Appendix E of the Title VI Assurances
(US DOT Order 1050.2A)
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following nondiscrimination statutes and authorities; including but not limited to:
Pertinent Nondiscrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 4 71, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, subrecipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38;
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• The Federal Aviation Administration's Nondiscrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).
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COMMUNITY WORKFORCE AND TRAINING
AGREEMENT
FOR THE CITY OF STOCKTON
INTRODUCTION/FINDINGS
The purpose of this Agreement is to promote efficiency of construction operations performed for and within the City of Stockton and to provide for peaceful settlement of labor disputes and grievances without strikes or lockouts, thereby promoting the public interest in assuring the timely and economical completion of the projects subject to this Agreement, and to support the efforts of the City to increase employment opportunities for workers who reside in Stockton, to help increase training and employment opportunities for the City's students in the construction trades through apprenticeship and pre-apprentice programs as the students graduate from the City's schools.
WHEREAS, the City adopts a five-year Capital Improvement Plan that identifies the public projects necessary to maintain and improve the physical properties of the City, including buildings, parks, entertainment venues, golf courses, utility systems, the transportation system and other facilities; and
WHEREAS, the City undertakes and anticipates undertaking many of the projects identified in the current and proposed Capital Improvement Plan and other City public works projects that involve significant construction costs in excess of threshold set forth in this Agreement; and
WHEREAS, the City Council has determined that the successful and cost-effective completion of these Capital Improvement Plan projects and other major City public works projects is of the utmost importance to the City and its taxpayers and the residents it serves; and WHEREAS, the City has determined that applying the same Agreement to the Capital Improvement Plan and other public works construction projects that exceed the threshold set forth in this Agreement during the term of this Agreement will provide efficiencies for the City and its contractors; and
WHEREAS, large numbers of workers of various skills will be required in the performance of the construction work, including those workers represented by Unions affiliated with the San Joaquin Building and Construction Trades Council ("the Council") and employed by contractors and subcontractors who are signatory to agreements with said labor organizations; and WHEREAS, it is recognized that projects with multiple contractors and bargaining units on the job site at the same time over an extended period of time, the potential for work disruption is substantial without an overriding commitment to maintain continuity of work; and 3238-017jj 1
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WHEREAS, the interests of the general public, the City and the Contractor(s)/Employer(s) would be best served if the construction work proceeded in an orderly manner without disruption due to labor disputes; and
WHEREAS, the Contractor(s)/Employer(s) and the Unions desire to mutually establish and stabilize wages, hours and working conditions for the workers employed on the construction projects subject to this Agreement in order to promote a satisfactory, continuous and harmonious relationship among the parties to this Agreement; and
WHEREAS, unemployment rates in Stockton have been consistently higher than in California as a whole and statistics indicate that the higher unemployment level in Stockton correlates to a higher number of families living in poverty and to a higher crime rate; and WHEREAS, due to the lack of jobs, much of the work force residing in Stockton is forced to commute long distances to find work, causing increased traffic, increased pollution, and other serious environmental impacts; and
WHEREAS, because of the shortage oflocal jobs, many residents of Stockton must leave for work very early in the morning and return late in the evening, often leaving children and teenagers alone and unsupervised during the day; and
WHEREAS, absentee parents and unsupervised youth can result in increased problems for families, communities, and the City as a whole; and WHEREAS, the contracts for the construction of the projects will be awarded in accordance with the applicable provisions of the California State Public Contract Code and state, local and federal laws and regulations; and
WHEREAS, the City has the absolute right to select the lowest responsive and responsible bidder for the award of construction contracts on the projects; and WHEREAS, the parties signatory to this Agreement pledge their full good faith and trust to work towards mutually satisfactory completion of the Capital Improvement Plan projects and other major City public works projects that will be subject to this Agreement; and
NOW, THEREFORE, IT IS AGREED BETWEEN AND AMONG THE PARTIES HERETO, AS FOLLOWS:
1.1 1.2
personnel.
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ARTICLE I
DEFINITIONS
"Agreement" mearis this Community Workforce and Training Agreement. "City" means the City of Stockton and its public employees, including managerial 2 EXHIBIT G Page 119 of 147 EXHIBIT 3 492
1.3 "Contractor(s)/Employer(s)" or "Contractor" means any individual, firm, partnership or corporation, or combination thereof, including joint ventures, that is an independent business enterprise and has entered into a contract with the City or Project Manager or any of its contractors or subcontractors of any tier, with respect to the construction of any part of the Project under contract terms and conditions approved by the City and which incorporate this Agreement.
1.4 "Construction Contract" means a contract awarded by the City for public work within the meaning of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the California Labor Code.
1.5 "Project" means any construction project of the City whose value as determined by the higher of the engineer's estimate of the total cost of the project or the actual cumulative bid amounts submitted by the contractor or contractors awarded the Construction Contracts for the Project, exceeds one million dollars ($1,000,000). By mutual consent of the City and the Council, ·this threshold amount may be reduced to an amount not below two hundred and fifty thousand dollars ($250,000) after one year from the effective date of this Agreement.
1.6 "Union" or "Unions" means the San Joaquin Building and Construction Trades Council, AFL-CIO ("the Council") and any other labor organization, including those affiliated with the Council, signatory to this Agreement, acting in their own behalf and on behalf of their respective affiliates and member organization whose names are subscribed hereto and. who have through their officers executed this Agreement ("Local Unions").
1. 7 "Stockton Resident" means a resident of the City of Stockton as defined by Stockton Municipal Code Section 3.68.095(1)(3).
1.8 "Local Area Resident" means any Stockton Resident or any individual domiciled within the boundaries of San Joaquin County according to the criteria set forth in Stockton Municipal Code Section 3.68.095(1)(3) for Stockton Residents.
1.9 "Project Manager" means the business entity or City employee designated by the City to oversee all phases of construction on the Project.
1.10 "Master Agreement" or "Schedule A" means the Master Collective Bargaining Agreement of each craft union signatory hereto, which shall be on file with the City.
1.11 "Completion" means that point at which the City accepts a project at issue by filing a Notice of Completion, or as otherwise provided by applicable state law. "Punch List" items and any other work within the scope of this Agreement not completed prior to commencement of revenue service shall nonetheless be included within the scope of this Agreement. It is understood by the parties that pmtions of the Project may be completed in phases and Completion of any such phase may occur prior to Completion of the Project. 3238-017,ij 3
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ARTICLE II
SCOPE OF AGREEMENT
2.1 Parties: The Agreement shall apply and is limited to the City and all Contractor(s)/Employer(s) performing construction contracts on the Project, including surveying and on-site testing and inspection where such work is traditionally covered by a Master Agreement with a Union, and the Council and any other labor organization signatory to this Agreement, acting in their own behalf and on behalf of their respective affiliates and member organizations whose names are subscribed hereto and who have through their officers executed this Agreement.
2.2 Project Description: The Agreement shall govern the award of all Construction Contracts identified by the City as part of the Project. The City has the absolute right to combine, change, consolidate, suspend or cancel Construction Contract(s) or portions of Construction Contract(s) identified as part of the Project. Should the City suspend or remove any individual contract from the Project and thereafter authorize that construction work be commenced on such contract, then such contract shall be performed under the terms of this Agreement. Once a Construction Contract is completed it is no longer covered by this Agreement except when a Contractor is directed to engage in repairs, warranty work or modifications required by its Construction Contract with the City. For the purposes of this Agreement, a Construction Contract shall be considered Completed as set forth in Section 1.11 of this Agreement.
2.3 Covered Work: This Agreement covers, without limitation, all site preparation, surveying, on-site construction, alteration, demolition, installation, improvement, painting or repair of buildings, structures, modular furniture installations, and other works and related activities for the Project that is within the craft jurisdiction of one of the Unions and that is part of the Project, including, without limitation to the following examples, geotecbnical and exploratory drilling, temporary HV AC, landscaping and temporary fencing, pipelines (including those in linear corridors built to serve the Project), pumps, pump stations, on-site soils and material inspection and testing, and demolition of any existing structures required to be performed to complete the Project. This Agreement shall apply to any stait-up, calibration, commissioning, performance testing repair, and operational revisions to systems and/or subsystems for the Project performed after completion, unless it is performed by City employees.
On-site work includes work done for the Project in temporary yards or areas adjacent to the Project, and at any on-site or off-site batch plant constructed solely to supply materials to the Project. This Agreement covers all onsite fabrication work over which the City or any Contractor(s)/Employer(s) possess the right of control (including work done for the Project in any temporary yard or area established for the Project.) This Agreement also covers all off-site work, including fabrication traditionally performed by the Unions, that is part of the Project, provided such off-site work is covered by a current "Master Agreement" or local addenda to a National Agreement of the applicable Union(s) that is in effect as of the execution date of this Agreement. The furnishing of supplies, equipment or materials which are stockpiled for later use shall not be considered Covered Work; however, the delivery of ready-mix, asphalt, aggregate, sand or other fill material which are directly incorporated into the construction process as well as the off-hauling of debris and excess fill, material and/or mud shall be covered by the terms and conditions of this Agreement. Contractor( s )/Employer( s ), including brokers, of persons providing construction trucking work shall provide ce1tified payroll records to the City within ten (10) days of a written request or as required by bid specifications. 3238-017.ii 4
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2.4 Exclusions from Covered Work
2.4.1 The Agreement shall be limited to construction work on the Project and is not intended to, and shall not affect or govern the award of public works contracts by the City which are not a part of the Project.
2.4.2 The Agreement shall not apply to a Contractor's/Employer's nonconstruction craft employees, including but not limited to executives, managerial employees, engineering employees and supervisors above the level of General Foreman (except those covered by existing Master Agreements), staff engineers or other professional engineers, administrative and management personnel.
2.4.3 This Agreement shall not apply to work by employees of the City.
2.4.4 This Agreement shall not apply to any work performed on or near or leading to the site of work covered by this Agreement that is undertaken by state, county, City or other governmental bodies or their contractors; or by public or private utilities or their contractors that is not part of the Project.
2.4.5 This Agreement shall not apply to the Project where the Agreement is prohibited by state or federal law or where the express conditions for the receipt of non-de minimis state or federal funding prohibit the City from applying this Agreement to the Project.
2.5 Project Labor Disputes: All Project labor disputes involving the application or interpretation of the Master Agreement to which a signatory Contractor(s)/Employer(s) and a signatory Union are parties shall be resolved pursuant to the resolution procedures of the Master Agreement. All disputes relating to the interpretation or application of this Agreement shall be subject to resolution by the Grievance Committee and the Grievance and Arbitration Procedure set forth in Article XII.
2.6 Work covered by this Agreement within the following craft jurisdictions shall be performed under the terms of their National Agreements as follows: the National Transient Lodge (''NTL") Articles of Agreement, the National Stack/Chimney Agreement, the National Cooling Tower Agreement, and the National Agreement of Elevator Constrnctors, and any instrument calibration work and loop checking shall be performed under the terms of the UNIBEW Joint National Agreement for Instrument and Control Technicians, with the exception that A,rticles IV, XIl, XIII of this Agreement shall apply to such work.
2.7 Award of Contracts. It is understood and agreed that the City has the absolute right to select any qualified bidder for the award of contracts under this Agreement. The bidder need only be willing, ready and able to execute and comply with this Agreement. It is further agreed that this Agreement shall be included in all invitations to bid or solicitations for proposals from contractors or subcontractors for work on the Project that are issued on and after the effective date of this Agreement.
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ARTICLEID
EFFECT OF AGREEMENT
3 .1 By executing the Agreement, the Unions and the City agree to be bound by each and all of the provisions of the Agreement.
3.2 This Agreement shall be included as a condition of the award of Construction Contracts for the Project. By accepting the award of a Construction Contract for the Project, whether as contractor or subcontractor, the Contractor(s)/Employer(s) agrees to be bound by each and every provision of the Agreement and agrees that it will evidence its acceptance prior to the commencement of work by executing the Agreement to be Bound in the form attached hereto as Addendum A.
3.3 At the time that any Contractor(s)/Employer(s) enters into a subcontract with any subcontractor providing for the performance of a Construction Contract, the Contractor( s )/Employer( s) shall provide a copy of this Agreement to said subcontractor and shall require the subcontractor as a part of accepting an award of a construction subcontract to agree in writing, to be bound by each and every provision of this Agreement prior to the commencement of work by executing the Agreement to be Bound in the form attached hereto as Addendum A.
3.4 This Agreement shall only be binding on the signatory parties hereto, their successors and assigns, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such party. Each Contractor shall alone be liable and responsible for its own individual acts and conduct and for any breach or alleged breach of this Agreement.
Any dispute between the Union(s) and the Contractor(s) respecting compliance with the terms of the Agreement, shall not affect the rights, liabilities, obligations and duties between the signatory Union(s) and other Contractor(s)/Employer(s) party to this Agreement.
3.5 It is mutually agreed by the parties that any liability by a signatory Union to this Agreement shall be several and not joint. Any alleged breach of this Agreement by a signatory Union shall not affect the rights, liabilities, obligations and duties between the signatory Contractor(s) and the other Union(s) party to this Agreement.
3.6 The provisions of this Agreement, including the Master Agreements of the Local Unions having jurisdiction over the work on the Project, incorporated herein by reference, shall apply to the work covered by this Agreement, notwithstanding the provisions of any other local, area and/or national agreements which may conflict with or differ from the terms of this Agreement. Where a subject covered by the provisions of this Agreement is also covered by a Master Agreement, the provisions of this Agreement shall prevail. Where a subject is covered by the provisions of a Schedule A and is not covered by this Agreement, the provisions of the Master Agreement shall prevail.
ARTICLE IV
WORK STOPPAGES, STRIKES. SYMPATHY
STRIKES AND LOCKOUTS
4.1 The Unions, City and Contractor(s)/Employer(s) agree that for the duration of the Project:
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(1) There shall be no strikes, sympathy strikes, work stoppages, picketing, hand billing or otherwise advising the public that a labor dispute exists, or slowdowns of any kind, for any reason, by the Unions or employees employed on the Project, at the job site of the Project or at any other facility of the City because of a dispute on the Project. Nor shall the Unions or any employees employed on the Project participate in any strikes, sympathy strikes, work stoppages, picketing, hand billing, slowdowns, or otherwise advising the public that a labor dispute exists at the jobsite of the Project because of a dispute between Unions and Contractor(s)/Employer(s) on any other project. It shall not be considered a violation of this Article if labor is withheld by a Union due to lack of payments to a Trust Fund or failure to make payroll on the Project. Nothing stated in this Agreement shall prevent Unions from participating in the actions mentioned in this section onjobsites other than the Project jobsite because of disputes between the Unions and Contractor(s)/Employer(s) on projects other than the Project. (2) As to employees employed on the Project, there shall be no lockout of any kind by a Contactor(s)/Employer(s) covered by the Agreement. (3) If a Master Agreement between a Contractor(s)/Employer(s) and the Union expires before the Contractor(s)/Employer(s) completes the performance of a Construction Contract for work covered under this Agreement and the Union or Contractor(s)/Employer(s) gives notice of demands for a new or modified Master Agreement, the Union agrees that it will not strike the Contractor(s)/Employer(s) on said contract for work covered under this Agreement and the Union and the Contractor(s)/Employer(s) agree that the expired Master Agreement shall continue in full force and effect for work covered under this Agreement until a new or modified Master Agreement is reached between the Union and Contractor(s)/Employer(s). If the new or modified Master Agreement reached between the Union and Contractor(s)/Employer(s) provides that any terms of the Master Agreement shall be retroactive, the Contractor(s)/Employer(s) agrees to comply with any retroactive terms of the new or modified Master Agreement which is applicable to employees employed on the Project within seven (7) days after the effective date of the new or modified Master Agreement.
4.1.1. Notification: If the City contends that any Union has violated this Article, it will notify in writing (including email) the Senior Executive of the Council and the Senior Executive of the Union, setting fmth the facts alleged to violate the Article, prior to instituting the expedited arbitration procedure set forth below. The Senior Executive of Council will immediately use his/her best efforts to cause the cessation of any violation of this Atticle. The Senior Executive of the Union will immediately inform the membership of their obligations under this Article. A Union complying with this obligation shall not be held responsible for unauthorized acts of employees it represents.
4.2 Expedited Arbitration: Any party to this Agreement shall institute the following procedure, prior to initiating any other action at law or equity, when a breach of this Article is alleged to have occurred:
(1) A party invoking this procedure shall notify Robert Hirsch, as the pe1manent arbitrator, or, William Riker, as the alternate under this procedure. In the event that the permanent arbitrator is unavailable at any time, the alternate will be contacted. If neither is available, then a selection shall be made f
rom the list of arbitrators in Alticle XII. Notice to the arbitrator shall be 3238-017.ii 7
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by the most expeditious means available, with notices by facsimile, electronic mail or telephone to the party alleged to be in violation, to the City, to the Council and to the involved Local Union if a Union is alleged to be in violation.
(2) Upon receipt of said notice, the City will contact the designated arbitrator named above or his alternate who will attempt to convene a hearing within twenty-four (24) hours if it is contended that the violation still exists. (3) The arbitrator shall notify the parties by facsimile or telephone of the place and time for the hearing. Said hearing shall be completed in one session, which, with appropriate recesses at the arbitrator's discretion, shall not exceed twenty-four (24) hours unless otherwise agreed upon by all parties. A failure of any party to attend said hearings shall not delay the hearing of evidence or the issuance of any award by the arbitrator. (4) The sole issue at the hearing shall be whether or not a violation of Article IV, Section 4.1 of the Agreement has occurred. The arbitrator shall have no authority to consider any matter of justification, explanation or mitigation of such violation or to award damages, which issue is reserved for court proceedings, if any. The award shall be issued in writing within three (3) hours after the close of the hearing, and may be issued without a written opinion. If any party desires a written opinion, one shall be issued within fifteen (15) days, but its issuance shall not delay compliance with or enforcement of the award. The arbitrator may order cessation of the violation of this Article and other appropriate relief and such award shall be served on all parties by hand or registered mail upon issuance.
(5) Such award may be enforced by any Court of competent jurisdiction upon the filing of this Agreement and all other relevant documents referred to above in the following manner. Written notice of the filing of such enforcement proceedings shall be given to the other party. In the proceeding to obtain a temporary order enforcing the arbitrator's award as issued under Section 4.2 of this Article, all parties waive the right to a hearing and agree that such proceedings may be ex-parte. Such agreement does not waive any party's right to participate in a hearing for a final order or enforcement. The Court's order or orders enforcing the arbitrator's award shall be served on all parties by hand or delivered by certified mail. (6) Any rights created by statute or law governing arbitration proceedings inconsistent with the above procedure, or which interfere with compliance, are waived by the parties.
(7) The fees and expenses of the arbitrator shall be divided equally between the party instituting the arbitration proceedings provided in this Article and the party alleged to be in breach of its obligation under this Article.
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ARTICLEV
PRE-CONSTRUCTION CONFERENCE
5.1 The Project Manager shall convene a pre-construction conference to be held at least fourteen (14) days prior to the commencement of each construction phase, at a time and location mutually agreeable to the Council. Such conference shall be attended by a representative each from the participating Contractor(s)/Employer(s) and Union(s) and the Project Manager.
5.2 Review Meetings: In order to ensure the terms of this Agreement are being fulfilled and all concerns pertaining to the City, the Unions, and the Contractors are addressed, the Project Manager, General Contractor and Senior Executive of the Council or designated representatives thereof shall meet on a periodic basis during the term of construction. The City and the Council shall have the right to call a meeting of the appropriate parties to ensure the terms of this Agreement are being fulfilled.
ARTICLE VI
NO DISCRIMINATION
6.1 The Contractor(s)/Employer(s) and Unions agree to comply with all antidiscrimination provisions of federal, state and local law, to protect employees and applicants for employment, on the Project.
ARTICLE VII
UNION SECURITY
7.1 The Contractor(s)/Employer(s) recognize the Union(s) as the sole bargaining representative of all craft employees working within the scope of this Agreement. 7 .2 All employees performing work covered by this Agreement shall, as a condition of employment on or before the eighth (8th) cumulative day of employment on the Project, be responsible for the payment of the applicable periodic working dues and fees uniformly required for union membership in the Local Union that is a signatory to this Agreement for the duration of his or her employment on the Project. Nothing in this Agreement is intended to prevent any nonunion employees from joining the Local Union.
7.3 Authorized representatives of the Unions shall have access to the Project whenever work covered by this Agreement is being, has been, or will be performed on the Project.
ARTICLE VIII
REFERRAL
8.1 Contractor(s)/Employer(s) performing construction work on the Project described in the Agreement shall, in filling craft job requirements, utilize and be bound by the registration facilities and referral systems established or authorized by the Local Unions ("Job Referral System"). Such Job Referral System shall be operated in a non-discriminatory manner and in full compliance with all federal, state, and local laws and regulations, including those which require 3238-017.ii 9
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equal employment opportunities and non-discrimination. The Contractor(s)/Employer(s) shall have the right to reject any applicant referred by the Union(s), in accordance with the applicable Master Agreement.
8.2 The Contractor(s)/Employer(s) shall have the unqualified right to select and hire directly all supervisors above general foreman it considers necessary and desirable, without such persons being referred by the Union(s).
8.3 In the event that referral facilities maintained by the Union(s) are unable to fill the requisition of a Contractor(s)/Employer(s) for employees within a forty-eight (48) hour period (Saturdays, Sundays and Holidays excluded) after such requisition is made by the Contractor(s)/Employer(s), the Contractor(s)/Employer(s) shall be free to obtain work persons from any source. A Contractor who hires any personnel to perform covered work on the Project pursuant to this Section shall immediately provide the appropriate Union with the name and address of such employee(s) and shall immediately refer such employee(s) to the appropriate Union to satisfy the requirements of Article VII of this Agreement.
8.4 Unions will exert their utmost efforts to recruit sufficient numbers of skilled craft persons to fulfill the requirements of the Contractor(s)/Employer(s). Recognizing the special needs of the Project and the acute shortage of skilled craftspeople, the Unions shall consider a Contractor's request to transfer key employees to work on this Project in a manner consistent with the Union's referral procedures.
8.5 The parties to this Agreement support the development of increased numbers of skilled construction workers from the City of Stockton and San Joaquin County. To the extent allowed by law, and consistent with the Local Union's hiring hall provisions, and as long as they possess the requisite skills and qualifications, Local Area Residents, including journeymen and apprentices, shall be referred for Project work covered by this Agreement.
ARTICLE IX
WAGES AND BENEFITS
9 .1 All Contractors/Employers agree to pay contributions to the established vacation, pension and other form of deferred compensation plan, apprenticeship, and health benefit funds established by the applicable Master Agreement for each hour worked on the Project in the amounts designated in the Master Agreements of the appropriate Local Unions.
9.2 By signing this Agreement, the Contractor(s)/Employer(s) adopts and agrees to be bound by the written terms of the legally established Trnst Agreements, as described in section 9 .1, specifying the detailed basis on which payments are to be made into, and benefits paid out of, such Trust Funds established by such appropriate local agreements. The Contractor(s)/Employer(s) authorizes the parties to such local trust agreements to appoint trustees and successor trustees to administer the trust funds and hereby ratify and accept the trustees so appointed as if made by the Contractor(s)/Employer(s).
9.3 Wages, Homs, Terms and Conditions of Employment: The wages, hours and other terms and conditions of employment on the Project shall be governed by the Master Agreement of the respective crafts, copies of which shall be on file with the City to the extent such Master 3238-0l7ii 10
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Agreement is not inconsistent with this Agreement. All employees covered by this Agreement shall be classified and paid in accordance with the classification and wage scales contained in the appropriate local agreements which have been negotiated by the historically recognized bargaining entity and in compliance with the applicable general prevailing wage determination made by the Director of Industrial Relations pursuant to the California Labor Code.
9.4 During the period of construction on this Project, the Contractor(s)/Employer(s) agrees to recognize and put into effect such increases in wages and recognized fringe benefits as shall be negotiated between the various Unions and the historically recognized local bargaining entity on the effective date as set forth in the applicable agreement. The Unions shall notify the Contractor(s)/Employer(s) in writing of the specific increases in wages and recognized fringe benefits and the date on which they become effective.
9.5 Holidays: Holidays shall be in compliance with the applicable Schedule A agreement.
ARTICLEX
EMPLOYEE GRIEVANCE PROCEDURE
10.1 All disputes involving discipline and/or discharge of employees working on the Project shall be resolved through the grievance and arbitration provision contained in the Master Agreement for the craft of the affected employee. No employee working on the Project shall be disciplined or dismissed without just cause.
ARTICLE XI
COMPLIANCE
11.1 It shall be the responsibility of the Contractor(s)/Employer(s) and Unions to investigate and monitor compliance with the provisions of the Agreement contained in Article IX.
Nothing in this agreement shall be construed to interlere with or supersede the usual and customary legal remedies available to the Unions and/or employee benefit Trust Funds to collect delinquent Trust Fund contributions from Employers on the Project. The City shall monitor and enforce compliance with the prevailing wage requirements of the state and Contractors1 /Employers1
compliance with this Agreement.
ARTICLE XII
GRIEVANCE ARBITRATION PROCEDURE
12. l The parties understand and agree that in the event any dispute arises out of the meaning, interpretation or application of the provisions of this Agreement, the same shall be settled by means of the procedures set out herein. No grievance shall be recognized unless the grieving party (Local Union or City on its own behalf, or on behalf of an employee whom it represents, or a contractor on its own behalf) provides notice in writing to the signatory party with whom it has a dispute within five (5) days after becoming aware of the dispute but in no event more than thirty (30) days after it reasonably should have become aware of the event giving rise to the dispute. The time limits in this Section 12.1 may be extended by mutual written agreement of the parties.
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12.2 Grievances shall be settled according to the following procedures:
Step 1: Within five (5) business days after the receipt of the written notice of the grievance, the Business Representative of the involved Local Union or City, or his/her designee, or the representative of the employee, and the representative of the involved Contractor(s)/Employer(s) shall confer and attempt to resolve the grievance.
Step 2: In the event that the representatives are unable to resolve the dispute within the five (5) business days after the meeting to resolve the dispute in Step 1, the International Union Representative and the Contractor(s)/Employer(s) involved shall meet within seven (7) working days of the referral of the dispute to this second step to arrive at a satisfactory settlement thereof. Meeting minutes shall be kept by the Contractor. In the event that these representatives are unable to resolve the dispute after its referral to Step 2, either involved party may submit it within three (3) business days to the Grievance Committee, which shall meet within five (5) business days after such referral (or such longer time as is mutually agreed upon by all representatives on the Grievance Committee), to confer in an attempt to resolve the grievance. The Grievance Committee shall be comprised of two (2) representatives of the City; and one (1) representative of the Project Manager, and three (3) representatives of the San Joaquin Building & Construction Trades Council. If the dispute is not resolved within such time (five (5) business days after its referral or such longer time as mutually agreed upon) it may be referred within five (5) business days by either party to Step 3.
Step 3: If the grievance is not settled in Step 2 within five (5) business days, either party may request the dispute be submitted to arbitration or the time may be extended by mutual consent of both parties. Within five (5) business days after referral of a dispute to Step 3, the representatives shall choose a mutually agreed upon arbitrator for final and binding arbitration. If the parties are unable to agree on an arbitrator, an arbitrator shall be selected by the alternate striking method from the list of five (5) below. The order of striking names from the list of arbitrators shall be determined by a coin toss, the winner of which shall decide whether they wish to strike first or second. If any of the arbitrators listed below or in Article 4 is no longer working as a labor arbitrator at the time of selection, the City and the Council shall mutually agree to a replacement. In addition, the City and the Council may mutually agree to add additional arbitrators to those listed below.
1. William Riker
2. BarryWinogard
3. Thomas Angelo
4. Robert Hirsch
5. William Engler
12.3 The Arbitrator shall arrange for a hearing on the earliest available date from the date of his/her selection. A decision shall be given to the parties within five (5) calendar days after completion of the hearing unless such time is extended by mutual agreement. A written opinion may be requested by a party from the presiding arbitrator. The decision of the Arbitrator shall be 3238-0l?jj 12
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final and binding on all parties. The Arbitrator shall have no authority to change, amend, add to or detract from any of the provisions of the Agreement. The expense of the Arbitrator shall be borne equally by both parties.
12.4 The time limits specified in any step of the Grievance Procedure set forth in Section
12.2 may be extended by mutual agreement of the parties initiated by the written request of one party to the other, at the appropriate step of the Grievance Procedure. However, failme to process a grievance, or failure to respond in writing within the time limits provided above, without an agreed upon extension of time, shall be deemed a waiver of such grievance without prejudice, or without precedent to the processing of and/or resolution of like or similar grievances or disputes. In order to encourage the resolution of disputes and grievances at Steps 1 and 2 of this Grievance Procedure, the parties agree that such settlements shall not be precedent setting.
ARTICLEXID
WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES
13 .1 The assignment of Covered Work will be solely the responsibility of the Employer performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of the Jurisdictional Disputes in the Construction Industry (the 11Plan11) or any successor Plan.
13 .2 All jurisdictional disputes on this Project between or among the building and construction trades Unions and the Employers parties to this Agreement, shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Employers and Unions parties to this Agreement.
13.3 If a dispute arising under this Article involves the Northern California Carpenters Regional Council or any of its subordinate bodies, an Arbitrator shall be chosen by the procedures specified in Article V, Section 5, of the Plan from a list composed of John Kagel, Thomas Angelo, Robert Hirsch, and Thomas Pagan, and the Arbitrator's hearing on the dispute shall be held at the offices of the California State Building and Construction Trades Council in Sacramento, California within fourteen (14) days of the selection of the Arbitrator. All other procedures shall be as specified in the Plan.
13 .4 All jmisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow-down of any nature and the Employer's assignment shall be adhered to until the dispute is resolved. Individual employees violating this section shall be subject to immediate discharge. Each Employer will conduct a pre-job conference with the Council prior to commencing work. The Project Manager and City will be advised in advance of all such conferences and may participate if they wish. Pre-job conferences for different Employers may be held together.
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ARTICLE XIV MANAGEMENT
RIGHTS
14.1 The Contractor(s)/Employer(s) shall retain full and, exclusive authority for the management of their operations, including the right to direct their workforce in their sole discretion. Except as provided by Section 2.3 and by the lawful manning provisions in the applicable Master Agreement, no rules, customs or practices shall be permitted or observed which limit or restrict production, or limit or restrict the working efforts of employees.
ARTICLE XV
HELMETS TO HARDHATS
15.1 The Contractor(s)/Employer(s) and the Unions recognize a desire to facilitate the entry into the building and constmction trades of veterans and members of the National Guard and Reserves who are interested in careers in the building and construction industry. The Contractor(s)/Employer(s) and Unions agree to utilize the services of the Center for Military Recruitment, Assessment and Veterans Employment (hereinafter "Center), a joint LaborManag�ment Cooperation Trust Fund, established under the authority of Section 6(b) of the Labor-Management Cooperation Act of 1978, 29 U.S.C. Section 175(a), and Section 302(c)(9) of the Labor-Management Relations Act, 29 U.S.C. Section 186(c)(9), and a charitable tax exempt organization under Section 501(c)(3) of the Internal Revenue Code, and the Center's "Helmets to Hardhats" program to serve as a resource for preliminary orientation, assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the parties.
15.2 The Unions and Contractor(s)/Employer(s) agree to coordinate with the Center to participate in an integrated database of veterans and members of the National Guard and Reserves interested in working on the Project and of apprenticeship and employment opportunities for this Project. To the extent permitted by law, the Unions will give credit to such veterans for bona fide, provable past experience.
15.3 Nothing in this Article shall be interpreted to preclude any Contractor(s)/Employer(s) that is not signatory to a Master Agreement to utilize an alternative plan or program for recruiting, training and facilitating construction industry employment opportunities for militaiy veterans and members of the National Guard and Reserves. Before utilizing such alternative program on the Project, such Contractor(s)/Employer(s) shall provide the City with a description of such plan or program.
ARTICLE XVI
DRUG & ALCOHOL TESTING
16.1 The use, sale> transfer, purchase and/or possession of a controlled substance, alcohol and/or firearms at any time during the work day is prohibited.
16.2 The Parties agree to recognize and use the Substance Abuse Program contained in each applicable Union's Schedule A
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ARTICLE XVII
TERM SAVINGS CLAUSE
17 .1 The parties agree that in the event any article, provision, clause, sentence or word of the Agreement is determined to be illegal or void as being in contravention of any applicable law, by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect. The parties further agree that if any article, provision, clause, sentence or word of the Agreement is determined to be illegal or void, by a court of competent jurisdiction, the parties shall substitute, by mutual agreement, in its place and stead, an article, provision, clause, sentence or word which will meet the objections to its validity and which will be in accordance with the intent and purpose of the article, provision, clause, sentence or work in question. 17 .2 The parties also agree that in the event that a decision of a court of competent jurisdiction materially alters the terms of the Agreement such that the intent of the parties is defeated, then the entire Agreement shall be null and void.
17.3 If a court of competent jurisdiction determines that all or part of the Agreement is invalid and/or enjoins the City from complying with all or part of its provisions and the City accordingly determines that the Agreement will not be required as part of an award to a Contractor(s)/Employer(s), the unions will no longer be bound by the provisions of Article N.
ARTICLE XVIII
LOCAL HIRE, PRIORITY APPRENCTICE AND WORKFORCE
DEVELOPMENT PROGRAM
18.1 The objective of the City in creating this Local Hire, Priority Apprentice and Workforce Development Program is to enhance and encourage employment opportunities for Stockton residents and to enable effective construction career pathways for Local Area Residents through California State approved Joint Apprenticeship Programs. To that end, as part of the Agreement, the City establishes goals for the hiring, training and retention of Local Area Residents.
18.2 Local Hire. The City establishes the following Local Hire goals and commitments:
18.2.1 The parties agree to make a good faith effort to refer on a priority basis, consistent with the non-discriminatory refenal procedures of the applicable Union, qualified and available, Local Area Residents for Project work. The parties agree to a goal that Stockton residents shall perfo1m a minimum of 50% of the hours worked on the Project by the Contractors' total construction workforce. In the event that a sufficient number of Stockton residents are not available to fulfill the 50% local hire requirement, the next tier of residents shall come from anywhere in San Joaquin County. The Contractor(s) shall make good faith efforts to reach this goal through the utilization of the Unions' hiring hall procedures. The Unions shall exercise their best efforts in their recruiting and training of Stockton resident workers and in utilizing their hiring hall procedures to facilitate this 50% goal.
