(1) "Final material" is material which has been developed to the extent intended under the contract.

(2) "Material" means copyrightable work resulting from the contract.

(b) It is the policy of the Office of Education that the results of activities supported by it should be utilized in the manner which would best serve the public interest. To that end, except as provided in paragraph (c) the Contractor shall not assert any rights at common law or in equity or establish any claim to statutory copyright in such materials; and all such materials shall be made freely available to the Government, the education community, and the general public.

(c) Notwithstanding the provisions of paragraph (b) of this clause, upon request of the Contractor or his authorized designee, arrangements for copyright of the material for a limited period of time may be authorized by the Commissioner, through the Contracting Officer, upon showing satisfactorily to the Office of Education that such protection will result in more effective development or dissemination of the materials and would be in the public interest.

(d) With respect to any materials for which the securing of a copyright protection is authorized under paragraph (c), the Contractor hereby grants a royalty-free, nonexclusive and irrevocable license to the Government to publish, reproduce, deliver, perform, use, and dispose of all such materials, and to make any use of it.

(e) To the extent that the Contractor has the right and permission to do so, the Contractor hereby grants to the Government a royalty-free, nonexclusive and irrevocable license to use in any manner, copyrighted material not first produced in the performance of this contract, but which is incorporated in the materials. The contractor shall advise the Contracting Officer of any such copyrighted material known to it not to be covered by such a license.

16. REPORTING OF ROYALTIES

If this contract involves any royalty payments in excess of $250 or if the amount of any royalty payment in excess of $250 is reflected in the estimated cost, the Contractor shall report in writing to the Contracting Officer, as soon as practicable during the performance of this contract, the amount of any royalties paid or to be paid by it directly to others in connection with the performance of this contract, together with (a) the names and addresses of licensors to whom such payments are made; (b) the patent numbers or patents application serial numbers (with filing dates) involved or other identification of the basis of such royalties; and (c) information concerning the manner of computation of such royalties.

17. AUTHORIZATION AND CONSENT

The Government hereby gives its authorization and consent for all use and manufacture of any invention described in and covered by a patent of the United States in the performance of this contract or any part hereof or any amendment hereto, or any subcontract hereunder (including any lower

tier subcontract).

18. NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT

(Text of this clause is set forth in FPR 17.101-13.)

19. PUBLICATION AND PUBLICITY

(a) Unless otherwise specified in this contract, the Contractor is encouraged to publish and make available through accepted channels the results of its work under this contract. A copy of each article submitted by the Contractor for publication shall be promptly sent to the Project Officer. The Contractor shall also inform the Project Officer when the article or other work is published and furnish a copy of it as finally published.

(b) The Contractor shall acknowledge the support of the Department of Health, Education, and Welfare whenever publicizing the work under this contract in any media. To effectuate the foregoing, the Contractor shall include in any publication resulting from work performed under this contract an acknowledgement substantially as follows:

"This project has been funded at least in part with Federal funds from the Department of Health, Education, and Welfare under contract number The con

tents of this publication do not necessarily reflect the views or policies of the Department of Health, Education, and Welfare, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”

20. PATENT RIGHTS-DEFERRED (SHORT FORM)

(a) Definitions. "Subject Invention" means any invention or discovery of the Contractor conceived or first actually reduced to practice in the course of or under this contract, and includes any art, method, process, machine, manufacture, design, or composition of matter, or any new and useful improvement thereof, or any variety of plant which is or may be patentable under the Patent Laws of the United States of America or any foreign country.

(b) Invention disclosures and reports. (1) The Contractor shall furnish the Contracting Officer:

(i) A complete technical disclosure for each Subject Invention, within 6 months after conception or first actual reduction to

practice, whichever occurs first in the course of or under the contract, but in any event prior to any on sale, public use, or publication of the invention known to the Contractor. The disclosure shall identify the contract and inventor, and shall be sufficiently complete in technical detail and appropriately illustrated by sketch or diagram to convey to one skilled in the art to which the invention pertains a clear understanding of the nature, purpose, operation, and to the extent known, the physical, chemical, biological, or electrical characteristics of the invention;

(ii) Interim reports at least every 12 months from the date of the contract listing Subject Inventions for the period and certifying that all Subject Inventions have been disclosed or that there are no such inventions; and

(iii) An acceptable final report within 3 months after completion of the contract work, listing all Subject Inventions or certifying that there were no such inventions.

(2) The Contractor agrees that the Government may duplicate and disclose Subject Invention disclosures and all other reports and papers furnished or required to be furnished pursuant to this clause.

(c) Allocation of principal rights. (1) After a Subject Invention is identified, the Contractor agrees to assign to the Government the entire right, title, and interest therein throughout the world except to the extent that rights are retained by the Contractor under paragraphs (c)(2) and (d) of this clause.

