May 26, 1983
Subject: CANCELLED DOE Master Contract DE-AMO3-76-S000010, "GEN 10", Modification No. M026
Enclosure 1 is a copy of fully executed Modification No. M026 to the subject DOE Master Contract, "GEN 10". This Modification consolidates and supersedes all previous modifications, revises certain terms and conditions, and rewrites in its entirety the text of GEN 10.
We have prepared a summary (Enclosure 2) which highlights the principal contract changes being made to the Master Contract. The new GEN 10 payments provision which provides for drawdowns under a letter of credit is discussed in Enclosure 2, at "Clause 4 - Allowable Cost and Payment" and in Enclosure 3, a February, 23, 1983 memo issued by Don Alter.
DOE imposes "Controls in the National Interest" in the new GEN 10. These controls are discussed in Enclosure 2 at Clause 40. Additional information in this area is provided under DOE Order 1240.2 (Enclosure 4) and DOE/SAN MD No. 1240.2 (Enclosure 5). The entire contract should be carefully reviewed, of course, to be aware of all the current terms and conditions.
Refer: Joe Acanfora
Subject Index: 06, 11, 22
Organization Index: F-275
Campus Accounting Officers
Campus Material managers
Mr. Paul Robinson, Office of Naval Research
University Contracts and Grants Coordinator
M026 ISSUED BY U. S. Department of Energy
San Francisco Operations Office
Oakland, CA 94612
The Regents of the University of California
ATTN: David F. Mears
Contract & Grants
University Hall, Room 491
2200 University Avenue
Berkeley, CA 94720
[Standard Form 30]
12. DESCRIPTION OF AMENDMENT/MODIFICATION
The parties agree that this contract is modified as shown in Attachments A, B, and C.
MODIFICATION NO. M026
CONTRACT NO. DE-AMO3-76SF00010
This SUPPLEMENTAL AGREEMENT is entered into and is effective this day of ____________, 19__, between the UNITED STATES OF AMERICA (hereinafter called the "Government"), acting through the UNITED STATES DEPARTMENT OF ENERGY (hereinafter called "DOE"), and THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (hereinafter called the "Contractor" or "University").
WHEREAS, the parties have cooperated in a program of research and development under this contract, and;
WHEREAS, DOE desires to have the University continue to perform research under the contract, and;
WHEREAS, the parties, in the interest of clarity, desire to consolidate Modification Nos. 21 through M025 into this single Modification M026 and to revise certain of the terms and conditions in accordance with current policy and procedures, and;
WHEREAS, this contract is authorized by the Department of Energy Organization Act of 1977, P.L. 95-91, and other Applicable law;
NOW, THEREFORE, and commencing on the effective date above, the contract shall be amended to read as follows:
THE RESEARCH TO BE PERFORMED
The University shall to the best of its ability furnish personnel, facilities, equipment, materials, supplies and services (except such as are furnished by the Government) necessary for the performance of the research provided for in separate Project Agreements (or renewals of existing Project Agreements) to be executed in accordance with programs mutually agreed upon by DOE and the University, the format of which is set forth in Attachment "C" attached hereto and made a part hereof, and shall perform the research and shall report thereon pursuant to the provisions of this contract.
(b) Project Agreement
(1) Each Project Agreement executed shall set forth the scope of work to be performed thereunder, establish the estimated costs thereof, the period of performance and any special, changed, or revised clauses, provisions, terms or conditions applicable thereto. In the event of an inconsistency between the specific terms of a Project Agreement and the terms herein, as the same may be amended from time to time, the terms of said Project Agreement shall apply.
(c)(2) The parties agree to negotiate for the performance under the terms herein for such Project Agreements as may be properly performable hereunder, and within the capabilities or abilities of the University. Execution of Contract DE-AM03-76SFOOO10 does not obligate the DOE to assign any work or specific additional or continuing work to the University. During the term of this basic agreement, the University shall continue with existing Project Agreements or perform such modified or other Project Agreements within the general scope of Contract DE-AM03-76SF00010 as may be mutually agreed upon.
On and after the effective date of Modification No. M026 to Contract No. DE-AM03-76SF00010, future performance of all work by the University on all existing and subsequent Project Agreements and the rights, duties, and activities of the parties shall be in accordance with and subject to the terms of such Project Agreements and the terms of this Contract as rewritten and set forth in Modification No. M026 and any subsequent amendments or modifications to Contract No. DE-AM03-76SF00010 as may be mutually agreed upon. Notwithstanding the above, in the event of differences between specific terms of an existing Project Agreement or articles or provisions revised to read in a specific manner, and the terms herein as the same may be amended from time to time, the specific terms of the Project Agreement shall apply or continue to apply until such time as the Project Agreement may be amended. Any work performed under this Contract No. DE-AMO3-76SF00010 prior to the effective date of Modification No. M026 shall be governed by the provisions of the Contract No. DE-AM03-76SF00010 as modified prior to the effective date of Modification No. M026 and the Project Agreements which were in effect when the work was performed.
Changes and Revisions in Text and Numbering - The parties recognize that Modification No. M026 to Contract No. DE-AM03-76SF00010 rearranges and renumbers previously existing articles and general provisions and in certain instances may make changes in the order or designation of paragraphs within such renumbered or rearranged articles or general provisions. Accordingly, it is agreed that references in all of the existing individual Project Agreements to articles and/or general provisions of this basic agreement shall be deemed and understood to continue to refer to the appropriate and renumbered corresponding articles or clauses and text of Modification No. M026. In furtherance of the arrangements in paragraph (b) above, it is understood that any renumbered or redesignated clauses of the general provisions set forth in Modification No. M026 shall apply in their entirety to work performed after the effective date of Modification No. M026 except to the extent that such clause or renumbered General Provision or any designated subparagraph or portion of text thereof has been expressly revised to read in a different or changed manner or has been made inapplicable for the purposes of any individual Project Agreement.