18.2.2 The parties also recognize and support the City's commitment to provide opportunities for participation on the Project to Stockton businesses through the City's Local Business Preference Ordinance. In furtherance of this commitment, the patties agree that such 323B-017ii 15
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Stockton contractors and subcontractors awarded work on the Project may request by name, and the Local Union will honor, referral of persons who have applied to the Local Union for Project work, and who demonstrate the following qualifications:
performed;
(1) possess any license required by state or federal law for the Project work to be (2) have worked a total of at least two thousand (2,000) hours in the construction craft during the prior two (2) years;
(3) were on the Contractor's active payroll for at least ninety (90) out of the one hundred and twenty (120) calendar days prior to the contract award; and
(4) have the ability to perform safely the basic functions of the applicable trade; (5) are Stockton residents.
The Union will refer to such Contractor one journeyman employee from the hiring hall out-of-work list for the affected trade or craft, and will then refer one of such Contractor's "core" employees as a journeyman and shall repeat the process, one and one, until such Contractor's crew requirements are met or until such Contractor has hired five (5) "core" employees, whichever occurs first. Thereafter, all additional employees in the affected trade or craft shall be hired exclusively from the hiring hall out-of-work list(s). For the duration of the Contractor's work, the ratio shall be maintained and when the Contractor's workforce is reduced, employees shall be reduced in the same ratio of core employees to hiring hall referrals as was applied in the initial hiring.
18.2.3 The Contractor shall notify the appropriate Union of the name and social security number of each direct hire and each direct hire shall register with the Union's hiring hall and comply with Article VII before commencing Project work. If there is any question regarding an employee's eligibility under Section 18.2, the City, at a Union's request, shall obtain satisfactory proof of such from the Contractor.
18.3 Priority Apprenticeship and Workforce Development
18.3.1 Recognizing the need to develop adequate numbers of competent workers in the construction industry, the Contractor(s)/Employer(s) shall employ apprentices of a California State approved Joint Apprenticeship Program in the respective crafts to perform such work as is within their capabilities and which is customarily pe1formed by the craft in which they are indentured. The apprentice ratios will be in compliance with the applicable provisions of the California Labor Code and Prevailing Wage Rate Determination.
18.3.2 The parties agree to a goal that 50% of apprentices employed on the Project shall be residents of the City of Stockton or other Local Area Residents. In achieving this goal, atrisk youth who reside in the following zip codes within the City of Stockton, shall be given priority in the apprenticeship recruitment process: 95202, 95203> 95204, 95205, and 95206. If sufficient numbers of Stockton residents are not available, then a good faith effort will be made by the Unions to utilize residents of San Joaquin County. All apprentices refe1Ted to Contractors under this 3238-017ii 16
EXHIBIT G Page 133 of 147 EXHIBIT 3 506
Agreement shall be enrolled in State of California approved Joint Apprenticeship Programs. Subject to any legal restrictions, the patties agree to a goal that apprentices will perform twenty percent (20%) of the total craft hours worked on the Project unless an applicable Master Agreement provides for a greater percentage. The Unions agree to cooperate with the Contractors in furnishing apprentices as requested and they shall be properly supervised and paid in accordance with the provisions of the applicable Master Agreement.
18.3.3 The Contractors and Unions shall make good faith efforts to reach the apprenticeship goals set forth in this Section 18.3 through the utilization of normal hiring hall and apprentice procedures and, when appropriate, the identification of potentially qualified apprentices through community-based organizations working in collaboration with the apprentice programs.
The Unions ai·e committed to working with the Contractors and community based organizations to achieve these goals. At least annually, the Unions and the City will each conduct a Community Career Fair to provide at-risk youth, veterans and others an opportunity to learn about each craft and the process for entering their apprenticeship program.
18.4 Good Faith Efforts. A Contractor or subcontractor must take the following good faith steps to demonstrate that it has made every effort to reach the Local Hire, Priority Apprenticeship and Workforce Development Program goals of the City. The Contractor or subcontractor shall attend scheduled Pre-Job meetings held under this Agreement and shall submit written workforce projections and projected work hours on a craft-by-craft basis.
18.4.1 Within seven (7) calendar days after Notice to Proceed, the Contractor or subcontractor shall meet with the Unions and the City to present its plan for reaching the Local Hire, Priority Apprenticeship and Workforce Development Program goals.
18.4.2 The Conh·actor or subcontractor shall notify the Project Manager of the City by U.S. Mail or electronic mail if a Union hiring hall cannot, upon request by the Contractor or subcontractor, dispatch Local Area Residents to the Project. It shall be the responsibility of the Contractor or subcontractor to retain all evidence of such good faith efforts.
18.4.3 The Contractor or subcontractor may use the "Name Call", "Rehire" or other available hir
ing hall procedures to reach the goals of this Article XVill.
18.5 Enforcement, Compliance and Reporting
18.5.1 Contractors will be required to submit Ce1tified Weekly Payrolls to the City along with monthly workforce utilization reports documenting the Contractor's compliance with the requirements described in this Article. At a minimum, the monthly reports must include: 1) data on Stockton and Local Area Residents work hour utilization on the Project and Local Area Residents; and 2) documentation showing any requests made to the Union dispatchers for Stockton residents and the Union's response to the request.
18. 5 .2 The City staff shall monitor the operation of the Local Hire, Priority Apprenticeship ai1d Workforce Development Program and shall consider allegations of noncompliance with the goals stated in this Article. If there is a determination by the City that a Contractor or subconh·actor has not complied with the goals or demonstrated good faith efforts to 3238-017.ii 17
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do so, the City and the Contractor or subcontractor shall meet and confer in order to identify necessary actions to resolve the issue and ensure a good faith effort to achieve the objectives of this Article.
18.5 ,3 For any Project subject to this Agreement, the Local Hire, Priority Apprentice and Workforce Development Program requirements of this Article shall apply in lieu of the requirements of Stockton Municipal Code Section 3 ,68.095 and no separate compliance with Section 3,68.095 will be required of the Contractors/Employers working on the Project.
ARTICLE
XIXIEBM
19.1 This Agreement shall become effective 30 days after the day the City Council talces action to authorize its execution, and it shall continue in full force and effect for a period of three (3) years, at which time this Agreement may be considered for extension or renewal. The terms of this Agreement shall apply to any Project that is bid or solicited after the effective date and before the expiration of this Agreement. The Agreement shall continue to apply to any Project subject to this Agreement until the completion of all Covered Work on the Project.
CITY OF STOCKTON
Name:
J
KURT
v------
0, WILSON
Title: CITY MANAGER
::m DANIEL CARDOZO
Date: 15(1- •t/!b
.4.-rpt� �, e ,1 ft(Z _,,,N 'J'O � II IN fS 1'(. : Title:V _l,._;LJV,___• '-=-'"---II.' _____ 'I_ SAN JOAQUIN BUILDING AND CONSTRUCTION TRADES COUNCIL, AFLCIO COUNCIL Date: --------
Name:
Title:
32J8-017jj 21
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do so, the City and the Contractor or subcontractor shall meet and confer in order to identify necessary actions to resolve the issue and ensure a good faith effort to achieve the objectives of this Article.
18.5.3 For any Project subject to this Agreement, the Local Hire, Priority Apprentice and Workforce Development Program requirements of this Article shall apply in lieu of the requirements of Stockton Municipal Code Section 3.68.095 and no separate compliance with Section 3.68.095 will be required of the Contractors/Employers working on the Project.
ARTICLE
XI.XTERM
19.1 This Agreement shall become effective 30 days after the day the City Council talces action to authorize its execution, and it shall continue in full force and effect for a period of three (3) years, at which time this Agreement may be considered for extension or renewal. The terms of this Agreement shall apply to any Project that is bid or solicited after the effective date and before the expiration of this Agreement. The Agreement shaU continue to apply to any Project subject to this Agreement until the completion of all Covered Work on the Project.
CITY OF STOCKTON
Name: KURT 0. WILSON
Title: CITY MANAGER
ATTEST:
By: ---------
BONNIE PAIGE, CITY CLERK
APPROVED AS TO FORM
By: ---------
DANIEL CARDOZO
Date:
APPROVED AS TO FROM
By: --------
JOHN M. LUEBBERKE
CITY ATTORNEY
Title: --------
SAN JOAQUIN BUILDING AND CONSTRUCTION TRADES COUNCIL, AFLCIO COUNCIL (� '1:. .!;#..4:., �"""-r Date: 'fS/8.'1//(p
k� v t�
Title: �c.•c .. :\-cvrvr / 1"'<�<:.I,) r-e,r
J238-0l7jj u 21
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llJN][l())NS Chu:JtP. d?Mdk
Electrica� 'r/orkers # 595. �k,. Sheet Metal Workers # l 04 . arpenters Regional Co-uncil on behalf qf itself and its
��
Boilermakers �� # 549
LaborYsfu �-- Teamsters #439
3138-0 I 7jJ 19
EXHIBIT G Page 137 of 147 EXHIBIT 3 510
Addendum A
CITY OF STOCKTON COMMUNITY WORKFORCE AND TRAINING AGREEMENT
AGREEMENT TO BE BOUND
The undersigned, as a Contractor or Subcontractor, including construction material trucking company/entity, (CONTRACTOR) on the City of Stockton Project, (hereinafter PROJECT), for and in consideration of the award to it of a contract to perform work on said PROJECT, and in further consideration of the mutual promises made in this Community Workforce and Training Agreement (hereinafter AGREEMENT), a copy of which was received and is acknowledged, hereby:
(1) Accepts and agrees to be bound by the terms and conditions of the AGREEMENT for this Project, together with any and all amendments and supplements now existing or which are later made thereto:
(2) The CONTRACTOR agrees to be bound by the legally established local trust agreements designated in the applicable Schedule A as set forth in A.tiicle N of this AGREEMENT.
(3) The CONTRACTOR authorizes the pmiies to such local trust agreements to appoint trustees and successor trustees to administer the trust funds and hereby ratifies and accepts the trustees so appointed as if made by the CONTRACTOR; (4) Certifies that it has no commitments or agreements which would preclude its full and complete compliance with the terms and conditions of said AGREEMENT. (5) Agrees to secure from any CONTRACTOR(S) (as defined in said AGREEMENT) which is or becomes a subcontractor ( of any tier) to it, a duly executed Agreement to be Bound in form identical to this document.
(6) This Agreement to be Bound constitutes a subscription agreement to the extent of its terms. However, the undersigned agrees to execute a separate SubscriptionAgreement(s) or contributing employer agreement for Trust Funds when such Trust Fund(s) requires such document( s ).
Date: --------- N mne of Contractor
(Name of Contractor Representative)
(Authorized Officer & Title)
CSLB # of Motor Carrier Permit
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SUBAWARD AGREEMENT
Special Funding Terms and Conditions
The City of Stockton has entered into this agreement using funds governed by the American Rescue Plan Act, distributed by the U.S. Department of the Treasury (“Treasury”). The funding available is governed under sections 602 and 603 of the Social Security Act, as added by section 9901 of the American Rescue Plan Act of 2021 (“ARPA”). The ARPA established the Coronavirus State and Local Fiscal Recovery Funds (the “SLFRF statute”) for eligible recipients to address the economic and health consequences of the pandemic. Under ARPA, the SLFRF statute is to be used for payments for specified uses to certain nonentitlement units of local government. In consideration of the mutual promises contained in this AGREEMENT to carry out the purposes of the subaward on behalf of the City, the CITY and CONTRACTOR agree as follows:
1. SURVIVAL OF PROMISES. All promises, requirements, terms, conditions, provisions, representations, guarantees, and warranties contained herein shall survive the AGREEMENT expiration or termination date unless specifically provided otherwise herein, or unless superseded by applicable federal or state statutes of limitation.
2. SEPARATE ACCOUNTING. The CONTRACTOR will establish a separate account for all funds specified in this AGREEMENT and will use the funds to purchase necessary supplies, defray travel, and will employ the necessary personnel to perform the Work specified in this AGREEMENT. The CONTRACTOR shall also establish and maintain, if applicable, such accounting and documentation of matching expenditures of the CONTRACTOR to satisfy the requirements of the PROJECT.
3. AUDIT. The CITY, and any other appropriate government agency authorized by law, or their duly authorized representatives shall, until five (5) years after final payment under this AGREEMENT, have access to any of the CONTRACTOR’s records related to this AGREEMENT, at the CONTRACTOR’s regular place of business, for the purpose of conducting audits. The period of access for records relating to a) appeals under a dispute, b) litigation or settlement of claims arising from the performance of this AGREEMENT, or c) costs and expenses of this AGREEMENT to which exception has been taken shall continue until such appeals, litigation, claims, or exceptions are disposed of.
4. AUTHORIZED USE OF FUNDS. The CONTRACTOR shall use or expend the funds provided by this AGREEMENT only for the purposes for which they were appropriated. Further, the funds provided by the CITY shall be used by the CONTRACTOR only for the purpose and activities specified in the AGREEMENT, including associated attachments and exhibits which is attached hereto and incorporated herein by reference as if fully set forth here.
5. COMPLIANCE WITH COST PRINCIPLES AND RELATED REGULATIONS. The CONTRACTOR will not be reimbursed for expenditures under this AGREEMENT that do not comply with the ARPA and Related Regulations that are incorporated.
6. PUBLICATIONS. The CONTRACTOR shall be free to publish results of the Work provided that the terms of the PROJECT are met and the review copies of materials intended for publication are submitted to the CITY’s PROJECT Director at least 45 days prior to publication.
7. CONFIDENTIAL INFORMATION. CONTRACTOR acknowledges that it may be necessary for CITY to disclose certain confidential and proprietary information to CONTRACTOR in order for CONTRACTOR to perform duties under this AGREEMENT. CONTRACTOR acknowledges that any disclosure to any third party or any misuse of this proprietary or confidential information may irreparably harm the CITY.
Accordingly, CONTRACTOR will not disclose or use, either during or after the term of this AGREEMENT, any proprietary or confidential information of the CITY without the CITY’s prior written permission.
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8. DELAYS. CONTRACTOR shall notify the CITY promptly of any expected delay in performance of services. However, CONTRACTOR shall not be liable for delays in performance beyond reasonable control.
9. ARPA GUIDELINES – CONTRACTOR AS SUBRECIPIENT
CONTRACTOR is classified as a Subrecipient under ARPA, which is an entity that receives a subaward from the CITY to carry out a program on behalf of the CITY using SLFRF funds. As a beneficiary of SLRFR funds from the CITY, CONTRACTOR must comply with the ARPA guidelines in order to be eligible for a grant. The guidelines, titled Compliance and Reporting Guidelines: State and Local Fiscal Recovery Funds, as amended by Treasury (the “Guidelines”), are incorporated into this AGREEMENT by reference. The Guidelines can be found at https://home.treasury.gov/policyissues/coronavirus/assistance-for-state-local-and-tribal-governments/state-and-local-fiscal-recoveryfunds/recipient-compliance-and-reporting-responsibilities. In ensuring compliance with these Guidelines, CONTRACTOR serves as a first line of defense against fraud, waste, and abuse of federal money.
As further described in the Guidelines, CONTRACTOR will generally be subject to the requirements of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal awards, 2 CFR Part 200. This includes, but is not limited to,
A. The implementation of internal controls and effective monitoring to ensure compliance with 2 CFR Part 200, including generally identifying direct and indirect costs and treating each cost consistently in like circumstances.
B. Ensuring that procurements using SLFRF funds, or payments under procurement contracts using such funds, are consistent with the procurement standards set forth in the Uniform Guidance at 2 CFR § 200.317 through 2 CFR § 200.327, as applicable.
C. If CONTRACTOR expends more than $750,000 in Federal awards during its fiscal year, submitting to an audit under the Single Audit Act and its implementing regulation at 2 CFR Part 200, Subpart F.
The CITY may request detailed expenditure information from CONTRACTOR in order for CITY to comply with its own reporting obligations. CONTRACTOR will be required to promptly provide any requested information to the CITY, even after the award term has expired. Among other things, the CITY may require information about the structure and objectives of the PROGRAM and information about how many individuals have been served by CONTRACTOR.
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Exhibit G
APPENDIX II
CONTRACT PROVISIONS UNDER FEDERAL AWARD
FEDERAL FUNDS
Federal regulations (2 C.F.R. § 200.326 and 2 C.F.R. Part 200, Appendix II) require the City to include certain contract clauses in this agreement.
The US Department of Homeland Security (DHS) – Federal Emergency Management Agency (FEMA) recommends other certain contract clauses be included.
Based on the table below, any clause identified with a check mark () next to it is hereby incorporated into this contract agreement. The full language of each clause can be found in this EXHIBIT G.
CONTRACT TYPES
1. Construction Contracts
1.1 Equal Employment Opportunity
1.2 Davis Bacon Act
1.3 Copeland “Anti-Kickback” Act
2. All Contracts
2.1 Contract Work Hours and Safety Standards Act
2.2 Clean Air Act and Federal Water Pollution Control Act
2.3 Debarment and Suspension
2.4 Byrd Anti-Lobbying Amendment
2.5 Procurement of Recovered Materials
2.6 Access to Records
2.7 DHS Seal, Logo, and Flags
2.8 Compliance with Federal Law, Regulations and Executive Orders
2.9 No Obligation by Federal Government
2.10 Program Fraud and False or Fraudulent Statements or Related Acts
Checked provisions are hereby incorporated into the
contract agreement.
Following are the FEMA requirement or recommendation
clauses listed above for contract incorporation.
Check ()
Applicable
Clauses
Construction
1.1 1.2
1.3 Check ()
Applicable
Clauses
All Contracts
2.1 2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
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1.1 Equal Employment Opportunity
Requirement for construction work
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor.
The contractor will take such action with respect to any subcontract or purchase order as the EXHIBIT H Page 142 of 147 EXHIBIT 3 515
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administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
1.2 Compliance with Davis-Bacon Act
Requirement for construction work
a. All transactions regarding this contract shall be done in compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of 29 C.F.R. pt. 5 as may be applicable. The contractor shall comply with 40 U.S.C. 3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
b. Contractors are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. c. Additionally, contractors are required to pay wages not less than once a week.
1.3 Compliance with the Copeland “Anti-Kickback” Act
Requirement for construction work > $2k
a. Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract. b. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses.
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c. Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12.
2.1 Compliance with Contract Work Hours and Safety Standards Act Requirement for contracts > $100k plus mechanics & laborers (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $27 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section. (3) Withholding for unpaid wages and liquidated damages. The (write in the name of the Federal agency or the loan or grant recipient) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section.
2.2 Clean Air Act and the Federal Water Pollution Control Act Requirement for contracts > $150k
Clean Air Act
1. The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.
2. The contractor agrees to report each violation to the City of Stockton and understands and agrees that the City of Stockton will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
3. The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA.
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Federal Water Pollution Control Act
1. The contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
2. The contractor agrees to report each violation to the City of Stockton_ and understands and agrees that the City of Stockton will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
3. The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA.
2.3 Debarment and Suspension
(1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the contractor is required to verify that none of the contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).
(2) The contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(3) This certification is a material representation of fact relied upon by _City of Stockton_______. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to (insert name of recipient/subrecipient/applicant), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.
(4) The bidder or proposer agrees to comply with the requirements of2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
2.4 Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended) Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352.
Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
Required Certification. If applicable, contractors must sign and submit to the non-federal entity the following certification found at APPENDIX A, 44 C.F.R. PART 18:
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APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The Contractor,________________________________ , certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap.38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
Signature of Contractor’s Authorized Official
Name and Title of Contractor’s Authorized Official
Date:
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2.5 Procurement of Recovered Materials
In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired—
1. Competitively within a timeframe providing for compliance with the contract performance schedule;
2. Meeting contract performance requirements; or
3. At a reasonable price.
Information about this requirement, along with the list of EPA-designated items, is available at EPA’s Comprehensive Procurement Guidelines web site:
https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
2.6 Access to Records
The following access to records requirements apply to this contract:
(1) The Contractor agrees to provide the City of Stockton City Manager, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. (2) The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. (3) The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. (4) In compliance with the Disaster Recovery Act of 2018, the City of Stockton and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.
2.7 DHS Seal, Logo and Flags
The contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval
2.8 Compliance with Federal Law, Regulations, and Executive Orders This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The contractor will comply with all applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives.
2.9 No Obligation by Federal Government
The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non-Federal entity, contractor, or any other party pertaining to any matter resulting from the contract.
2.10 Program Fraud and False or Fraudulent Statements or Related Acts The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor’s actions pertaining to this contract.
EXHIBIT H Page 147 of 147 EXHIBIT 3 520
1 BOND FOR FAITHFUL PERFORMANCE
KNOW ALL MEN BY THESE PRESENTS:
That we, F&H CONSTRUCTION, a STATE OF CA CORPORATION, as Principal and ___, a corporation,
organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Stockton, a municipal corporation, duly created and existing under and by virtue of the laws of the State of California, as obligee, in the just and full sum of TEN MILLION FOUR HUNDRED SEVENTY-THREE THOUSAND AND NO/100 DOLLARS ($10,473,000.00), in lawful money of the United States of America (being 100% of the contract price) for the payment whereof well and truly to be made to the said CITY, the said Principal and Surety bind themselves, their successors and assigns, jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that the above bounded Principal has simultaneously entered into a contract with the CITY, to do and perform the following work, to wit:
ANIMAL SHELTER RENOVATION
PROJECT NO. P023001
NOW, THEREFORE, if the above bounded Principal, CONTRACTOR, Company or
Corporation or its Subcontractor, shall well and truly perform the work contracted to be done under said contract, then this obligation to be null and void; otherwise to remain in full force and effect.
No prepayment or delay in payment and no change, extension, addition or alteration of any provision of said contract, or in said plans or specifications agreed to between the said CONTRACTOR and the said CITY, and no forbearance on the part of the said CITY shall operate to relieve any Surety or Sureties from liability on this bond, and consent by said Surety is hereby given, and the said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
EXHIBIT 3 521
2 SIGNED AND SEALED on
APPROVED AS TO SURETY: By
PRINCIPAL
SURETY
APPROVED AS TO FORM & CONTENT:
LORI M. ASUNCION
OFFICE OF THE CITY ATTORNEY
By
ATTORNEY-IN-FACT
By
DEPUTY CITY ATTORNEY
EXHIBIT 3 522
1 BOND FOR LABOR AND MATERIAL
KNOW ALL MEN BY THESE PRESENTS:
That we, F&H CONSTRUCTION, a STATE OF CA CORPORATION, as Principal and , a corporation, organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Stockton, a municipal corporation, duly created and existing under and by virtue of the laws of the State of California, and unto any and all material suppliers, persons, companies, or corporations furnishing materials, provisions, provender or other supplies used in, upon, for or about the performance of the work contemplated to be executed or performed under the contract hereinafter mentioned, and all persons, companies, or corporations renting or hiring teams, or implements of machinery, for or contributing to said work and all persons who perform work or labor upon the same, and all persons who supply both work and materials, and whose claims have not been paid by the contractor, company or corporation in the just and full sum of TEN MILLION FOUR HUNDRED SEVENTY-THREE THOUSAND AND NO/100 DOLLARS ($10,473,000.00), in lawful money of the United States of America (being 100% of the contract price) for the payment whereof well and truly to be made to said City of Stockton and to said persons jointly and severally, the said principal and Surety bind themselves, their successors and assigns, jointly and severally, firmly by these presents.
The condition of the foregoing obligations is such that the above bounden Principal has simultaneously entered into a contract of even date herewith, with the CITY, to do and perform the following work, to-wit:
ANIMAL SHELTER RENOVATION
PROJECT NO. P023001
NOW, THEREFORE, if the above bounden Principal, CONTRACTOR, Company or Corporation or its Subcontractor, fail to pay for all materials, provisions, provender, or other supplies, or teams, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, the Surety on EXHIBIT 3 523
2 this bond will pay the same, in an amount not exceeding the sum specified in this bond, provided that any and all claims hereunder shall be filed and proceedings had in connection therewith as required by the provisions of Division 3, Part 4, Title 15, Chapter 5, Article 1 of the Civil Code of California, provided that in case suit is brought upon this bond, a reasonable attorney's fee shall be awarded by the Court to the prevailing party in said suit; said attorney's fee to be fixed as costs in said suit, and to be included in the judgment therein rendered.
No prepayment or delay in payment and no change, extension, addition or alteration of any provision of said contract or in said plans or specifications agreed to between the said CONTRACTOR and the said CITY and no forbearance on the part of the said CITY shall operate to relieve any surety or sureties from liability on this bond, and consent to make such alterations without further notice to or consent by any such surety is hereby given, and the said sureties hereby waive the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
SIGNED AND SEALED on .
APPROVED AS TO SURETY: By
PRINCIPAL
SURETY
APPROVED AS TO FORM & CONTENT:
LORI M. ASUNCION
OFFICE OF THE CITY ATTORNEY
By
ATTORNEY-IN-FACT
By
DEPUTY CITY ATTORNEY
EXHIBIT 3 524
City of Stockton
Legislation Text
File #: 24-0844, Version: 2
APPROVE MOTION TO AUTHORIZE A COOPERATIVE PURCHASE AGREEMENT FOR
PROJECT MANAGEMENT SOFTWARE
RECOMMENDATION
It is recommended that the City Council approve a motion to:
1. Approve findings pursuant to Stockton Municipal Code section 3.68.070 in support of an exception to the competitive bidding process.
2. Approve the use of a Cooperative Purchase Agreement through General Services Administration, Contract No. GS-35F-408AA, with e-Builder, Inc. for the e-Builder Enterprise Module with Professional Services, for a three-year term, and a total not to exceed amount of $539,112.19.
It is also recommended that the City Manager be authorized to take appropriate and necessary actions to carry out the purpose and intent of this motion.
Summary
The Engineering Section of the Public Works Department oversees and manages the delivery of the City’s Capital Improvement Plan (CIP). With over 214 active Public Works projects in the CIP, staff requires a fully integrated program and project management software with streamlined processes, centralized project information, and enhanced reporting capabilities.
The e-Builder Enterprise Module is a program and project management system designed for executing capital projects, which integrates with and works alongside the Cityworks Computerized Maintenance Management System (CMMS) already in use by the Public Works Operations and Maintenance Division.
The General Services Administration (GSA) is an independent agency of the United States government that has partnered with e-Builder, Inc. to provide public agencies with competitively bid information technology products and professional services.
It is recommended that Council approve a motion authorizing the City Manager to execute a Cooperative Purchase Agreement (COOP) through GSA with e-Builder, Inc. for a total not to exceed amount of $539,112.19 to purchase a three-year license agreement, software implementation, and two years of managed services.
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DISCUSSION
Background
The Engineering Section of the Public Works Department oversees and manages the delivery of the City’s CIP. The 2022-27 Five-Year CIP includes over 214 projects assigned to the Public Works Department. Tracking and reporting on the projects and funding identified in the CIP is a manual process, primarily via data entry in Excel spreadsheets, financial monitoring in MUNIS, scheduling via Outlook, and plan review in Bluebeam.
Given these circumstances, staff explored alternative software solutions that would streamline these processes, improve coordination and communication, reduce staff data entry time, and increase staff productivity. Staff hosted demonstrations of various software programs and found e-Builder, Inc. to meet the needs of the Department to effectively manage and track the projects identified in the CIP.
Staff also found that e-Builder, Inc. has established a COOP with the GSA, allowing municipalities a discount on the product and additional services. Transitioning the various functions of the current CIP project management to e-Builder, Inc. is expected to significantly enhance operational efficiency within the Public Works Department and increase stakeholder satisfaction.
Present Situation
GSA is an independent agency of the United States government. Federal agencies and their cooperators (states and others) can purchase information technology products at a discount through GSA. GSA awarded a contract to e-Builder, Inc. effective May 31, 2023, through May 30, 2028. eBuilder, Inc.’s GSA contract is available to all local, municipal, state, and federal government agencies. Authorizing the use of this COOP will allow the City to take advantage of the discounts on e-Builder, Inc.’s list prices for products and services in the COOP.
The Procurement Division of the Administrative Services Department confirms that participation in cooperative purchasing programs provides cost savings and reduces staff time in developing bid specifications or hiring an outside consultant to write and review all bids since COOPs have been established through a competitive bidding process. The Procurement Division has determined that the process used to establish the GSA COOP was awarded through a competitive process and meets the City’s procurement requirements.
e-Builder, Inc. is a digital project delivery software for the management of capital projects from planning through design and construction. As Azteca Systems, LLC is a parent company to both eBuilder, Inc. and Cityworks, the CMMS system utilized by the Public Works Operations and Maintenance Division, the two modules fully integrate and work alongside one another. This integration allows for tracking the construction of an asset via e-Builder, Inc. and for asset handoff for future maintenance tracking in Cityworks. The result of the implementation will include robust resource management, real-time portfolio dashboards, customizable reports, and one integrated system to manage the cost, funding sources, schedule, and scope of each capital project.
Staff recommends approval to purchase e-Builder, Inc.’s project management software for the current and succeeding two fiscal years with managed services.
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FINDINGS
Pursuant to Stockton Municipal Code section 3.68.070, Council may approve findings which support an exception to the competitive bid process. These findings include:
1. GSA is an independent agency of the United States government. Federal agencies and their cooperators (states and others) can purchase information technology products at a discount through GSA.
2. GSA awarded a contract to e-Builder, Inc. effective May 31, 2023. The agreement end date is May 30, 2028, with the option of three five-year extensions. e-Builder, Inc.’s GSA contract is available to all local, municipal, state, and federal government agencies.
3. The Procurement Division of the Administrative Services Department recommends and approves the use of this COOP and has determined that the process used to establish the GSA COOP was awarded through a competitive process and meets the City’s procurement requirements.
4. The GSA COOP allows other agencies, such as the City of Stockton, to utilize and participate in it.
FINANCIAL SUMMARY
There is sufficient funding available in the Fiscal Year (FY) 2024-25 Public Works Operating Budget, account numbers 4510-701-650002-100-000-30-45 and 4510-700-650002-250-252-30-45, to enter into a contract with e-Builder Inc. for $282,779.47, for year one of the three-year agreement.
Funding for years two and three of the three-year agreement will be appropriated through the annual budget development process.
There is no impact to the City’s General Fund or any other unrestricted fund as a result of taking the recommended actions.
Attachment A - Cooperative Purchase Agreement with e-Builder, Inc.
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527
1 (Rev. 9.30.22)
COOPERATIVE/PIGGYBACK PURCHASE AGREEMENT
AGREEMENT SUMMARY:
1. Cooperative/Piggyback
Name:
General Services Administration (GSA)
2. Contractor: e-Builder
3. Cooperative Agency
Agreement Name and
Agreement Number:
Information Technology, Large Category, Contract
Number GS-35F-408AA
4. Cooperative Agency Initial
Agreement Term:
Start Date: May 31, 2023
End Date: May 30, 2028
5. Cooperative Agency’s
Agreement-Options to
extend:
3 each additional 5-year periods (15 years total)
6. Cooperative Agency
Amended Term:
None
7. Cooperative Agency
Remaining Options to
Renew:
3 each additional 5-year extension periods (15 years
total)
8. City of Stockton
Cooperative Purchase
Agreement Term:
Start Date: October 1, 2024
End Date: May 30, 2028
9. City of Stockton
Cooperative/ Piggyback
Purchase Agreement
Amount:
Not to Exceed $539,112.19 for the term of the
Agreement.
ATTACHMENT A 528
2 (Rev. 9.30.22)
AGREEMENT
The City of Stockton, a California municipal corporation on behalf of itself and its associated entities ("City"), and the above-named Contractor (“Contractor”), do hereby agree that City shall be granted the pricing, terms, and conditions under the above referenced GSA - Information Technology, Large Category, Contract Number GS-35F408AA (“COOP”) as such may be amended from time to time. The COOP and associated documents referenced in the agreement are incorporated herein as Exhibit A to this City Cooperative/Piggyback Purchase Agreement (“Agreement”).
Contractor shall grant such pricing, terms, and conditions to City for all procurements of goods and services, whether taking place on a City purchase order, purchasing card (credit card), or other purchasing modality, whether via telephone, via the Contractor website, or via direct purchase at a Contractor retail location.
1. Agreement Term: The Term of this Agreement shall remain in effect from the date of the signing of this Agreement through May 30, 2028, unless terminated earlier by the City. If the Cooperative/Piggyback Agency extends the COOP with Contractor by a written amendment, the City has the option to extend the term of this Agreement by written amendment not to go beyond the term stated in the COOP fully executed amendment.
2. Insurance and Hold Harmless: In addition to the pricing, terms and conditions stated in the COOP and the associated documents incorporated herein as Exhibit A, Contractor shall, at Contractor’s sole cost and expense and for the full term of the Agreement or any extension thereof, obtain and maintain at least all the insurance requirements listed in attached Exhibit B.
To the fullest extent permitted by law, Contractor shall hold harmless, defend and indemnify City of Stockton and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with Contractor’s performance of work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the City of Stockton. This obligation is independent of, and shall not in any way be limited by, the minimum Insurance obligations contained in this Agreement. These obligations shall survive the completion or termination of this Agreement.
3. Compensation: City and Contractor do hereby enter into this Agreement for e‐ Builder Enterprise GSA Bundle annual software subscription, Professional Services for Project Manager II, Business Analyst, Software Engineer, and Total Annual Managed Services available in the above-named COOP and associated documents incorporated herein as Exhibit A and referenced in the attached quote Exhibit C. In no way, shall payment to the Contractor during the term of this Agreement exceed $539,112.19 for the purchase of e‐Builder Enterprise GSA Bundle annual software subscription, Professional Services for Project Manager II, Business Analyst, Software Engineer, and Total Annual Managed Services. Any person signing this Agreement on behalf of City or Contractor ATTACHMENT A 529
3 (Rev. 9.30.22)
does warrants that he or she has full authority to do so.
4. Governing Law. California law shall govern any legal action pursuant to this Agreement with venue for all claims in the Superior Court of the County of San Joaquin, Stockton Branch or, where applicable, in the Federal District Court of California, Eastern District, Sacramento Division.
5. Applicable Law. Deliverables must conform with all applicable federal, state, and local laws. Such conformity includes compliance with federal sanctions, and Contractor certifies that it has not and will not engage in prohibited transactions with sanctioned persons or entities.
This Agreement may be amended only by a written amendment, consistent with the COOP, signed by Contractor and City.
CITY OF STOCKTON e-BUILDER, INC.
