A limited exception to the general requirement of competition in Government procurement arises in connection with unsolicited proposals. When a proposal for services has been submitted by an offeror upon his private initiative, it might not be equitable for the Agency to seek competing proposals. Because the considerations here are equitable in nature, the determinations must depend on consideration of the facts of each case and the extent to which the inequity to the proposing party is so great that the Government may be limited in the method of procurement. Several guiding principles can be stated:

(a) An unsolicited proposal must be truly unsolicited, and not the result of formal or informal requests for proposals made by Agency representatives.

(b) An unsolicited proposal should not merely anticipate a particular research project. Thus, for example, an offeror reading the Congressional report of hearings on the Agency's appropriation and quickly submitting a proposal on a project which the Agency clearly contemplated undertaking by contract during the fiscal year in question, does not meet valid criteria governing unsolicited proposals.

(c) An unsolicited proposal should represent a considerable investment of time and effort by the offeror. Thus, in order to qualify for a contract negotiated without competition, an unsolicited proposal should be an unusual, detailed, original, thoroughly developed conception of a project, which could result in furthering the Agency's statutory responsibilities. (See § 23-3.5002-1 of this

(a) Each unsolicited proposal shall be examined in detail, the facts evaluated in light of the equities involved, and documentation of the factors considered in such evaluation retained. Contracting for research, development or studies on the basis of unsolicited proposals may be undertaken only after the following steps are taken:

(1) The designated representative of the Bureau or Office most likely to sponsor the work by reason of its responsibilities, considers, coordinates, analyzes, and evaluates the proposal.

(2) If the unsolicited proposal is deemed to be worthy of sponsorship by the Bureau or Office head, he shall submit a memorandum to the Research Council (see 22 CFR 603.14) recommending that the research should be conducted under a contract.

(3) If the Research Council approves the proposal, it is referred to the Director for his authorization of negotiation of the contract.

(b) When an unsolicited proposal has been determined to be unacceptable, the Bureau or Office head will notify the offeror in writing of this fact and the reasons therefor.

AUTHORITY: The provisions of this Part 23-7 are issued under secs. 31 and 41, 75 Stat. 631, 22 U.S.C. 2571 and 2581; and sec. 205 (c), 63 Stat. 390, 40 U.S.C. 486 (c).

SOURCE: The provisions of this Part 23-7 appear at 33 F.R. 19230, Dec. 24, 1968, unless otherwise noted.

§ 23-7.000 Scope of part.

This part sets forth contract clauses, in addition to those prescribed in Chapter 1 of this title, to be used by the U.S. Arms Control and Disarmament Agency in the procurement of personal property and services.

Subpart 23-7.1-Clauses for Fixed

Price Supply Contracts

§ 23-7.100 Scope of subpart.

(a) This subpart sets forth contract clauses to be used in fixed price supply contracts and, to the extent appropriate, in fixed price contracts for research and development.

(b) As used throughout this subpart, the terms "fixed price contract" shall mean any contract (1) entered into either by formal advertising or by negotiation (other than small purchases negotiated under the authority of 41 U.S.C. 252(c)(3)); (2) for a stipulated set sum of money (with or without provision for price redetermination, escalation or other form of price revision); (3) covering the acquisition of supplies or services, or both.

39

(b) The term "Contracting Officer" means the person executing this contract on behalf of the Government, and any other officer or civilian employee who is a properly designated Contracting Officer, and the term includes, except as otherwise provided in this contract, the authorized representative of the Contracting Officer acting within the limits of his authority.

(c) Agency means that U.S. Arms Control and Disarmament Agency.

(d) Except as otherwise provided in this contract, the term "subcontracts" includes agreements for experts and consultants and purchase orders under this contract.

(b) Additional definitions may be included in the clause set forth in paragraph (a) of this section to the extent they are consistent with the clause of this subpart.

§ 23-7.102-2 Changes. (a) Clause:

CHANGES

The Contracting Officer may at any time issue written directions requiring additional work or directing the omission of or variations in work covered by this contract and within the general scope thereof. If any such direction results in a change in the amount or character of the work provided for herein, an equitable adjustment shall be made in the contract price or delivery schedule (or both) and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within sixty (60) days from the date of receipt by the Contractor of the notification of change; Provided, however, That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes". However, nothing in this clause shall excuse the Contractor from proceeding with the contract as modified.

(b) In the foregoing clause the period of "sixty (60) days" within which any laim for adjustment must be asserted may be varied, but in no case may the period be for less than 30 days or for more than 120 days.

products, processes, patents and inventions; required for delivery to the Government under the contract. The Contractor shall identify and appropriately mark all data containing the Contractor's proprietary information which he is required to deliver to the Government under the terms of the contract.