Any such article or renumbered general provisions of existing Project Agreements which are revised to read in a different or changed manner, or subparagraphs added to said articles and general provision under existing Project Agreements shall be deemed as if made in, or added to, the corresponding renumbered or redesignated clause in Modification No. M026 to Contract DE-AM03-76SF00010 and, to the extent necessary, automatically redesignated as to paragraph number or clause. To the extent that any duplication of text or of references to designated paragraph numbers within an article in the basic agreement shall occur, such shall be disregarded, it being the intent of the parties to continue to give full effect to all express provisions of Project Agreements and not to change the contractual obligation of the parties or the arrangements as set forth under any specifically revised terms, conditions or provisions of any Project Agreement by reason or execution of Modification No. M026. The intent, therefore, is that the obligation of the parties under any Project Agreement negotiated prior to Modification No. M026 does not change. Nothing in this paragraph (c) shall be deemed in any way to limit the existing right of the parties to make changes or revisions in, or to, any existing or future Project Agreement, or the terms and conditions thereof.
(d) The University shall furnish technical reports as defined and required in each Project Agreement as Exhibit II. Such reporting requirements may be revised, changed, or otherwise altered as mutually agreed upon and reasonably requested by DOE in writing without further amendment to the Project Agreement without prejudice to any rights of the Government or the University under the provision entitled "Changes". The foregoing reporting requirements relate to technical reports only and are in addition to any other applicable provisions of this Contract with regard to reports and reporting requirements.
(e) All work shall be performed under the general guidance and direction of the Technical .Manager whose responsibilities are defined in Article III. Such guidance and direction shall not, however, effect any change in the specification requirements or cost structure of any Project Agreement, increase its estimated cost, or extend the period of performance. Such changes shall be made only by action of the Contracting Officer.
PERIOD OF PERFORMANCE
Modification No. M026 to Contract DE-AMO3-76SF00010 shall be effective from the date of execution and shall continue in effect until the most remote expiration date of any Project Agreement executed hereunder, unless sooner terminated as provided herein or unless extended by mutual agreement of the parties.
(a) The University to the best of its ability, shall be responsible for performance of the work under this contract in accordance with Article C-I of the Project Agreement Schedule entitled "Scope of Work" and in accordance with all other provisions of this contract. The University shall secure the necessary personnel and facilities, and do all other things required for the efficient and successful prosecution of the contract work, and with consideration given to technical direction offered by the Technical Manager.
(b) The Technical Manager, who shall be specifically appointed by the Contracting Officer in writing, shall monitor the University's performance with respect to compliance with the requirements of the Scope of Work, schedule and cost. The Technical Manager shall offer technical direction to the University. Technical direction includes the process of conducting inquiries or transmitting information or advice by the Technical Manager, regarding matters within the requirements of the Scope of Work. Technical direction shall not impose tasks or requirements upon the University additional to or different from the general tasks and requirements stated in the Article of the Project Agreement entitled "Scope of Work". The technical direction to be valid:
(1) Must be issued in writing consistent with the general scope of the work set forth in the Project Agreement,
(2) Shall not commit the Government to any adjustment of the estimated cost or other Project Agreement provisions.
(c) If the University and the Contracting Officer disagree on whether Government Direction is technical direction or is a change within the purview of the "Changes" clause such disagreement shall be considered a dispute concerning a question of fact within the meaning of the Clause of Contract DE-AM03-76SF00010 entitled "Disputes". Resolution of such a dispute shall be subject to those provisions.
(d) The only persons authorized to give technical direction to the University under this contract are the Contracting Officer and any "Technical Manager" who may be appointed as contemplated by paragraph (b) above. Any action taken by the University in response to any direction given by any person other than the Contracting Officer or the Technical Manager shall be at the University's own risk.
FINANCIAL PLANS; COST LIMITATIONS
In addition to the limitations provided for elsewhere in this contract or in any Project Agreements executed hereunder, DOE may, through a Financial Plan(s) issued to the University, establish ceilings by Government fiscal year on the costs to be incurred in the performance of the specific Project Agreement contract work. Such plans may be amended or supplemented from time to time by DOE. All such Plan(s) shall be compatible with the performance and work requirements stipulated in any Project Agreements or as such performance and work requirements may be changed by modification thereto. The University hereby agrees to comply with the limitations which are specifically noted as absolute ceilings on such Financial Plan(s); to use its best efforts to comply with other ceilings or requirements of such Plan(s), and to promptly notify DOE in writing whenever it has reason to believe any Financial Plan' ceiling will be exceeded or significantly underrun. (Payment to the University by DOE will be adjusted to the lesser of obligations made under individual Project Agreements or to those ceilings established as absolute ceilings by Financial Plan(s)). (For purposes of this Article IV, financial plan means a plan issued by the DOE cognizant budget analysts that contains fiscal year cost ceilings for budget and reporting categories which are determined by DOE in consideration of work proposed by the University. The University shall not be obligated to continue performance under a Project Agreement (including actions under the Termination clause) or otherwise to incur costs in excess of the cost ceilings on such Financial Plans. The University representative responsible for receipt of the Financial Plan will be the Contract and Grant Officer for such Project Agreement.)
ADDITIONAL GENERAL PROVISIONS
Attachment "B" attached hereto and made a part hereof sets forth the additional General Contract Provisions of this contract. Attachment "C" also attached hereto and made a part hereof sets forth the format of Project Agreements to be issued hereunder.