By: __________________________
Harry Black, City Manager Signature
Date:____________________
____________________________
Print name
ATTEST: Title: ________________________
____________________________ [If Contractor is a corporation, signatures must Katherine Roland CMC, CPMC Interim City Clerk comply with Corporations Code §313] APPROVED AS TO FORM:
By: __________________________
___________________________ Signature
Lori Asuncion, City Attorney
__________________________
Print name
Title: _______________________
ATTACHMENT A 530
Solicitation Document
Title : Multiple Award Schedule
Solicitation Number : 47QSMD20R0001
Refresh Number : 0021
Created on May 28, 2024
ATTACHMENT A 531
Introduction
A. Solicitation Number: 47QSMD20R0001
B. Refresh Number: 0021
C. For an outline of significant changes, please see "SF30 Attachment" D. Download the solicitation from link here:
https://sam.gov/opp/274ba2a01b824865978c9b0791762a22/view We appreciate your interest in the Multiple Award Schedule (MAS) Program.
Under MAS, the General Services Administration (GSA) establishes long-term Government-wide contracts with commercial firms to provide government buyers with access to a wide variety of commercial supplies, services, and solutions.
In order to download and view the current solicitation (47QSMD20R0001) posted on Beta.SAM website; please go to the following link: https://beta.sam.gov/. You will see the following "NOTE" at the top of the page: Note:
There have been new actions to this contract opportunity. To view the most recent action, please click here.
By clicking here, you will be brought to the latest Solicitation and Large Category Attachments.
The 01 - Solicitation link will take you to the current Schedule which contains Instructions Applicable to All Offerors. The Large Category Attachments (02 - 13) outline additional evaluation criteria, requirements and information specific to the category, subcategory, or Special Item Numbers only. Solicitation and category specific attachments and templates needed to complete your offer are found on the MAS Scope and Templates page (www.gsa.gov/masscopeandtemplates).
Before you submit your offer, please visit the MAS Roadmap (www.gsa.gov/masroadmap). This page will help you understand the offer submission process, what it means to have a Schedule contract and if it is right for you. Please familiarize yourself with this information prior to completing your offer in GSAs eOffer system (https://eoffer.gsa.gov/).
All offers shall be submitted electronically via eOffer at https://eoffer.gsa.gov/. Please visit the eOffer site for the latest information on how to access the system and submit an offer. Additional industry guidance can be found at the Vendor Support Center (http://vsc.gsa.gov/).
Need Assistance? Please visit our MAS Resources page for additional support https://www.gsa.gov/buying-selling/purchasing-programs/gsa-schedules/we-are-here-to-help Begin Regulation
CP-FSS-2 SIGNIFICANT CHANGES (OCT 1988)
The attention of offeror is invited to the following changes made since the issuance of the last solicitation for the supplies/services covered herein:
The deleted regulation(s) from previous refresh are listed below Number Title Clause/Provision
52.204-4 PRINTED OR COPIED DOUBLE-SIDED
ON POSTCONSUMER FIBER
CONTENT PAPER (MAY 2011)
Clause
52.223-18 ENCOURAGING CONTRACTOR
POLICIES TO BAN TEXT MESSAGING
WHILE DRIVING (AUG 2011)
Clause
52.223-13 ACQUISITION OF EPEAT -
REGISTERED IMAGING EQUIPMENT
(JUN 2014)
Clause
47QSMD20R0001 Refresh: 0021 Introduction
i
ATTACHMENT A 532
52.223-14 ACQUISITION OF EPEAT® -
REGISTERED TELEVISIONS (JUN
2014)
Clause
52.223-16 ACQUISITION OF EPEAT® -
REGISTERED PERSONAL COMPUTER
PRODUCTS (OCT 2015)
Clause
52.223-17 AFFIRMATIVE PROCUREMENT OF
EPA-DESIGNATED ITEMS IN SERVICE
AND CONSTRUCTION CONTRACTS
(MAY 2008)
Clause
52.223-15 ENERGY EFFICIENCY IN
ENERGY-CONSUMING PRODUCTS
(MAY 2020)
Clause
The added regulation(s) in new refresh are listed below Number Title Clause/Provision
52.226-7 DRUG-FREE WORKPLACE (MAY
2024)
Clause
52.226-8 ENCOURAGING CONTRACTOR
POLICIES TO BAN TEXT MESSAGING
WHILE DRIVING (MAY 2024)
Clause
The updated regulation(s) in new refresh are listed below Number Title Clause/Provision
52.223-5 POLLUTION PREVENTION AND
RIGHT-TO-KNOW INFORMATION (MAY
2024)
Clause
52.223-10 WASTE REDUCTION PROGRAM (MAY
2024)
Clause
52.223-1 BIOBASED PRODUCT
CERTIFICATION (MAY 2024)
Provision
52.223-2 REPORTING OF BIOBASED
PRODUCTS UNDER SERVICE AND
CONSTRUCTION CONTRACTS (MAY
2024)
Clause
52.223-11 OZONE-DEPLETING SUBSTANCES
AND HIGH GLOBAL WARMING
POTENTIAL
HYDROFLUOROCARBONS (MAY 2024)
Clause
52.223-12 MAINTENANCE, SERVICE, REPAIR,
OR DISPOSAL OF REFRIGERATION
EQUIPMENT AND AIR CONDITIONERS
(MAY 2024)
Clause
52.223-20 AEROSOLS (MAY 2024) Clause
52.223-21 FOAMS (MAY 2024) Clause
552.238-86 DELIVERY SCHEDULE (MAY 2019) Clause
52.204-27 PROHIBTION ON A BYTEDANCE
COVERED APPLICATION (JUN 2023)
Clause
552.238-80 INDUSTRIAL FUNDING FEE AND
SALES REPORTING (JUL 2020)
Clause
47QSMD20R0001 Refresh: 0021 Introduction
ii
ATTACHMENT A 533
(ALTERNATE I MAY 2024)
SCP-FSS-001 INSTRUCTIONS APPLICABLE TO ALL
OFFERORS (MAY 2024)
Provision
52.212-5 CONTRACT TERMS AND
CONDITIONS REQUIRED TO
IMPLEMENT STATUTES OR
EXECUTIVE ORDERS - COMMERCIAL
PRODUCTS AND COMMERCIAL
SERVICES (MAY 2024)
Clause
The added SINS in new refresh are listed below
SIN # SIN Title Total Sales in $
541519CSP 541519 Credential Service Providers (CSP) $0
The deleted SINS in new refresh are listed below
SIN # SIN Title Total Sales in $
47QSMD20R0001 Refresh: 0021 Introduction
iii
ATTACHMENT A 534
TABLE OF CONTENTS
Please click on an item in Table of Contents below to go to the respective location within this document.
Section I. Offer Preparation Instructions and Evaluation Criteria................................1 Section IA. Instructions to Offerors................................................................................. 2 SCP-FSS-001 -- INSTRUCTIONS APPLICABLE TO ALL OFFERORS (MAY 2024)............................... 2 Section IB. Offer Preparation Instructions and Evaluation Criteria........................... 22
52.204-16 -- COMMERCIAL AND GOVERNMENT ENTITY CODE REPORTING (AUG 2020).......... 22
52.204-17 -- OWNERSHIP OR CONTROL OF OFFEROR (AUG 2020)................................................ 23
52.204-20 -- PREDECESSOR OF OFFEROR (AUG 2020).....................................................................24 552.238-102 -- ENGLISH LANGUAGE AND U.S. DOLLAR REQUIREMENTS (MAY 2019)............... 24 552.238-103 -- ELECTRONIC COMMERCE (MAY 2019)...................................................................... 24 552.238-104 -- DISSEMINATION OF INFORMATION BY CONTRACTOR (MAY 2019)......................25 552.238-70 -- COVER PAGE FOR WORLDWIDE FEDERAL SUPPLY SCHEDULES (MAY 2019) FOR ALL GEOGRAPHIC AREAS..................................................................................................................... 26 552.238-71 -- NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE (MAY 2019)..................................26 552.238-72 -- INFORMATION COLLECTION REQUIREMENTS (MAY 2019).....................................26 552.238-75 -- EVALUATION-COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (FEDERAL SUPPLY SCHEDULE) (JAN 2022).......................................................................................26 552.238-76 -- USE OF NON-GOVERNMENT EMPLOYEES TO REVIEW OFFERS (MAY 2019)........ 27 552.238-77 -- SUBMISSION AND DISTRIBUTION OF AUTHORIZED FEDERAL SUPPLY SCHEDULE PRICE LISTS (MAR 2020)...................................................................................................27 552.238-79 -- CANCELLATION (MAY 2019).......................................................................................... 28 552.238-81 -- PRICE REDUCTIONS (MAY 2019) ..................................................................................28 552.238-81 -- PRICE REDUCTIONS (MAY 2019) (ALTERNATE I - APR 2014)................................... 29 552.238-88 -- GSA ADVANTAGE!® (MAY 2019)....................................................................................29 A-FSS-11 -- CONSIDERATION OF OFFERS UNDER STANDING SOLICITATION (DEC 2022)........29 I-FSS-639 -- CONTRACT SALES CRITERIA (SEP 2023)........................................................................30 I-FSS-644 -- PRODUCTS OFFERED AND SOLD BY VENDORS OTHER THAN THE MANUFACTURER (DEC 2022)............................................................................................................... 30 K-FSS-1 -- AUTHORIZED NEGOTIATORS (DEC 2022)........................................................................31 L-FSS-101 -- FINAL PROPOSAL REVISION (JUN 2002).......................................................................31 Section II. Available Offerings....................................................................................... 33 Section III Contract Terms and Conditions...................................................................36
52.204-27 -- PROHIBTION ON A BYTEDANCE COVERED APPLICATION (JUN 2023)....................36
52.232-36 -- PAYMENT BY THIRD PARTY (MAY 2014)........................................................................ 37 552.238-83 -- EXAMINATION OF RECORDS BY GSA (MAY 2019)...................................................... 38 552.238-86 -- DELIVERY SCHEDULE (MAY 2019)............................................................................... 38 Section III A. Terms and Conditions Related to Schedule Contract Administration.. 40
52.204-18 -- COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (AUG 2020).....40
52.204-21 -- BASIC SAFEGUARDING OF COVERED CONTRACTOR INFORMATION SYSTEMS (NOV 2021)............................................................................................................................................... 41
52.204-23 -- PROHIBITION ON CONTRACTING FOR HARDWARE, SOFTWARE, AND SERVICES
DEVELOPED OR PROVIDED BY KASPERSKY LAB AND OTHER COVERED ENTITIES (DEC 2023)..........................................................................................................................................................42
52.204-24 -- REPRESENTATION REGARDING CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT (NOV 2021)................................................................. 44
52.204-25 -- PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT (NOV 2021).................................................... 46
52.204-29 -- FEDERAL ACQUISITION SUPPLY CHAIN SECURITY ACT ORDERS - REPRESENTATION AND DISCLOSURES (DEC 2023)......................................................................... 49
52.204-30 -- FEDERAL ACQUISITION SUPPLY CHAIN SECURITY ACT ORDERS - PROHIBITION 47QSMD20R0001 Refresh: 0021
ATTACHMENT A 535
(DEC 2023) (ALT I DEC 2023)................................................................................................................ 50
52.209-12 -- CERTIFICATION REGARDING TAX MATTERS (OCT 2020)...........................................54
52.209-5 -- CERTIFICATION REGARDING RESPONSIBILITY MATTERS (AUG 2020)..................... 55
52.209-7 -- INFORMATION REGARDING RESPONSIBILITY MATTERS (OCT 2018)........................ 57
52.209-9 -- UPDATES OF PUBLICLY AVAILABLE INFORMATION REGARDING RESPONSIBILITY MATTERS (OCT 2018)............................................................................................................................. 58
52.212-3 -- OFFEROR REPRESENTATIONS AND CERTIFICATIONS - COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (FEB 2024)......................................................................................... 59
52.212-5 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS - COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (MAY 2024)71
52.215-20 -- REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER THAN CERTIFIED COST OR PRICING DATA (NOV 2021) (ALTERNATE IV - OCT 2010)................78
52.215-6 -- PLACE OF PERFORMANCE (OCT 1997)........................................................................... 79
52.216-1 -- TYPE OF CONTRACT (APR 1984)....................................................................................... 79
52.216-32 -- TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (SEP 2019) (ALT I SEP 2019) Alternate I..................................................................................................................................................79
52.219-1 -- SMALL BUSINESS PROGRAM REPRESENTATIONS (FEB 2024)..................................... 80
52.223-3 -- HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (FEB 2021) (ALTERNATE I - JUL 1995)...........................................................................................................83
52.225-6 -- TRADE AGREEMENTS CERTIFICATE (FEB 2021)............................................................85
52.233-2 -- SERVICE OF PROTEST (SEP 2006).....................................................................................86
52.252-1 -- SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (FEB 1998).............. 86
52.252-2 -- CLAUSES INCORPORATED BY REFERENCE (FEB 1998)............................................... 87 552.212-4 -- CONTRACT TERMS AND CONDITIONS – COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (NOV 2023) (DEVIATION – FEB 2007) (FAR DEVIATION - JAN 2023). 90 552.212-4 -- CONTRACT TERMS AND CONDITIONS - COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (NOV 2023) (FAR DEVIATION - JAN 2023) (ALTERNATE I - NOV 2021) (DEVIATION - FEB 2007)........................................................................................................................ 97 552.212-71 -- CONTRACT TERMS AND CONDITIONS APPLICABLE TO GSA ACQUISITIONS OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (OCT 2023).......................................109 552.212-72 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS APPLICABLE TO GSA ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (OCT 2023)................................................................................................ 109 552.216-70 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE CONTRACTS (SEP 1999) (ALTERNATE I - SEP 1999)........................................................................ 110 552.216-70 -- ECONOMIC PRICE ADJUSTMENT – FSS MULTIPLE AWARD SCHEDULE CONTRACTS (SEP 1999) (DEVIATION II – JUL 2016)....................................................................... 111 552.217-71 -- NOTICE REGARDING OPTION(S) (NOV 1992)............................................................112 552.238-116 -- OPTION TO EXTEND THE TERM OF THE FSS CONTRACT (MAR 2022)...............112 552.238-74 -- INTRODUCTION OF NEW SUPPLIES-SERVICES (INSS) (MAY 2023).......................113 552.238-78 -- IDENTIFICATION OF PRODUCTS THAT HAVE ENVIRONMENTAL ATTRIBUTES (JAN 2022).............................................................................................................................................. 113 552.238-80 -- INDUSTRIAL FUNDING FEE AND SALES REPORTING (JUL 2020)......................... 115 552.238-80 -- INDUSTRIAL FUNDING FEE AND SALES REPORTING (JUL 2020) (ALTERNATE I MAY 2024)...............................................................................................................................................117 552.238-82 -- MODIFICATIONS (FEDERAL SUPPLY SCHEDULE) (JAN 2022) (ALTERNATE I - MAR 2020)........................................................................................................................................................120 552.238-82 -- MODIFICATIONS (FEDERAL SUPPLY SCHEDULE) (JAN 2022) (ALTERNATE II MAY 2019)........................................................................................................................................................121 C-FSS-370 -- CONTRACTOR TASKS / SPECIAL REQUIREMENTS (DEC 2022)...............................122 G-FSS-900-C -- CONTACT FOR CONTRACT ADMINISTRATION (DEC 2022).................................123 I-FSS-106 -- GUARANTEED MINIMUM (DEC 2022).......................................................................... 124 I-FSS-40 -- CONTRACTOR TEAM ARRANGEMENTS (DEC 2022).....................................................124 I-FSS-600 -- CONTRACT PRICE LISTS (DEC 2022)............................................................................124 I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE (OCT 2014) (ALTERNATE II - JUL 2016)..................................................................................................................127 I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT-FSS MULTIPLE AWARD SCHEDULE (OCT 2014)........................................................................................................................................................129 Section III B. Terms and Conditions Related to the Performance of an Order.........131
52.204-2 -- SECURITY REQUIREMENTS (MAR 2021)........................................................................ 131 47QSMD20R0001 Refresh: 0021
ATTACHMENT A 536
52.216-22 -- INDEFINITE QUANTITY (OCT 1995)..............................................................................131
52.217-9 -- OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000)............................ 132
52.219-18 -- NOTIFICATION OF COMPETITION LIMITED TO ELIGIBLE 8(a) PARTICIPANTS (JAN 2017) (DEVIATED I - OCT 2022).......................................................................................................... 132
52.222-54 -- EMPLOYMENT ELIGIBILITY VERIFICATION (MAY 2022).......................................... 133
52.223-7 -- NOTICE OF RADIOACTIVE MATERIALS (JAN 1997)..................................................... 135
52.225-19 -- CONTRACTOR PERSONNEL IN A DESIGNATED OPERATIONAL AREA OR
SUPPORTING A DIPLOMATIC OR CONSULAR MISSION OUTSIDE THE UNITED STATES (MAY 2020)........................................................................................................................................................136
52.228-3 -- WORKER’S COMPENSATION INSURANCE (DEFENSE BASE ACT) (JUL 2014)..........141
52.232-40 -- PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS (MAR 2023)............................................................................................................................................. 142 552.219-74 -- SECTION 8(A) DIRECT AWARD (SEP 1999).................................................................143 552.228-5 -- GOVERNMENT AS ADDITIONAL INSURED (JAN 2016)...............................................143 552.238-100 -- TRANSSHIPMENTS (MAY 2019).................................................................................. 143 552.238-101 -- FOREIGN TAXES AND DUTIES (MAY 2019)..............................................................144 552.238-106 -- INTERPRETATION OF CONTRACT REQUIREMENTS (MAY 2019)......................... 144 552.238-112 -- DEFINITIONS - FEDERAL SUPPLY SCHEDULE CONTRACTS (MAR 2024).......... 144 552.238-113 -- AUTHORITIES SUPPORTING USE OF FEDERAL SUPPLY SCHEDULE CONTRACTS (MAR 2024)............................................................................................................................................. 145 552.238-114 -- USE OF FEDERAL SUPPLY SCHEDULE CONTRACTS BY NON-FEDERAL ENTITIES (MAR 2024)............................................................................................................................................. 146 552.238-117 -- PRICE ADJUSTMENT - FAILURE TO PROVIDE ACCURATE INFORMATION (OCT 2023)........................................................................................................................................................148 552.238-84 -- DISCOUNTS FOR PROMPT PAYMENT (MAY 2019)................................................... 148 552.238-85 -- CONTRACTOR'S BILLING RESPONSIBILITIES (MAY 2019)...................................... 149 552.238-87 -- DELIVERY PRICES (MAY 2019).....................................................................................149 552.238-97 -- PARTS AND SERVICE (MAY 2019)................................................................................ 150 552.238-98 -- CLAUSES FOR OVERSEAS COVERAGE (MAY 2019).................................................. 151 552.238-99 -- DELIVERY PRICES OVERSEAS (MAY 2019)................................................................ 151 552.246-78 -- INSPECTION AT DESTINATION (JUL 2009)................................................................ 151 I-FSS-973 -- PAYMENTS BY NON-FEDERAL ORDERING ACTIVITIES (DEC 2022)....................... 151 Section IV. List of Attachments.................................................................................... 153 47QSMD20R0001 Refresh: 0021
ATTACHMENT A 537
Section I. Offer Preparation Instructions and Evaluation Criteria This section outlines the information that all offerors must provide to GSA in order to be considered for award under the MAS Solicitation.
Additional information or requirements that apply to specific categories of products and services are noted in the specific category attachments included as part of the solicitation package. Please make sure you know what large category or categories and Special Item Number/s (SIN/s) you will be submitting under your offer, prior to beginning the eOffer process and submitting your offer. The specific large categories, subcategories, and SINs will dictate additional requirements for your offer and additional clause requirements that will flow down to your contract. Please read these instructions and requirements thoroughly. All this information will be reviewed as part of your Schedule offer. All offer information must be submitted in the GSA eOffer system (http://eoffer.gsa.gov).
47QSMD20R0001 Refresh: 0021 Section I. Offer Preparation Instructions and Evaluation Criteria Page: 1 of 155
ATTACHMENT A 538
Section IA. Instructions to Offerors
The solicitation provision SCP-FSS-001 outlines the administrative, technical, and pricing elements that are required as part of all offer submissions.
Begin Regulation
SCP-FSS-001 Instructions Applicable to All Offerors (May 2024) (a) Read the entire solicitation document prior to preparing your offer. The Government will consider award to a responsible offeror whose offer conforms to all solicitation requirements, is determined technically acceptable and whose prices are determined fair and reasonable. The Government reserves the right to award or reject without discussions. Therefore, the offeror’s initial proposal should contain the best terms from a price and technical standpoint. (b) Electronic submission of offers via GSA’s eOffer web-based application is mandatory.
Offerors must use FAS ID Multi-Factor Authentication (MFA) to access eOffer. Offerors should have at least two Authorized Negotiators who are “Authorized to Sign.” While offerors may use consultants, one Authorized Negotiator must be an employee of the company. To obtain a FAS ID and enroll in the MFA process, please utilize the FAS ID User Guide. Offerors are advised to review the MAS Roadmap site prior to submitting an offer. (c) Offers must be current, accurate, and complete, and demonstrate a thorough understanding of solicitation requirements. By submission of an offer:
(1) The offeror has not taken exceptions to the terms and conditions of this solicitation unless explicitly identified in eOffer (see “Exceptions to Terms and Conditions” under the Standard Response module).
(2) The offeror understands and agrees to comply with the requirements of all clauses and provisions. Failure to comply with applicable clauses and provisions will result in rejection of the offer. Offerors are responsible for ensuring that their offers meet ALL solicitation requirements and should not assume that deficient items will be clarified prior to the offer being rejected.
(3) The offeror understands and agrees to comply with the requirements of GSAR clause, 552.238-80 Industrial Funding Fee and Sales Reporting OR GSAR clause 552.238-80, Industrial Funding Fee and Sales Reporting (Alternate I) if participating in Transactional Data Reporting (TDR) (see paragraph (f) below for more information on TDR). (d) Existing Federal Supply Schedule (FSS) Program contractors, including any small business who does not have its own FSS program contract but is performing under an existing FSS program joint venture contract as a joint venture partner, can submit streamlined offers provided that the contractor meets ALL of the following criteria:
(1) The contractor has an active FSS program contract under this Schedule and is submitting a new offer for the same, or a subset of, the Special Item Numbers (SINs) currently awarded under its active FSS program contract. (2) Sales under the existing contract comply with clause I-FSS-639, Contract Sales Criteria for the previous five years of reported sales. (3) There is a demonstrated pattern of satisfactory past performance under the existing contract.
(4) Only applicable to a small business performing under an active FSS program joint venture contract as a joint venture partner. A small business performing under an active FSS program joint venture contract as a joint venture partner may submit an offer under the streamlined process as long as the existing FSS program joint venture contract meets the requirements at (d)(1)-(3). Note: The small business may only submit an offer for SINs under which it performed as a joint venture partner under the FSS 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 2 of 155
ATTACHMENT A 539
program joint venture contract. The Unique Entity Identifier (UEI) of the small business must not be the same as “the contractor” under the FSS program joint venture contract. (e) A current FSS contractor can submit an offer for a new contract under this Schedule at any time during the existing contract’s period of performance. Typically, the award of a new contract will result in the cancellation of the existing contract upon award. However, if the contractor has one or more active Blanket Purchase Agreements (BPAs) or has submitted quotes and is awaiting an award decision, it is eligible for the award of a new contract that is allowed to overlap and run alongside the existing one. This is referred to as holding continuous contracts.
Holding continuous contracts enables the FSS contractor to complete work under BPAs established under the existing contract, while utilizing the new contract for new business opportunities. A contractor that wishes to hold continuous contracts must complete and upload the Request to Hold Continuous Contracts solicitation attachment to address the below items.
See MAS Roadmap.
(1) Indicate with its offer that it wishes to hold continuous contracts, along with a listing of all active submitted quotes and established BPAs under the existing contract. For each, the contractor must include the ordering activity name and point of contact, Quote/BPA number and period of performance (including options).
(2) Assist the FSS contracting officer in determining the proper cancellation date for the existing contract. The existing contract is to be canceled the day after the final day of the ordering period for the active BPA. In situations where multiple BPAs are active, the cancellation date should be based on the last remaining BPA. (3) Agree not to use the existing contract to compete for new business opportunities after the new contract is awarded.
In addition to completing the Request to Hold Continuous Contracts solicitation attachment, all other criteria outlined on the MAS Roadmap must be met. Failure to comply with all proposal instructions may result in rejection of the offer. (f) This solicitation includes Transactional Data Reporting (TDR), which requires contractors that choose to participate in TDR to electronically report line item data elements for items or services purchased through contracts covered by TDR (see GSAR clause 552.238-80 Alternate I). TDR participants are not required to provide Commercial Sales Practices (CSP) disclosures or to monitor price reduction violations in accordance with GSAR clause 552.238-81, Price Reductions. Special proposal instructions for TDR participants are detailed herein.
Note: If a contractor opts into TDR, the entire contract is subject to TDR terms and conditions for the remainder of the contract, including any option periods. (g) In addition to compliance with the proposal instructions herein, the offeror must also comply with any additional SIN or category specific instructions specified in the solicitation, as applicable. Failure to comply with all proposal instructions will result in rejection of the offer.
(h) Withdrawal of Offer: The offeror may withdraw its offer from consideration at any time prior to award or rejection by withdrawing it in eOffer. If an offer is withdrawn, a new offer can be resubmitted at a later date. Information saved from the previous withdrawn offer can be copied over to the new offer, excluding previously uploaded documents. (i) All offerors must comply with the following (unless annotated otherwise). See MAS Roadmap for a detailed MAS Offer Review Checklist.
(1) Section I – Administrative/Contract Data
i. Applicable to both product and service offers. The offeror must complete the Pathways to Success training*. The Pathways to Success training must be completed by a designated Authorized Negotiator who is also an employee of the company 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 3 of 155
ATTACHMENT A 540
submitting the offer within one year of the date of offer submission. This free training is available through the MAS Roadmap. The training session is approximately four hours total and covers the major factors prospective contractors should consider prior to submitting an offer to GSA. The offeror must acknowledge, through eOffer, that the training has been completed within the past year at the time of offer submission.
* The requirement to complete the Pathways to Success training does not apply to contractors that have an active FSS program contract under this Schedule and meet the criteria for submitting a streamlined offer, or to a small business performing under an active FSS program joint venture contract as a joint venture partner see (d) 1-4.
ii. Applicable to both product and service offers. The offeror must complete the Readiness Assessment for Prospective Offerors*. The Readiness Assessment must be completed by a designated Authorized Negotiator who is also an employee of the company submitting the offer within one year of the date of offer submission. This free self-assessment is available through the MAS Roadmap. This assessment is designed to assist prospective contractors in determining whether they are ready to pursue a Schedule contract and prepares them to navigate the Schedule offer process. The offeror must acknowledge through eOffer that the assessment has been completed within the past year at the time of offer submission.
*The requirement to complete the Readiness Assessment for Prospective Offerors does not apply to contractors that have an active FSS program contract under this Schedule and meet the criteria for submitting a streamlined offer, or to a small business performing under an active FSS program joint venture contract as a joint venture partner see (d) 1-4.
iii. Applicable to both product and service offers. The offeror must be registered with the System for Award Management (SAM). The information provided must be current, accurate, and complete, and reflect at least one of the North American Industry Classification System (NAICS) code(s) for each SIN proposed.
Offers from joint ventures. A joint venture offeror must be a separate legal entity registered in SAM under its own UEI and CAGE code. The joint venture offeror cannot share a UEI or CAGE code with any of its joint venture partners. iv. Applicable to both product and service offers. If an offeror was previously awarded a Schedule contract, and it was subsequently canceled or allowed to expire due to low sales or non-compliance with other contract terms and conditions, provide a detailed description of the steps the offeror plans to take to remain in good standing if awarded a new contract. The description must include the following:
Offers from joint ventures: This requirement applies to a JV offeror, as further specified below, if the JV entity or one or more JV partner(s)’ previous Schedule contract(s) was canceled or allowed to expire due to low sales or non-compliance with other contract terms and conditions.
(A) A copy of the cancellation letter or notification of determination not to exercise an option.
(B) If the offeror’s previous Schedule contract did not comply with clause I-FSS-639, Contract Sales Criteria, submit Federal sales (either as a prime or subcontractor) awarded within 12 months of offer submission that individually or in the aggregate exceed $25,000, for products/services that are within scope of one or more of the offered SINs. Sales must be evidenced by copies of contractual documents that identify the Federal entity and the date and value of the product or services provided, OR a written customer agency request for the offeror’s specific products or services to be available on Schedule.
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partner(s) whose previous Schedule contract(s) did not comply with clause I-FSS-639, may satisfy the requirements outlined in this paragraph by submitting Federal sales awarded to the JV entity or the JV partner(s).
(C) If the offeror or JV partner(s)’ previous Schedule contract did not comply with clause I-FSS-639, Contract Sales Criteria, demonstrate that there is a reasonable expectation that any future award will comply with clause I-FSS-639, Contract Sales Criteria.
(D) A narrative describing your marketing strategy and steps you will take to ensure you meet the minimum sales requirement and/or the steps you will take to ensure compliance with contract terms and conditions. (limit 2 pages, 1.15 space, times new roman, size 10 font, one inch margins)
Note: If the offeror was previously awarded a Schedule contract that was canceled or allowed to expire due to low sales or non-compliance with contract terms and conditions, a new offer for the same SIN(s) will not be considered unless a minimum of 12 months have passed since the cancellation effective date or the expiration date of the previous contract. Any offer for the same SIN(s) submitted prior to the completion of this 12-month period will be rejected.
Offers from joint ventures: The 12-month waiting period does not apply to JV offers when a JV partner(s)’ previous Schedule contract(s) was canceled or allowed to expire due to low sales; however, the JV offeror must meet the requirements in paragraphs (A) through (D) above.
The 12-month waiting period applies to a JV offer if (1) the JV entity’s previous Schedule contract was canceled or allowed to expire due to low sales; or (2) the JV entity or JV partner(s)’ previous Schedule contracts were canceled or allowed to expire due to non-compliance with contract terms and conditions.
v. Applicable to both product and service offers. The offeror must provide annual financial statements* for the previous two-years (audited, if available), unless submitting under Startup Springboard.** At a minimum, each financial statement must consist of a balance sheet and income statement. GSA will use this information to determine financial responsibility. Provide an explanation for any negative financial information disclosed, including negative equity or income. Offerors may be required to provide letters of credit or other documentation to demonstrate that adequate financial resources are available. In accordance with Federal Acquisition Regulation (FAR) 9.104-1(a), contracts will only be awarded to responsible prospective contractors. To be determined responsible, an offeror must have adequate financial resources to perform the contract or the ability to obtain them. Note that 1.) submission of a GSA Form 527 Contractor’s Qualifications and Financial Information does not meet the aforementioned requirements, and 2.) offerors must NOT submit tax returns.
*The requirement to provide financial statements does not apply to contractors that have an active FSS program contract under this Schedule and meet the criteria for submitting a streamlined offer, or to a small business performing under an active FSS program joint venture contract as a joint venture partner see (d) 1-4. **Startup Springboard. Offerors with less than two (2) years of corporate experience must provide financial documentation that demonstrates the Offeror's financial responsibility. If no financial statements exist, the contracting officer, after submission, may request additional documentation.
The GSA contracting officer (CO) is required to make a determination of financial 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 5 of 155
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responsibility as indicated above. Financial documentation submitted by the Offeror in lieu of financial statements must provide the required information to make this determination.
Offers from joint ventures. The Startup Springboard process is available for joint venture offerors with less than two years of corporate experience. When evaluating financial responsibility, the CO will consider financial documentation of the joint venture partners in addition to any financial documentation of the joint venture entity itself.
vi. Applicable to both product and service offers. If the offeror is other than a small business, the offeror must prepare and submit a Small Business Subcontracting Plan, as detailed in FAR clause 52.219-9, Small Business Subcontracting Plan. The Small Business Subcontracting Plan must be submitted through the Subcontracting Module in eOffer. The Government will review each plan to ensure it is consistent with this clause. Subcontracting plans are subject to negotiation, along with the terms and conditions of any contract resulting from this solicitation. The offeror's subcontracting plan must be approved by the contracting officer prior to award.
Failure to submit a Small Business Subcontracting Plan when required will result in the rejection of your offer.
The preponderance of work SIN will determine the business size of the offeror at the contract level.
The following information is provided for reference only:
SBA’s definition of a small business concern can be found via the following link:
SBA Size Standards.
GSA’s subcontracting goals can be found via the following link: GSA Subcontracting Goals.
vii. Applicable to both product and service offers. The offeror must not submit brochures, newsletters, or other marketing materials.
viii. Applicable to both product and service offers. An Agent Authorization Letter must be completed and submitted as part of the offer if a consultant or third-party agent assisted in the preparation of the offer, will be involved in any part of the negotiation of the offer, or will be involved in any post-award actions. The template for the Agent Authorization Letter can be found as an attachment to the solicitation.
The Agent Authorization Letter has both pre- and post-award delegations. For any resultant contract, the contractor is responsible for initiating a modification to ensure all authorized negotiators and delegations are up-to-date (e.g., removing an authorized negotiator that only has pre-award delegations). Regardless of signature authority, all Authorized Negotiators must obtain a FAS ID and enroll in the Multi-Factor Authentication (MFA) process to access eOffer. ix. Applicable to both product and service offers. Section 508 Standards. Section 508 of the Rehabilitation Act, as amended by the Workforce Investment Act of 1998 (P.L. 105-220) requires that when Federal agencies develop, procure, maintain, or use information and communication technology (ICT), it must be accessible to people with disabilities. Federal employees and members of the public who have disabilities must have access to, and use of, information and data that is comparable to people without disabilities.
x. Applicable to both product and service offers.
(A) All proposed products and services must comply with the Trade Agreements Act (TAA). The country of origin for services is the country in which the firm providing services is established. It is the responsibility of the offeror to identify the product’s country of origin. When an item consists of components from various countries and the components are assembled in an additional country, a test to determine country of origin is “substantial transformation” (reference FAR 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 6 of 155
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25.001(c)(2)). The offeror may request an opinion from a third-party expert or make the determination itself. Offerors can go to The Office of Regulations and Rulings within U.S. Customs and Border Protection (CBP), which is the Federal agency responsible for making final substantial transformation determinations (reference 19 CFR Part 177 Subpart B).
xi. Applicable to product offers. Supplier Authorization and Letter of Supply Requirements. GSA’s Verified Products Portal (VPP) captures supplier authorization information directly from participating manufacturers and their authorized partners.
The VPP enables automated verification and enforcement of supplier authorization and reduces the burden on offerors to provide individual Letters of Supply. For more information on the VPP, visit GSA’s VPP page.
