B-100489, OCT. 23, 1957

B-100489, OCT. 23, 1957

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF AUGUST 15, 1957, REFERENCE CP, FROM THE ASSISTANT SECRETARY OF DEFENSE FOR SUPPLY AND LOGISTICS, CONCERNING A PROPOSED MODIFICATION TO THE RECORDS CLAUSE OF ASPR 7 203/7, WHEREBY SUBPARAGRAPH (A) (4) THEREOF WOULD BE AMENDED TO READ AS FOLLOWS:

"/4) EXCEPT FOR DOCUMENTARY EVIDENCE DELIVERED TO THE GOVERNMENT PURSUANT TO SUBPARAGRAPH (3) ABOVE, THE CONTRACTOR SHALL PRESERVE AND MAKE AVAILABLE ITS RECORDS FOR A PERIOD OF SIX YEARS (UNLESS A LONGER PERIOD OF TIME IS PROVIDED BY APPLICABLE STATUTE OR BY ANY OTHER CLAUSE IN THIS CONTRACT) FROM THE DATE OF THE VOUCHER OR INVOICE SUBMITTED BY THE CONTRACTOR AFTER THE COMPLETION OF WORK PERFORMED DURING ANY SEPARATE PERIOD OF PERFORMANCE ESTABLISHED BY THIS CONTRACT OR BY ANY AMENDMENT OR SUPPLEMENTAL AGREEMENT, WITHOUT REGARD TO FORMER OR SUBSEQUENT PERIODS OF PERFORMANCE; PROVIDED, HOWEVER, THAT RECORDS WHICH RELATE TO (A) APPEALS UNDER THE CLAUSE OF THIS CONTRACT ENTITLED "DISPUTES," (B) LITIGATION OR THE SETTLEMENT OF CLAIMS ARISING OUT OF THE PERFORMANCE OF THIS CONTRACT, OR (C) COSTS OR EXPENSES OF THE CONTRACT AS TO WHICH EXCEPTION HAS BEEN TAKEN BY THE COMPTROLLER GENERAL OR ANY OF HIS DULY AUTHORIZED REPRESENTATIVES, SHALL BE RETAINED BY THE CONTRACTOR UNTIL SUCH APPEALS, LITIGATION, CLAIMS, OR EXCEPTIONS HAVE BEEN DISPOSED OF, BUT IN NO EVENT FOR LESS THAN THE SIX YEAR PERIOD MENTIONED ABOVE; AND PROVIDED FURTHER, THAT IF THE CONTRACTOR PLANS TO DESTROY ANY RECORDS SOONER THAN SIX YEARS AFTER THE DATE OF THE VOUCHER OR INVOICE TO BE SUBMITTED AFTER THE COMPLETION OF THE WORK PERFORMED DURING THE TOTAL OF THE PERIODS OF PERFORMANCE ESTABLISHED BY THIS CONTRACT AND ALL AMENDMENTS AND SUPPLEMENTAL AGREEMENTS THERETO, WHICH VOUCHER OR INVOICE SHALL BE DESIGNATED "COMPLETION VOUCHER" OR "COMPLETION INVOICE," IT SHALL GIVE WRITTEN NOTICE TO THE CONTRACTING OFFICER AND TO THE COMPTROLLER GENERAL OF THE UNITED STATES, SPECIFYING ANY RECORDS WHICH IT PLANS TO DESTROY AFTER THE EXPIRATION OF 90 DAYS FROM THE RECEIPT OF SUCH NOTICE, AND SHALL RETAIN ANY RECORDS WHICH EITHER THE CONTRACTING OFFICER OR THE COMPTROLLER GENERAL, BY WRITTEN NOTICE WITHIN 90 DAYS AFTER RECEIPT OF THE CONTRACTOR'S NOTICE, REQUIRES TO BE RETAINED FOR A FURTHER SPECIFIED PERIOD OF E.'

THE PROPOSED MODIFICATION WOULD APPEAR APPROPRIATE AS PROVIDING CONTRACTUAL IMPLEMENTATION OF THE PROCEDURE REGARDING THE REQUIREMENT FOR MAINTAINING RECORDS UNDER COST-TYPE CONTRACTS WITH EDUCATIONAL INSTITUTIONS FOR RESEARCH AND DEVELOPMENT WORK SUGGESTED IN OUR LETTER OF SEPTEMBER 24, 1956, B-100489, TO YOU, AND AS TO WHICH YOU EXPRESSED YOUR APPROVAL BY LETTER OF JUNE 24, 1957. THE ASSISTANT SECRETARY STATES THAT THE DEPARTMENT OF DEFENSE WOULD CONTINUE TO APPLY THE ADMINISTRATIVE RULES SET FORTH IN HIS LETTER OF JUNE 24, 1957, TO ALL APPLICABLE CONTRACTS ENTERED INTO BEFORE THE EFFECTIVE DATE OF THE PROPOSED MODIFICATION. THAT IS TO SAY, IN THE CASE OF PRESENTLY EXISTING CONTRACTS OF THE TYPE INVOLVED AND PERFORMANCE OF WHICH HAS BEEN EXTENDED PERIODICALLY BY AMENDMENT OR SUPPLEMENTAL AGREEMENT, THE RECORDS-RETENTION PERIOD REQUIRED BY ASPR 7-203.7 MAY BE MEASURED AS TO EACH PERFORMANCE PERIOD; FROM DATE OF THE FINAL VOUCHER OR INVOICE SUBMITTED FOR WORK PERFORMED DURING THE ORIGINAL CONTRACT PERIOD OR THE PERIOD COVERED BY ANY SUBSEQUENT AMENDMENT OR SUPPLEMENTAL AGREEMENT, WHICHEVER IS APPLICABLE, PROVIDED THE CONTRACTOR, SUBSEQUENT TO THE EXPIRATION OF ANY RECORDS PERIOD SO MEASURED, GIVES THE 90-DAY NOTICE REFERRED TO ABOVE. SUCH PROCEDURE IS INAPPLICABLE TO THE SPECIAL CATEGORIES OF RECORDS DESCRIBED IN THE FIRST PROVISO OF THE PROPOSED MODIFICATION.

YOU ARE ADVISED THAT THE PROPOSED MODIFICATION AND PROCEDURE MEETS WITH OUR APPROVAL.