(2) The Contractor or the employee-inventor with authorization of the Contractor may retain greater rights than the nonexclusive license provided in paragraph (d) of this clause in accordance with the procedure and criteria of 41 CFR 1-9.109-6. A request for a determination of whether the Contractor or the employee-inventor is entitled to retain such greater rights must be submitted to the Contracting Officer at the time of the first disclosure of the invention pursuant to paragraph (b)(1) of this clause, or not later than 3 months thereafter or such longer period as may be authorized by the Contracting Officer for good cause shown in writing by the Contractor. The information to be submitted for a greater rights determination is specified in 41 CFR 1-9.109-6. Each determination of greater rights under this contract shall be subject to the provisions of paragraph (c) “Minimum rights acquired by the Government" of the clause in 41 CFR 1-9.107-5(a), and to the reservations and conditions deemed appropriate by the agency.

(d) Minimum rights to the Contractor. The Contractor reserves a revocable, nonexclusive, royalty-free license in each patent application filed in any country on a Sub

ject Invention and any resulting patent in which the Government acquires title. Revocation shall be in accordance with the procedure of the clause in 41 CFR 1-9.107-5(d) (2) and (3).

(e) Employee and Subcontractor Agreements. Unless otherwise authorized in writing by the Contracting Officer, the Contractor shall:

(1) Obtain patent agreements to effectuate the provisions of this clause from all persons who perform any part of the work under this contract except nontechnical personnel, such as clerical employees and manual laborers.

(2) Insert in each subcontract having experimental, developmental, of research work as one of its purposes provisions making this clause applicable to the Subcontractor and his employees; and

(3) Promptly notify the Contracting Officer of the award of any such subcontract by providing him with a copy of the subcontract and any amendments thereto.

21. KEY PERSONNEL

(Text of this clause is set forth in FPR 17. 404-6.)

22. LITIGATION AND CLAIMS

The Contractor shall give the Contracting Officer immediate notice in writing of (a) any action, including any proceeding before an administrative agency, filed against the Contractor arising out of the performance of this contract, including, but not limited to, the performance of any subcontract hereunder; and (b) any claim against the Contractor the cost and expense of which is allowable under the clause entitled "Allowable Cost." Except as otherwise directed by the Contracting Officer, the Contractor shall furnish immediately to the Contracting Officer copies of all pertinent papers received by the Contractor with respect to such action or claim. To the extent not in conflict with any applicable policy of insurance, the Contractor may, with the Contracting Officer's approval, settle any such action or claim. If required by the Contracting Officer, the Contractor shall (a) effect an assignment and subrogation in favor of the Government of all the Contractor's rights and claims (except those against the Government) arising out of any such action or claim against the Contractors; and (b) authorize representatives of the Government to settle or defend any such action or claim and to represent the Contractor in, or to take charge of any action. In the settlement or defense of an action or claim is undertaken by the Government, the Contractor shall furnish all reasonable assistance in effecting a settlement or asserting a defense. Where an action against the Contractor is not cov

30-104 0-79-14

ered by a policy of insurance, the Contractor shall, with the approval of the Contracting Officer, proceed with the defense of the action in good faith. The Government shall not be liable for the expense of defending any action or for any costs resulting from the loss thereof, to the extent that the Contractor would have been compensated by insurance which was required by law or regulation or by written direction of the Contracting Officer, but which the Contractor failed to secure through its own fault or negligence.

In any event, unless otherwise expressly provided in this contract, the Contractor shall not be reimbursed or indemnified by the Government for any liability loss, cost or expense, which the Contractor may incur or be subject to by reason of any loss, injury, or damage, to the person or to real or personal property of any third parties as may accrue during, or arise from, the performance of this contract.

23. REQUIRED INSURANCE

(a) The contractor shall procure and maintain such insurance as is required by law or regulation including, but not limited to, the requirements of Subpart 1-10.5 of the Federal Procurement Regulations (41 CFR 1-10.5), or by the written direction of the contracting officer. Prior written approval of the contracting officer shall be required with respect to any insurance policy the premiums for which the contractor proposes to treat as a direct cost under this contract and with respect to any proposed qualified program of self-insurance. The terms of any other insurance policy shall be submitted to the contracting officer for approval upon request.

(b) Unless otherwise authorized in writing by the contracting officer, the contractor shall not procure or maintain for its own protection, any insurance covering loss or destruction of or damage to Government property.

24. PAYMENT OF OVERTIME PREMIUMS (Text of this clause is set forth in FPR 17.402-28.)

25. FOREIGN TRAVEL

Foreign travel shall not be performed without the prior written approval of the contracting officer. As used in this clause "Foreign Travel" means travel outside the United States, its Territories and Possessions, and Canada.