If the offeror is not the manufacturer of the products being proposed, the offeror may only propose products it is authorized to distribute. The offeror can either be authorized by the manufacturer itself, or otherwise authorized pursuant to wholesaler agreements or other policies establishing the offeror’s authority to distribute proposed items. The offeror is also required to have access to an uninterrupted source of supply sufficient to satisfy the Government’s requirements for all proposed products. See clause I-FSS-644, Products Offered and Sold by Vendors Other Than the Manufacturer for details.
Offerors are encouraged to check the Verified Products Portal Participation Dashboard to see if their applicable manufacturer (or authorized partner) is providing supplier authorization data in the VPP.
(A) If the manufacturer is a VPP participant, no Letter of Supply is required. The Government will utilize available VPP data to verify that the offeror is authorized to sell proposed products and has access to an uninterrupted source of supply. The supplier authorization data in the VPP is authoritative and takes precedence over all other evidence, to include Letters of Supply.
(B) If the manufacturer is not a VPP participant, the offeror must upload a Letter of Supply to eOffer. Failure to provide an acceptable Letter of Supply may result in rejection of the offer. A Letter of Supply template is provided as a solicitation attachment.
(C) Offers from joint ventures. If the joint venture offeror will not source the offered product(s) itself (e.g., unpopulated which means joint venture offeror does not have its own separate employees to perform contracts awarded to the joint venture), the joint venture offeror must either provide evidence that the joint venture partner sourcing the product(s) is authorized under VPP as described in Section (A) above; or, the joint venture offeror must submit a Letter of Supply from the manufacturer as described in Section (B) above for the joint venture partner sourcing the product(s).
xii. Applicable to product offers. GSA continuously gathers information related to product availability in order to mitigate potential customer issues. If an item appears to be obsolete the GSA may request additional information, such as confirmation of sufficient availability of supply. However, given the risk (i.e. security vulnerabilities as well as legal and regulatory compliance issues) of using obsolete items, particularly Information Communication Technology (ICT) equipment, the Contracting Officer may decide the item should not be offered under the MAS program and will not award such item(s).
xiii. Applicable to product offers. Products that are solely compatible with products that are prohibited for national security reasons (e.g., FAR clauses 52.204-23;
52.204-25; and 52.204-30) may not be offered under MAS contracts. “Solely compatible products” are items that can only fulfill their intended purpose in conjunction with another product(s). For example, a small pluggable module that 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 7 of 155
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only functions with a covered telecommunications equipment as defined in FAR
52.204-25 is considered to be solely compatible with a prohibited product. These products do not add value to the MAS program since the products they are designed to support cannot be purchased or used by GSA customers. xiv. Applicable to product offers. If the offeror is a dealer/reseller or the Offeror will use dealers to perform any aspect of contracts awarded under this solicitation, describe the functions, if any, that the dealer/reseller will perform. xv. Applicable to product offers. AbilityOne Program Products. The AbilityOne Program is a Federal procurement program that generates jobs for individuals who are blind or have another significant disability. In order to offer AbilityOne products, (i.e., items listed on the AbilityOne Procurement List) under the MAS Solicitation) a vendor must be an authorized AbilityOne Program distributor as designated by the U.S. AbilityOne Commission. The Government will utilize available VPP data to verify the offeror is an authorized AbilityOne Program distributor.
Certain commercial products are considered “essentially the same” (ETS) as AbilityOne products. Because AbilityOne products are mandatory purchases for Federal customers, an offeror must not include any ETS items in its FSS proposal. Offerors can search identified ETS products on the AbilityOne website. For more information on the AbilityOne Program, ETS products, and becoming an authorized AbilityOne distributor, please visit the AbilityOne site or contact Mr. Mike Jurkowski at [email protected]/703-785-6404.
Offers from joint ventures. If the joint venture offeror will not source the offered product(s) itself (e.g., unpopulated which means joint venture offeror does not have its own separate employees to perform contracts awarded to the joint venture), the joint venture offeror must provide evidence that the joint venture partner(s) sourcing the products on the AbilityOne Procurement List is an authorized distributor under the AbilityOne Program. The joint venture offeror must also submit evidence of the AbilityOne Commission’s concurrence with the joint venture partner(s) providing products on the AbilityOne Procurement List on behalf of the joint venture entity. xvi. Applicable to product offers. Manufacturer Part Number (MPN) data must be submitted for all products. The offeror must ensure that the MPN for each proposed product reflects the actual number assigned. Universal Product Code Type A (UPC-A) data must also be submitted for all products for which this information is commercially available. If MPN (and UPC-A data, if commercially available) is submitted incorrectly or not submitted, the offer may be rejected and/or the associated product(s) may not be awarded.
xvii. Applicable to product offers. Offerors are advised that following contract award, Schedule contractors offering products under designated Special Item Numbers (SINs) must submit detailed electronic contract data, such as, but not limited to, Universal Product Codes (UPC) and product photos for each item offered on GSA Advantage! using the Schedule Input Program (SIP), Electronic Data Interchange (EDI) or other common-use electronic medium prescribed by GSA.
Contractors must follow the detailed guidance and requirements provided on the MAS ‘Requirements after getting a MAS contract’ page when submitting electronic contract data for inclusion on the GSA Advantage! website. xviii.Applicable to product offers. GSA Advantage Purchase Order (PO Portal).
The offeror must use EDI, cXML or the GSA Advantage Purchase Order (PO) Portal to provide order acknowledgment information that enables ordering agencies to track the location of an order at any time, from the moment the order is shipped, to the point of delivery and acceptance. Note: Contractors must provide a valid status for each order line no later than the specified number of days established as the 'Normal Delivery Terms' of the contract. The GSA Advantage Purchase Order (PO) Portal gives GSA schedule contractors quick and easy access to purchase orders placed by federal agencies using GSA Advantage or eBuy. The PO Portal allows 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 8 of 155
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contractors to view, print and/or download orders and to send order acknowledgment/status directly to ordering agencies. For more information on the PO portal review the PO Portal help guide.
xix. Applicable to product offers. Frustrated Freight. GSAR Clause 552.211-73, Marking, establishes marking and labeling requirements for shipping Federal Government orders. The Government reserves the right to require sample electronic versions of all documents (including but not limited to: Military Shipping Labels, Packing Lists, Unit Level Markings, HAZMAT related documents, etc.) that are required for compliance with the FED-STD-123 and MIL-STD-129 edition in effect as of the date of solicitation issuance.
xx. Applicable to both product and service offers from joint ventures. (A) Under the FSS program, a joint venture partner can hold its own FSS program contract as well as be a joint venture partner in a maximum of three different joint venture FSS program contracts, with the exception that the same joint venture partners cannot hold multiple FSS program contracts. (B) All joint venture offerors, regardless of size status, must complete the All Joint Venture section and Appendix A of the Joint Venture Solicitation Attachment available on the MAS Roadmap site. The Joint Venture Solicitation Attachment includes specific requirements only applicable to joint venture offerors
(1) Due to current system restrictions in SAM which inhibit proper completion of FAR 52.212-3(p) (also see FAR 52.204-17 Ownership or Control of Offeror), Offeror Representations and Certifications - Commercial Products and Commercial Services, all joint venture offerors must complete Appendix A of the Joint Venture Solicitation Attachment and ensure each joint venture partner who is an immediate owner and/or highest-level owner is identified as required. (C) In addition to the All Joint Ventures section and Appendix A, all joint venture offerors representing themselves as a small or socioeconomic category must complete the Small Business Joint Venture section of the Joint Venture Solicitation Attachment, and Appendix B (as applicable):
(1) Joint venture offerors representing themselves as a socioeconomic category and all mentor-protégé joint venture offerors (regardless of whether they represent themselves as small or a socioeconomic category) must complete the Statement of Assurance under Appendix B of the Joint Venture Solicitation Attachment.**
**Note: Appendix B of the Joint Venture Solicitation Attachment is not required to be completed by a small business joint venture offeror where the joint venture is between two or more small businesses who are not socio-economic joint ventures or mentor-protégé joint ventures (see 13 CFR 125.8(d)).
Failure to submit the Joint Venture Solicitation Attachment (and any required documents addressed in the attachment) to eOffer in accordance with the attachment instructions may result in the rejection of your offer. (2) Section II – Technical Proposal
The offeror must address the four technical proposal factors below. Note that Factors One, Three and Four must be completed directly through eOffer. The submission of uploaded documents to address Factors One, Three and Four will not be considered. i. Applicable to both product and service offers. Factor One - Corporate Experience*: The offeror must provide a narrative description of its corporate 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 9 of 155
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experience including all information below. Note that the narrative must be completed directly through the eOffer application by responding to the eOffer prompts; separate attachments addressing Corporate Experience will not be considered.
(A) A minimum of two (2) years of corporate experience is required unless submitting under Startup Springboard.**
**Startup Springboard: Offerors with less than two (2) years of corporate experience, must submit additional information that demonstrates their ability to manage a company and provide the products/services described under this Schedule. (i.e. information on the professional management and project experience of company executives and key personnel)
Offers from joint ventures. The Startup Springboard process is available for joint venture offerors with less than two (2) years of corporate experience.
The information required by the Startup Springboard process must be provided for the joint venture entity and/or each of the joint venture partners (each joint venture partner must be addressed in the narrative submitted). (B) Organization’s number of employees, experience in the field, and resources available to enable it to fulfill requirements,
(C) Brief history of the offeror’s activities contributing to the development of expertise and capabilities related to this requirement, (D) Information that demonstrates the offeror's organizational (e.g. organizational chart, list of key departments) and accounting controls (e.g. processes and/or systems in place),
(E) A description of the resources presently in-house or the ability to acquire the type and kinds of personnel/products proposed,
(F) A description of the marketing strategy that will be used to reach Federal ordering activities,
(G) A description of the intended use of subcontractors. *The requirement to provide a Corporate Experience narrative does not apply to contractors that have an active FSS program contract under this Schedule and meet the criteria for submitting a streamlined offer, or to a small business performing under an active FSS program contract as a joint venture partner see (d) 1-4. ii. Applicable to both product and service offers. Factor Two - Past Performance*: Past performance information is one indicator of an offeror’s ability to perform the contract successfully. Offerors must demonstrate a pattern of past performance in accordance with the instructions below.
(A) Offerors with three (3) or more interim or final contractor performance assessment reports available in the federal Contractor Performance Assessment Reporting System (CPARS) must verify in eOffer that they have three (3) or more assessment reports available in CPARS that represent:
(1) contracts or orders ongoing*** or completed within three (3) years of the date of offer submission;
(2) at least three (3) distinct orders and/or contracts; and (3) work similar in scope to products/services included in this solicitation.
***For ongoing contracts with a base year and option years, at a minimum, the base year must have been completed; for multi-year task 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 10 of 155
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orders, at a minimum, the first year must have been completed.
The offeror must address any negative feedback in the contractor performance assessment reports not previously documented in the CPARS report. Offerors may access CPARS to view previously completed evaluations.
If unable to meet these criteria, the offeror must submit a list of relevant customer references and completed Past Performance Questionnaires (PPQ) in accordance with paragraph (B) below.
(B) Offerors that do not have any CPARS reports that meet the criteria in paragraph (A) must upload a list of three (3) relevant customer references and three (3) completed Past Performance Questionnaires (PPQ) to eOffer. Offerors with fewer than three (3) CPARS reports that meet the criteria in paragraph (A) must supplement those reports with additional relevant customer references and completed PPQs. The offeror must submit a total of three (3) past performance references from three (3) distinct orders and/or contracts. For example:
1. Offerors with one CPARS report that meets the criteria in paragraph (A) must submit two (2) additional customer references/completed PPQs.
2. Offerors with two CPARS reports that meet the criteria in paragraph (A) must submit one (1) additional customer reference/completed PPQ.
3. Offerors with no CPARS reports that meet the criteria in paragraph (A) must submit three (3) customer references/completed PPQs.
Relevant customer references are defined as customers for whom the offeror has performed work similar in scope to products/services included in this solicitation. Relevant customer references must be associated with three (3) distinct orders and/or contracts and the work referenced must have been completed within three (3) years of the date of offer submission. For ongoing contracts with a base year and option years, at a minimum, the base year must have been completed; for multi-year task orders, at a minimum, the first year must have been completed. For each reference listed, the offeror must identify the following:
(1) Customer name;
(2) Customer point of contact (including name, phone, and email address);
(3) Brief description of work performed and the offeror’s role; (4) Dollar value of project; and
(5) Period of performance.
If the offeror does not have three (3) relevant customer references from three (3) distinct orders and/or contracts, the offeror may substitute customer references for relevant work performed by predecessor companies or key personnel.
The Past Performance Questionnaires must be completed in their entirety by the offeror’s relevant customer references prior to proposal submission. If a customer reference will only complete a PPQ at the request of an FSS Contracting Officer (CO), the offeror can upload a signed letter instead of a completed PPQ which states the relevant customer reference will provide a completed PPQ when requested by the FSS CO. If the offeror fails to upload either the completed Past Performance Questionnaires or the aforementioned letter with its proposal in eOffer, the proposal may be rejected. 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 11 of 155
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A relevant customer reference must either complete the Past Performance Questionnaire template published on the MAS Roadmap site or address all of the evaluation areas outlined in the template in a format of their own choosing.
Offerors are advised that GSA may contact a customer reference to discuss information provided by a customer reference in a Past Performance Questionnaire.
*The requirement to provide Past Performance Information does not apply to contractors that have an active FSS program contract under this Schedule and meet the criteria for submitting a streamlined offer, or to a small business performing under an active FSS program contract as a joint venture partner see (d) 1-4.
Offers from joint ventures. If the joint venture offeror cannot demonstrate past performance, the joint venture offeror must provide the information required for each joint venture partner in accordance with the instructions above. If the joint venture offeror is a mentor-protégé joint venture or a socioeconomic joint venture, the protégé or socioeconomic category joint venture partner(s) must verify at least one contractor performance assessment report (available in CPARS) in eOffer in accordance with the instructions under (A) or submit at least one customer reference and one (1) past performance questionnaire in accordance with the instructions under (B). The mentor, or other joint venture partner(s) in a socioeconomic joint venture, must satisfy the remaining past performance requirements. iii. Applicable to both product and service offers. Factor Three - Quality Control:
The offeror must provide a Quality Control narrative that addresses the information below. The offeror must provide a single narrative for this factor, regardless of the number of products/services offered. Note that this narrative must be completed directly through the eOffer application by responding to the eOffer prompts; separate attachments addressing Quality Control will not be considered. (A) A description of internal review procedures that facilitate high-quality standards,
(B) Identification of individuals responsible for ensuring quality control,
(C) Whether or not subcontractors are used and, if so, the quality control measures used to ensure acceptable subcontractor performance, (D) How potential problems areas and solutions are handled, (E) The procedures for ensuring quality performance when meeting urgent requirements,
(F) How quality control will be managed when completing multiple projects for multiple agencies simultaneously.
iv. Applicable to service offers. Factor Four – Relevant Project Experience: The offerors must submit a narrative demonstrating relevant project experience by responding to the Relevant Project Experience prompts in eOffer. A narrative is required for each proposed services SIN when proposing services and must include the following:
(A) A description of one (1) relevant project. Each description must clearly indicate the SIN to which it applies, and identify the specific services being proposed under that SIN. The projects must either have been completed within the last two years or be ongoing. For ongoing contracts with a base year and option years, at a minimum, the base year must have been completed; for multi-year task orders, at a minimum, the first year must have been completed. Note: Specific services may have additional requirements under Factor Four. Offerors must also refer to SIN or category specific instructions, for additional Factor Four requirements. 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 12 of 155
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The project description must also address the following elements:
(1) Detailed description of SIN relevant work performed and results achieved
(2) Methodology, tools, and/or processes utilized in
performing the work
(3) Demonstration of compliance with any applicable laws, regulations, Executive Orders, OMB Circulars, professional standards, etc.
(4) Project schedule (i.e., major milestones, tasks,
deliverables), including an explanation of any delays
(5) How the work performed is similar in scope and
complexity to the work solicited under the proposed SIN (6) Demonstration of required specific experience and/or special qualifications detailed under the proposed SIN.
The offeror may use the same project in support of more than one SIN as long as the description clearly identifies the SIN relevant work. All examples of completed services must have been deemed acceptable by the customer.
If the offeror was previously awarded a Schedule contract for these services that was allowed to expire due to low or no sales, the offeror’s relevant project must be a Federal prime contract valued in excess of $25,000.
(B) For each project description, must also provide the following customer reference information:
(1) Customer/client name
(2) Project name/contract number
(3) Customer point of contact for project
(4) Point of contact phone number and email
(5) Project performance period (include begin/end dates) (6) Dollar value of the entire project
(7) Dollar value received for the work performed relevant to the SIN offered
(8) Brief summary of the project as a whole (i.e., background, purpose, etc.)
(9) A completed copy of the Statement of Work, Performance Work Statement or Statement of Objectives for the project
(C) If relevant project experience does not exist, the offeror may substitute the relevant projects of predecessor companies or key personnel that will be performing major aspects of the work. If the offeror chooses to make such a substitution, the narratives must clearly identify the entity or personnel that performed the services.
(D) Offers from joint ventures. If a joint venture offeror does not have relevant project experience for a particular SIN, a joint venture partner may 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 13 of 155
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submit the required project experience. The narratives must clearly identify the joint venture partner that performed the work. For a mentor-protégé joint venture or socioeconomic joint venture, the protégé and/or socioeconomic joint venture partner must have relevant project experience for at least one of the SIN(s) offered. (Note: Pursuant to SBA rules, a protege and/or socioeconomic joint venture partner must have some experience in the type of work to be performed under the contract.)
* This requirement does not apply to contractors that have an active FSS program contract under this Schedule and meet the criteria for submitting a streamlined offer, or to a small business performing under an active FSS program joint venture contract as a joint venture partner see (d) 1-4. (3) Section III – Price Proposal
i. Applicable to both product and service offers. GSA's pricing goal** is to obtain equal to or better than the offeror’s Most Favored Customer (MFC) pricing as per GSAR 538.270-1, Evaluation of offers without access to transactional data, paragraph (c). GSA seeks to obtain the offeror's best price based on its evaluation of discounts, terms, conditions, and concessions offered to commercial customers. **This requirement does not apply to offerors/contractors that will be participating in TDR.
ii. Applicable to both product and service offers. Submit proposed pricing using the applicable Price Proposal Templates (see Required templates for a MAS offer page).
The Price Proposal Template (PPT) MUST be submitted in Microsoft Office Excel format. The proposed pricing structure must be consistent with the offeror’s commercial practices. Pricing must be clearly identified as based either on a published or publicly-available "Commercial Price List" or a "Commercial Market Price."
(A) If the MFC is a Federal agency, but sales exist to commercial customers, identify which, if any, of the commercial customers receive the offeror’s best price. This will allow the Government to establish a "basis of award" customer in accordance with paragraph (a) of GSAR clause 552.238-81, Price Reductions.**
Offers from joint ventures. If the joint venture offeror does not have MFC information, it must complete the PPT using the MFC information for the joint venture partner(s) who will be providing the product(s)/service(s) offered.
Note:
For products, the joint venture partner providing the product must be identified in the “Product Name” column of the Products PPT.
For services, the joint venture partner providing the labor category/service must be identified in the “Labor Category/Service Title” column of the Services PPT. **The requirement to provide MFC information on the PPT does not apply to TDR participants.
(B) Proposed prices must include the 0.75% Industrial Funding Fee (IFF) (see GSAR clause 552.238-80, Industrial Funding Fee and Sales Reporting OR GSAR clause 552.238-80, Industrial Funding Fee and Sales Reporting (Alternate I) if participating in TDR). This fee will be included in the awarded prices and reflected in the total amount charged to ordering activities. (C) Identical items (products, services, or labor categories) with the same terms and conditions may be awarded under different SINs on the same contract if the prices are the same and the proposed items are within the scope of each SIN.
Identical items with the same terms and conditions cannot be awarded on the 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 14 of 155
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contract at different price points.
(D) The description of discounts offered under this solicitation must include all discounts, such as prompt payment discounts, quantity/dollar volume discounts (indicate whether models/products can be combined within the SIN or whether SINs can be combined to earn discounts), blanket purchase agreement discounts, or purchase option credits. If the terms of sale appearing in the commercial catalogs or price list on which an offer is based are in conflict with the terms of this solicitation, the latter shall govern.
(E) When submitting products that include Accessories (Related Products) and/or Options, the following conditions apply:
(1) Accessories. Accessories are standalone items, also referred to as Related Products, that can be sold with a base item. Accessories have their own unique product information, and the base/accessory relationship is established by the offeror linking an accessory with its associated base item(s). Because accessories function similar to base items, each accessory must have supporting documentation to justify the price.
(2) Options. Product options can be applied to a base item or an accessory.
Options have their own part numbers, but cannot be sold independently of a base item or accessory. Options must be applied at the time of purchase, and may or may not have an associated price. Options that impact the price of a base item or accessory must have supporting documentation to justify the price.
iii. Applicable to both product and service offers. Provide supporting documentation for EACH proposed product/service price. Supporting pricing documentation may consist of published or publicly-available commercial catalogs/price lists, copies of invoices, contracts, or quote sheets, and must be submitted with the offer. There must be a clear and relevant relationship between the supporting document and the proposed price it is meant to substantiate. Each supporting document must be clearly labeled with the name of the corresponding proposed product/service.**
Offers from joint ventures. Supporting documentation may be sourced from the joint venture offeror or a joint venture partner. Note: If the proposed pricing for a product, service, or labor category is based on the CSP-1 disclosures of a joint venture partner, the supporting documentation substantiating the proposed price must be from the same joint venture partner.
**The requirement to provide supporting documentation with the offer does not apply to offerors/contractors that will be participating in TDR. However, as per GSAM 538.270-2, Evaluation of Offers with Access to Transactional Data, paragraph (c)(3), if the Government cannot determine the prices offered to be fair and reasonable based on readily available data or market research, it may request the offeror provide other than certified cost or pricing data to facilitate the Government's evaluation of the proposed pricing.
iv. Applicable to both product and service offers. If the pricing offered is not equal to or better than the pricing extended to the Most Favored (commercial) Customer, offerors must provide a rationale to enable the contracting officer to determine that offered prices/rates are fair and reasonable.** **This requirement does not apply to offerors/contractors that will be participating in TDR.
v. Applicable to both product and service offers. The offeror must propose a mechanism for future price adjustments, as detailed below:
(A) If proposed pricing is based on a published or publicly-available 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 15 of 155
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commercial price list, submit a copy of the company's current, dated, price list, catalog, or standard rate sheet (note that this must be an existing, standalone document, and not prepared for purposes of this solicitation).
Future price adjustments for pricing based on a commercial price list are subject to GSAR clause 552.216-70, Economic Price Adjustment – FSS Multiple Award Schedule Contracts.
OR
(B) If proposed pricing is based on commercial market prices, future price adjustments are subject to clause I-FSS-969, Economic Price Adjustment – FSS Multiple Award Schedule. The offeror must either propose a fixed annual escalation rate in accordance with I-FSS-969 paragraph (b)(1) OR propose a relevant market indicator (e.g., the Bureau of Labor Statistics Employment Cost Index (ECI)) in accordance with I-FSS-969 paragraph (b)(2).
vi. Applicable to both product and service offers. Complete the Commercial Sales Practices Format (CSP-1)** in eOffer in accordance with instructions provided in GSAR Figure 515.4-2. Any deviation from the offeror's commercial sales practices must be explained, including the specific circumstances and frequency of the deviations under Item 4b of the CSP.
Offers from joint ventures. If the joint venture offeror will not perform the service(s) or provide the product(s) offered itself, the joint venture offeror must respond to questions 3, 4, and 5 by disclosing the commercial sales practices of the joint venture partner who will be providing the product(s)/service(s) under a particular SIN(s). All information must be submitted to eOffer by the joint venture offeror on one CSP-1 form. The disclosure(s) must clearly identify the joint venture partner who will be providing the product(s)/service(s) under a particular SIN(s). **The requirement to complete the CSP-1 does not apply to offerors/contractors that will be participating in TDR.
vii. Applicable to both product and service offers. Full-Product and Broad-Service Offerings. The offeror must provide a full and broad array of proposed products/services. An offer will not be accepted with limited product/service offerings unless it represents a total solution for the offeror or proposed product/service offering.
viii. Applicable to both product and service offers. Remanufactured items are only allowable under specific MAS SINs and are designated as such by their SIN description. The remanufactured items must be identified per GSAR clause 552.238-78, Identification of Products that have Environmental Attributes and meet the prescribed definition of “Remanufactured”.
Note: Refurbished, reconditioned, remarketed, and repaired items are not within scope of the MAS Solicitation. Any items that meet the act of facilitating the transfer of a previously owned device from one party to another by sale, donation, gift, or lease are not within scope of the MAS Solicitation.
ix. Applicable to both product and service offers. Fair and Reasonable Pricing. To determine fair and reasonable pricing, the GSA contracting officer may consider many factors, including, but not limited to pricing on competitor contracts and historical pricing.
Offers from joint ventures. If a joint venture partner holds an individual FSS program contract, the joint venture offeror must upload the joint venture partner’s FSS Price List (I-FSS-600), inclusive of the awarded prices/rates, to eOffer. If the joint venture offeror proposes the same products or services with less favorable pricing or pricing terms than those awarded under a joint venture partner’s individual FSS program contract(s), the joint venture offeror must provide written rationale and any supporting evidence/documentation for the less favorable offered prices/rates 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 16 of 155
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and/or pricing terms (e.g., labor category performs broader scope of work). **Attention offerors/contractors that will be participating in TDR:
To determine fair and reasonable pricing, the GSA contracting officer may consider many factors, including, but not limited to pricing on competitor contracts and historical pricing.
x. Applicable to service offers. Offerors proposing services have the option to propose separate rates for "domestic” versus "overseas” and/or “customer facility” versus “contractor facility” if there are variations in costs that depend on where the work is performed. Rates proposed in this manner must be clearly labeled as such and supported through the submission of supporting price documentation, which may include published or publicly-available commercial price lists, copies of invoices, contracts and quote sheets. There must be a clear and relevant relationship between the supporting document and the proposed price it is meant to substantiate. Each supporting document must be clearly labeled with the name of the corresponding proposed service and submitted with the offer.*
*The requirement to provide supporting documentation with the offer does not apply to offerors/contractors that will be participating in TDR. However, as per GSAM 538.270-2 Evaluation of offers with access to transactional data, paragraph (c)(3), if the Government cannot determine the prices offered to be fair and reasonable based on readily available data or market research, it may request the offeror provide other than certified cost or pricing data to facilitate the Government's evaluation of the proposed pricing.
(A) For each proposed labor category, the offeror must provide a detailed position description.** Position descriptions must include functional responsibilities, minimum years of experience, minimum educational/degree requirements, and any applicable training or certification requirements. If it is the offeror’s standard commercial practice to substitute experience for education, explain the methodology in use (e.g., five years experience equates to a BA/BS degree).
**Offers from joint ventures. For a joint venture offeror who is not performing the labor category(ies)/services itself, each applicable position description must also include the name of the joint venture partner that will provide the labor category/service.
(B) For each proposed training course, the offeror must provide a detailed training course description which includes the following information:
(1) Title and brief description of the course, including major course objectives
(2) Length of course (number of hours/days)
(3) Minimum/Maximum number of participants
(4) Price for additional students above minimum (if applicable) (5) Support materials provided as part of the course (e.g., training manuals, CDs, DVDs)
(C) Fixed Price Services: Provide a description for each fixed price service offered that clearly demonstrates how each service is within scope of the applicable SIN(s). Descriptions should contain sufficient detail to ensure ordering agencies have enough information to know what they’re buying.
For a joint venture offeror who does not perform the service itself, each applicable description must also include the name of the joint venture partner that will provide the service.
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(D) Ancillary Supplies and Services/Other Direct Costs (ODCs) for Marketing and Public Relations Services: Provide a description for all known support products and/or Other Direct Costs (ODCs) that are proposed for award at the Schedule level that clearly describes what the ordering agencies are buying.
(E) Proposed prices must represent fully-burdened rates inclusive of all cost factors (e.g., direct labor, indirect labor, G&A, profit, and IFF). xi. Applicable to service offers. Offerors must submit a Professional Compensation Plan in accordance with FAR provision 52.222-46, Evaluation of Compensation for Professional Employees. Individual compensation disclosure is not required.
Submission of the general compensation practices printed in the offeror’s employee handbook is often sufficient.
Offers from joint ventures. For a joint venture offeror that is unpopulated, the Professional Compensation Plan for each joint venture partner who will be performing the work must be submitted as a substitution for the Professional Compensation Plan of the joint venture offeror itself.
xii. Applicable to service offers. Offerors must submit a copy of its policy that addresses uncompensated overtime, in accordance with FAR provision 52.237-10, Identification of Uncompensated Overtime.
Offers from joint ventures. For a joint venture offeror that is unpopulated, the joint venture offeror must submit a copy of the policy that addresses uncompensated overtime for each joint venture partner who will be performing the work. The joint venture offeror must also submit its own uncompensated overtime policy if it employs administrative employees or security officers (which is authorized for unpopulated joint ventures).
xiii. Applicable to service offers. Service Contract Labor Standards: Applicable to this solicitation (Service Contract Labor Standards 52.222-41, and related clauses
52.222-42, 52.222-43, 52.222-49, and 52.222-55).
(A) The Service Contract Labor Standards (SCLS), formerly known as the Service Contract Act (SCA), applies to some nonprofessional services to be provided under this Schedule excluding pricing offered for services outside of the United States. The SCLS wage determinations applicable to this solicitation and resultant contract are located on the SCLS wage determinations applicable to MAS contracts page. Some of the proposed labor categories may be subject to the SCLS (usually nonprofessional categories and fixed-price services). As such, the offeror should verify that its proposed base rates and fringe benefit rates for these labor categories meet or exceed the SCLS wage determination rates and fringe benefits for the areas included in the geographic scope of the contract (e.g., nationwide); the offeror will be required to comply with applicable SCLS wage determination locality rates and fringe benefits regardless of the price proposed and awarded on any resultant Schedule contract. The offeror may be required to submit supporting documentation for the proposed rates that will allow the contracting officer to conduct price analysis to determine that offered prices are fair and reasonable.
(B) Schedule contractors must comply with the base rate and fringe benefit rate requirements of the prevailing SCLS Wage Determination (WD) Revision Number currently incorporated into the GSA Schedule contract.
Task orders may not incorporate WDs different from those incorporated into the Schedule contract, as the order may then be in conflict with the Schedule contract terms and conditions. However, Schedule contractors must comply with the WDs incorporated into the Schedule contract based on the rate applicable to the locality in which the work is to be performed, regardless of the pricing proposed and awarded on the contract. WDs based on collective 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 18 of 155
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bargaining agreements (CBAs) may be incorporated into a task order if the task order is found to be a successor contract as used in FAR Subpart 22.10; a CBA WD would be applicable only to the task order it is incorporated into and no other orders under that Schedule contract.
(C) For each SCLS eligible contract labor category or fixed price service, complete the following information in the below spreadsheet format directly in eOffer (labor categories shown are for example purposes):
SCA/SCLS Matrix
SCLS Eligible Contract
Labor Category/Fixed Price
Service
SCLS Equivalent Code
Title
WD Number
Secretary 01115 General Clerk I 052059
Driver 31361 Truck driver, Light
Truck
052059
Engineering Technician 29081 Engineering
Technician I
052059
Administrative Assistant 01011 Accounting Clerk I 052059 (D) The following language must be inserted below the SCLS/SCA matrix in the authorized price list posted on GSA Advantage:
"The Service Contract Labor Standards, formerly the Service Contract Act (SCA), apply to this contract and it includes SCLS applicable labor categories. Labor categories and fixed price services marked with a (**) in this price list are based on the U.S. Department of Labor Wage Determination Number(s) identified in the SCLS/SCA matrix. The prices awarded are in line with the geographic scope of the contract (e.g., nationwide)."
(E) Escalation of SCLS-covered services must be in accordance with FAR clause 52.222-43 and either clause I-FSS-969 or GSAR clause 552.216-70, as applicable to the contract.
Note 1: The contractor will not automatically be allowed an increase in prices based solely on new wage determinations. Contractor may be required to furnish the Schedule Contracting Officer with additional justification for a price increase. Additional justification may include, but is not limited to, invoices, payroll information, current e98s, RFQ, and/or task order information.
Note 2: Reference 29 CFR 4.161 Minimum monetary wages under contracts exceeding $2,500, which states: “No change in the obligation of the contractor or subcontractor with respect to minimum monetary wages will result from the mere fact that higher or lower wage rates may be determined to be prevailing for such employees in the locality after the award and before completion of the contract.”
Note: Regulation SCP-FSS-001
Note: Effective October 26, 2020, offerors are required to represent to FAR provision
52.204-26(c)(2) (OCT 2020) in the System for Award Management (SAM) whether it does or does not use covered telecommunications equipment or services, or use any equipment, 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 19 of 155
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system, or service that uses covered telecommunications equipment or services. Offerors that represent, based on a reasonable inquiry, that it does use covered telecommunication, must complete and upload FAR provision 52.204-24(d)(2) to eOffer prior to submitting an offer. If applicable, offerors must also upload the disclosures required by FAR 52.204-24 paragraph (e)(2) to eOffer.
Note: Provision 52.204-26 is incorporated by reference in the MAS solicitation via provision 52.212-3.
Note: The eOffer Past Performance module is being updated to be consistent with the current solicitation instructions for demonstrating past performance.
Note: Labor categories (LCATs) that have special requirements must include differentiation in both the title and the description to comply with specific SIN requirements listed by any of the MAS Category Attachments. If a unique or specific certification or evaluation criteria is required by a specific SIN, then it must be identified in the LCAT description and reflected in the title to indicate that it is different from other LCATs offered. e.g. an LCAT may be entitled Database Administrator for one or more SINs, but may not meet the requirements of the proposed SIN. In this case, the LCAT could be renamed to Database Administrator xxxxx and have the criteria and description changed to show that there is a difference in the LCATs and that it meets the evaluation criteria of the SIN.
MAS 8(a) Offer Instructions:
Offerors who are current 8(a) Program participants at the time of their MAS contract offer will be offered by the MAS CO to the Small Business Administration (SBA) for acceptance into the MAS 8(a) Pool.
Once accepted by SBA, the 8(a) contract will be added to the 8(a) Pool upon award of the MAS contract. MAS 8(a) Pool contractors will receive an icon 8aS in GSA eTools indicating that they are eligible for competitive set-aside and sole source 8(a) task/delivery order awards.
