invoiced to and accepted by the Government,

or

(b) 75 percent of the total contract price of supplies and services not yet delivered and invoiced to and accepted by the Government, less unliquidated advance payments.

(4) The aggregate amount of progress payments made shall not exceed 75 percent of the total contract price.

(5) If at any time a progress payment or the unliquidated progress payments exceed the amount permitted by this paragraph a, the contractor shall pay the amount of such excess to the Government upon demand.

b. Liquidation. Except as may be provided in a clause in this contract entitled "Termination for Convenience of the Government," all progress payments shall be liquidated by deducting from any payment under this contract, other than advance or progress, the amount of unliquidated progress payments, or 75 percent of the gross amount invoiced, whichever is less. Repayment to the Government required by a retroactive price reduction will be made after recalculating liquidations and payments on past invoices at the reduced prices and adjusting the unliquidated progress payments accordingly.

c. Reduction or suspension. The contracting officer may reduce or suspend progress payments, or liquidate them at a rate higher than the percentage stated in paragraph b above, or both, whenever he finds upon substantial evidence that the contractor:

(1) Has failed to comply with any material requirement of this contract,

(2) Has so failed to make progress, or is in such unsatisfactory financial condition, as to endanger performance of this contract,

(3) Has allocated inventory to this contract substantially exceeding reasonable requirements,

(4) Is delinquent in payment of the costs of performance of this contract in the ordinary course of business,

(5) Has so failed to make progress that the unliquidated progress payments exceed the fair value of the work accomplished on the undelivered portion of this contract, or

(6) Is realizing less profit than the estimated profit used for establishing a liquidation percentage in paragraph b, if that liquidation percentage is less than the percentage stated in paragraph a(1).

d. Title. When any progress payment is made under this contract, title to all parts; materials; inventories; work in process; nondurable (1.e., noncapital) tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment, and other similar manufacturing aids; and drawings and technical data (to the extent delivery thereof to the Government is required by other provisions of this contract); theretofore acquired or produced by the contractor and allocated or properly chargeable to this contract under sound and generally accepted accounting principles and practices shall forthwith vest in the Government; and title to all like property there

after acquired or produced by the contractor and allocated or properly chargeable to this contract as aforesaid shall forthwith vest in the Government upon said acquisition, production or allocation. Notwithstanding that title to property is in the Government through the operation of this clause, the handling and disposition of such property shall be determined by the applicable provisions of this contract such as the default clause and paragraph h of this clause, and any applicable "Termination for Convenience of the Government" clause. Current production scrap may be sold by the contractor without approval of the contracting officer and the proceeds shall be credited against the costs of contract performance. With the consent of the contracting officer and on terms approved by him, the contractor may acquire or dispose of property to which title is vested in the Government pursuant to this clause, and in that event, the costs allocable to the property so transferred from this contract shall be eliminated from the costs of contract performance and the contractor shall repay to the Government (by cash or credit memorandum) an amount equal to the unliquidated progress payments allocable to the property so transferred. Upon completion of performance of all the obligations of the contractor under this contract, including liquidation of all progress payments hereunder, title to all property (or the proceeds thereof) which had not been delivered to and accepted by the Government under this contract or which had not been incorporated in supplies delivered to and accepted by the Government under this contract and to which title has vested in the Government under this clause shall vest in the contractor. The provisions of this contract referring to or defining liability for Government-furnished property shall apply to property to which the Government shall have acquired title solely by virtue of the provisions of this clause.

not

e. Risk of loss. Except to the extent that the Government shall have otherwise expressly assumed the risk of loss of property, title to which vests in the Government pursuant to this clause, in the event of the loss, theft or destruction of or damage to any such property before its delivery to and acceptance by the Government, the contractor shall bear the risk of loss and shall repay the Government an amount equal to the unliquidated progress payments based on costs allocable to such lost, stolen, destroyed or damaged property.

1. Control of costs and property. The contractor shall maintain an accounting system and controls adequate for the proper administration of this clause.

g. Reports access to records. Insofar as pertinent to the administration of this clause, the contractor will:

(1) Furnish promptly such relevant reports, certificates, financial statements, and other information as may be reasonably requested by the contracting officer, and

(2) Give the Government reasonable opportunity to examine and verify its books, records and accounts.

h. Special provisions regarding default. If this contract is terminated pursuant to the clause entitled "Default,"

(1) The contractor shall, upon demand, pay to the Government the amount of unliquidated progress payments, and

(2) With respect to all property of which the Government elects not to require delivery under the clause entitled "Default," title shall vest in the contractor upon full liquidation of progress payments, and the Government shall be liable for no payment except as provided by the "Default" clause.

