA PRICING (JULY 1962) Where data is specified for delivery, bidders are requested to insert opposite the data items the pricing of such data. If the price of the data is included in the price of the end items the statement "data price is included in the price of the end items" may be used. If the bidder does not insert the price as requested above, or inserts the words "No Charge For Data," or similar language, the Government will consider and the bidder agrees that the data price is included in the cost of the appropriate end items. (2) Consideration of effects of obtaining data subject to limitations on use. The contracting officer should take into account the impact of the limitation upon the Government's future use of the data in (i) connection with standardization, cataloging, supply, inventory control of spare and ancillary parts, etc., (ii) the desirability of competition for production contracts, and (iii) the manufacture of the equipment or practicing of the process. (b) Supply contracts and subcontracts thereunder. (1) The mere assertion that data is "proprietary data" by a prospective contractor does not itself establish that fact. The burden rests on the prospective contractor to show that the |