All contractors in the 8(a) pool are eligible for 8(a) sole source task/delivery order awards as long as:
- They are active participants in the 8(a) Program at the time of the award of the task/delivery order;
- Continue to meet all 8(a) Program eligibility requirements, as determined by SBA; and
- Qualify as small for the size standard corresponding to the NAICS code assigned to the order, at the time of award for the task/delivery order The order level CO must obtain order level offer and acceptance from SBA, prior to making a sole source award, to ensure that the contractor meets the criteria above. 8(a) pool contractors that have exited the 8(a) Program may continue to receive new competitive orders under the MAS contract for up to five (5) years from the date of entrance into the 8(a) pool, or until rerepresentation in accordance with FAR 19.301-2(b)(1) (whichever is first).
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For information on placing a MAS 8(a) order please visit gsa.gov 47QSMD20R0001 Refresh: 0021 Section IA. Instructions to Offerors Page: 21 of 155
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Section IB. Offer Preparation Instructions and Evaluation Criteria This section outlines additional information relevant to offer preparation, evaluation and award.
Begin Regulation
52.204-16 COMMERCIAL AND GOVERNMENT ENTITY CODE
REPORTING (AUG 2020)
(a) Definition. As used in this provisionCommercial and Government Entity (CAGE) code means- (1) An identifier assigned to entities located in the United States or its outlying areas by the Defense Logistics Agency (DLA) Commercial and Government Entity (CAGE) Branch to identify a commercial or government entity by unique location; or (2) An identifier assigned by a member of the North Atlantic Treaty Organization (NATO) or by the NATO Support and Procurement Agency (NSPA) to entities located outside the United States and its outlying areas that the DLA Commercial and Government Entity (CAGE) Branch records and maintains in the CAGE master file. This type of code is known as a NATO CAGE (NCAGE) code.
(b) The Offeror shall provide its CAGE code with its offer with its name and location address or otherwise include it prominently in its proposal. The CAGE code must be for that name and location address. Insert the word “CAGE” before the number. The CAGE code is required prior to award. (c) CAGE codes may be obtained via-
(1) Registration in the System for Award Management (SAM) at www.sam.gov. If the Offeror is located in the United States or its outlying areas and does not already have a CAGE code assigned, the DLA Commercial and Government Entity (CAGE) Branch will assign a CAGE code as a part of the SAM registration process. SAM registrants located outside the United States and its outlying areas shall obtain a NCAGE code prior to registration in SAM (see paragraph (c)(3) of this provision).
(2) The DLA Contractor and Government Entity (CAGE) Branch. If registration in SAM is not required for the subject procurement, and the Offeror does not otherwise register in SAM, an Offeror located in the United States or its outlying areas may request that a CAGE code be assigned by submitting a request at https://cage.dla.mil. (3) The appropriate country codification bureau. Entities located outside the United States and its outlying areas may obtain an NCAGE code by contacting the Codification Bureau in the foreign entity’s country if that country is a member of NATO or a sponsored nation. NCAGE codes may be obtained from the NSPA at https://eportal.nspa.nato.int/AC135Public/scage/CageList.aspx if the foreign entity’s country is not a member of NATO or a sponsored nation. Points of contact for codification bureaus, as well as additional information on obtaining NCAGE codes, are available at http://www.nato.int/structur/AC/135/main/links/contacts.htm. (d) Additional guidance for establishing and maintaining CAGE codes is available at https://cage.dla.mil.
(e) When a CAGE code is required for the immediate owner and/or the highest-level owner by Federal Acquisition Regulation (FAR) 52.204-17 or 52.212-3(p), the Offeror shall obtain the respective CAGE code from that entity to supply the CAGE code to the Government. (f) Do not delay submission of the offer pending receipt of a CAGE code. 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 22 of 155
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(g) If the solicitation includes FAR clause 52.204-2, Security Requirements, a subcontractor requiring access to classified information under a contract shall be identified with a CAGE code on the DD Form 254. The Contractor shall require a subcontractor requiring access to classified information to provide its CAGE code with its name and location address or otherwise include it prominently in the proposal.
Each location of subcontractor performance listed on the DD Form 254 is required to reflect a corresponding unique CAGE code for each listed location unless the work is being performed at a Government facility, in which case the agency location code shall be used. The CAGE code must be for that name and location address. Insert the word “CAGE” before the number. The CAGE code is required prior to award.
Begin Regulation
52.204-17 OWNERSHIP OR CONTROL OF OFFEROR (AUG 2020)
(a) Definitions. As used in this provision--
Commercial and Government Entity (CAGE) code means--
(1) An identifier assigned to entities located in the United States or its outlying areas by the Defense Logistics Agency (DLA) Commercial and Government Entity (CAGE) Branch to identify a commercial or government entity by unique location; or (2) An identifier assigned by a member of the North Atlantic Treaty Organization (NATO) or by the NATO Support and Procurement Agency (NSPA) to entities located outside the United States and its outlying areas that the DLA Commercial and Government Entity (CAGE) Branch records and maintains in the CAGE master file. This type of code is known as a NATO CAGE (NCAGE) code.
Highest-level owner means the entity that owns or controls an immediate owner of the offeror, or that owns or controls one or more entities that control an immediate owner of the offeror. No entity owns or exercises control of the highest level owner.
Immediate owner means an entity, other than the offeror, that has direct control of the offeror.
Indicators of control include, but are not limited to, one or more of the following: Ownership or interlocking management, identity of interests among family members, shared facilities and equipment, and the common use of employees.
(b) The Offeror represents that it ______ has or ______ does not have an immediate owner. If the Offeror has more than one immediate owner (such as a joint venture), then the Offeror shall respond to paragraph (c) and if applicable, paragraph (d) of this provision for each participant in the joint venture. (c) If the Offeror indicates ‘‘has’’ in paragraph (b) of this provision, enter the following information:
Immediate owner CAGE code: ______
Immediate owner legal name: ______ (Do not use a ‘‘doing business as’’ name) Is the immediate owner owned or controlled by another entity?: ______ Yes or ______ No. (d) If the Offeror indicates ‘‘yes’’ in paragraph (c) of this provision, indicating that the immediate owner is owned or controlled by another entity, then enter the following information:
Highest-level owner CAGE code: ______
Highest-level owner legal name: ______ (Do not use a ‘‘doing business as’’ name) 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 23 of 155
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Begin Regulation
52.204-20 PREDECESSOR OF OFFEROR (AUG 2020)
(a) Definitions. As used in this provision--
“Commercial and Government Entity (CAGE) code” means--
(1) An identifier assigned to entities located in the United States or its outlying areas by the Defense Logistics Agency (DLA) Commercial and Government Entity (CAGE) Branch to identify a commercial or government entity by unique location; or (2) An identifier assigned by a member of the North Atlantic Treaty Organization (NATO) or by the NATO Support and Procurement Agency (NSPA) to entities located outside the United States and its outlying areas that the DLA Commercial and Government Entity (CAGE) Branch records and maintains in the CAGE master file. This type of code is known as a NATO CAGE (NCAGE) code.
“Predecessor” means an entity that is replaced by a successor and includes any predecessors of the predecessor.
“Successor” means an entity that has replaced a predecessor by acquiring the assets and carrying out the affairs of the predecessor under a new name (often through acquisition or merger). The term “successor” does not include new offices/divisions of the same company or a company that only changes its name. The extent of the responsibility of the successor for the liabilities of the predecessor may vary, depending on State law and specific circumstances. (b) The Offeror represents that it ______ is or ______ is not a successor to a predecessor that held a Federal contract or grant within the last three years.
(c) If the Offeror has indicated “is” in paragraph (b) of this provision, enter the following information for all predecessors that held a Federal contract or grant within the last three years (if more than one predecessor, list in reverse chronological order):
Predecessor CAGE code: ______ (or mark “Unknown”)
Predecessor legal name: ________________________(Do not use a “doing business as” name) Begin Regulation
552.238-102 ENGLISH LANGUAGE AND U.S. DOLLAR
REQUIREMENTS (MAY 2019)
(a) All documents produced by the Contractor to fulfill requirements of this contract including, but not limited to, Federal Supply Schedule catalogs and price lists, must reflect all terms and conditions in the English language.
(b) U.S. dollar equivalency, if applicable, will be based on the rates published in the “Treasury Reporting Rates of Exchange” in effect as of the date of the agency's purchase order or in effect during the time period specified elsewhere in this contract.
Begin Regulation
552.238-103 ELECTRONIC COMMERCE (MAY 2019)
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(a) General background. The Federal Acquisition Streamlining Act (FASA) of 1994 requires the Government to evolve its acquisition process from one driven by paper to an expedited process based on electronic commerce/electronic data interchange (EC/EDI). EC/EDI encompasses more than merely automating manual processes and eliminating paper transactions. EC/EDI improves business processes (e.g. procurement, finance, logistics) into a fully electronic environment and fundamentally changes the way organizations operate.
(b) Trading partners and Value-Added Networks (VAN's).
(1) Within the electronic commerce architecture, electronic documents (e.g., orders, invoices, etc.) are carried between the Federal Government's procuring office and Contractors (now known as “trading partners”). These transactions are carried by commercial telecommunications companies called Value-Added Networks (VAN's).
(2) EDI can be performed using commercially available hardware, software, and telecommunications. The selection of a VAN is a business decision Contractors must make.
There are many different VAN's which provide a variety of electronic services and different pricing strategies. If the VAN only provides communications services, you may also need a software translation package.
(c) Registration instructions. To perform EDI with the Government, Contractors shall register as a trading partner. Contractors will provide regular business information, banking information, and EDI capabilities to all agencies in this single registration. A central repository of all trading partners is the Systems for Award Management (SAM) http://www.sam.gov. Contractors shall follow the instructions on the SAM website regarding how to register for EDI.
(d) Implementation conventions. All EDI transactions must comply with the Federal Implementation Conventions (ICs). The ICs are available on a registry maintained by the National Institute of Standards and Technology (NIST). It is accessible via the INTERNET at http://www.nist.gov/itl. ICs are available for common business documents such as Purchase Order, Price Sales Catalog, Invoice, Request for Quotes, etc.
(e) Additional information. GSA has additional information available for Contractors who are interested in using EC/EDI on its website, http://www.gsa.gov.
(f) GSA Advantage!®.
(1) GSA Advantage!® uses electronic commerce to receive catalogs, invoices and text messages; and to send purchase orders, application advice, and functional acknowledgments.
GSA Advantage!® enables customers to:
(i) Perform database searches across all contracts by manufacturer; manufacturer's model/part number; Contractor; and generic supply categories. (ii) Generate EDI delivery orders to Contractors, generate EDI delivery orders from the Federal Supply Service to Contractors, or download files to create their own delivery orders.
(iii) Use the credit card.
(2) GSA Advantage!® may be accessed via the GSA Home Page. The Internet address is:
http://www.gsa.gov.
Begin Regulation
552.238-104 DISSEMINATION OF INFORMATION BY
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ATTACHMENT A 562
CONTRACTOR (MAY 2019)
The Government will provide the Contractor with a single copy of the resulting Federal Supply Schedule contract award documents. However, it is the responsibility of the Contractor to furnish all sales outlets authorized to participate in the performance of the contract with the terms, conditions, pricing schedule, and other appropriate information.
Begin Regulation
552.238-70 COVER PAGE FOR WORLDWIDE FEDERAL SUPPLY
SCHEDULES (MAY 2019) FOR ALL GEOGRAPHIC AREAS
Solicitation No. 47QSMD20R0001 Refresh 0021
Federal Supply Schedule Contract for All Geographic Areas. (a) Federal Supply Classification (FSC) GROUP: Various
PART: Various
SECTION: Various
SUPPLY: Various
FSC CLASS(ES)/PRODUCT CODE(S)/NAICS: Various
(b) STANDARD INDUSTRY GROUP: Various
SERVICE: Various
SERVICE CODE(S)/NAICS: Various
Begin Regulation
552.238-71 Notice of Total Small Business Set-Aside (May 2019) FAR clause 52.219-6, Notice of Total Small Business Set-Aside applies to the following: 314110SBSA 337127CSB 337122SBSA 3FURNISH 337122OSB 337127CFSB 337127CISB 337127LFSB 337127TLSB 337215MSB 337215SBSA 33721RSB 33721SBSA 561320SBSA 3331SBSA 339999ASB 323111SBSA 492210SB 333318SBSA.
Begin Regulation
552.238-72 INFORMATION COLLECTION REQUIREMENTS
(MAY 2019)
The information collection requirements contained in this solicitation/contract are either required by regulation or approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act and assigned OMB Control No. 3090-0163.
Begin Regulation
552.238-75 EVALUATION-COMMERCIAL PRODUCTS AND
COMMERCIAL SERVICES (FEDERAL SUPPLY SCHEDULE)
(JAN 2022)
(a) The Government may make multiple awards for the supplies or services offered in response to this solicitation that meet the definition of a “commercial item” in FAR 52.202 1. Awards may be made to those responsible offerors that offer reasonable pricing, conforming to the solicitation, and will be most 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 26 of 155
ATTACHMENT A 563
advantageous to the Government, taking into consideration the multiplicity and complexity of products or services of various manufacturers and the differences in performance required to accomplish or produce required end results, production and distribution facilities, price, compliance with delivery requirements, and other pertinent factors. By providing a selection of comparable supplies or services, ordering activities are afforded the opportunity to fulfill their requirements with the products or services that constitute the best value and that meet their needs at the lowest overall cost. (b) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer's specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.
(End of Clause)
Begin Regulation
552.238-76 Use of Non-Government Employees to Review Offers (May 2019)
(a) The Government may employ individual technical consultants/advisors/contractors from the below listed organizations to review limited portions of the technical, management and price proposals to assist the government in both pre-award and post-award functions. [The contracting officer should insert a list of organizations used to review solicitation responses and execute a non-disclosure and organizational conflict of interest statement for all individuals conducting reviews.] To be determined at the task order level
(b) These representatives will be used to advise on specific technical, management, and price matters and shall not, under any circumstances, be used as voting evaluators. However, the Government may consider the advice provided in its evaluation process. In addition, Contractor personnel may be used in specific contract administration tasks (e.g., administrative filing, review of deliverables, etc.). (c) If individual technical consultants/advisors/contractors are utilized as described in (b) above, they will be required to execute a non-disclosure and organizational conflict of interest statements.
Begin Regulation
552.238-77 SUBMISSION AND DISTRIBUTION OF AUTHORIZED
FEDERAL SUPPLY SCHEDULE PRICE LISTS (MAR 2020)
(a) The Contractor shall submit its Authorized Federal Supply Schedule Price List on a common-use electronic medium as prescribed by GSA. Some structured data entry in a prescribed format may be required.
(b) Eligible ordering activities will utilize GSA’s online shopping and ordering system to review a Contractors’ price lists.
End of clause
Note: Regulation 552.238-77
Contractors must follow the detailed guidance and requirements provided in the Contract Requirements and Modification Guidance page (www.gsa.gov/mascontractrequirements) 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 27 of 155
ATTACHMENT A 564
when submitting electronic data for inclusion on the GSA Advantage! website.
Begin Regulation
552.238-79 CANCELLATION (MAY 2019)
Either party may cancel this contract in whole or in part by providing written notice. The cancellation will take effect 30 calendar days after the other party receives the notice of cancellation. If the Contractor elects to cancel this contract, the Government will not reimburse the minimum guarantee.
Begin Regulation
552.238-81 PRICE REDUCTIONS (MAY 2019)
(a) Before award of a contract, the Contracting Officer and the Offeror will agree upon (1) the customer (or category of customers) which will be the basis of award, and (2) the Government's price or discount relationship to the identified customer (or category of customers). This relationship shall be maintained throughout the contract period. Any change in the Contractor's commercial pricing or discount arrangement applicable to the identified customer (or category of customers) which disturbs this relationship shall constitute a price reduction.
(b) During the contract period, the Contractor shall report to the Contracting Officer all price reductions to the customer (or category of customers) that was the basis of award. The Contractor's report shall include an explanation of the conditions under which the reductions were made. (c) (1) A price reduction shall apply to purchases under this contract if, after the date negotiations conclude, the Contractor
(i) Revises the commercial catalog, pricelist, schedule or other document upon which contract award was predicated to reduce prices;
(ii) Grants more favorable discounts or terms and conditions than those contained in the commercial catalog, pricelist, schedule or other documents upon which contract award was predicated; or
(iii) Grants special discounts to the customer (or category of customers) that formed the basis of award, and the change disturbs the price/discount relationship of the Government to the customer (or category of customers) that was the basis of award. (2) The Contractor shall offer the price reduction to the eligible ordering activity with the same effective date, and for the same time period, as extended to the commercial customer (or category of customers).
(d) There shall be no price reduction for sales —
(1) To commercial customers under firm, fixed-price definite quantity contracts with specified delivery in excess of the maximum order threshold specified in this contract; (2) To Federal agencies;
(3) Made to Eligible Ordering Activities identified in GSAR Clause 552.238-113 when the order is placed under this contract (and the Eligible Ordering Activities identified in GSAR Clause 552.238-113 is the agreed upon customer or category of customer that is the basis of award); or (4) Caused by an error in quotation or billing, provided adequate documentation is furnished by 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 28 of 155
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the Contractor to the Contracting Officer.
(e) The Contractor may offer the Contracting Officer a voluntary Governmentwide price reduction at any time during the contract period.
(f) The Contractor shall notify the Contracting Officer of any price reduction subject to this clause as soon as possible, but not later than 15 calendar days after its effective date. (g) The contract will be modified to reflect any price reduction which becomes applicable in accordance with this clause.
Note: Regulation 552.238-81
This clause does not apply to contracts participating in the Transactional Data Reporting (TDR) Pilot. Please refer to clause 552.238-81 Alternate I.
Begin Regulation
552.238-81 PRICE REDUCTIONS (MAY 2019) (ALTERNATE I -
APR 2014)
(a) The Government may request from the Contractor, and the Contractor may provide to the Government, a temporary or permanent price reduction at any time during the contract period. (b) The Contractor may offer the Contracting Officer a voluntary price reduction at any time during the contract period.
Note: Regulation 552.238-81
This clause applies to contracts participating in the Transactional Data Reporting (TDR) Pilot.
Begin Regulation
552.238-88 GSA ADVANTAGE!®. (MAY 2019)
(a) The Contractor shall participate in the GSA Advantage!® online shopping service. Information and instructions regarding Contractor participation are contained in clause 552.238-103, Electronic Commerce.
(b) The Contractor shall refer to contract clauses 552.238-77, Submission and Distribution of Authorized FSS Price Lists (which provides for submission of price lists on a common-use electronic medium), and 552.238-82, Modifications (which addresses electronic file updates).
Begin Regulation
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1 A-FSS-11 CONSIDERATION OF OFFERS UNDER STANDING
SOLICITATION (DEC 2022)
(a) This solicitation is a standing solicitation from which the Government contemplates award of contracts for supplies/services listed in the Schedule of Items. This solicitation will remain in effect unless replaced by an updated solicitation.
(b) There is no closing date for receipt of offers; therefore, offers may be submitted for consideration at any time.
(c) An offer may be rejected if an offeror fails to meet timeframes established by the Contracting Officer either to address deficiencies in the offer or to submit a final proposal revision. A resubmission(s) is permitted; however, it may be rejected immediately if it is still deficient in the area(s) that caused its initial rejection.
(d) Contracts awarded under this solicitation will be in effect for 5 years from the date of award, unless further extended, pursuant to GSAR clause 552.238-116, Option to Extend the Term of the FSS Contract, canceled pursuant to GSAR clause 552.238-79, Cancellation, or terminated pursuant to the termination provisions of the contract.
(End of provision)
Begin Regulation
I-FSS-639 CONTRACT SALES CRITERIA (SEP 2023)
The Federal Supply Schedule (FSS) Contracting Officer may decide not to exercise the first option to extend the term of the contract if the Contractor’s reported sales are not expected to exceed $100,000 within the first 60 months following contract award. The FSS Contracting Officer may decide not to exercise subsequent options to extend the term of the contract if the Contractor's reported sales did not exceed $125,000 each 60 month period thereafter. (End of clause)
Begin Regulation
I-FSS-644 PRODUCTS OFFERED AND SOLD BY VENDORS
OTHER THAN THE MANUFACTURER (DEC 2022)
(a) Applicability. This clause applies to offerings and sales of products made by Contractors other than the manufacturer of such products. This clause applies specifically to, but is not limited to, Contractors who are resellers and distributors. This clause does not apply to Contractors who are also the manufacturer of the product(s) being offered and sold under this contract. (b) Terms of Offering and Sales. Contractors shall not offer or sell products under this contract for which they do not have authorization, as applicable, and they lack an uninterrupted source of supply sufficient to satisfy the Government’s requirements.
(1) Manufacturer Authorization Program.
(i) For products that manufacturers manage through any “authorized supplier”, “controlled distribution”, or other similar program, the Contractor shall be included in such a program to sell products to the Government. The Government will rely on information provided by the manufacturer to identify such authority, to the extent 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 30 of 155
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provided by the manufacturer.
(ii) If the Contractor is not included in any authorization program, then sales of those products under this contract are not permitted.
(iii) For products that manufacturers do not manage through any authorization program, the Contractor need only provide the uninterrupted source of supply as required by paragraph (b)(2) of this clause.
(2) Uninterrupted Source of Supply. The Contractor shall provide evidence of, and shall maintain, an uninterrupted source of supply sufficient to satisfy the Government’s requirements for all products on its contract.
(3) Manufacturer Prohibitions. The Contractor shall not offer or sell any product under this contract that the manufacturer of the product has prohibited the Contractor from selling. (c) Discrepancies. In the event that the Government becomes aware of any discrepancy regarding a Contractor’s authorization program status, uninterrupted source of supply, or manufacturer prohibition, the Contracting Officer will give written notice of such discrepancy to the Contractor.
The Contractor shall have 30 days to respond to the discrepancy. Failure to respond to or resolve (as applicable) a notice of discrepancy may result in cancellation of this contract, in whole or in part, in accordance with GSAR clause 552.238-79, Cancellation. (End of clause)
Begin Regulation
K-FSS-1 AUTHORIZED NEGOTIATORS (DEC 2022)
Offerors shall identify the individual(s) authorized to negotiate with the Government in connection with this solicitation. Complete the following table with the required information for each authorized negotiator:
NAMES &
TITLES
TELEPHONE NUMBERS EMAIL ADDRESSES
(End of provision)
Begin Regulation
L-FSS-101 FINAL PROPOSAL REVISION (JUN 2002)
(a) Upon the conclusion of discussions the Contracting Officer will request a final proposal revision.
Oral requests will be confirmed in writing.
(b) The request will include—
(1) Notice that discussions are concluded;
(2) Notice that this is the opportunity to submit a final proposal revision; (3) The specified cutoff date and time;
(4) A statement that any modification proposed as a result of the final proposal revision must be 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 31 of 155
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received by the date and time specified and will be subject to the Late Submissions, Modifications, and Withdrawals of Proposals provision of this solicitation. (c) The Contracting Officer will not reopen discussions after receipt of final proposal revisions unless it is clearly in the interests of the Government to do so. If discussions are reopened, the Contracting Officer will issue an additional request for final proposal revision. (d) It is the Contracting Officer's desire to conclude negotiations by The specified cut-off date and time established in the request for Final Proposal Revision (FPR). 47QSMD20R0001 Refresh: 0021 Section IB. Offer Preparation Instructions and Evaluation Criteria Page: 32 of 155
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Section II. Available Offerings
This section includes a summary of the offerings available under Schedule. The Schedule offerings are broken down into 12 Large Categories with corresponding subcategories and Special Item Numbers (SINs). Detailed list of offerings under Schedule is available in the Available Offerings attachment included with the solicitation.
For additional evaluation criteria and requirements based on offerings, please view the individual category attachments also included with the solicitation.
NOTE: A North American Industrial Classification System (NAICS) code is assigned to each SIN representing the preponderance of work (i.e. products and/or services) available under that SIN. In some cases, multiple NAICS codes are assigned to a SIN in order to more completely represent the full scope of the SIN. In order to ensure a consistent Small Business Administration (SBA) size standard for each SIN, multiple NAICS codes are only assigned to a SIN if they have the same SBA size standard. When a contract is awarded under this solicitation, a single preponderance of work NAICS code is assigned to each award.
The individual category attachments will outline details related to available offerings, including:
Subcategories,
Special Item Numbers with corresponding North American Industrial Classification System (NAICS) codes Critical Elements
Category specific evaluation criteria,
Subcategory or SIN specific requirements
Special ordering procedures
Large Category and Subcategory Offerings Available under Schedule:
A. Office Management
A01. Audio Visual Products
A02. Audio Visual Services
A03. Document Services
A04. Mail Management
A05. Office Management Maintenance and Repair
A06. Media Products
A07. Media Services
A08. Office Services
A09. Office Supplies
A10. Printing and Photographic Equipment
A11. Records Management
B. Facilities
B01. Facilities Maintenance and Repair
B02. Facilities Services
B03. Facilities Solutions
B04. Facilities Supplies
B05. Food Service Equipment
B06. Structures
C. Furniture and Furnishings
C01. Flooring
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C02. Furniture Services
C03. Healthcare Furniture
C04. Household Dormitory and Quarters Furniture
C05. Miscellaneous Furniture
C06. Office Furniture
C07. Packaged Furniture
C08. Signs
C09. Fitness Solutions
D. Human Capital
D01. Background Investigation
D02. Compensation and Benefits
D03. Human Resources
D04. Social Services
E. Industrial Products and Services
E01. Cleaning Supplies
E02. Fire/Rescue/Safety/Environmental Protection Equipment E03. Fuel Management
E04. Hardware and Tools
E05. Industrial Products
E06. Machinery and Components
E07. Industrial Products and Services Maintenance and Repair E08. Packaging
E09. Test and Measurement Supplies
F. Information Technology
F01. Electronic Commerce
F02. IT Hardware
F03. IT Services
F04. IT Software
F05. IT Solutions
F06. IT Training
F07. Telecommunications
G. Miscellaneous
G01. Awards
G02. Flags
G03. Musical Instrument
G04. Personal Hair Care Items
G05. Apparel
G06. Complementary SINs
H. Professional Services
H01. Business Administrative Services
H02. Environmental Services
H03. Financial Services
H04. Identity Protection Services
H05. Language Services
47QSMD20R0001 Refresh: 0021 Section II. Available Offerings Page: 34 of 155
ATTACHMENT A 571
H06. Legal Services
H07. Logistical Services
H08. Marketing and Public Relations
H09. Technical and Engineering Services (Non IT)
H10. Training
I. Scientific Management and Solutions
I01. Laboratory Animals
I02. Laboratory Equipment
I03. Medical Equipment
I04. Scientific Services
I05. Search and Navigation
I06. Testing and Analysis
J. Security and Protection
J01. Marine and Harbor
J02. Protective Equipment
J03. Security Animals and Related Services
J04. Security Services
J05. Security Systems
J06. Testing Equipment
K. Transportation and Logistics Services
K01. Automotive Body Maintenance and Repair
K02. Motor Vehicles (non-Combat)
K03. Package Delivery
K04. Packaging Services
K05. Transportation of Things
L. Travel
L01. Employee Relocation
L02. Lodging
L03. Travel Agent and Misc. Services
47QSMD20R0001 Refresh: 0021 Section II. Available Offerings Page: 35 of 155
ATTACHMENT A 572
Section III Contract Terms and Conditions
This section outlines solicitation provisions and clauses applicable to Schedule contracts throughout the life of the contract. Please refer back to the instructional provisions within this solicitation, whenever you are making changes or updates to your contract.
Contract terms and conditions are split into two sections for organizational purposes only. Their placement here has no effect on their meaning or application. Rather, the terms and conditions are organized this way merely to help you better manage and understand your Schedule contract. All terms and conditions listed in this solicitation are incorporated into your contract at the Schedule level.
Incorporated by Reference (IBR): Many of the provisions and clauses cited in this solicitation are incorporated by reference, as authorized in the Federal Acquisition Regulation (FAR) or the General Services Administration Acquisition Manual (GSAM). A review of these clauses and provisions will be necessary for you to understand all aspects of the solicitation. The full text of any FAR and GSAM clauses which are incorporated by reference in this solicitation may be found in the electronic file titled 'Regulations Incorporated by Reference', or they can be accessed at the following URLs: FAR: https://www.acquisition.gov/far/ GSAM:
https://www.acquisition.gov/gsam/gsam.html
Begin Regulation
52.204-27 PROHIBTION ON A BYTEDANCE COVERED APPLICATION (JUN 2023)
(a) Definitions. As used in this clause -
Covered application means the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited. Information technology, as defined in 40 U.S.C. 11101(6) – (1) Means any equipment or interconnected system or subsystem of equipment, used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency, if the equipment is used by the executive agency directly or is used by a contractor under a contract with the executive agency that requires the use -
(i) Of that equipment; or
(ii) Of that equipment to a significant extent in the performance of a service or the furnishing of a product;
(2) Includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources; but
(3) Does not include any equipment acquired by a Federal contractor incidental to a Federal contract.
(b) Prohibition. Section 102 of Division R of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), the No TikTok on Government Devices Act, and its implementing guidance under Office of Management and Budget (OMB) Memorandum M-23-13, dated February 27, 2023, “No TikTok on Government Devices” Implementation Guidance, collectively prohibit the presence or use of a covered application on executive agency information technology, including certain equipment used by Federal contractors. The Contractor is prohibited from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by 47QSMD20R0001 Refresh: 0021 Section III Contract Terms and Conditions Page: 36 of 155
ATTACHMENT A 573
the Contractor’s employees; however, this prohibition does not apply if the Contracting Officer provides written notification to the Contractor that an exception has been granted in accordance with OMB Memorandum M-23-13.
(c) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph
(d), in all subcontracts, including subcontracts for the acquisition of commercial products or commercial services.
(End of clause)
Begin Regulation
52.232-36 PAYMENT BY THIRD PARTY (MAY 2014)
(a) General.
(1) Except as provided in paragraph (a)(2) of this clause, the Contractor agrees to accept payments due under this contract, through payment by a third party in lieu of payment directly from the Government, in accordance with the terms of this clause. The third party and, if applicable, the particular Governmentwide commercial purchase card to be used are identified elsewhere in this contract.
(2) The Governmentwide commercial purchase card is not authorized as a method of payment during any period the System for Award Management (SAM) indicates that the Contractor has delinquent debt that is subject to collection under the Treasury Offset Program (TOP).
Information on TOP is available at http://fms.treas.gov/debt/ index.html. If the SAM subsequently indicates that the Contractor no longer has delinquent debt, the Contractor may request the Contracting Officer to authorize payment by Governmentwide commercial purchase card.
(b) Contractor payment request.
(1) Except as provided in paragraph (b)(2) of this clause, the Contractor shall make payment requests through a charge to the Government account with the third party, at the time and for the amount due in accordance with those clauses of this contract that authorize the Contractor to submit invoices, contract financing requests, other payment requests, or as provided in other clauses providing for payment to the Contractor.
(2) When the Contracting Officer has notified the Contractor that the Governmentwide commercial purchase card is no longer an authorized method of payment, the Contractor shall make such payment requests in accordance with instructions provided by the Contracting Officer during the period when the purchase card is not authorized. (c) Payment. The Contractor and the third party shall agree that payments due under this contract shall be made upon submittal of payment requests to the third party in accordance with the terms and conditions of an agreement between the Contractor, the Contractor's financial agent (if any), and the third party and its agents (if any). No payment shall be due the Contractor until such agreement is made. Payments made or due by the third party under this clause are not payments made by the Government and are not subject to the Prompt Payment Act or any implementation thereof in this contract.
(d) Documentation. Documentation of each charge against the Government's account shall be provided to the Contracting Officer upon request.
(e) Assignment of claims. Notwithstanding any other provision of this contract, if any payment is made under this clause, then no payment under this contract shall be assigned under the provisions of the assignment of claims terms of this contract or the Assignment of Claims Act of 1940 (31 U.S.C. 3727, 41 U.S.C. 6305).
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(f) Other payment terms. The other payment terms of this contract shall govern the content and submission of payment requests. If any clause requires information or documents in or with the payment request, that is not provided in the third party agreement referenced in paragraph (c) of this clause, the Contractor shall obtain instructions from the Contracting Officer before submitting such a payment request.
Begin Regulation
552.238-83 EXAMINATION OF RECORDS BY GSA (FEDERAL
SUPPLY SCHEDULES) (MAY 2019)
The Contractor agrees that the Administrator of General Services or any duly authorized representative shall have access to and the right to examine any books, documents, papers and records of the contractor involving transactions related to this contract for overbillings, billing errors, compliance with contract clauses 552.238-81, Price Reductions and 552.238-80, Industrial Funding Fee and Sales Reporting. This authority shall expire 3 years after final payment. The basic contract and each option shall be treated as separate contracts for purposes of applying this clause.
Note: Regulation 552.238-83
The types of books, documents, papers and records shall include but are not to be limited to:
- Eligible users of the GSA Sources of Supply and Services, as defined by OGP 4800.2I and/or subsequent orders,
- Basis of Award customers, 552.238-81 Price Reductions, and 552.238-80 Industrial Funding Fee and Sales Reporting,
- Verifying CSP-1 Form accuracy and completeness,
- GSA MAS Contractor Team Arrangements (CTAs), and
- Authorized Dealers incorporated into the MAS contract by the Contracting Officer.
Begin Regulation
552.238-86 DELIVERY SCHEDULE (MAY 2019)
(a) Time of delivery. The Contractor shall deliver to destination within the number of calendar days after receipt of order (ARO) in the case of F.O.B. Destination prices; or to place of shipment in transit in the case of F.O.B. Origin prices, as set forth below. Offerors shall insert in the ''Time of Delivery (days ARO)'' column in the schedule of Items a definite number of calendar days within which delivery will be made. In no case shall the offered delivery time exceed the Contractor's normal business practice. The Government requires the Contractor's normal delivery time, as long as it is less than the ''stated'' delivery time(s) shown below. If the Offeror does not insert a delivery time in the schedule of items, the Offeror will be deemed to offer delivery in accordance with the Government's stated delivery time, as stated below [The contracting officer shall insert the solicited items or Special Item Numbers (SIN) as well as a reasonable delivery time that corresponds with each item or SIN, if known]:
Items or group of items (special item no. or nomenclature) ______
Government's stated delivery time (days ARO)
______
Contractor's delivery time
______
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ATTACHMENT A 575
(b) Expedited delivery times. For those items that can be delivered quicker than the delivery times in paragraph (a) of this clause, the Offeror is requested to insert below, a time (hours/days ARO) that delivery can be made when expedited delivery is requested.
Items or group of items (special item no. or nomenclature) ______
Expedited delivery time (hours/days ARO)
______
(c) Overnight and 2-Day delivery times. Ordering activities may require overnight or 2-day delivery.