1. Reservation of rights. The rights and remedies of the Government provided in this clause shall not be exclusive, and are in addition to any other rights and remedies provided by law or under this contract. No payment, or vesting of title pursuant to this clause, shall excuse the contractor from performance of its obligations under this contract, nor constitute a waiver of any of the rights and remedies of the parties under this contract. No delay or failure of the Government in exercising any right, power, or privilege under this clause shall affect any such right, power or privilege, nor shall any single or partial exercise thereof preclude or impair any further exercise thereof or the exercise of any other right, power or privilege of the Government.

j. Progress payments to subcontractors. (1) The amount mentioned in paragraph a(1) (b) above shall be the sum of:

(a) All the progress payments made by the contractor to his subcontractors and remaining unliquidated, and

(b) Unpaid billings for progress payments to subcontractors which have been approved for current payment in the ordinary course of business, when under subcontracts which conform to subparagraph (2) below.

(2) Subcontracts on which progress payments to subcontractors may be included in the base for progress payments pursuant to paragraph a. of this clause shall contain subcontract progress payment provisions which:

(a) Are substantially similar to and as favorable to the Government as this "Progress Payments" clause (and no more favorable to the subcontractor than this clause is to the contractor), and

(b) Make all rights of the subcontractor with respect to all property to which the Government has title under the subcontract subordinate to the rights of the Government to require delivery of such property to it in the event of default by the contractor under this contract or in the event of the bankruptcy or insolvency of the

subcontractor.

(3) The Government agrees that any proceeds received by it from property to which it has acquired title by virtue of such provisions in any subcontract shall be applied to reduce the amount of unliquidated progress

payments made by the Government to the contractor under this contract. In the event the contractor fully liquidates such progress payments made by the Government to it hereunder and there are progress payments to any subcontractors which are unliquidated, the contractor shall be subrogated to all the Government's rights by virtue of such provisions in the subcontract or subcontracts involved as if all such rights had been thereupon assigned and transferred to the contractor.

(4) The billings described in J(1)(b) above shall be paid promptly by the contractor in the ordinary course of business, not later than a reasonable time after payment of equivalent amounts by the Government to the contractor.

k. Method of invoicing. All invoices for progress payments on contracts containing the Progress Payment clause shall be supported by Form 4737, Contractor's Request for Progress Payment, and any other supporting information that may be reasonably required.

[27 F.R. 3884, Apr. 24, 1962, as amended at 27 F.R. 4281, May 4, 1962]

Subpart N Rule Making Procedures of the Post Office Department

§ 201.200 Rule making.

(a) There are numerous statutes administered by the Post Office Department which contain specific provisions authorizing or directing the Postmaster General to issue rules and regulations to implement such statutes. Other statutes, by inference, vest the Postmaster General with authority to issue such rules and regulations as may be necessary for the proper administration of such statutes. Such rules and regulations have the force and effect of law.

(b) The provisions of the Federal Register Act (49 Stat. 500; 44 U. S. C., ch. 8B), and of the regulations issued thereunder (1 CFR Chapter I) governing the issuance of rules and regulations are observed. Rules and regulations of the Post Office Department are drafted by the General Counsel with the assistance of his staff. Such rules and regulations are based upon legislation and upon changes suggested by the various officers of the Post Office Department. The rules and regulations are submitted to the Postmaster General, and upon being approved, are filed with the Federal Register Division of The National Archives for publication in the FEDERAL REGISTER. Rules dealing with organization and delegation of authority, substantive rules, and rules of procedure will

be separately stated pursuant to the requirements of section 3 (a) of the Administrative Procedure Act (5 U. S. C. 1002).

(c) There is no requirement in the laws administered by the Post Office Department for the giving of notice of, or for the hearing on, proposed rules or regulations. The provisions of section 4 of the Administrative Procedure Act (5 U.S. C. 1003) will be complied with in the promulgation of substantive rules which do not come within the exceptions set forth in the said section.

