52.249-8 Default (Fixed-Price Supply and

Service).

As prescribed in 49.504(a)(1), insert the following clause:

Default (Fixed-Price Supply and Service) (Apr 1984)

(a)

(1) The Government may, subject to paragraphs (c) and (d) of this clause, by written notice of default

to the Contractor, terminate this contract in whole or in part if the Contractor fails to-

(i) Deliver the supplies or to perform the services within the time specified in this contract or any

extension;

(ii) Make progress, so as to endanger performance of this contract (but see paragraph (a)(2) of this

clause); or

(iii) Perform any of the other provisions of this contract (but see paragraph (a)(2) of this clause).

(2) The Government’s right to terminate this contract under subdivisions (a)(1)(ii) and (1)(iii) of this

clause, may be exercised if the Contractor does not cure such failure within 10 days (or more if

authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting

Officer specifying the failure.

(b) If the Government terminates this contract in whole or in part, it may acquire, under the terms

and in the manner the Contracting Officer considers appropriate, supplies or services similar to

those terminated, and the Contractor will be liable to the Government for any excess costs for those

supplies or services. However, the Contractor shall continue the work not terminated.

(c) Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess

costs if the failure to perform the contract arises from causes beyond the control and without the

fault or negligence of the Contractor. Examples of such causes include (1) acts of God or of the

public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4)

floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9)

unusually severe weather. In each instance the failure to perform must be beyond the control and

without the fault or negligence of the Contractor.

(d) If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of

the default is beyond the control of both the Contractor and subcontractor, and without the fault or

negligence of either, the Contractor shall not be liable for any excess costs for failure to perform,

unless the subcontracted supplies or services were obtainable from other sources in sufficient time

for the Contractor to meet the required delivery schedule.

(e) If this contract is terminated for default, the Government may require the Contractor to transfer

title and deliver to the Government, as directed by the Contracting Officer, any (1) completed

supplies, and (2) partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans,

drawings, information, and contract rights (collectively referred to as "manufacturing materials" in

this clause) that the Contractor has specifically produced or acquired for the terminated portion of
this contract. Upon direction of the Contracting Officer, the Contractor shall also protect and

preserve property in its possession in which the Government has an interest.

(f) The Government shall pay contract price for completed supplies delivered and accepted. The

Contractor and Contracting Officer shall agree on the amount of payment for manufacturing

materials delivered and accepted and for the protection and preservation of the property. Failure to

agree will be a dispute under the Disputes clause. The Government may withhold from these

amounts any sum the Contracting Officer determines to be necessary to protect the Government

against loss because of outstanding liens or claims of former lien holders.

(g) If, after termination, it is determined that the Contractor was not in default, or that the default

was excusable, the rights and obligations of the parties shall be the same as if the termination had

been issued for the convenience of the Government.

(h) The rights and remedies of the Government in this clause are in addition to any other rights and

remedies provided by law or under this contract.

(End of clause)

Alternate I (Apr 1984). If the contract is for transportation or transportation-related services, delete

paragraph (f) of the basic clause, redesignate the remaining paragraphs accordingly, and substitute

the following paragraphs (a) and (e) for paragraphs (a) and (e) of the basic clause:

(a)(1) The Government may, subject to paragraphs (c) and (d) of this clause, by written notice of

default to the Contractor, terminate this contract in whole or in part if the Contractor fails to-

(i) Pick up the commodities or to perform the services, including delivery services, within the time

specified in this contract or any extension;

(ii) Make progress, so as to endanger performance of this contract (but see paragraph (a)(2) of this

clause); or

(iii) Perform any of the other provisions of this contract (but see paragraph (a)(2) of this clause).

(2) The Government’s right to terminate this contract under subdivisions (a)(1)(ii) and (iii) of this

clause, may be exercised if the Contractor does not cure such failure within 10 days (or more if

authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting

Officer specifying the failure.

(e) If this contract is terminated while the Contractor has possession of Government goods, the

Contractor shall, upon direction of the Contracting Officer, protect and preserve the goods until

surrendered to the Government or its agent. The Contractor and Contracting Officer shall agree on

payment for the preservation and protection of goods. Failure to agree on an amount will be a

dispute under the Disputes clause.

Parent topic: 52.249 [Reserved]