The Offeror is requested to annotate its price list or by separate attachment identify the items that can be delivered overnight or within 2 days. Contractors offering such delivery services will be required to state in the cover sheet to its FSS price list details concerning this service. 47QSMD20R0001 Refresh: 0021 Section III Contract Terms and Conditions Page: 39 of 155
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Section III A. Terms and Conditions Related to Schedule Contract Administration
These clauses outline key components that are related to Schedule requirements and administrative contracting components to keep your Schedule up to date.
This U.S. General Services Administration (GSA) requires contractors to highlight sustainable products under Federal Supply Service schedule contracts on GSAAdvantage! and other communication media (see clause 552.238-78). Unless a justification, exemption or exception applies, federal agencies are required to procure sustainable products and services to the maximum extent practicable, ensuring compliance with applicable statutory purchasing program requirements and prioritize multi-attribute products and services, which are those that meet applicable statutory purchasing program requirements and one or more required EPA purchasing programs:
Statutory purchasing programs.
Products containing recovered material designated by the U.S. Environmental Protection Agency (EPA) under the Comprehensive Procurement Guidelines.
Energy- and water-efficient products that are ENERGY STAR® certified or Federal Energy Management Program (FEMP)-designated products.
Biobased products meeting the content requirement of the USDA under the BioPreferred® program.
Acceptable chemicals, products, and manufacturing processes listed under EPA's Significant New Alternatives Policy (SNAP) program, which ensures a safe and smooth transition away from substances that contribute to the depletion of stratospheric ozone.
Required EPA purchasing programs.
Safer Choice-certified products (products that contain safer chemical ingredients).
WaterSense® labeled (water efficient) products and services.
Product and services that meet EPA Recommendations of Specifications, Standards, and Ecolabels in effect as of October 2023.
FAR 23.103(c) states that the required products in contract actions for services include: products that are delivered to the Government; acquired by the contractor for use in performing services under a Government contract where the cost of the products is a direct cost to a Government contract; or furnished by the contractor for use by the Government.
Contractors should refer to specific clauses in the Solicitation and are encouraged to use GSA’s Green Procurement Compilation (GPC) to find sustainable acquisition requirements that apply to federal acquisitions.
Begin Regulation
52.204-18 COMMERCIAL AND GOVERNMENT ENTITY CODE
MAINTENANCE (AUG 2020)
(a) Definition. As used in this clauseCommercial and Government Entity (CAGE) code means- (1) An identifier assigned to entities located in the United States or its outlying areas by the Defense Logistics Agency (DLA) Commercial and Government Entity (CAGE) Branch to identify a commercial or government entity by unique location; or (2) An identifier assigned by a member of the North Atlantic Treaty Organization (NATO) or by the NATO Support and Procurement Agency (NSPA) to entities located outside the United States and its outlying areas that the DLA Commercial and Government Entity (CAGE) Branch records and maintains in the CAGE master file. This type of code is known as a NATO CAGE (NCAGE) 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 40 of 155
ATTACHMENT A 577
code.
(b) Contractors shall ensure that the CAGE code is maintained throughout the life of the contract for each location of contract, including subcontract, performance. For contractors registered in the System for Award Management (SAM), the DLA Commercial and Government Entity (CAGE) Branch shall only modify data received from SAM in the CAGE master file if the contractor initiates those changes via update of its SAM registration. Contractors undergoing a novation or change-of-name agreement shall notify the contracting officer in accordance with subpart 42.12. The contractor shall communicate any change to the CAGE code to the contracting officer within 30 days after the change, so that a modification can be issued to update the CAGE code on the contract. (c) Contractors located in the United States or its outlying areas that are not registered in SAM shall submit written change requests to the DLA Commercial and Government Entity (CAGE) Branch.
Requests for changes shall be provided at https://cage.dla.mil. Change requests to the CAGE master file are accepted from the entity identified by the code.
(d) Contractors located outside the United States and its outlying areas that are not registered in SAM shall contact the appropriate National Codification Bureau (points of contact available at http://www.nato.int/structur/AC/135/main/links/contacts.htm) or NSPA at https://eportal.nspa.nato.int/AC135Public/scage/CageList.aspx to request CAGE changes. (e) Additional guidance for maintaining CAGE codes is available at https://cage.dla.mil. (f) If the contract includes Federal Acquisition Regulation clause 52.204-2, Security Requirements, the contractor shall ensure that subcontractors maintain their CAGE code(s) throughout the life of the contract.
Begin Regulation
52.204-21 BASIC SAFEGUARDING OF COVERED CONTRACTOR
INFORMATION SYSTEMS (NOV 2021)
(a) Definitions. As used in this clause —
Covered contractor information system means an information system that is owned or operated by a contractor that processes, stores, or transmits Federal contract information.
Federal contract information means information, not intended for public release, that is provided by or generated for the Government under a contract to develop or deliver a product or service to the Government, but not including information provided by the Government to the public (such as on public Web sites) or simple transactional information, such as necessary to process payments.
Information means any communication or representation of knowledge such as facts, data, or opinions, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual (Committee on National Security Systems Instruction (CNSSI) 4009).
Information system means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information (44 U.S.C. 3502).
Safeguarding means measures or controls that are prescribed to protect information systems. (b) Safeguarding requirements and procedures.
(1) The Contractor shall apply the following basic safeguarding requirements and procedures to protect covered contractor information systems. Requirements and procedures for basic safeguarding of covered contractor information systems shall include, at a minimum, the 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 41 of 155
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following security controls:
(i) Limit information system access to authorized users, processes acting on behalf of authorized users, or devices (including other information systems). (ii) Limit information system access to the types of transactions and functions that authorized users are permitted to execute.
(iii) Verify and control/limit connections to and use of external information systems. (iv) Control information posted or processed on publicly accessible information systems. (v) Identify information system users, processes acting on behalf of users, or devices. (vi) Authenticate (or verify) the identities of those users, processes, or devices, as a prerequisite to allowing access to organizational information systems. (vii) Sanitize or destroy information system media containing Federal Contract Information before disposal or release for reuse.
(viii) Limit physical access to organizational information systems, equipment, and the respective operating environments to authorized individuals. (ix) Escort visitors and monitor visitor activity; maintain audit logs of physical access; and control and manage physical access devices.
(x) Monitor, control, and protect organizational communications (i.e., information transmitted or received by organizational information systems) at the external boundaries and key internal boundaries of the information systems. (xi) Implement subnetworks for publicly accessible system components that are physically or logically separated from internal networks. (xii) Identify, report, and correct information and information system flaws in a timely manner.
(xiii) Provide protection from malicious code at appropriate locations within organizational information systems.
(xiv) Update malicious code protection mechanisms when new releases are available. (xv) Perform periodic scans of the information system and real-time scans of files from external sources as files are downloaded, opened, or executed. (2) Other requirements. This clause does not relieve the Contractor of any other specific safeguarding requirements specified by Federal agencies and departments relating to covered contractor information systems generally or other Federal safeguarding requirements for controlled unclassified information (CUI) as established by Executive Order 13556. (c) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (c), in subcontracts under this contract (including subcontracts for the acquisition of commercial products or commercial services, other than commercially available off-the-shelf items), in which the subcontractor may have Federal contract information residing in or transiting through its information system.
Begin Regulation
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52.204-23 PROHIBITION ON CONTRACTING FOR HARDWARE,
SOFTWARE, AND SERVICES DEVELOPED OR PROVIDED BY
KASPERSKY LAB COVERED ENTITIES (DEC 2023)
(a) Definitions. As used in this clause —
Kaspersky Lab covered article means any hardware, software, or service that — (1) Is developed or provided by a Kaspersky Lab covered entity; (2) Includes any hardware, software, or service developed or provided in whole or in part by a Kaspersky Lab covered entity; or
(3) Contains components using any hardware or software developed in whole or in part by a Kaspersky Lab covered entity.
Kaspersky Lab covered entity means —
(1) Kaspersky Lab;
(2) Any successor entity to Kaspersky Lab, including any change in name, e.g., “Kaspersky” (3) Any entity that controls, is controlled by, or is under common control with Kaspersky Lab; or (4) Any entity of which Kaspersky Lab has a majority ownership. (b) Prohibition. Section 1634 of Division A of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115–91) prohibits Government use of any Kaspersky Lab covered article. The Contractor is prohibited from —
(1) Providing any Kaspersky Lab covered article that the Government will use on or after October 1, 2018; and
(2) Using any Kaspersky Lab covered article on or after October 1, 2018, in the development of data or deliverables first produced in the performance of the contract. (c) Reporting requirement.
(1) In the event the Contractor identifies a Kaspersky Lab covered article provided to the Government during contract performance, or the Contractor is notified of such by a subcontractor at any tier or any other source, the Contractor shall report, in writing, to the Contracting Officer or, in the case of the Department of Defense, to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.
(2) The Contractor shall report the following information pursuant to paragraph (c)(1) of this clause:
(i) Within 3 business days from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; brand; model number (Original Equipment Manufacturer (OEM) number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.
(ii) Within 10 business days of submitting the report pursuant to paragraph (c)(1) of this 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 43 of 155
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clause: Any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of a Kaspersky Lab covered article, any reasons that led to the use or submission of the Kaspersky Lab covered article, and any additional efforts that will be incorporated to prevent future use or submission of Kaspersky Lab covered articles.
(d) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts, including subcontracts for the acquisition of commercial products or commercial services.
Begin Regulation
52.204-24 REPRESENTATION REGARDING CERTAIN
TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES
OR EQUIPMENT (NOV 2021)
The Offeror shall not complete the representation at paragraph (d)(1) of this provision if the Offeror has represented that it “does not provide covered telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument” in paragraph (c)(1) in the provision at 52.204-26, Covered Telecommunications Equipment or Services—Representation, or in paragraph (v)(2)(i) of the provision at 52.212-3, Offeror Representations and Certifications-Commercial Products or Commercial Services. The Offeror shall not complete the representation in paragraph (d)(2) of this provision if the Offeror has represented that it “does not use covered telecommunications equipment or services, or any equipment, system, or service that uses covered telecommunications equipment or services” in paragraph (c)(2) of the provision at
52.204-26, or in paragraph (v)(2)(ii) of the provision at 52.212-3. (a) Definitions. As used in this provisionBackhaul, covered telecommunications equipment or services, critical technology, interconnection arrangements, reasonable inquiry, roaming, and substantial or essential component have the meanings provided in the clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (b) Prohibition.
(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. Nothing in the prohibition shall be construed to- (i) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
(ii) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract or extending or renewing a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. Nothing in the prohibition shall be construed to- (i) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 44 of 155
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roaming, or interconnection arrangements; or
(ii) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(c) Procedures. The Offeror shall review the list of excluded parties in the System for Award Management (SAM) (https://www.sam.gov) for entities excluded from receiving federal awards for “covered telecommunications equipment or services.”
(d) Representations.
The Offeror represents that-
(1) It [ ] will, [ ] will not provide covered telecommunications equipment or services to the Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation. The Offeror shall provide the additional disclosure information required at paragraph (e)(1) if the Offeror responds “will” in paragraph (d)(1); and
(2) After conducting a reasonable inquiry, for purposes of this representation, the Offeror represents thatIt [ ] does, [ ] does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. The Offeror shall provide the additional disclosure information required at paragraph (e)(2) if the Offeror responds “does” in paragraph (d)(2). (e) Disclosures.
(1) Disclosure for the representation in paragraph (d)(1) of this provision.
If the Offeror has responded “will” in the representation in paragraph (d)(1) of this provision, the Offeror shall provide the following information as part of the offer:
(i) For covered equipment-
(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the original equipment manufacturer (OEM) or a distributor, if known);
(B) A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); and (C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision. (ii) For covered services-
(A) If the service is related to item maintenance: a description of all covered telecommunications services offered (include on the item being maintained: brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or
(B) If not associated with maintenance, the Product Service Code (PSC) of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision.
(2) Disclosure for the representation in paragraph (d)(2) of this provision.
If the Offeror has responded “does” in the representation in paragraph (d)(2) of this provision, the Offeror shall provide the following information as part of the offer:
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(i) For covered equipment-
(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the OEM or a distributor, if known);
(B) A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); and (C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision. (ii) For covered services-
(A) If the service is related to item maintenance: a description of all covered telecommunications services offered (include on the item being maintained: brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or
(B) If not associated with maintenance, the PSC of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision.
(End of provision)
Note: Regulation 52.204-24
Effective October 26, 2020, offerors are required to represent to FAR provision
52.204-26(c)(2) (OCT 2020) in the System for Award Management (SAM) whether it does or does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. Offerors that represent, based on a reasonable inquiry, that it does use covered telecommunication, must complete and upload FAR provision 52.204-24(d)(2) to eOffer prior to submitting an offer. If applicable, offerors must also upload the disclosures required by FAR 52.204-24 paragraph (e)(2) to eOffer.
Note that provision 52.204-26 is incorporated by reference in the MAS solicitation via provision 52.212-3.
Begin Regulation
52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (NOV 2021)
(a) Definitions. As used in this clause -
Backhaul means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).
Covered foreign country means The People's Republic of China.
Covered telecommunications equipment or services means - 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 46 of 155
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(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);
(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or
(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
Critical technology means -
(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations; (2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled -
(i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
(ii) For reasons relating to regional stability or surreptitious listening; (3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities);
(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);
(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or
(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).
Interconnection arrangements means arrangements governing the physical connection of two or more networks to allow the use of another’s network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.
Reasonable inquiry means an inquiry designed to uncover any information in the entity’s possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.
Roaming means cellular communications services (e.g., voice, video, data) received from 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 47 of 155
ATTACHMENT A 584
a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.
Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or service. (b) Prohibition.
(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. (2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. (c) Exceptions. This clause does not prohibit contractors from providing - (1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(d) Reporting requirement.
(1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause to the Contracting Officer, unless elsewhere in this contract are established procedures for reporting the information; in the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.
(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause:
(i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 48 of 155
ATTACHMENT A 585
model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.
(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services. (e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial products or commercial services.
Begin Regulation
52.204-29 FEDERAL ACQUISITION SUPPLY CHAIN SECURITY
ACT ORDERS—REPRESENTATION AND DISCLOSURES (DEC
2023)
(a) Definitions. As used in this provision, Covered article, FASCSA order, Intelligence community, National security system, Reasonable inquiry, Sensitive compartmented information, Sensitive compartmented information system, and Source have the meaning provided in the clause 52.204–30, Federal Acquisition Supply Chain Security Act Orders—Prohibition.
(b) Prohibition. Contractors are prohibited from providing or using as part of the performance of the contract any covered article, or any products or services produced or provided by a source, if the prohibition is set out in an applicable Federal Acquisition Supply Chain Security Act (FASCSA) order, as described in paragraph (b)(1) of FAR 52.204–30, Federal Acquisition Supply Chain Security Act Orders—Prohibition. (c) Procedures. (1) The Offeror shall search for the phrase “FASCSA order” in the System for Award Management (SAM)( https://www.sam.gov) for any covered article, or any products or services produced or provided by a source, if there is an applicable FASCSA order described in paragraph (b)(1) of FAR 52.204–30, Federal Acquisition Supply Chain Security Act Orders—Prohibition.
(2) The Offeror shall review the solicitation for any FASCSA orders that are not in SAM, but are effective and do apply to the solicitation and resultant contract (see FAR 4.2303(c)(2)).
(3) FASCSA orders issued after the date of solicitation do not apply unless added by an amendment to the solicitation.
(d) Representation. By submission of this offer, the offeror represents that it has conducted a reasonable inquiry, and that the offeror does not propose to provide or use in response to this solicitation any covered article, or any products or services produced or provided by a source, if the covered article or the source is prohibited by an applicable FASCSA order in effect on the date the solicitation was issued, except as waived by the solicitation, or as disclosed in paragraph (e).
(e) Disclosures. The purpose for this disclosure is so the Government may decide whether to issue a waiver. For any covered article, or any products or services produced or provided by a source, if the covered article or the source is subject to an applicable FASCSA order, and the 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 49 of 155
ATTACHMENT A 586
Offeror is unable to represent compliance, then the Offeror shall provide the following information as part of the offer:
(1) Name of the product or service provided to the Government; (2) Name of the covered article or source subject to a FASCSA order; (3) If applicable, name of the vendor, including the Commercial and Government Entity code and unique entity identifier (if known), that supplied the covered article or the product or service to the Offeror;
(4) Brand;
(5) Model number (original equipment manufacturer number, manufacturer part number, or wholesaler number);
(6) Item description;
(7) Reason why the applicable covered article or the product or service is being provided or used;
(f) Executive agency review of disclosures. The contracting officer will review disclosures provided in paragraph (e) to determine if any waiver may be sought. A contracting officer may choose not to pursue a waiver for covered articles or sources otherwise subject to a FASCSA order and may instead make an award to an offeror that does not require a waiver. (End of provision)
Begin Regulation
52.204-30 FEDERAL ACQUISITION SUPPLY CHAIN SECURITY
ACT ORDERS—PROHIBITION (DEC 2023) (ALT I DEC 2023)
(a) Definitions. As used in this clause—
Covered article, as defined in 41 U.S.C. 4713(k), means— (1) Information technology, as defined in 40 U.S.C. 11101, including cloud computing services of all types;
(2) Telecommunications equipment or telecommunications service, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153); (3) The processing of information on a Federal or non-Federal information system, subject to the requirements of the Controlled Unclassified Information program (see 32 CFR part 2002); or
(4) Hardware, systems, devices, software, or services that include embedded or incidental information technology.
FASCSA order means any of the following orders issued under the Federal Acquisition Supply Chain Security Act (FASCSA) requiring the removal of covered articles from executive agency information systems or the exclusion of one or more named sources or 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 50 of 155
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named covered articles from executive agency procurement actions, as described in 41 CFR 201–1.303(d) and (e):
(1) The Secretary of Homeland Security may issue FASCSA orders applicable to civilian agencies, to the extent not covered by paragraph (2) or (3) of this definition. This type of FASCSA order may be referred to as a Department of Homeland Security (DHS) FASCSA order.
(2) The Secretary of Defense may issue FASCSA orders applicable to the Department of Defense (DoD) and national security systems other than sensitive compartmented information systems. This type of FASCSA order may be referred to as a DoD FASCSA order.
(3) The Director of National Intelligence (DNI) may issue FASCSA orders applicable to the intelligence community and sensitive compartmented information systems, to the extent not covered by paragraph (2) of this definition. This type of FASCSA order may be referred to as a DNI FASCSA order.
Intelligence community, as defined by 50 U.S.C. 3003(4), means the following— (1) The Office of the Director of National Intelligence; (2) The Central Intelligence Agency;
(3) The National Security Agency;
(4) The Defense Intelligence Agency;
(5) The National Geospatial-Intelligence Agency;
(6) The National Reconnaissance Office;
(7) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs;
(8) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Coast Guard, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Department of Energy;
(9) The Bureau of Intelligence and Research of the Department of State; (10) The Office of Intelligence and Analysis of the Department of the Treasury; (11) The Office of Intelligence and Analysis of the Department of Homeland Security; or (12) Such other elements of any department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence community.
National security system, as defined in 44 U.S.C. 3552, means any information system (including any telecommunications system) used or operated by an agency or by a contractor of an agency, or other organization on behalf of an agency— (1) The function, operation, or use of which involves intelligence activities; involves cryptologic activities related to national security; involves command and control of military forces; involves equipment that is an integral part of a weapon or weapons system; or is critical to the direct fulfillment of military or intelligence missions, but does 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 51 of 155
ATTACHMENT A 588
not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications); or (2) Is protected at all times by procedures established for information that have been specifically authorized under criteria established by an Executive order or an Act of Congress to be kept classified in the interest of national defense or foreign policy.
Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession about the identity of any covered articles, or any products or services produced or provided by a source. This applies when the covered article or the source is subject to an applicable FASCSA order. A reasonable inquiry excludes the need to include an internal or third-party audit.
Sensitive compartmented information means classified information concerning or derived from intelligence sources, methods, or analytical processes, which is required to be handled within formal access control systems established by the Director of National Intelligence.
Sensitive compartmented information system means a national security system authorized to process or store sensitive compartmented information.
Source means a non-Federal supplier, or potential supplier, of products or services, at any tier.
(b) Prohibition. (1) Contractors are prohibited from providing or using as part of the performance of the contract any covered article, or any products or services produced or provided by a source, if the covered article or the source is prohibited by any applicable FASCSA orders identified by the checkbox(es) in this paragraph (b)(1). [ Contracting Officer must select either “yes” or “no” for each of the following types of FASCSA orders:]
Yes DHS FASCSA Order
Yes DoD FASCSA Order
Yes DNI FASCSA Order
(2) The Contractor shall search for the phrase “FASCSA order” in the System for Award Management (SAM) at https://www.sam.gov to locate applicable FASCSA orders identified in paragraph (b)(1).
(3) The Government may identify in the solicitation additional FASCSA orders that are not in SAM, which are effective and apply to the solicitation and resultant contract. (4) A FASCSA order issued after the date of solicitation applies to this contract only if added by an amendment to the solicitation or modification to the contract (see FAR
4.2304(c)). However, see paragraph (c) of this clause.
(5)(i) If the contractor wishes to ask for a waiver of the requirements of a new FASCSA order being applied through modification, then the Contractor shall disclose the following:
(A) Name of the product or service provided to the Government; (B) Name of the covered article or source subject to a FASCSA order; (C) If applicable, name of the vendor, including the Commercial and Government Entity code and unique entity identifier (if known), that supplied or supplies the covered article or the product or service to the Offeror; (D) Brand;
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(E) Model number (original equipment manufacturer number, manufacturer part number, or wholesaler number);
(F) Item description;
(G) Reason why the applicable covered article or the product or service is being provided or used;
(ii) Executive agency review of disclosures. The contracting officer will review disclosures provided in paragraph (b)(5)(i) to determine if any waiver is warranted. A contracting officer may choose not to pursue a waiver for covered articles or sources otherwise covered by a FASCSA order and to instead pursue other appropriate action. (c) Notice and reporting requirement. (1) During contract performance, the Contractor shall review SAM.gov at least once every three months, or as advised by the Contracting Officer, to check for covered articles subject to FASCSA order(s), or for products or services produced by a source subject to FASCSA order(s) not currently identified under paragraph (b) of this clause.
(2) If the Contractor identifies a new FASCSA order(s) that could impact their supply chain, then the Contractor shall conduct a reasonable inquiry to identify whether a covered article or product or service produced or provided by a source subject to the FASCSA order(s) was provided to the Government or used during contract performance. (3)(i) The Contractor shall submit a report to the contracting office as identified in paragraph (c)(3)(ii) of this clause, if the Contractor identifies, including through any notification by a subcontractor at any tier, that a covered article or product or service produced or provided by a source was provided to the Government or used during contract performance and is subject to a FASCSA order(s) identified in paragraph (b) of this clause, or a new FASCSA order identified in paragraph (c)(2) of this clause. For indefinite delivery contracts, the Contractor shall report to both the contracting office for the indefinite delivery contract and the contracting office for any affected order. (ii) If a report is required to be submitted to a contracting office under (c)(3)(i) of this clause, the Contractor shall submit the report as follows:
(A) If a Department of Defense contracting office, the Contractor shall report to the website at https://dibnet.dod.mil.
(B) For all other contracting offices, the Contractor shall report to the Contracting Officer.
(4) The Contractor shall report the following information for each covered article or each product or service produced or provided by a source, where the covered article or source is subject to a FASCSA order, pursuant to paragraph (c)(3)(i) of this clause:
(i) Within 3 business days from the date of such identification or notification:
(A) Contract number;
(B) Order number(s), if applicable;
(C) Name of the product or service provided to the Government or used during performance of the contract;
(D) Name of the covered article or source subject to a FASCSA order; 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 53 of 155
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(E) If applicable, name of the vendor, including the Commercial and Government Entity code and unique entity identifier (if known), that supplied the covered article or the product or service to the Contractor; (F) Brand;
(G) Model number (original equipment manufacturer number, manufacturer part number, or wholesaler number);
(H) Item description; and
(I) Any readily available information about mitigation actions undertaken or recommended.
(ii) Within 10 business days of submitting the information in paragraph (c)(4)(i) of this clause:
(A) Any further available information about mitigation
actions undertaken or recommended.
(B) In addition, the Contractor shall describe the efforts it undertook to prevent submission or use of the covered
article or the product or service produced or provided by a source subject to an applicable FASCSA order, and any
additional efforts that will be incorporated to prevent future submission or use of the covered article or the product or service produced or provided by a source that is subject to an applicable FASCSA order.
(d) Removal. For Federal Supply Schedules, Governmentwide acquisition contracts, multi-agency contracts or any other procurement instrument intended for use by multiple agencies, upon notification from the Contracting Officer, during the performance of the contract, the Contractor shall promptly make any necessary changes or modifications to remove any product or service produced or provided by a source that is subject to an applicable FASCSA order.
(e) Subcontracts. (1) The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (c)(1) of this clause, in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial products and commercial services.
(2) The Government may identify in the solicitation additional FASCSA orders that are not in SAM, which are effective and apply to the contract and any subcontracts and other contractual instruments under the contract. The Contractor or higher-tier subcontractor shall notify their subcontractors, and suppliers under other contractual instruments, that the FASCSA orders in the solicitation that are not in SAM apply to the contract and all subcontracts.
Begin Regulation
52.209-12 CERTIFICATION REGARDING TAX MATTERS
(OCT 2020)
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(a) This provision implements section 523 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), and similar provisions, if contained in subsequent appropriations acts.
(b) If the Offeror is proposing a total contract price that will exceed $5.5 million (including options), the Offeror shall certify that, to the best of its knowledge and belief, it - (1) Has ______ filed all Federal tax returns required during the three years preceding the certification;
(2) Has not ______ been convicted of a criminal offense under the Internal Revenue Code of 1986; and
(3) Has not ______, more than 90 days prior to certification, been notified of any unpaid Federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding.
(End of provision)
Begin Regulation
52.209-5 CERTIFICATION REGARDING RESPONSIBILITY
MATTERS (AUG 2020)
(a) (1) The Offeror certifies, to the best of its knowledge and belief, that- (i) The Offeror and/or any of its Principals-
(A) Are ____ are not ____ presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;
(B) Have ____ have not ____, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for:
commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) contract or subcontract; violation of Federal or State antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property (if offeror checks “have”, the offeror shall also see 52.209-7, if included in this solicitation); and (C) Are ____ are not ____ presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in subdivision (a)(1)(i)(B) of this provision; and (D) Have ____ have not ____, within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds the threshold at 9.104-5(a)(2) for which the liability remains unsatisfied. (1) Federal taxes are considered delinquent if both of the following criteria apply:
(i) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 55 of 155
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determined if there is a pending administrative or judicial challenge.
In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.
(ii) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded.
(2) Examples.
(i) The taxpayer has received a statutory notice of deficiency, under I.R.C. § 6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(ii) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. § 6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(iii) The taxpayer has entered into an installment agreement pursuant to I.R.C. § 6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment.
(iv) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code).
(ii) The Offeror has ____ has not ____, within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal Agency. (2) “Principal,” for the purposes of this certification, means an officer; director; owner; partner; or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).
This certification concerns a matter within the jurisdiction of an agency of the United States and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under section 1001, title 18, United States Code. (b) The Offeror shall provide immediate written notice to the Contracting Officer if, at any time prior to contract award, the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
(c) A certification that any of the items in paragraph (a) of this provision exists will not necessarily 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 56 of 155
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result in withholding of an award under this solicitation. However, the certification will be considered in connection with a determination of the Offeror's responsibility. Failure of the Offeror to furnish a certification or provide such additional information as requested by the Contracting Officer may render the Offeror nonresponsible.
(d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision.
The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealing. (e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous certification, in addition to other remedies available to the Government, the Contracting Officer may terminate the contract resulting from this solicitation for default.
Begin Regulation
52.209-7 INFORMATION REGARDING RESPONSIBILITY
MATTERS (OCT 2018)
(a) Definitions. As used in this provision —
Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract Appeals Proceedings). This includes administrative proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include agency actions such as contract audits, site visits, corrective plans, or inspection of deliverables.
Federal contracts and grants with total value greater than $10,000,000 means — (1) The total value of all current, active contracts and grants, including all priced options; and (2) The total value of all current, active orders including all priced options under indefinite-delivery, indefinite-quantity, 8(a), or requirements contracts (including task and delivery and multiple-award Schedules).
Principal means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).
(b) The offeror ____ has ____ does not have current active Federal contracts and grants with total value greater than $10,000,000.
(c) If the offeror checked “has” in paragraph (b) of this provision, the offeror represents, by submission of this offer, that the information it has entered in the Federal Awardee Performance and Integrity Information System (FAPIIS) is current, accurate, and complete as of the date of submission of this offer with regard to the following information:
(1) Whether the offeror, and/or any of its principals, has or has not, within the last five years, in connection with the award to or performance by the offeror of a Federal contract or grant, been the subject of a proceeding, at the Federal or State level that resulted in any of the following dispositions:
(i) In a criminal proceeding, a conviction.
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(ii) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more. (iii) In an administrative proceeding, a finding of fault and liability that results in — (A) The payment of a monetary fine or penalty of $5,000 or more; or (B) The payment of a reimbursement, restitution, or damages in excess of $100,000.
(iv) In a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the Contractor if the proceeding could have led to any of the outcomes specified in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this provision.
(2) If the offeror has been involved in the last five years in any of the occurrences listed in (c)(1) of this provision, whether the offeror has provided the requested information with regard to each occurrence.
(d) The offeror shall post the information in paragraphs (c)(1)(i) through (c)(1)(iv) of this provision in FAPIIS as required through maintaining an active registration in System for Award Management, which can be accessed via https://www.sam.gov
Begin Regulation
52.209-9 UPDATES OF PUBLICLY AVAILABLE INFORMATION
REGARDING RESPONSIBILITY MATTERS (OCT 2018)
(a) The Contractor shall update the information in the Federal Awardee Performance and Integrity Information System (FAPIIS) on a semi-annual basis, throughout the life of the contract, by posting the required information in the System for Award Management via https://www.sam.gov. (b) As required by section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111–212), all information posted in FAPIIS on or after April 15, 2011, except past performance reviews, will be publicly available. FAPIIS consists of two segments —
(1) The non-public segment, into which Government officials and the Contractor post information, which can only be viewed by —
(i) Government personnel and authorized users performing business on behalf of the Government; or
(ii) The Contractor, when viewing data on itself; and
(2) The publicly-available segment, to which all data in the non-public segment of FAPIIS is automatically transferred after a waiting period of 14 calendar days, except for — (i) Past performance reviews required by subpart 42.15; (ii) Information that was entered prior to April 15, 2011; or (iii) Information that is withdrawn during the 14-calendar-day waiting period by the Government official who posted it in accordance with paragraph (c)(1) of this clause. (c) The Contractor will receive notification when the Government posts new information to the Contractor’s record.
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(1) If the Contractor asserts in writing within 7 calendar days, to the Government official who posted the information, that some of the information posted to the nonpublic segment of FAPIIS is covered by a disclosure exemption under the Freedom of Information Act, the Government official who posted the information must within 7 calendar days remove the posting from FAPIIS and resolve the issue in accordance with agency Freedom of Information procedures, prior to reposting the releasable information. The contractor must cite 52.209–9 and request removal within 7 calendar days of the posting to FAPIIS.
(2) The Contractor will also have an opportunity to post comments regarding information that has been posted by the Government. The comments will be retained as long as the associated information is retained, i.e., for a total period of 6 years. Contractor comments will remain a part of the record unless the Contractor revises them.
(3) As required by section 3010 of Pub. L. 111–212, all information posted in FAPIIS on or after April 15, 2011, except past performance reviews, will be publicly available. (d) Public requests for system information posted prior to April 15, 2011, will be handled under Freedom of Information Act procedures, including, where appropriate, procedures promulgated under E.O. 12600.
Begin Regulation
52.212-3 OFFEROR REPRESENTATIONS AND CERTIFICATIONS
– COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
(FEB 2024)
The Offeror shall complete only paragraph (b) of this provision if the Offeror has completed the annual representations and certification electronically in the System for Award Management (SAM) accessed through https://www.sam.gov. If the Offeror has not completed the annual representations and certifications electronically, the Offeror shall complete only paragraphs (c) through (v) of this provision.
(a) Definitions. As used in this provision—
Covered telecommunications equipment or services has the meaning provided in the clause
52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.
Economically disadvantaged women-owned small business (EDWOSB) concern means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States and who are economically disadvantaged in accordance with 13 CFR part 127, and the concern is certified by SBA or an approved third-party certifier in accordance with 13 CFR 127.300. It automatically qualifies as a women-owned small business eligible under the WOSB Program.
Forced or indentured child labor means all work or service— (1) Exacted from any person under the age of 18 under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or (2) Performed by any person under the age of 18 pursuant to a contract the enforcement of which can be accomplished by process or penalties.
Highest-level owner means the entity that owns or controls an immediate owner of the offeror, or that owns or controls one or more entities that control an immediate owner of the offeror. No entity owns or exercises control of the highest level owner.
Immediate owner means an entity, other than the offeror, that has direct control of the offeror.
Indicators of control include, but are not limited to, one or more of the following: ownership or interlocking management, identity of interests among family members, shared facilities and equipment, and the common use of employees.
Inverted domestic corporation, means a foreign incorporated entity that meets the definition of an inverted domestic corporation under 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C. 395(c).
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Manufactured end product means any end product in product and service codes (PSCs) 1000-9999, except—
(1) PSC 5510, Lumber and Related Basic Wood Materials;
(2) Product or Service Group (PSG) 87, Agricultural Supplies; (3) PSG 88, Live Animals;
(4) PSG 89, Subsistence;
(5) PSC 9410, Crude Grades of Plant Materials;
(6) PSC 9430, Miscellaneous Crude Animal Products, Inedible; (7) PSC 9440, Miscellaneous Crude Agricultural and Forestry Products; (8) PSC 9610, Ores;
(9) PSC 9620, Minerals, Natural and Synthetic; and
(10) PSC 9630, Additive Metal Materials.
Place of manufacture means the place where an end product is assembled out of components, or otherwise made or processed from raw materials into the finished product that is to be provided to the Government. If a product is disassembled and reassembled, the place of reassembly is not the place of manufacture.
Predecessor means an entity that is replaced by a successor and includes any predecessors of the predecessor.
Reasonable inquiry has the meaning provided in the clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.