(b) Requests for Materials to be supplied by the Agency to the Contractor, shall be made to the Contracting Officer and shall specify as complete identifying information as possible concerning title, author or issuing agency, date, serial number, security classification, or administrative control, and the like. Such requests shall also explain the Contractor's need for the Materials requested. All Materials supplied by the Agency to the Contractor (either as a result of a request made by the Contractor or supplied voluntarily by the Agency) and all reproductions thereof, except as may be otherwise authorized by the Contracting Officer, shall be returned at the time of submission of the final report, or at such earlier time as the Contracting Officer may specify, directly to the source from which such Materials were received by the Contractor unless the Contractor is otherwise directed by the Contracting Officer.

(c) Upon the completion or earlier termination of this contract, the Contractor shall, except as otherwise authorized by the Contracting Officer, deliver to the Agency all Materials that bear a security classification or administrative control which the Contractor had developed or reported during the conduct of the work, including all reproductions thereof, and, unless otherwise specified by the Contracting Officer, copies of all other Materials which the Contractor has developed or reported during the conduct of the work or which the Contractor is required to deliver under other terms of this contract. It is understood and agreed that the Agency shall have the right to determine and specify which of such Materials bear, or should bear, a security classification or administrative control. The Contractor may delete, from any Materials delivered hereunder, references which contain or disclose proprietary information to which the Government is not entitled by law or by applicable provisions of this contract.

(d) All Materials pertaining to the substance of the work and covered by this clause shall be subject to inspection by the Agency through any representative or representatives designated by the Contracting Officer, at all reasonable times, and the Contractor shall supply proper and adequate facilities for such inspections and for enabling such representative or representatives to reproduce a reasonable number of copies of such Materials.

(e) Except as otherwise authorized in writing by the Contracting Officer, the Contractor shall insert provisions similar to the provisions of this clause in all subcontracts under this contract.

§ 23-7.151 Government furnished prop

erty.

GOVERNMENT FURNISHED PROPERTY

(a) The Government reserves the right to furnish any property or facilities required for the performance of work under this contract. Except for books and publications, the Contractor shall not acquire any property whose cost of acquisition as a direct charge to the contract exceeds $150 per item for use hereunder without the advance authorization of the Contracting Officer. Title to all property furnished by the Government or acquired by the Contractor at the direction of the Government (hereinafter referred to as "Government furnished property") for use by the Contractor in the performance of the contract, shall remain in the Government. Unless otherwise agreed, title to all property acquired by the Contractor under authorization from the Government for use in the performance of this contract shall pass to the Government upon acceptance of delivery of the property by the Contractor. Title to Government furnished property shall not be affected by incorporation into or attachment to any property not owned by the Government, nor shall Government furnished property lose its identity as personalty by reason of its affixation to any realty.

(b) The delivery or performance dates for the supplies or services to be furnished to the Contractor under this contract are based upon the expectation that Government furnished property suitable for use (except for such property furnished "as is") will be delivered to the Contractor at the times stated in the contract or, if not so stated, in sufficient time to enable the Contractor to meet such delivery or performance dates. In the event that Government furnished property is not delivered to the Contractor by such time or times, the Contracting Offcer shall, upon timely written request made by the Contractor, make a determination of the delay, if any, occasioned the Contractor thereby, and shall equitably adjust the delivery or performance dates or the contract price, or both, and any other contractual provision affected by any such delay, in accordance with the procedures provided for in the clause of this contract entitled "Changes."

(c) Except for Government furnished property furnished "as is", in the event the Government furnished property is received by the Contractor in a condition not suitable for the intended use the Contractor shall, upon receipt thereof, notify the Contracting Officer of such fact and, as directed by the Contracting Officer, either (i) return such property at the Government's expense or otherwise dispose of the property, or (11) effect repairs or modifications. Upon the completion of (1) or (11) above, the Contracting Officer upon written request of the Contractor shall equitably adjust the delivery or performance dates or the contract price, or both, and any other contractual

provision affected by the rejection or disposition, or the repair or modification, in accordance with the procedures provided for in the clause of this contract entitled "Changes." The foregoing provisions for adjustment are exclusive and the Government shall not be liable to suit for breach of contract by reason of any delay in delivery of Government furnished property or delivery of such property in a condition not suitable for its intended use.

(d) The Contractor shall maintain and administer in accordance with sound industrial practice, a program for the maintenance, repair, protection, and preservation of Government furnished property so as to assure its full availability and usefulness for the performance of this contract. The Contractor shall take all reasonable steps to comply with all appropriate directions or instructions which the Contracting Officer may prescribe as reasonably necessary for the protection of Government furnished property.

(1) The Contractor shall not be liable for any loss of or damage to the Government furnished property, or for expenses incidental to such loss or damage, except that the Contractor shall be responsible for any such loss or damage (including expenses incidental thereto) (1) which results from willful misconduct or lack of good faith on the part of any of the Contractor's directors or officers, or on the part of any of its managers, superintendents, or other equivalent representatives, or (ii) which results from a failure on the part of the Contractor, due to the willful misconduct or lack of good faith on the part of any of its directors, officers, or other representatives mentioned in subparagraph (a) above, (A) to maintain and administer, in accordance with sound industrial practice, the program for maintenance, repair, protection, and preservation of Government furnished property as required by this clause, or (B) to take all reasonable steps to comply with any appropriate written directions of the Contracting Officer under this clause.

or

(2) Upon the happening of loss destruction of or damage to the Government furnished property, the Contractor shall notify the Contracting Officer thereof, and shall take all reasonable steps to protect the Government furnished property from further damage. The Contractor shall make repairs and renovations of the damaged Government furnished property, or take such other action, as the Contracting Officer directs.