(d) Petitions by interested persons for the issuance, amendment, or repeal of a rule or regulation of the Post Office Department may be submitted to the General Counsel, Post Office Department, Washington 25, D.C. Such petitions will be considered by the General Counsel and by the officers of the Post Office Department. The petitioner will be notified of any denial of such petition, and, where considered appropriate, of any other action taken in connection therewith.

(R.S. 161, as amended; U.S.C. 22, 39 U.S.C. 309, 501) [26 F.R. 11666, Dec. 6, 1961] Subpart O-Procedure To Adjudicate

Claims for Personal Injury or Property Damage Arising Out of the Operation of the Postal Service

AUTHORITY: The provisions of this Subpart O issued under R.S. 161, as amended; 5 U.S.C. 22, 39 U.S.C. 309, 501.

SOURCE: The provisions of this Subpart O appear at 26 F.R. 11668, Dec. 6, 1961, unless otherwise noted. Redesignated at 26 F.R. 12776, Dec. 30, 1961.

§ 201.250 Character and limit of claims.

(a) Proceedings to adjudicate claims for personal injury or property damage arising out of the operation of the postal service, under the provisions of the Federal Tort Claims Act (28 U. S. C. 2672 et seq.) and the Deficiency Appropriation Act of June 16, 1921, as amended (39 U.S.C. 2409).

(b) Claims for damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of an employee of the Department acting within the scope of his employment under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission

occurred. The authority of the Department to award compensation under this act is limited to claims not exceeding $2,500. Where loss or damage occurs without negligence on the part of the Government employee involved, the maximum compensation which the Department may pay is $500.

§ 201.251 Time limit for filing.

The statutory period of limitation under 28 U.S.C. 2672, et seq., is two years. The maximum amount for which claim may be filed under 39 U.S.C. 2409 is $500. The maximum amount for which an administrative claim may be filed under 28 U.S.C. 2672, et seq., is $2,500.

§ 201.252 Place of filing.

Written claim is usually filed with the postmaster of the office within the delivery limits of which the accident happened, but may be filed with any officer of the Department or sent directly to the General Counsel.

§ 201.253

By whom claims may be filed.

A claim may be filed by the person or firm sustaining injuries or damage in his/its own right. An attorney may assist the claimant but may not sign the claim for such claimant. The provisions of 28 U.S.C. 2678 should be consulted in fixing the amount of attorneys' fees.

§ 201.254 Manner of filing claims.

Claim must be filed on Standard Form 95 which may be obtained from local postmasters or other local postal establishments.

§ 201.255 Evidence required to support claim.

Each claim filed must be supported as follows: (a) In cases of property damage, by an itemized, receipted bill or bills covering the repairs to the private property or the replacement of property destroyed, and limited to such items of repair or replacement as were necessitated by reason of the damage incurred in the specific accident giving rise to the claim or, if repairs have not yet been made, at least two itemized, signed statements or estimates by reliable disinterested concerns; or where property is not economically reparable, or is lost or destroyed, statements as to the original cost of the property, the date of purchase, and the value of the property, both before and after the accident, which

statements should be by disinterested, competent persons, preferably reputable dealers or officers familiar with the type of property damaged, or by two or more competitive bidders, whose bids should be certified as just and correct; the testimony of any available witnesses which the claimant desires considered in the adjudication of such claim; and in cases where the property is covered by insurance-e. g., collision insurance on a carthe claimant must state what insurance is carried, the name and location of the company, whether he has filed claim with that company, and what action the insurance company has taken or will take with respect to such claim. Claims from insurance companies as subrogees must be executed by their proper claims officers and must be supported with subrogation receipts evidencing the payments made to their assured; (b) in cases of personal injury, by doctors' bills, hospital bills, nursing bills, bills covering dental or optical services, a sworn statement from the claimant's employer establishing the amount of time and the compensation lost by reason of the accident, a statement from the attending physician showing the nature and extent of the injuries and the treatment thereof, the degree of permanent or partial disability, if any, the prognosis, and the period of hospitalization or incapacitation; also the sworn statements of any available witnesses. The evidence specifically described in this section may be supplemented by any other documentary evidence which would be helpful to the Department in adjudicating claims. Claimants shall be required to submit to physical examinations by competent doctors employed or retained by the Government whenever they are requested to do so.