Restricted business operations means business operations in Sudan that include power production activities, mineral extraction activities, oil-related activities, or the production of military equipment, as those terms are defined in the Sudan Accountability and Divestment Act of 2007 (Pub. L. 110-174). Restricted business operations do not include business operations that the person (as that term is defined in Section 2 of the Sudan Accountability and Divestment Act of 2007) conducting the business can demonstrate—
(1) Are conducted under contract directly and exclusively with the regional government of southern Sudan;
(2) Are conducted pursuant to specific authorization from the Office of Foreign Assets Control in the Department of the Treasury, or are expressly exempted under Federal law from the requirement to be conducted under such authorization;
(3) Consist of providing goods or services to marginalized populations of Sudan; (4) Consist of providing goods or services to an internationally recognized peacekeeping force or humanitarian organization;
(5) Consist of providing goods or services that are used only to promote health or education; or (6) Have been voluntarily suspended."Sensitive technology"— Sensitive technology—
(1) Means hardware, software, telecommunications equipment, or any other technology that is to be used specifically—
(i) To restrict the free flow of unbiased information in Iran; or (ii) To disrupt, monitor, or otherwise restrict speech of the people of Iran; and (2) Does not include information or informational materials the export of which the President does not have the authority to regulate or prohibit pursuant to section 203(b)(3)of the International Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)).
Service-disabled veteran-owned small business (SDVOSB) concern means a small business concern— (1)
(i) Not less than 51 percent of which is owned and controlled by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and (ii) The management and daily business operations of which are controlled by one or more servicedisabled veterans or, in the case of a service-disabled veteran with permanent and severe disability,
the spouse or permanent caregiver of such veteran; or
(2) A small business concern eligible under the SDVOSB Program in accordance with 13 CFR part 128 (see subpart 19.14).
(3) Service-disabled veteran, as used in this definition, means a veteran as defined in 38 U.S.C. 101(2), with a disability that is service connected, as defined in 38 U.S.C. 101(16), and who is registered in the Beneficiary Identification and Records Locator Subsystem, or successor system that is maintained by the Department of Veterans Affairs’ Veterans Benefits Administration, as a 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 60 of 155
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service-disabled veteran.
Service-disabled veteran-owned small business (SDVOSB) concern eligible under the SDVOSB Program means an SDVOSB concern that—
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as certified by the Small Business Administration (SBA) in accordance with 13 CFR 128.300; or (2) Has represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
Service-disabled veteran-owned small business (SDVOSB) Program means a program that authorizes contracting officers to limit competition, including award on a sole-source basis, to SDVOSB concerns eligible under the SDVOSB Program.
Small business concern—
(1) Means a concern, including its affiliates, that is independently owned and operated, not dominant in its field of operation, and qualified as a small business under the criteria in 13 CFR part 121 and size standards in this solicitation.
(2) Affiliates, as used in this definition, means business concerns, one of whom directly or indirectly controls or has the power to control the others, or a third party or parties control or have the power to control the others. In determining whether affiliation exists, consideration is given to all appropriate factors including common ownership, common management, and contractual relationships. SBA determines affiliation based on the factors set forth at 13 CFR 121.103.
Small disadvantaged business concern, consistent with 13 CFR 124.1001, means a small business concern under the size standard applicable to the acquisition, that— (1) Is at least 51 percent unconditionally and directly owned (as defined at 13 CFR 124.105) by— (i) One or more socially disadvantaged (as defined at13 CFR 124.103) and economically disadvantaged (as defined at 13 CFR 124.104) individuals who are citizens of the United States; and
(ii) Each individual claiming economic disadvantage has a net worth not exceeding the threshold at 13 CFR 124.104(c)(2) after taking into account the applicable exclusions set forth at 13 CFR124.104(c)(2); and
(2) The management and daily business operations of which are controlled (as defined at 13.CFR 124.106) by individuals, who meet the criteria in paragraphs (1)(i) and (ii) of this definition.
Subsidiary means an entity in which more than 50 percent of the entity is owned— (1) Directly by a parent corporation; or
(2) Through another subsidiary of a parent corporation
Successor means an entity that has replaced a predecessor by acquiring the assets and carrying out the affairs of the predecessor under a new name (often through acquisition or merger). The term "successor" does not include new offices/divisions of the same company or a company that only changes its name. The extent of the responsibility of the successor for the liabilities of the predecessor may vary, depending on State law and specific circumstances.
Veteran-owned small business concern means a small business concern— (1) Not less than 51 percent of which is owned and controlled by one or more veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and
(2) The management and daily business operations of which are controlled by one or more veterans.
Women-owned business concern means a concern which is at least 51 percent owned by one or more women; or in the case of any publicly owned business, at least 51 percent of its stock is owned by one or more women; and whose management and daily business operations are controlled by one or more women
Women-owned small business concern means a small business concern— (1) That is at least 51 percent owned by one or more women; or, in the case of any publicly owned business, at least51 percent of the stock of which is owned by one or more women; and (2) Whose management and daily business operations are controlled by one or more women.
Women-owned small business (WOSB) concern eligible under the WOSB Program (in accordance with 13 CFR part 127), means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States, and the concern is certified by SBA or an approved third-party certifier in accordance with 13 CFR 127.300. (b)
(1) Annual Representations and Certifications. Any changes provided by the Offeror in paragraph (b)(2) of this provision do not automatically change the representations and certifications in SAM. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 61 of 155
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(2) The offeror has completed the annual representations and certifications electronically in SAM accessed through http://www.sam.gov. After reviewing SAM information, the Offeror verifies by submission of this offer that the representations and certifications currently posted electronically at FAR 52.212-3, Offeror Representations and Certifications-Commercial Products and Commercial Services, have been entered or updated in the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard(s) applicable to the NAICS code(s) referenced for this solicitation), at the time this offer is submitted and are incorporated in this offer by reference (see FAR 4.1201), except for paragraphs __. [Offeror to identify the applicable paragraphs at (c) through (v) of this provision that the offeror has completed for the purposes of this solicitation only, if any.
These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer.
Any changes provided by the offeror are applicable to this solicitation only, and do not result in an update to the representations and certifications posted electronically on SAM.] (c) Offerors must complete the following representations when the resulting contract is for supplies to be delivered or services to be performed in the United States or its outlying areas, or when the contracting officer has applied part 19 in accordance with 19.000(b)(1)(ii). Check all that apply. (1) Small business concern. The offeror represents as part of its offer that— (i) It # is, # is not a small business concern; or
(ii) It # is, # is not a small business joint venture that complies with the requirements of 13 CFR 121.103(h) and 13 CFR 125.8(a) and (b). [ The offeror shall enter the name and unique entity identifier of each party to the joint venture: ____________.] (2) Veteran-owned small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents as part of its offer that it # is, # is not a veteran-owned small business concern. (3) SDVOSB concern. [Complete only if the offeror represented itself as a veteran-owned small business concern in paragraph (c)(2) of this provision.] The offeror represents that it # is, # is not an SDVOSB concern.
(4) SDVOSB concern joint venture eligible under the SDVOSB Program. The offeror represents that it # is, # is not an SDVOSB joint venture eligible under the SDVOSB Program that complies with the requirements of 13 CFR 128.402. [Complete only if the offeror represented itself as an SDVOSB concern in paragraph (c)(3) of this provision.] [The offeror shall enter the name and unique entity identifier of each party to the joint venture: ____________.] (5) Small disadvantaged business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it # is, # is not a small disadvantaged business concern as defined in 13 CFR 124.1002. (6) Women-owned small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it # is, # is not a women-owned small business concern.
(7) WOSB joint venture eligible under the WOSB Program. The offeror represents that it # is, # is not a joint venture that complies with the requirements of 13 CFR 127.506(a) through (c). [ The offeror shall enter the name and unique entity identifier of each party to the joint venture:
____________.]
(8) Economically disadvantaged women-owned small business (EDWOSB) joint venture. The offeror represents that it # is, # is not a joint venture that complies with the requirements of 13 CFR 127.506(a) through (c). [The offeror shall enter the name and unique entity identifier of each party to the joint venture: ____________.]
Note to paragraphs (c)(9) and (10): Complete paragraphs (c)(9) and (10) only if this solicitation is expected to exceed the simplified acquisition threshold. (9) Women-owned business concern (other than small business concern). [Complete only if the offeror is a women-owned business concern and did not represent itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it # is a women-owned business concern.
(10) Tie bid priority for labor surplus area concerns. If this is an invitation for bid, small business offerors may identify the labor surplus areas in which costs to be incurred on account of manufacturing or production (by offeror or first-tier subcontractors) amount to more than 50 percent of the contract price:____
(11) HUBZone small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents, as part of its offer, 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 62 of 155
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that–
(i) It # is, # is not a HUBZone small business concern listed, on the date of this representation, as having been certified by SBA as a HUBZone small business concern in the Dynamic Small Business
Search and SAM, and will attempt to maintain an employment rate of HUBZone residents of 35 percent of its employees during performance of a HUBZone contract (see 13 CFR 126.200(e)(1)); and
(ii) It # is, # is not a HUBZone joint venture that complies with the requirements of 13 CFR 126.616(a) through (c). [The offeror shall enter the name and unique entity identifier of each party to the joint venture: ______.] Each HUBZone small business concern participating in the HUBZone joint venture shall provide representation of its HUBZone status. (d) Representations required to implement provisions of Executive Order11246- (1) Previous contracts and compliance. The offeror represents that- (i) It # has, # has not participated in a previous contract or subcontract subject to the Equal Opportunity clause of this solicitation; and
(ii) It # has, # has not filed all required compliance reports. (2) Affirmative Action Compliance. The offeror represents that- (i) It # has developed and has on file, # has not developed and does not have on file, at each establishment, affirmative action programs required by rules and regulations of the Secretary of Labor (41 CFR parts 60-1 and 60-2), or
(ii) It # has not previously had contracts subject to the written affirmative action programs requirement of the rules and regulations of the Secretary of Labor. (e) Certification Regarding Payments to Influence Federal Transactions (31 http://uscode.house.gov/ U.S.C. 1352). (Applies only if the contract is expected to exceed $150,000.) By submission of its offer, the offeror certifies to the best of its knowledge and belief that no Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress on his or her behalf in connection with the award of any resultant contract.
If any registrants under the Lobbying Disclosure Act of 1995 have made a lobbying contact on behalf of the offeror with respect to this contract, the offeror shall complete and submit, with its offer, OMB Standard Form LLL, Disclosure of Lobbying Activities, to provide the name of the registrants. The offeror need not report regularly employed officers or employees of the offeror to whom payments of reasonable compensation were made.
(f) Buy American Certificate. (Applies only if the clause at Federal Acquisition Regulation (FAR)
52.225-1, Buy American-Supplies, is included in this solicitation.) (1)
(i) The Offeror certifies that each end product, except those listed in paragraph (f)(2) of this provision, is a domestic end product and that each domestic end product listed in paragraph (f)(3) of this provision contains a critical component.
(ii) The Offeror shall list as foreign end products those end products manufactured in the United States that do not qualify as domestic end products. For those foreign end products that do not consist wholly or predominantly of iron or steel or a combination of both, the Offeror shall also indicate whether these foreign end products exceed 55 percent domestic content, except for those that are COTS items. If the percentage of the domestic content is unknown, select “no”. (iii) The Offeror shall separately list the line item numbers of domestic end products that contain a critical component (see FAR 25.105).
(iv) The terms “commercially available off-the-shelf (COTS) item,” “critical component,” “domestic
end product,” "end product," "foreign end product," and "United States" are defined in the clause of this solicitation entitled "Buy American-Supplies."
(2) Foreign End Products:
Line Item No. Country of Origin Exceeds 55% domestic content (yes/no) ______________ _______________ _________________
______________ _______________ _________________
______________ _______________ _________________
[List as necessary]
(3) Domestic end products containing a critical component:
Line Item No.
_______________
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ATTACHMENT A 600
[List as necessary]
(4) The Government will evaluate offers in accordance with the policies and procedures of FAR part
25. (g)
(1) Buy American-Free Trade Agreements-Israeli Trade Act Certificate. (Applies only if the clause at FAR 52.225-3, Buy American-Free Trade Agreements-Israeli Trade Act, is included in this solicitation.)
(i)
(A) The Offeror certifies that each end product, except those listed in paragraph (g)(1)(ii) or (iii) of
this provision, is a domestic end product and that each domestic end product listed in paragraph
(g)(1)(iv) of this provision contains a critical component. (B) The terms "Bahraini, Moroccan, Omani, Panamanian, or Peruvian end product," "commercially
available off-the-shelf (COTS) item," "critical component," "domestic end product," "end product,"
"foreign end product," "Free Trade Agreement country," "Free Trade Agreement country end
product," "Israeli end product," and "United States" are defined in the clause of this solicitation
entitled "Buy American-Free Trade Agreements-Israeli Trade Act." (ii) The Offeror certifies that the following supplies are Free Trade Agreement country end products
(other than Bahraini, Moroccan, Omani, Panamanian, or Peruvian end products) or Israeli end products as defined in the clause of this solicitation entitled "Buy American-Free Trade Agreements Israeli Trade Act."
Free Trade Agreement Country End Products (Other than Bahraini, Moroccan, Omani, Panamanian, or Peruvian End Products) or Israeli End Products:
Line Item No. Country of Origin
______________ ________________
______________ _________________
______________ _________________
[List as necessary]
(iii) The Offeror shall list those supplies that are foreign end products (other than those listed in paragraph (g)(1)(ii) of this provision) as defined in the clause of this solicitation entitled "Buy American-Free Trade Agreements-Israeli Trade Act." The Offeror shall list as other foreign end products those end products manufactured in the United States that do not qualify as domestic end products. For those foreign end products that do not consist wholly or predominantly of iron or steel or a combination of both, the Offeror shall also indicate whether these foreign end products exceed 55 percent domestic content, except for those that are COTS items. If the percentage of the domestic content is unknown, select “no”.
Other Foreign End Products:
Line Item No. Country of Origin Exceeds 55% domestic content (yes/no) ______________ ______________ ______________
______________ ______________ ______________
______________ ______________ ______________
[List as necessary]
(iv) The Offeror shall list the line item numbers of domestic end products that contain a critical component (see FAR 25.105).
Line Item No. ______
[List as necessary]
(v) The Government will evaluate offers in accordance with the policies and procedures of FAR part
25. (2) Buy American-Free Trade Agreements-Israeli Trade Act Certificate, Alternate II. If Alternate II to the clause at FAR 52.225-3 is included in this solicitation, substitute the following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision:
(g)(1)(ii) The offeror certifies that the following supplies are Israeli end products as defined in the 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 64 of 155
ATTACHMENT A 601
clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act”:
Israeli End Products:
Line Item No.
____________
____________
____________
[List as necessary]
(3) Buy American-Free Trade Agreements-Israeli Trade Act Certificate, Alternate III. If Alternate III to the clause at 52.225-3 is included in this solicitation, substitute the following paragraphs (g)(1)(i)(B) and (g)(1)(ii)
for paragraphs (g)(1)(i)(B) and (g)(1)(ii) of the basic provision:
(g)(1)(i)(B) (g)(1)(i)(B) The terms “Korean end product”, “commercially available off-the-shelf (COTS) item,” “critical component,” “domestic end product,” “end product,” “foreign end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “Israeli end product,” and “United States” are defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act.”
(g)(1)(ii) The Offeror certifies that the following supplies are Korean end products or Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act”:
Korean End Products or Israeli End Products:
Line Item No. Country of Origin
____________ __________________
____________ __________________
____________ __________________
[List as necessary]
(4) Trade Agreements Certificate. (Applies only if the clause at FAR 52.225-5, Trade Agreements, is included in this solicitation.)
(i) The offeror certifies that each end product, except those listed in paragraph (g)(4)(ii) of this provision, is a U.S.-made or designated country end product, as defined in the clause of this solicitation entitled "Trade Agreements."
(ii) The offeror shall list as other end products those end products that are not U.S.-made or designated country end products.
Other End Products:
Line Item No. Country of Origin
___________ __________________
___________ __________________
___________ __________________
[List as necessary]
(iii) The Government will evaluate offers in accordance with the policies and procedures of FAR part
25. For line items covered by the WTO GPA, the Government will evaluate offers of U.S.-made or designated country end products without regard to the restrictions of the Buy American statute. The Government will consider for award only offers of U.S.-made or designated country end products unless the Contracting Officer determines that there are no offers for such products or that the offers for such products are insufficient to fulfill the requirements of the solicitation. (h) Certification Regarding Responsibility Matters (Executive Order 12689). (Applies only if the contract value is expected to exceed the simplified acquisition threshold.) The offeror certifies, to the best of its knowledge and belief, that the offeror and/or any of its principals– (1) # Are, # are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;
(2) # Have, # have not, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a Federal, state or local government contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property; (3) # Are, # are not presently indicted for, or otherwise criminally or civilly charged by a Government entity with, commission of any of these offenses enumerated in paragraph (h)(2) of this clause; and
(4) # Have, # have not, within a three-year period preceding this offer, been notified of any 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 65 of 155
ATTACHMENT A 602
delinquent Federal taxes in an amount that exceeds the threshold at 9.104-5(a)(2) for which the liability remains unsatisfied.
(i) Taxes are considered delinquent if both of the following criteria apply:
(A) The tax liability is finally determined. The liability is finally determined if it has been assessed.
A
liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.
(B) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed
to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases
where enforced collection action is precluded.
(ii) Examples.
(A) The taxpayer has received a statutory notice of deficiency, under I.R.C. §6212, which entitles the
taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because
it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights. (B) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. §6320 entitling the taxpayer to request a hearing with
the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS
determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability.
This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights. (C) The taxpayer has entered into an installment agreement pursuant to I.R.C. §6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment. (D) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. §362 (the Bankruptcy Code). (i) Certification Regarding Knowledge of Child Labor for Listed End Products (Executive Order
13126). [The Contracting Officer must list in paragraph (i)(1) any end products being acquired under this solicitation that are included in the List of Products Requiring Contractor Certification as to Forced or Indentured Child Labor, unless excluded at 22.1503(b).]
(1) Listed end products.
Listed End Product Listed Countries of Origin
_______________ ___________________
_______________ ___________________
(2) Certification. [If the Contracting Officer has identified end products and countries of origin in paragraph (i)(1) of this provision, then the offeror must certify to either (i)(2)(i) or (i)(2)(ii) by checking the appropriate block.]
#(i) The offeror will not supply any end product listed in paragraph (i)(1) of this provision that was mined, produced, or manufactured in the corresponding country as listed for that product.
#(ii) The offeror may supply an end product listed in
paragraph (i)(1) of this provision that was mined, produced, or manufactured in the corresponding country as listed for that product. The offeror certifies that it has made a good faith effort to determine whether forced or indentured child labor was used to mine, produce, or manufacture any such end product furnished under this
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ATTACHMENT A 603
contract. On the basis of those efforts, the offeror certifies that it is not aware of any such use of child labor.
(j) Place of manufacture. (Does not apply unless the solicitation is predominantly for the acquisition of manufactured end products.) For statistical purposes only, the offeror shall indicate whether the place of manufacture of the end products it expects to provide in response to this solicitation is predominantly-
(1) # In the United States (Check this box if the total anticipated price of offered end products manufactured in the United States exceeds the total anticipated price of offered end products manufactured outside the United States); or
(2) # Outside the United States.
(k) Certificates regarding exemptions from the application of the Service Contract Labor Standards (Certification by the offeror as to its compliance with respect to the contract also constitutes its certification as to compliance by its subcontractor if it subcontracts out the exempt services.) [The contracting officer is to check a box to indicate if paragraph (k)(1) or (k)(2) applies.] X (1) Maintenance, calibration, or repair of certain equipment as described in FAR 22.1003-4(c)(1).
The offeror # does # does not certify that–
(i) The items of equipment to be serviced under this contract are used regularly for other than Governmental purposes and are sold or traded by the offeror (or subcontractor in the case of an exempt subcontract) in substantial quantities to the general public in the course of normal business operations;
(ii) The services will be furnished at prices which are, or are based on, established catalog or market prices (see FAR 22.1003-4(c)(2)(ii)) for the maintenance, calibration, or repair of such equipment; and
(iii) The compensation (wage and fringe benefits) plan for all service employees performing work under the contract will be the same as that used for these employees and equivalent employees servicing the same equipment of commercial customers.
X (2) Certain services as described in FAR 22.1003-4(d)(1). The offeror # does # does not certify that-
(i) The services under the contract are offered and sold regularly to non-Governmental customers, and are provided by the offeror (or subcontractor in the case of an exempt subcontract) to the general public in substantial quantities in the course of normal business operations; (ii) The contract services will be furnished at prices that are, or are based on, established catalog or market prices (see FAR 22.1003-4(d)(2)(iii));
(iii) Each service employee who will perform the services under the contract will spend only a small
portion of his or her time (a monthly average of less than 20 percent of the available hours on an annualized basis, or less than 20 percent of available hours during the contract period if the contract period is less than a month) servicing the Government contract; and (iv) The compensation (wage and fringe benefits) plan for all service employees performing work under the contract is the same as that used for these employees and equivalent employees servicing commercial customers.
(3) If paragraph (k)(1) or (k)(2) of this clause applies– (i) If the offeror does not certify to the conditions in paragraph (k)(1) or (k)(2) and the Contracting Officer did not attach a Service Contract Labor Standards wage determination to the solicitation, the
offeror shall notify the Contracting Officer as soon as possible; and (ii) The Contracting Officer may not make an award to the offeror if the offeror fails to execute the certification in paragraph (k)(1) or (k)(2) of this clause or to contact the Contracting Officer as required in paragraph (k)(3)(i) of this clause.
(l) Taxpayer Identification Number (TIN) ( 26 U.S.C. 6109, 31 U.S.C. 7701). (Not applicable if the offeror is required to provide this information to the SAM to be eligible for award.) (1) All offerors must submit the information required in paragraphs (l)(3) through (l)(5) of this provision to comply with debt collection requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of 26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by the Internal Revenue Service (IRS).
(2) The TIN may be used by the Government to collect and report on any delinquent amounts arising out of the offeror’s relationship with the Government (31 U.S.C. 7701(c)(3)). If the resulting contract is subject to the payment reporting requirements described in FAR 4.904, the TIN provided hereunder may be matched with IRS records to verify the accuracy of the offeror’s TIN. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 67 of 155
ATTACHMENT A 604
(3) Taxpayer Identification Number (TIN).
#TIN: ________________________________.
#TIN has been applied for.
#TIN is not required because:
#Offeror is a nonresident alien, foreign corporation, or foreign partnership that does not have income effectively connected with the conduct of a trade or business in the United States and does not have an office or place of business or a fiscal paying agent in the United States; #Offeror is an agency or instrumentality of a foreign government; #Offeror is an agency or instrumentality of the Federal Government. (4) Type of organization.
#Sole proprietorship;
#Partnership;
#Corporate entity (not tax-exempt);
#Corporate entity (tax-exempt);
#Government entity (Federal, State, or local);
#Foreign government;
#International organization per 26 CFR1.6049-4;
#Other ________________________________.
(5) Common parent.
#Offeror is not owned or controlled by a common parent; #Name and TIN of common parent:
Name ________________________________.
TIN _________________________________.
(m) Restricted business operations in Sudan. By submission of its offer, the offeror certifies that the offeror does not conduct any restricted business operations in Sudan. (n) Prohibition on Contracting with Inverted Domestic Corporations. (1) Government agencies are not permitted to use appropriated (or otherwise made available) funds for contracts with either an inverted domestic corporation, or a subsidiary of an inverted domestic corporation, unless the exception at 9.108-2(b) applies or the requirement is waived in accordance with the procedures at 9.108-4.
(2) Representation. The Offeror represents that–
(i) It # is, # is not an inverted domestic corporation; and (ii) It # is, # is not a subsidiary of an inverted domestic corporation. (o) Prohibition on contracting with entities engaging in certain activities or transactions relating to Iran.
(1) The offeror shall e-mail questions concerning sensitive technology to the Department of State at [email protected].
(2) Representation and Certifications. Unless a waiver is granted or an exception applies as provided in paragraph (o)(3) of this provision, by submission of its offer, the offeror- (i) Represents, to the best of its knowledge and belief, that the offeror does not export any sensitive technology to the government of Iran or any entities or individuals owned or controlled by, or acting
on behalf or at the direction of, the government of Iran; (ii) Certifies that the offeror, or any person owned or controlled by the offeror, does not engage in any activities for which sanctions may be imposed under section 5 of the Iran Sanctions Act; and (iii) Certifies that the offeror, and any person owned or controlled by the offeror, does not knowingly
engage in any transaction that exceeds the threshold at FAR 25.703-2(a)(2) with Iran’s Revolutionary Guard Corps or any of its officials, agents, or affiliates, the property and interests in property of which are blocked pursuant to the International Emergency Economic Powers Act (et seq.) (see OFAC’s Specially Designated Nationals and Blocked Persons List at https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx). (3) The representation and certification requirements of paragraph (o)(2) of this provision do not apply if-
(i) This solicitation includes a trade agreements certification (e.g., 52.212-3(g) or a comparable agency provision); and
(ii) The offeror has certified that all the offered products to be supplied are designated country end products.
(p) Ownership or Control of Offeror. (Applies in all solicitations when there is a requirement to be 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 68 of 155
ATTACHMENT A 605
registered in SAM or a requirement to have a unique entity identifier in the solicitation). (1) The Offeror represents that it # has or # does not have an immediate owner. If the Offeror has more than one immediate owner (such as a joint venture), then the Offeror shall respond to paragraph (2) and if applicable, paragraph (3) of this provision for each participant in the joint venture.
(2) If the Offeror indicates "has" in paragraph (p)(1) of this provision, enter the following information:
Immediate owner CAGE code: ____________________.
Immediate owner legal name: _____________________.
(Do not use a "doing business as" name)
Is the immediate owner owned or controlled by another entity: # Yes or # No. (3) If the Offeror indicates "yes" in paragraph (p)(2) of this provision, indicating that the immediate owner is owned or controlled by another entity, then enter the following information:
Highest-level owner CAGE code: __________________.
Highest-level owner legal name: ___________________.
(Do not use a "doing business as" name)
(q) Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law.
(1) As required by sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), and similar provisions, if contained in subsequent appropriations acts, The Government will not enter into a contract with any corporation that– (i) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless an agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or (ii) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless an agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government.
(2) The Offeror represents that–
(i) It is # is not # a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and
(ii) It is # is not # a corporation that was convicted of a felony criminal violation under a Federal law within the preceding 24 months.
(r) Predecessor of Offeror. (Applies in all solicitations that include the provision at 52.204-16, Commercial and Government Entity Code Reporting.)
(1) The Offeror represents that it # is or # is not a successor to a predecessor that held a Federal contract or grant within the last three years.
(2) If the Offeror has indicated "is" in paragraph (r)(1) of this provision, enter the following information for all predecessors that held a Federal contract or grant within the last three years (if more than one predecessor, list in reverse chronological order):
Predecessor CAGE code: (or mark "Unknown").
Predecessor legal name: ____.
(Do not use a "doing business as" name).
(s) [Reserved].
(t) Public Disclosure of Greenhouse Gas Emissions and Reduction Goals. Applies in all solicitations that require offerors to register in SAM (12.301(d)(1)). (1) This representation shall be completed if the Offeror received $7.5 million or more in contract awards in the prior Federal fiscal year. The representation is optional if the Offeror received less than $7.5 million in Federal contract awards in the prior Federal fiscal year. (2) Representation. [Offeror to check applicable block(s) in paragraph (t)(2)(i) and (ii)]. (i) The Offeror (itself or through its immediate owner or highest-level owner) # does, # does not publicly disclose greenhouse gas emissions, i.e., makes available on a publicly accessible website the
results of a greenhouse gas inventory, performed in accordance with an accounting standard with 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 69 of 155
ATTACHMENT A 606
publicly available and consistently applied criteria, such as the Greenhouse Gas Protocol Corporate Standard.
(ii) The Offeror (itself or through its immediate owner or highest-level owner) # does, # does not publicly disclose a quantitative greenhouse gas emissions reduction goal, i.e., make available on a publicly accessible website a target to reduce absolute emissions or emissions intensity by a specific
quantity or percentage.
(iii) A publicly accessible website includes the Offeror's own website or a recognized, third-party greenhouse gas emissions reporting program.
(3) If the Offeror checked "does" in paragraphs (t)(2)(i) or (t)(2)(ii) of this provision, respectively, the Offeror shall provide the publicly accessible website(s) where greenhouse gas emissions and/or reduction goals are reported:__________.
(u)
(1) In accordance with section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions), Government agencies are not permitted to use appropriated (or otherwise made available) funds for contracts with an entity that requires employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.
(2) The prohibition in paragraph (u)(1) of this provision does not contravene requirements applicable to Standard Form 312 (Classified Information Nondisclosure Agreement), Form 4414 (Sensitive Compartmented Information Nondisclosure Agreement), or any other form issued by a Federal department or agency governing the nondisclosure of classified information. (3) Representation. By submission of its offer, the Offeror represents that it will not require its employees or subcontractors to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting waste, fraud, or abuse related to the performance of a Government contract to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information (e.g., agency Office of the Inspector General). (v) Covered Telecommunications Equipment or Services-Representation. Section 889(a)(1)(A) and section 889 (a)(1)(B) of Public Law 115-232.
(1) The Offeror shall review the list of excluded parties in the System for Award Management (SAM) (https://www.sam.gov) for entities excluded from receiving federal awards for "covered telecommunications equipment or services".
(2) The Offeror represents that–
(i) It # does, # does not provide covered telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument.
(ii) After conducting a reasonable inquiry for purposes of this representation, that it # does, # does not use covered telecommunications equipment or services, or any equipment, system, or service that uses covered telecommunications equipment or services. (End of Provision)
Note: Regulation 52.212-3
Effective October 26, 2020, offerors are required to represent to FAR provision
52.204-26(c)(2) (OCT 2020) in the System for Award Management (SAM) whether it does or does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. Offerors that represent, based on a reasonable inquiry, that it does use covered telecommunication, must complete and upload FAR provision 52.204-24(d)(2) to eOffer prior to submitting an offer. If applicable, offerors must also upload the disclosures required by FAR 52.204-24 paragraph (e)(2) to eOffer.
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ATTACHMENT A 607
Note that provision 52.204-26 is incorporated by reference in the MAS solicitation via provision 52.212-3.
Begin Regulation
52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO
IMPLEMENT STATUTES OR EXECUTIVE ORDERS—COMERCIAL
PRODUCTS AND COMMERCIAL SERVICES (MAY 2024)
(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial products and commercial services:
(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)). (2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered Entities (DEC 2023) (Section 1634 of Pub. L. 115-91). (3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (NOV 2021) (Section 889(a)(1)(A) of Pub. L. 115-232). (4) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (NOV 2015). (5) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (MAR 2023) (31 U.S.C. 3903 and 10 U.S.C. 3801).
(6) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553). (7) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77 and 108-78 ( 19 U.S.C. 3805 note)).
(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial products and commercial services: [ Contracting Officer check as appropriate.] *[Contracting Officer check as appropriate.]*
X (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (JUN 2020), with Alternate I (NOV 2021) (41 U.S.C. 4704 and 10 U.S.C. 4655).
X (2) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021) (41 U.S.C. 3509)).
X (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.) 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 71 of 155
ATTACHMENT A 608
X (4) 52.203-17, Contractor Employee Whistleblower Rights (NOV 2023) ( 41 U.S.C. 4712); this clause does not apply to contracts of DoD, NASA, the Coast Guard, or applicable elements of the intelligence community—see FAR 3.900(a).
X (5) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (JUN 2020) (Pub. L. 109-282) ( 31 U.S.C. 6101 note).
N/A (6) [Reserved].
X (7) 52.204-14, Service Contract Reporting Requirements (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).
X (8) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).
X (9) 52.204–27, Prohibition on a ByteDance Covered Application (June 2023) (Section 102 of Division R of Pub. L. 117–328).
X (10) 52.204–28, Federal Acquisition Supply Chain Security Act Orders—Federal Supply Schedules, Governmentwide Acquisition Contracts, and Multi-Agency Contracts. (DEC 2023) (Pub. L. 115–390, title II).
X (11) (i) 52.204–30, Federal Acquisition Supply Chain Security Act Orders—Prohibition. (DEC 2023) (Pub. L. 115–390, title II). (ii) Alternate I (DEC 2023) of 52.204–30.
X (12) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (NOV 2021) (31 U.S.C. 6101 note).
X (13) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (OCT 2018) (41 U.S.C. 2313).
N/A (14) [Reserved]
X (15) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (OCT 2022) (15 U.S.C. 657a).
N/A (16) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (OCT 2022) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).
N/A (17) [Reserved]
X (18) (i) 52.219-6, Notice of Total Small Business Set-Aside (NOV 2020) (15 U.S.C. 644).
Required as Applicable (ii) Alternate I (MAR 2020) of 52.219-6.
N/A (19) (i) 52.219-7, Notice of Partial Small Business Set-Aside (NOV 2020) (15 U.S.C. 644).
N/A (ii) Alternate I (MAR 2020) of 52.219-7.
X (20) 52.219-8, Utilization of Small Business Concerns ((FEB 2024) (15 U.S.C. 637(d)(2) and (3)).
N/A (21) (i) 52.219-9, Small Business Subcontracting Plan ((SEP 2023) (15 U.S.C. 637(d)(4)).
N/A (ii) Alternate I (NOV 2016) of 52.219-9.
X (iii) Alternate II (NOV 2016) of 52.219-9.
N/A (iv) Alternate III (JUN 2020) of 52.219-9.
N/A (v) Alternate IV ((SEP 2023) of 52.219-9.
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ATTACHMENT A 609
X (22) (i) 52.219-13, Notice of Set-Aside of Orders (MAR 2020) (15 U.S.C. 644(r)).
N/A (ii) Alternate I (MAR 2020) of 52.219-13.
X (23) 52.219-14, Limitations on Subcontracting (OCT 2022) (15 U.S.C. 637s).
X (24) 52.219-16, Liquidated Damages—Subcontracting Plan (SEP 2021) (15 U.S.C. 637(d)(4)(F)(i)).
X (25) 52.219–27, Notice of Set-Aside for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns Eligible Under the SDVOSB Program (FEB 2024) (15 U.S.C. 657f).
X (26) (i) 52.219-28, Post Award Small Business Program Rerepresentation ((FEB 2024) (15 U.S.C. 632(a)(2)).
N/A (ii) Alternate I (MAR 2020) of 52.219-28.
X (27) 52.219-29, Notice of Set-Aside for, or Sole-Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (OCT 2022) (15 U.S.C. 637(m)).
