78TH CONG. , 2o SESS.-CH. 63 -FEB . 25 ,1944 partner, or full-time employee of the other contracting party, (i) any amount payable under which is contingent upon the pro- curement of a contract or contracts with a Department or of a subcontract or subcontracts, or determined with reference to the amount of such a contract or subcontract or such contracts or subcontracts, or (ii) under which any part of the services per- formed or to be performed consists of the soliciting, attempting to procure, or procuring a contract or contracts with a Depart- ment or a subcontract or subcontracts: Provided, That nothing in this sentence shall be construed (1) to affect in any way the validity or construction of provisions in any contract with a Department or any subcontract, heretofore at any time or here- after made, prohibiting the payment of contingent fees or com- missions; or (2) to restrict in any way the authority of the Secretary or the Board to determine the nature or amount of selling expenses under subcontracts as defined in this subpara- graph, as a proper element of the contract price or as a reim- bursable item of cost, under a contract with a Department or a subcontract. "(6) The term 'article' includes any material, part, assembly, machinery, equipment, or other personal property. "(7) The term 'standard commercial article' means an article- "(A) which is identical in every material respect with an article which was manufactured and sold, and in general civilian, industrial, or commercial use prior to January 1, 1940, "(B) which is identical in every material respect with an article which is manufactured and sold, as a competitive product, by more than one manufacturer, or which is an article of the same kind and having the same use or uses as an article manu- factured and sold, as a competitive product, by more than one manufacturer, and "(C) for which a maximum price has been established and is in effect under the Emergency Price Control Act of 1942, as amended, or under the Act of October 2, 1942, entitled 'An Act to amend the Emergency Price Control Act of 1942, to aid in preventing inflation, and for other purposes', or which is sold at a price not in excess of the January 1, 1941, selling price. An article made in whole or in part of substitute materials but other- wise identical in every material respect with the article with which it is compared under subparagraphs (A) and (B) shall be considered as identical in every material respect with such article with which it is so compared. "(8) The term 'fiscal year' means the taxable year of the con- tractor or subcontractor under Chapter 1 of the Internal Revenue Code. "(9) The terms 'received or accrued' and 'paid or incurred' shall be construed according to the method of accounting employed by the contractor or subcontractor in keeping his books. "(b) Subject to subsection (i), the Secretary of each Department is authorized and directed to insert in each contract made by such Department thirty days or more after the date of the enactment of the Revenue Act of 1943 and involving an estimated amount of more than $100,000, a provision under which the contractor agrees- "(1) to the elimination of excessive profits through renego- tiation; "(2) that there may be retained by the United States from amounts otherwise due the contractor, or that he will repay to the United States, if paid to him, any excessive profits; " Article." "Standard commer- cial article." 66 Stat. 23 , 765. 50 U. S. C., Supp. III, app. §§901-971. Post, pp. 632 , 642 , 784. '"Fiscalyear. " 83Stat. 4. 26U.S.0.1g 1-6; Supp. III , § 3-476. Ante, p. 26 et seq. Post, pp. 231 et seq., 647. "Received or ac- crued," "paid or in- curred. " Contracts in exces of $100,000. Provision to be in- serted. O86W0° -nff -- 6 58 STAT.] 81
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