§ 201.256 Adjudication and settlement of claims.

In any case where the General Counsel, upon consideration of all the evidence submitted, finds that compensation is due a claimant under either of these acts, payment will be made by the Post Office Department and in due course a settlement warrant will be forwarded to the claimant. Where an attorney has assisted in the prosecution of his claim, the attorney's name will be included in the award.

§ 201.257 Review of adjudications.

The approval and acceptance of adjudication of any claim made by the General Counsel constitutes final action in a case so far as the Department is concerned, and there is no way by which review thereof in the Department may be obtained. If a claim filed under the Federal Tort Claims Act is disallowed, or if the claimant is unwilling to accept the amount awarded, or if the claimant wishes to withdraw the claim from consideration by the Department before final disposition, resort may be had to the United States Courts for relief. Conditions under which relief may be sought in the courts will be found in 28 U. S. C. 2675 and other pertinent sections of the Code referred to therein. Where such suit is brought, the pertinent provisions of Title 28, United States Code, should be examined by the claimant in order that its specific conditions may properly be complied with.

hearing examiner may appear for himself or by an attorney at law.

(b) The head of any bureau or office may establish such special rules and regulations pertaining to eligibility to practice before such bureau or office as he may deem to be necessary or desirable.

(c) Generally, except as provided in § 202.3, any attorney at law who is a member in good standing of the Bar of the Supreme Court of the United States or of the highest court of any State, District, Territory, Protectorate or Possession of the United States, or of the District of Columbia, and is not under any order of any court or executive department of one of the foregoing governmental entities suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law may represent others before the Post Office Department.

(d) When any person acting in a representative capacity appears in person or signs a paper in practice before the Post Office Department his personal appearance or signature shall constitute a representation to the Post Office Department that under the provisions of this part and the law he is authorized and qualified to represent the particular party in whose behalf he acts. The Post Office Department does not generally take formal action or issue any certificate to show that an individual is eligible to practice before the Department. (But see § 202.4.)

§ 202.3

Persons ineligible for admission to practice.

(a) No person disbarred from practice in this Department or in any other executive department of any of the governmental entities mentioned in § 202.2 (c) will be eligible to practice before the Post Office Department until said order of disbarment shall have been revoked.

(b) Any person who, subsequently to being admitted to practice before the Post Office Department, is disbarred by any governmental entity mentioned in § 202.2 (c) shall be deemed suspended from practice in this Department during the pendency of said order of disbarment.

(c) No person who has been an attorney, officer, clerk, or employee in this Department will be recognized as attorney for prosecuting before this Department or any office thereof any case or

matter which he was in anywise connected while he was such attorney, officer, clerk, or employee.

(d) No person coming within the prohibitions of 5 U.S.C. 99, 18 U.S.C. 281, or 18 U.S.C. 283, will be recognized as attorney before this Department or any office thereof.

§ 202.4 Authorization of appearance may be required.

The Judicial Officer, the head of any bureau or office or any hearing examiner may require any person to present satisfactory evidence of his authority to represent the person for whom he appears. § 202.5 Complaint of misconduct.

(a) If the head of any bureau or office of the Department has reason to believe, or if complaint be made to him, that any person is guilty of conduct subjecting him to suspension or disbarment, the head of such office shall report the same to the Judicial Officer.

(b) Whenever any person submits to the Judicial Officer a complaint against any person who has practiced, is practicing or holding himself out as entitled to practice before the Post Office Department, the Judicial Officer may refer such complaint to the Chief Inspector for a complete investigation and report.

(c) At any time, the Judicial Officer may refer the complaint to the General Counsel for the preparation of formal charges to be lodged against and served upon the person against whom the complaint has been made.

§ 202.6

Censure, suspension or disbar. ment; grounds.

(a) The Judicial Officer may censure, suspend or disbar any person against whom a complaint has been made and upon whom charges have been served as provided in § 202.5 if he finds that such person:

(1) Does not possess the qualifications required by § 202.2;

(2) Has failed to conform to standards of ethical conduct required of practitioners at the Bar of any court of which he is a member;

(3) Represents, as an associate, an attorney who, known to him, solicits practice by means of runners or other unethical methods;

(4) By use of his name, personal appearance, or any device, aids or abets