(e) The Government shall at all reasonable times have access to the premises where any of the Government furnished property is located.

(f) Nothing contained in this clause shall be deemed to alter or affect the provisions contained in the clause of this contract entitled "Security" or to derogate from the Contractor's responsibilities thereunder.

(a) In the performance of the work under this contract, the Contractor shall be responsible for safeguarding classified infor. mation and protecting against sabotage, espionage, loss and theft, the classified documents, materials, equipment, processes, as well as such other material of high intrinsic or strategic value as may be in the Contractor's possession in connection with the performance of work under this contract.

(b) The Contractor agrees to conform to the security procedures which will be furnished by the Agency and which are predicated upon the Atomic Energy Commission's Security Regulations as may be modified by the Agency. The cost of physical changes to the Contractor's facilities required by such Contractor compliance beyond the normal practice of the Contractor under his contracts and not ordinarily charged as an indirect expense under his established accounting procedures will be the subject of separate negotiation, and a direct charge to this contract upon agreement. A change in security regulations and requirements made applicable to this contract subsequent to the effective date of the contract will be deemed a change in the amount or character of the work under the clause of this contract entitled "Changes."

(c) The Contractor shall not permit any individual to have access to classified information until notified by the Agency that the individual has been authorized access to classified information by the Agency as needed in the performance of duties under the contract.

(d) The disclosure by any officer, agent or employee of the Contractor or of any subcontractor to any unauthorized person, of classified information relating to this contract; or to performance hereunder, may result in criminal prosecution under the provisions of the Espionage Act, the Atomic Energy Act, or under other laws of the United States.

Except with respect to defaults of subcontractors, the Contractor shall not be in default by reason of any failure in performance of this contract in accordance with its terms (including any failure by the Contractor to make progress in the prosecution of the work hereunder which endangers such performance) if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor. Such causes may include, but are not restricted to: Acts of God or of the public enemy; acts of the Government in either its

sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes; freight embargoes; and unusually severe weather; but in every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor. If the failure to perform is caused by the failure of a subcontractor to perform or make progress, and if such failure arises out of causes beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either of them, the Contractor shall not be deemed to be in default, unless (1) the supplies or services to be furnished by the subcontractor were obtainable from other sources, (11) the Contracting Officer shall have ordered the Contractor in writing to procure such supplies or services from such other sources, and (iii) the Contractor shall have failed to comply reasonably with such order. Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of such failure and, if he shall determine that any failure to perform was occasioned by any one or more of the said causes, shall make an equitable adjustment in the contract price or delivery schedule (or both), in accordance with the procedures of the Changes clause of this contract, subject to the rights of the Government under the termination provisions of this contract.

§ 23-7.154 Publication and release of

information.

PUBLICATION AND RELEASE OF INFORMATION

(a) It is agreed that the Contractor shall have the right to release and to publish unclassified information and subject data resulting from performance under this contract, subject to the limitations expressed below. It is further agreed that the Contractor may publish or release information and subject data only after he has requested in writing and obtained the written consent of the Contracting Officer to such publication or release of information and subject data. The Contracting Officer shall not refuse his consent to such publication or release unless the exceptions to the requirement for public disclosure in the Freedom of Information Act, 5 U.S.C. 552, would bar such publication or release by the Government.

(b) The Contractor also agrees that, for a period not to exceed 3 years following completion, expiration, or termination of this contract, the form of attribution by him of Agency support in any such publication or release shall be determined by the Contracting Officer prior to publication or release.

(c) The Contractor shall give prompt advance notice to the Contracting Officer of any plan for the publication, distribution or sale of any material or manuscript embodying subject data hereunder.

(d) The consent of the Contracting Officer shall not be required for publication or release of information of subject data or

substantial portions thereof, delivered under this contract and made available by the Agency to the general public for inspection and copying under the Freedom of Information Act. The Contracting Officer shall notify the Contractor in writing of such availability as soon as practicable. The Contractor shall not thereafter be required to give notice of publication but he shall remain subject to the obligation of seeking consent to the form of any attribution for the agreed period. The consent of the Contracting Officer shall not be required for publication by the Contractor of his own proprietary data furnished to the Government under a confidential relationship.

In the event of an inconsistency in this contract, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) Statement of Work (Article I); (b) general contract provisions; and (c) the other provisions of the contract whether incorporated by reference or otherwise.

Subpart 23-7.50-Clauses for CostReimbursement-Type Contracts

§ 23-7.5000 Scope of subpart.

This subpart sets forth clauses to be used in cost-reimbursement-type contracts.

§ 23-7.5001 Applicability.