26. FEDERAL REPORTS ACT

In the event that it subsequently becomes a contractual requirement to collect or record information calling either for answers to identical questions from 10 or more

persons other than Federal employees, or information from Federal employees which is to be used for statistical compilations of general public interest, the Federal Reports Act shall apply to this contract. No plan, questionnaire, interview guide or other similar device for collecting information (whether repetitive or single-time) may be used without first obtaining clearance from the Office of Management and Budget (OMB).

The contractor shall obtain the required OMB clearance through the Project Officer before expending any funds or making public contracts for the collection of data. The authority to expend funds and to proIceed with the collection of data shall be in writing by the Contracting Officer. The Contractor must plan at least 90 days for OMB clearance.

27. PRINTING

Unless otherwise specified in this contract, the contractor shall not engage in, nor subcontract for, any printing (as that term is defined in title I of the Government Printing and Binding Regulations in effect on the effective date of this contract) in connection with the performance of work under this contract: Provided, however, That performance of a requirement under this contract involving the reproduction of less than 5,000 production units of any one page or less than 25,000 production units in the aggregate of multiple pages, will not be deemed to be printing. A production unit is defined as one sheet, size 8 by 101⁄2 inches, one side only, one color.

28. SERVICES OF CONSULTANTS

Except as otherwise expressly provided elsewhere in this contract, and notwithstanding the provisions of the clause of this contract entitled "Subcontracts," the prior written approval of the Contracting Officer shall be required:

(a) Whenever any employee of the Contractor is to be reimbursed as a "consultant" under this contract; and

(b) For the utilization of the services of any consultant under this contract exceeding the daily rate set forth elsewhere in this contract or, if no amount is set forth, $100, exclusive of travel costs, or where the services of any consultant under this contract will exceed 10 days in any calendar year.

Whenever Contracting Officer approval is required, the contractor will obtain and furnish to the contracting officer information concerning the need for such consultant services and the reasonableness of the fees to be paid, including, but not limited to, whether fees to be paid to any consultant exceed the lowest fee charged by such consultant to others for performing consultant services of a similar nature.

29. ASSIGNMENT OF CLAIMS

(Text of this clause is set forth in FPR 130.703.)

30. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME COMPENSATION (Text of this clause is set forth in FPR 112.303.)

31. WALSH-HEALEY PUBLIC CONTRACTS ACT (Text of this clause is set forth in FPR 112.605.)

32. EQUAL OPPORTUNITY

(Text of this clause is set forth in FPR 112.803-2.)

33. CONVICT LABOR

(Text of this clause is set forth in FPR 112.203.)

34. OFFICIALS NOT TO BENEFIT

(Text of this clause is set forth in FPR 17.101-19.)

35. COVENANT AGAINST CONTINGENT FEES (Text of this clause is set forth in FPR 11.503.)

36. BUY AMERICAN ACT SUPPLY AND SERVICE CONTRACTS

(Text of this clause is set forth in FPR 16.104-5.)

37. UTILIZATION OF SMALL BUSINESS CONCERNS (Text of this clause is set forth in FPR 11.710-3(a).)

38. UTILIZATION OF LABOR SURPLUS AREA CONCERNS (Text of this clause is set forth in FPR 11.805-3(a).)

39. UTILIZATION OF MINORITY BUSINESS
ENTERPRISES

(Text of this clause is set forth in FPR 11.1310-2.)

40. PAYMENT OF INTEREST ON CONTRACTOR'S CLAIMS

(Text of this clause is set forth in FPR 11.322.)

41. LISTING OF EMPLOYMENT OPENINGS (Text of this clause is set forth in FPR 112.1102-2.)

42. EXAMINATION OF RECORDS BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE The provisions of clause 7 above entitled "Examination of Records by Comptroller General" are extended to provide equal

rights to authorized representatives of the Secretary and to the Contracting Officer.

43. COMPETITION IN SUBCONTRACTING (Text of this clause is set forth in FPR 17.202-30.)

44. CLEAN AIR AND WATER

(Text of this clause is set forth in FPR 11.2302-2.)

45. EMPLOYMENT OF THE HANDICAPPED (Text of this clause is set forth in FPR 112.1102-2.)

[37 FR 25394, Nov. 30, 1972, as amended at 39 FR 14340, Apr. 23, 1974; 41 FR 41695, Sept. 23, 1976; 43 FR 6772, Feb. 16, 1978]

§ 3-16.950-316 Form HEW-316, (Rev. 7/ 76) General Provisions (Negotiated Cost-Plus-Fixed Fee Contract).

GENERAL PROVISIONS

(NEGOTIATED COST-PLUS-FIXED FEE CONTRACT)

1. DEFINITIONS

As used throughout this contract, the following terms shall have the meanings set forth below:

(a) The term "Secretary" means the Secretary, the Under Secretary, or any Assistant Secretary of the Department of Health, Education, and Welfare; or any person, persons, or board authorized to act for the Secretary.

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

(c) The term "Project Officer" means the person representing the Government for the purpose of monitoring technical performance under this contract. The Project Officer is not authorized to issue any instructions or directions which effect any increase or decrease in the cost of this contract or which change the delivery date(s) or period of performance.

(d) The term "Department" means the Department of Health, Education, and Welfare.

(e) Except as otherwise provided in this contract, the term "subcontract" includes purchase orders under this contract.

2. DISPUTES

(Text of this clause is set forth in FPR 17.101-12.)

3. LIMITATION OF COST

(Text of this clause is set forth in FPR 17.402-3.)

4. ALLOWABLE COST, FIXED FEE AND PAYMENT (Text of this clause is set forth in FPR 17.202-4.)

5. NEGOTIATED OVERHEAD RATES

(a) Notwithstanding the provisions of the clause of this contract entitled "Allowable Cost and Fixed Fee," the allowable indirect costs under this contract shall be obtained by applying negotiated overhead rates to bases agreed upon by the parties, as specified below.

(b) The Contractor, as soon as possible but not later than 90 days after the expiration of his fiscal year, or such other period as may be specified in the contract, shall submit to the Contracting Officer, with a copy to the cognizant audit activity, a proposed final overhead rate or rates for that period based on the Contractor's actual cost experience during that period, together with supporting cost data. Negotiation of overhead rates by the Contractor and the Contracting Officer shall be undertaken as promptly as practicable after receipt of the Contractor's proposal.

(c) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with paragraph (b) of the clause of this contract entitled "Allowable Cost and Fixed Fee."

(d) The results of each negotiation shall be set forth in a modification to this contract, which shall specify (1) the agreed final rates, (2) the bases to which the rates apply, and (3) the periods for which the rates apply.

(e) Pending establishment of final overhead rates for any period, the Contractor shall be reimbursed either at negotiated provisional rates as provided in the contract, or at billing rates acceptable to the Contracting Officer, subject to appropriate adjustment when the final rates for that period are established. To prevent substantial over or under payment, and to apply either retroactively or prospectively, (1) provisional rates may, at the request of either party, be revised by mutual agreement, and (2) billing rates may be adjusted at any time by the Contracting Officer. Any such revision or negotiated provisional rates provided in the contract shall be set forth in a modification to this contract.

(f) Any failure by the parties to agree on any final rates under this clause shall be

considered a dispute concerning a question of fact for decision by the Contracting Officer within the meaning of this "Disputes" clause of this contract.

(g) If this contract is with a nonprofit organization, submission of proposed provisional and/or final overhead rates, together with appropriate data in support thereof, to the Secretary or his duly authorized representative, and agreements on provisional and/or final overhead rates entered into between the Contractor and the Secretary or his duly authorized representative, as evidenced by Negotiated Overhead Rate Agreements signed by both parties, shall be deemed to satisfy the requirements of (b), (d), and (e) above.

6. STANDARDS OF WORK

The Contractor agrees that the performance of work and services pursuant to the requirements of this contract shall conform to high professional standards.

7. ACCOUNTS, AUDIT AND RECORDS

(a) The Contractor shall maintain books, records, documents, and other evidence, accounting procedures, and practices, sufficient to reflect properly all direct and indirect costs of whatever nature claimed to have been incurred in the performance of this contract. The foregoing constitutes "records" for the purposes of this clause.

(b) The Contractor's facility(ies) or such part thereof as may be engaged in the performance of this contract, and his records shall be subject at all reasonable time to inspection and audit by the Secretary or his authorized representatives.

(c) The Contractor shall preserve and make available his records (1) until the expiration of 3 years from the date of final payment under this contract, or the time periods for the particular records specified in 41 CFR Parts 1-20, whichever expires earlier, and (2) for such longer period, if any, as is required by applicable statute, or by other clauses of this contract, or by (i) or (ii) below:

(i) If this contract is completely or partially terminated, the records relating to the work terminated shall be preserved and made available for a period of 3 years from the date of any resulting final settlement.

(ii) Records which relate to (A) appeals under the "Disputes" clause of this contract, (B) litigation or the settlement of claims arising out of the performance of this contract, or (C) costs and expenses of this contract to which exception has been taken by the Secretary or any of his duly authorized representatives, shall be retained until such appeals, litigation, claims, or exceptions have been disposed of.