X (28) 52.219-30, Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program (OCT 2022) (15 U.S.C. 637(m)).
N/A (29) 52.219-32, Orders Issued Directly Under Small Business Reserves (MAR 2020) (15 U.S.C. 644(r)).
X (30) 52.219-33, Nonmanufacturer Rule (SEP 2021) (15U.S.C. 637(a)(17)).
X (31) 52.222-3, Convict Labor (JUN 2003) (E.O.11755).
X (32) 52.222-19, Child Labor-Cooperation with Authorities and Remedies (FEB 2024) (E.O.13126).
X (33) 52.222-21, Prohibition of Segregated Facilities (APR 2015).
X (34) (i) 52.222-26, Equal Opportunity (SEP 2016) (E.O.11246).
N/A (ii) Alternate I (FEB 1999) of 52.222-26.
X (35) (i) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 U.S.C. 4212).
N/A (ii) Alternate I (JUL 2014) of 52.222-35.
X (36) (i) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29 U.S.C. 793).
N/A (ii) Alternate I (JUL 2014) of 52.222-36.
X (37) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212).
X (38) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC 2010) (E.O. 13496).
X (39) (i) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C. chapter 78 and E.O. 13627).
N/A (ii) Alternate I (MAR 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627).
X (40) 52.222-54, Employment Eligibility Verification (MAY 2022). (Executive Order 12989). 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 73 of 155
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(Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial products or commercial services as prescribed in FAR 22.1803.) X (41) (i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA–Designated Items (May 2008) ( 42 U.S.C. 6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially available off-the-shelf items.)
N/A (ii) Alternate I (MAY 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.) Required as Applicable (42) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (MAY 2024) (42 U.S.C. 7671, et seq.).
Required as Applicable (43) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (MAY 2024) (42 U.S.C. 7671, et seq.).
Required as Applicable (44) 52.223-20, Aerosols (MAY 2024) (42 U.S.C. 7671, et seq.) Required as Applicable (45) 52.223-21, Foams (MAY 2024) (42 U.S.C. 7671, et seq.).
X (46) 52.223-23, Sustainable Products and Services (MAY 2024) (E.O. 14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C. 7671l).
X (47) (i) 52.224-3 Privacy Training (JAN 2017) (5 U.S.C. 552 a).
N/A (ii) Alternate I (JAN 2017) of 52.224-3.
Required as Applicable (48) (i) 52.225-1, Buy American-Supplies (OCT 2022) (41 U.S.C. chapter 83).
N/A (ii) Alternate I (OCT 2022) of 52.225-1.
N/A (49) (i) 52.225-3, 52.225-3, Buy American—Free Trade Agreements—Israeli Trade Act (NOV 2023) (19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, 19 U.S.C. chapter 29 (sections 4501-4732), Public Law 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-43 N/A (ii) Alternate I [RESERVED].
N/A (iii) Alternate II (DEC 2022) of 52.225-3.
N/A (iv) Alternate III (FEB 2024) of 52.225-3.
N/A (v) Alternate IV (OCT 2022) of 52.225-3.
X (50) 52.225-5, Trade Agreements (NOV 2023) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).
X (51) 52.225-13, Restrictions on Certain Foreign Purchases (FEB 2021) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).
N/A (52) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. Subtitle A, Part V, Subpart G Note).
N/A (53) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov2007) (42 U.S.C. 5150).
N/A (54) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov2007) (42 U.S.C. 5150).
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ATTACHMENT A 611
X (55) 52.226-8, Encouraging Contractor Policies to Ban Text Messaging While Driving (May 2024) (E.O. 13513).
N/A (56) 52.229-12, Tax on Certain Foreign Procurements (FEB 2021) .
N/A (57) 52.232-29, Terms for Financing of Purchases of Commercial Products and Commercial Services (NOV 2021) (41 U.S.C. 4505, “10 U.S.C. 3805”).
N/A (58) 52.232-30, Installment Payments for Commercial Products and Commercial Services (NOV 2021) (41 U.S.C. 4505, 10 U.S.C. 3805).
N/A (59) 52.232-33, Payment by Electronic Funds Transfer-System for Award Management (OCT2018) (31 U.S.C. 3332).
N/A (60) 52.232-34, Payment by Electronic Funds Transfer-Other than System for Award Management (JUL 2013) (31 U.S.C. 3332).
X (61) 52.232-36, Payment by Third Party (MAY 2014) (31 U.S.C. 3332).
X (62) 52.239-1, Privacy or Security Safeguards (AUG 1996) (5 U.S.C. 552a).
X (63) 52.242-5, Payments to Small Business Subcontractors (JAN 2017) (15 U.S.C. 637(d)(13)).
X (64) (i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (NOV 2021)
( 46 U.S.C. 55305 and 10 U.S.C. 2631).
N/A (ii) Alternate I (APR 2003) of 52.247-64.
N/A (iii) Alternate II (NOV 2021) of 52.247-64.
(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial products and commercial services, that the Contracting Officer has indicated as being incorporated in this by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:
[Contracting Officer check as appropriate.]
X (1) 52.222-41, Service Contract Labor Standards (AUG 2018) (41 U.S.C. chapter67).
X (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (MAY 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).
X (3) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (Multiple Year and Option Contracts) (AUG
2018) (29 U.S.C. 206 and 41 U.S.C. chapter 67).
N/A (4) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (May 2014) ( 29U.S.C.206 and 41 U.S.C. chapter 67).
X (5) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (May 2014) (41 U.S.C. chapter 67).
X (6) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-Requirements (MAY 2014) (41 U.S.C. chapter 67).
X (7) 52.222-55, Minimum Wages Under Executive Order 13658 (JAN 2022). 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 75 of 155
ATTACHMENT A 612
Required as Applicable (8) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2022) (E.O. 13706).
Required as Applicable (9) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (Jun 2020) (42 U.S.C. 1792).
(d) Comptroller General Examination of Record. The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, as defined in FAR 2.101, on the date of award of this contract, and does not contain the clause at 52.215-2, Audit and Records-Negotiation. (1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract. (2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved. (3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.
(e)
(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial products or commercial services. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause- (i) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021) (41 U.S.C. 3509).
(ii) 52.203–17, Contractor Employee Whistleblower Rights (NOV 2023) (41 U.S.C. 4712). (iii) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)). (iv) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered Entities (DEC 2023) (Section 1634 of Pub. L. 115-91).
(v) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (NOV 2021) (Section 889(a)(1)(A) of Pub. L. 115-232). (vi) 52.204–27, Prohibition on a ByteDance Covered Application (June 2023) (Section 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 76 of 155
ATTACHMENT A 613
102 of Division R of Pub. L. 117–328).
(vii) (A) 52.204–30, Federal Acquisition Supply Chain Security Act Orders—Prohibition. (DEC 2023) (Pub. L. 115–390, title II).
(viii) 52.219-8, Utilization of Small Business Concerns ((FEB 2024) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds the applicable threshold specified in FAR 19.702(a) on the date of subcontract award, the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.
(ix) 52.222-21, Prohibition of Segregated Facilities (APR 2015). (x) 52.222-26, Equal Opportunity (SEP 2015) (E.O.11246). (xi) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 U.S.C. 4212). (xii) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29 U.S.C. 793).
(xiii) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212). (xiv) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40.
(xv) 52.222-41, Service Contract Labor Standards (AUG 2018) (41 U.S.C. chapter 67). (xvi)
(A) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C. chapter 78 and E.O 13627).
(B) Alternate I (MAR 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627). (xvii) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (May2014) (41 U.S.C. chapter 67).
(xviii) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-Requirements (MAY 2014) (41 U.S.C. chapter 67). (xix) 52.222-54, Employment Eligibility Verification (MAY 2022) (E.O. 12989). (xx) 52.222-55, Minimum Wages Under Executive Order 13658 (JAN 2022). (xxi) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2022) (E.O. 13706).
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ATTACHMENT A 614
(xxii)
(A) 52.224-3, Privacy Training (Jan 2017) (5 U.S.C. 552a). (B) Alternate I (JAN 2017) of 52.224-3.
(xxiii) 52.225-26, Contractors Performing Private Security Functions Outside the United States (OCT 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. Subtitle A, Part V, Subpart G Note. (xxiv) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (JUN 2020) (42 U.S.C. 1792). Flow down required in accordance with paragraph (e) of FAR clause
52.226-6.
(xxv) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (MAR 2023) (31 U.S.C. 3903 and 10 U.S.C. 3801). Flow down required in accordance with paragraph (c) of 52.232-40
(xxvi) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (NOV 2021)
(46 U.S.C. 55305 and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-64.
(2) While not required, the Contractor may include in its subcontracts for commercial products and commercial services a minimal number of additional clauses necessary to satisfy its contractual obligations.
(End of clause)
Begin Regulation
52.215-20 REQUIREMENTS FOR CERTIFIED COST OR PRICING
DATA AND DATA OTHER THAN CERTIFIED COST OR PRICING
DATA (NOV 2021) (ALTERNATE IV — OCT 2010)
(a) Submission of certified cost or pricing data is not required. (b) Provide data described below: [Insert description of the data and the format that are required, including the access to records necessary to permit an adequate evaluation of the proposed price in accordance with 15.403–3.]
(1) An offer prepared and submitted in accordance with the clause at 552.212-71, Contract Terms and Conditions Applicable to GSA Acquisitions of Commercial Products and Commercial Services and all Multiple Award Schedule offer submission requirements.
(2) Commercial sales practices. When the solicitation contains the basic clause 552.238-80 Industrial Funding Fee and Sales Reporting, the Offeror must submit information in the format provided in this solicitation in accordance with the instructions at Figure 515.4-2 of the GSA Acquisition Regulation (48 CFR 515.4-2), or submit information in the Offeror's own format. (3) Any additional supporting information requested by the Contracting Officer. The Contracting Officer may require additional supporting information, but only to the extent necessary to determine whether the price(s) offered is fair and reasonable.
(4) By submission of an offer in response to this solicitation, the Offeror grants the Contracting Officer 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 78 of 155
ATTACHMENT A 615
or an authorized representative the right to examine, at any time before initial award, books, records, documents, papers, and other directly pertinent records to verify the pricing, sales and other data related to the supplies or services proposed in order to determine the reasonableness of price(s). Access does not extend to
Offeror’s cost or profit information or other data relevant solely to the Offeror’s determination of the prices to be offered in the catalog or marketplace.
Begin Regulation
52.215-6 PLACE OF PERFORMANCE (OCT 1997)
(a) The offeror or respondent, in the performance of any contract resulting from this solicitation, ____ intends, ____ does not intend [check applicable box] to use one or more plants or facilities located at a different address from the address of the offeror or respondent as indicated in this proposal or response to request for information.
(b) If the offeror or respondent checks “intends” in paragraph (a) of this provision, it shall insert in the following spaces the required information:
Table - Other Place of Performance
Location County
Table - Plant or Facility If Other Than Bidder
Location County
Begin Regulation
52.216-1 TYPE OF CONTRACT (APR 1984)
The Government contemplates award of a Fixed Price with Economic Price Adjustment (EPA); Indefinite Delivery Indefinite Quantity (IDIQ) contract resulting from this solicitation.
Begin Regulation
52.216-32 TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (SEP 2019) (ALT I SEP 2019)
(a) In accordance with 41 U.S.C. 4106(g), the Agency has designated the following task-order and delivery-order Ombudsman for this contract. The Ombudsman must 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 79 of 155
ATTACHMENT A 616
review complaints from the Contractor concerning all task-order and delivery-order actions for this contract and ensure the Contractor is afforded a fair opportunity for consideration in the award of orders, consistent with the procedures in the contract. [Contracting Officer to insert name, address, telephone number, and email address for the Agency Ombudsman or provide the URL address where this information may be found.] (b) Consulting an ombudsman does not alter or postpone the timeline for any other process (e.g., protests).
(c) Before consulting with the Ombudsman, the Contractor is encouraged to first address complaints with the Contracting Officer for resolution. When requested by the Contractor, the Ombudsman may keep the identity of the concerned party or entity confidential, unless prohibited by law or agency procedure. (d) Contracts used by multiple agencies.
(1) This is a contract that is used by multiple agencies. Complaints from Contractors concerning orders placed under contracts used by multiple agencies are primarily reviewed by the task-order and delivery-order Ombudsman for the ordering activity.
(2) The ordering activity has designated the following task-order and delivery-order Ombudsman for this order:
[The ordering activity's contracting officer to insert the name, address, telephone number, and email address for the ordering activity's Ombudsman or provide the URL address where this information may be found.]
(3) Before consulting with the task-order and delivery-order Ombudsman for the ordering activity, the Contractor is encouraged to first address complaints with the ordering activity's Contracting Officer for resolution. When requested by the Contractor, the task-order and delivery-order Ombudsman for the ordering activity may keep the identity of the concerned party or entity confidential, unless prohibited by law or agency procedure.
End of clause
Begin Regulation
52.219-1 SMALL BUSINESS PROGRAM REPRESENTATIONS (FEB 2024) (a) Definitions. As used in this provision-
“Economically disadvantaged women-owned small business (EDWOSB) concern means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States and who are economically disadvantaged in accordance with 13 CFR part 127, and the concern is certified by SBA or an approved third-party certifier in accordance with 13 CFR 127.300. It automatically qualifies as a women-owned small business concern eligible under the WOSB Program.. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 80 of 155
ATTACHMENT A 617
“Service-disabled veteran-owned small business (SDVOSB) concern”- (1)(i) Not less than 51 percent of which is owned and controlled by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and (2) “Service-disabled veteran” means a veteran, as defined in 38 U.S.C.101(2), with a disability that is service-connected, as defined in 38 U.S.C.101(16). (ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran or; (2) A small business concern eligible under the SDVOSB Program in accordance with 13 CFR part 128 (see subpart 19.14).
(3) Service-disabled veteran, as used in this definition, means a veteran as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16), and who is registered in the Beneficiary Identification and Records Locator Subsystem, or successor system that is maintained by the Department of Veterans Affairs' Veterans Benefits Administration, as a service-disabled veteran.
Service-disabled veteran-owned small business (SDVOSB) concern eligible under the SDVOSB Program means an SDVOSB concern that—
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as certified by the Small Business Administration (SBA) in accordance with 13 CFR 128.300; or (2) Has represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
Service-disabled veteran-owned small business (SDVOSB) Program means a program that authorizes contracting officers to limit competition, including award on a sole-source basis, to SDVOSB concerns eligible under the SDVOSB Program.
“Small business concern”-
(1) Means a concern, including its affiliates, that is independently owned and operated, not dominant in its field of operation, and qualified as a small business under the criteria in 13 CFR part 121 and the size standard in paragraph (b) of this provision. (2) Affiliates, as used in this definition, means business concerns, one of whom directly or indirectly controls or has the power to control the others, or a third party or parties control or have the power to control the others. In determining whether affiliation exists, consideration is given to all appropriate factors including common ownership, common management, and contractual relationships. SBA determines affiliation based on the factors set forth at 13 CFR 121.103. “Small disadvantaged business concern, consistent with 13 CFR 124.1002, means a small business concern under the size standard applicable to the acquisition, that- (1) Is at least 51 percent unconditionally and directly owned (as defined at 13 CFR 124.105) by- (i) One or more socially disadvantaged (as defined at 13 CFR 124.103) and economically disadvantaged (as defined at 13 CFR 124.104) individuals who are citizens of the United States, and
(ii) Each individual claiming economic disadvantage has a net worth not exceeding $750,000 after taking into account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and
(2) The management and daily business operations of which are controlled (as defined at 13 CFR 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 81 of 155
ATTACHMENT A 618
124.106) by individuals who meet the criteria in paragraphs (1)(i) and (ii) of this definition. “Veteran-owned small business concern” means a small business concern- (1) Not less than 51 percent of which is owned by one or more veterans (as defined at 38 U.S.C.101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and
(2) The management and daily business operations of which are controlled by one or more veterans.
“Women-owned small business concern” means a small business concern- (1) That is at least 51 percent owned by one or more women; or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women; and (2) Whose management and daily business operations are controlled by one or more women Women-owned small business (WOSB) concern eligible under the WOSB Program (in accordance with 13 CFR part 127) means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States, and the concern is certified by SBA or an approved third-party certifier in accordance with 13 CFR 127.300. (b) (1) The North American Industry Classification System (NAICS) code for this acquisition is insert NAICS code [insert NAICS code].
(2) The small business size standard is insert size standard [insert size standard]. (3) The small business size standard for a concern that submits an offer, other than on a construction or service acquisition, but proposes to furnish an end item that it did not itself manufacture, process, or produce (i.e., nonmanufacturer), is 500 employees, or 150 employees for information technology value-added resellers under NAICS code 541519, if the acquisition—
(i) Is set aside for small business and has a value above the simplified acquisition threshold; (ii) Uses the HUBZone price evaluation preference regardless of dollar value, unless the offeror waives the price evaluation preference; or
(iii) Is an 8(a), HUBZone, service-disabled veteran-owned, economically disadvantaged women-owned, or women-owned small business set-aside or sole-source award regardless of dollar value. (c) Representations.
(1) The offeror represents as part of its offer that it (i) ____ is, ____ is not a small business concern.
(ii) It ____ is, ____ is not a small business joint venture that complies with the requirements of 13 CFR 121.103(h) and 13 CFR 125.8(a) and (b). [ The offeror shall enter the name and unique entity identifier of each party to the joint venture: __________.] (2) [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it ____ is, ____ is not, a small disadvantaged business concern as defined in 13 CFR 124.1002. (3) [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents as part of its offer that it ____ is, ____ is not a 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 82 of 155
ATTACHMENT A 619
women owned small business concern.
(4) Women-owned small business (WOSB) joint venture eligible under the WOSB Program.
The offeror represents as part of its offer that it ____ is, ____ is not a joint venture that complies with the requirements of 13 CFR 127.506(a) through (c). [ The offeror shall enter the name and unique entity identifier of each party to the joint venture: __________. (5) Economically disadvantaged women-owned small business (EDWOSB) joint venture. The offeror represents as part of its offer that it ____ is, ____ is not a joint venture that complies with the requirements of 13 CFR 127.506(a) through (c). [ The offeror shall enter the name and unique entity identifier of each party to the joint venture: __________ .] (6) Veteran-owned small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents as part of its offer that it ____ is, ____ is not a veteran-owned small business concern. (7) SDVOSB concern. [Complete only if the offeror represented itself as a veteran-owned small business concern in paragraph (c)(6) of this provision.] The offeror represents as part of its offer that it ____ is, ____ is not an SDVOSB concern.
(8) SDVOSB joint venture eligible under the SDVOSB Program. [ Complete only if the offeror represented itself as a SDVOSB concern in paragraph (c)(7) of this provision]. The offeror represents as part of its offer that it ____ is, ____ is not a SDVOSB joint venture eligible under the SDVOSB Program that complies with the requirements of 13 CFR 128.402. [ The offeror shall enter the name and unique entity identifier of each party to the joint venture:
__________.]
(9) HUBZone small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents, as part of its offer, that—
(i) It ____ is, ____ is not a HUBZone small business concern listed, on the date of this representation, as having been certified by SBA as a HUBZone small business concern in the Dynamic Small Business Search and SAM, and will attempt to maintain an employment rate of HUBZone residents of 35 percent of its employees during performance of a HUBZone contract (see 13 CFR 126.200(e)(1)); and (ii) It ____ is, ____ is not a HUBZone joint venture that complies with the requirements of 13 CFR 126.616(a) through (c). [ The offeror shall enter the name and unique entity identifier of each party to the joint venture: __________.] Each HUBZone small business concern participating in the HUBZone joint venture shall provide representation of its HUBZone status.
(d) Notice. Under 15 U.S.C.645(d), any person who misrepresents a firm’s status as a business concern that is small, HUBZone small, small disadvantaged, service-disabled veteran-owned small, economically disadvantaged women-owned small, or women-owned small eligible under the WOSB Program in order to obtain a contract to be awarded under the preference programs established pursuant to section 8, 9, 15, 31, and 36 of the Small Business Act or any other provision of Federal law that specifically references section 8(d) for a definition of program eligibility, shall- (1) Be punished by imposition of fine, imprisonment, or both; (2) Be subject to administrative remedies, including suspension and debarment; and (3) Be ineligible for participation in programs conducted under the authority of the Act. (End of provision)
Begin Regulation
52.223-3 HAZARDOUS MATERIAL IDENTIFICATION AND
MATERIAL SAFETY DATA (FEB 2021) (ALTERNATE I - JUL 1995) 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 83 of 155
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(a) Hazardous material, as used in this clause, includes any material defined as hazardous under the latest version of Federal Standard No. 313 (including revisions adopted during the term of the contract). (b) The offeror must list any hazardous material, as defined in paragraph (a) of this clause, to be delivered under this contract. The hazardous material shall be properly identified and include any applicable identification number, such as National Stock Number or Special Item Number. This information shall also be included on the Material Safety Data Sheet submitted under this contract.
Material (if none insert
None)
Identification No.
(c) This list must be updated during performance of the contract whenever the Contractor determines that any other material to be delivered under this contract is hazardous. (d) The apparently successful offeror agrees to submit, for each item as required prior to award, a Material Safety Data Sheet, meeting the requirements of 29 CFR 1910.1200(g) and the latest version of Federal Standard No. 313, for all hazardous material identified in paragraph (b) of this clause. Data shall be submitted in accordance with Federal Standard No. 313, whether or not the apparently successful offeror is the actual manufacturer of these items. Failure to submit the Material Safety Data Sheet prior to award may result in the apparently successful offeror being considered nonresponsible and ineligible for award.
(e) If, after award, there is a change in the composition of the item(s) or a revision to Federal Standard No. 313, which renders incomplete or inaccurate the data submitted under paragraph (d) of this clause, the Contractor shall promptly notify the Contracting Officer and resubmit the data. (f) Neither the requirements of this clause nor any act or failure to act by the Government shall relieve the Contractor of any responsibility or liability for the safety of Government, Contractor, or subcontractor personnel or property.
(g) Nothing contained in this clause shall relieve the Contractor from complying with applicable Federal, State, and local laws, codes, ordinances, and regulations (including the obtaining of licenses and permits) in connection with hazardous material.
(h) The Government's rights in data furnished under this contract with respect to hazardous material are as follows:
(1) To use, duplicate and disclose any data to which this clause is applicable. The purposes of this right are to—
(i) Apprise personnel of the hazards to which they may be exposed in using, handling, packaging, transporting, or disposing of hazardous materials; (ii) Obtain medical treatment for those affected by the material; and (iii) Have others use, duplicate, and disclose the data for the Government for these purposes.
(2) To use, duplicate, and disclose data furnished under this clause, in accordance with subparagraph (h)(1) of this clause, in precedence over any other clause of this contract providing for rights in data.
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ATTACHMENT A 621
(3) The Government is not precluded from using similar or identical data acquired from other sources.
(i) Except as provided in paragraph (i)(2) the Contractor shall prepare and submit a sufficient number of Material Safety Data Sheets (MSDS's), meeting the requirements of 29 CFR 1910.1200(g) and the latest version of Federal Standard No. 313, for all hazardous materials identified in paragraph (b) of this clause.
(1) For items shipped to consignees, the Contractor shall include a copy of the MSDS with the packing list or other suitable shipping document which accompanies each shipment.
Alternatively, the Contractor is permitted to transmit MSDS's to consignees in advance of receipt of shipments by consignees, if authorized in writing by the Contracting Officer. (2) For items shipped to consignees identified by mailing address as agency depots, distribution centers or customer supply centers, the Contractor shall provide one copy of the MSDS's in or on each shipping container. If affixed to the outside of each container, the MSDS must be placed in a weather resistant envelope.
Note: Regulation 52.223-3
Safety Data Sheets, hazardous material labels and other relevant data should not be submitted to the MAS Contracting Officer. This information should be provided directly to the ordering activity in accordance with this clause.
Begin Regulation
52.225-6 TRADE AGREEMENTS CERTIFICATE (FEB 2021)
(a) The offeror certifies that each end product, except those listed in paragraph (b) of this provision, is a U.S.-made or designated country end product, as defined in the clause of this solicitation entitled "Trade Agreements."
(b) The offeror shall list as other end products those supplies that are not U.S.-made or designated country end products.
Other End Products:
Line Item No. Country of Origin
(List as Necessary)
(c) The Government will evaluate offers in accordance with the policies and procedures of Part 25 of the Federal Acquisition Regulation. For line items covered by the WTO GPA, the Government will evaluate offers of U.S.-made or designated country end products without regard to the restrictions of the Buy American statute. The Government will consider for award only offers of U.S.-made or designated country end products unless the Contracting Officer determines that there are no offers for such products or that the offers for those products are insufficient to fulfill the requirements of this solicitation.
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Begin Regulation
52.233-2 SERVICE OF PROTEST (SEP 2006)
(a) Protests, as defined in section 33.101 of the Federal Acquisition Regulation, that are filed directly with an agency, and copies of any protests that are filed with the Government Accountability Office (GAO), shall be served on the Contracting Officer (addressed as follows) by obtaining written and dated acknowledgment of receipt from:
General Services Administration
GSA/FAS/3Q1 100 S. Independence Mall West Philadelphia, PA 19106 (b) The copy of any protest shall be received in the office designated above within one day of filing a protest with the GAO.
Begin Regulation
52.252-1 SOLICITATION PROVISIONS INCORPORATED BY
REFERENCE (FEB 1998)
This solicitation incorporates one or more solicitation provisions by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. The offeror is cautioned that the listed provisions may include blocks that must be completed by the offeror and submitted with its quotation or offer. In lieu of submitting the full text of those provisions, the offeror may identify the provision by paragraph identifier and provide the appropriate information with its quotation or offer. Also, the full text of a solicitation provision may be accessed electronically at this/these address(es):
For contract provisions which are contained in the Federal Acquisition Regulation (FAR) the address is http://acquisition.gov/far.
Number Title Clause/Provision
52.203-11 CERTIFICATION AND DISCLOSURE
REGARDING PAYMENTS TO
INFLUENCE CERTAIN FEDERAL
TRANSACTIONS (SEP 2007)
Provision
52.209-2 PROHIBITION ON CONTRACTING
WITH INVERTED DOMESTIC
CORPORATIONS - REPRESENTATION
(NOV 2015)
Provision
52.212-1 INSTRUCTIONS TO OFFERORS -
COMMERCIAL PRODUCTS AND
COMMERCIAL SERVICES (SEP 2023)
Provision
52.214-34 SUBMISSION OF OFFERS IN THE
ENGLISH LANGUAGE (APR 1991)
Provision
52.214-35 SUBMISSION OF OFFERS IN U.S.
CURRENCY (APR 1991)
Provision
52.222-24 PREAWARD ON-SITE EQUAL
OPPORTUNITY COMPLIANCE REVIEW
(FEB 1999)
Provision
52.222-56 CERTIFICATION REGARDING Provision
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ATTACHMENT A 623
TRAFFICKING IN PERSONS
COMPLIANCE PLAN (OCT 2020)
52.223-1 BIOBASED PRODUCT
CERTIFICATION (MAY 2024)
Provision
52.223-4 RECOVERED MATERIAL
CERTIFICATION (MAY 2008)
Provision
52.225-25 PROHIBITION ON CONTRACTING
WITH ENTITIES ENGAGING IN
CERTAIN ACTIVITIES OR
TRANSACTIONS RELATING TO IRAN -
REPRESENTATION AND
CERTIFICATIONS (JUN 2020)
Provision
52.237-1 SITE VISIT (APR 1984) Provision
52.237-10 IDENTIFICATION OF
UNCOMPENSATED OVERTIME (MAR
2015)
Provision
552.252-5 AUTHORIZED DEVIATIONS IN
PROVISIONS (NOV 2021) (DEVIATION
FAR 52.252-5)
Provision
Begin Regulation
52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)
This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es):
For contract clauses which are contained in the Federal Acquisition Regulation (FAR) the address is http://acquisition.gov/far/.
Number Title Clause/Provision
52.202-1 DEFINITIONS (JUN 2020) Clause
52.203-17 CONTRACTOR EMPLOYEE
WHISTLEBLOWER RIGHTS AND
REQUIREMENT TO INFORM
EMPLOYEES OF WHISTLEBLOWER
RIGHTS (NOV 2023)
Clause
52.203-3 GRATUITIES (APR 1984) Clause
52.204-13 SYSTEM FOR AWARD MANAGEMENT
MAINTENANCE (OCT 2018)
Clause
52.204-19 INCORPORATION BY REFERENCE
OF REPRESENTATIONS AND
CERTIFICATIONS (DEC 2014)
Clause
52.204-7 SYSTEM FOR AWARD MANAGEMENT
(OCT 2018)
Clause
52.204-9 PERSONAL IDENTITY VERIFICATION Clause
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ATTACHMENT A 624
OF CONTRACTOR PERSONNEL (JAN
2011)
52.208-9 CONTRACTOR USE OF MANDATORY
SOURCES OF SUPPLY OR SERVICES
(MAY 2014)
Clause
52.209-10 PROHIBITION ON CONTRACTING
WITH INVERTED DOMESTIC
CORPORATIONS (NOV 2015)
Clause
52.215-21 REQUIREMENTS FOR CERTIFIED
COST OR PRICING DATA AND DATA
OTHER THAN CERTIFIED COST OR
PRICING DATA - MODIFICATIONS
(NOV 2021) (ALTERNATE IV - OCT
2010)
Clause
52.216-18 ORDERING (AUG 2020) Clause
52.216-19 ORDER LIMITATIONS (OCT 1995) Clause
52.217-8 OPTION TO EXTEND SERVICES (NOV
1999)
Clause
52.222-1 NOTICE TO THE GOVERNMENT OF
LABOR DISPUTES (FEB 1997)
Clause
52.222-29 NOTIFICATION OF VISA DENIAL (APR
2015)
Clause
52.222-49 SERVICE CONTRACT LABOR
STANDARDS - PLACE OF
PERFORMANCE UNKNOWN (MAY
2014)
Clause
52.223-10 WASTE REDUCTION PROGRAM (MAY
2024)
Clause
52.223-2 REPORTING OF BIOBASED
PRODUCTS UNDER SERVICE AND
CONSTRUCTION CONTRACTS (MAY
2024)
Clause
52.223-5 POLLUTION PREVENTION AND
RIGHT-TO-KNOW INFORMATION (MAY
2024)
Clause
52.224-1 PRIVACY ACT NOTIFICATION (APR
1984)
Clause
52.224-2 PRIVACY ACT (APR 1984) Clause
52.224-3 PRIVACY TRAINING (JAN 2017) Clause
52.226-7 DRUG-FREE WORKPLACE (MAY
2024)
Clause
52.226-8 ENCOURAGING CONTRACTOR
POLICIES TO BAN TEXT MESSAGING
WHILE DRIVING (MAY 2024)
Clause
52.227-14 RIGHTS IN DATA - GENERAL (MAY
2014)
Clause
52.232-17 INTEREST (MAY 2014) (DEVIATION I -
MAY 2003)
Clause
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ATTACHMENT A 625
52.232-37 MULTIPLE PAYMENT
ARRANGEMENTS (MAY 1999)
Clause
52.233-1 DISPUTES (MAY 2014) Clause
52.237-2 PROTECTION OF GOVERNMENT
BUILDINGS, EQUIPMENT, AND
VEGETATION (APR 1984)
Clause
52.237-3 CONTINUITY OF SERVICES (JAN
1991)
Clause
52.242-13 BANKRUPTCY (JUL 1995) Clause
52.242-15 STOP-WORK ORDER (AUG 1989) Clause
52.242-5 PAYMENTS TO SMALL BUSINESS
SUBCONTRACTORS (JAN 2017)
Clause
52.245-1 GOVERNMENT PROPERTY (SEP
2021)
Clause
52.245-9 USE AND CHARGES (APR 2012) Clause
52.246-4 INSPECTION OF SERVICES -
FIXED-PRICE (AUG 1996) (DEVIATION
I - MAY 2003)
Clause
52.247-32 F.O.B. ORIGIN, FREIGHT PREPAID
(FEB 2006)
Clause
52.247-34 F.O.B. DESTINATION (NOV 1991) Clause
52.247-38 F.O.B. INLAND CARRIER, POINT OF
EXPORTATION (FEB 2006)
Clause
52.247-38 F.O.B. INLAND CARRIER, POINT OF
EXPORTATION (FEB 2006)
(DEVIATION I - FEB 2007)
Clause
52.247-39 F.O.B. INLAND POINT, COUNTRY OF
IMPORTATION (APR 1984)
Clause
52.247-65 F.O.B. ORIGIN, PREPAID FREIGHT -
SMALL PACKAGE SHIPMENTS (JAN
1991)
Clause
52.251-1 GOVERNMENT SUPPLY SOURCES
(APR 2012)
Clause
552.211-73 MARKING (FEB 1996) Clause
552.211-75 PRESERVATION, PACKAGING, AND
PACKING (FEB 1996) (ALTERNATE I -
MAY 2003)
Clause
552.211-77 PACKING LIST (FEB 1996)
(ALTERNATE I - MAY 2003)
Clause
552.211-89 NON-MANUFACTURED WOOD
PACKAGING MATERIAL FOR EXPORT
(JUL 2016)
Clause
552.229-71 FEDERAL EXCISE TAX - C
GOVERNMENT (SEP 1999)
Clause
552.252-6 AUTHORIZED DEVIATIONS IN
CLAUSES (NOV 2021) (DEVIATION
FAR 52.252-6)
Clause
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ATTACHMENT A 626
Begin Regulation
552.212-4 CONTRACT TERMS AND CONDITIONS –
COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
(NOV 2023) (DEVIATION – FEB 2007) (FAR DEVIATION - JAN
2023)
(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights — (1) Within a reasonable time after the defect was discovered or should have been discovered; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.
(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the credit card), the Contractor may not assign its rights to receive payment under this contract.
(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.
(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at Federal Acquisition Regulation (FAR) 52.233-1, Disputes, which is incorporated herein by reference.
The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.
(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. (f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence. (g) Invoice.
(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include —
(i) Name and address of the Contractor;
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ATTACHMENT A 627
(ii) Invoice date and number;
(iii) Contract number, line item number and, if applicable, the order number; (iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;
(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on an Government bill of lading; (vi) Terms of any discount for prompt payment offered;
(vii) Name and address of official to whom payment is to be sent; (viii) Name, title, and phone number of person to notify in event of defective invoice; and (ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.
(x) Electronic funds transfer (EFT) banking information. (A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.
(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer — System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer—Other Than System for Award Management), or applicable agency procedures.
(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.
(2) The due date for making invoice payments by the designated payment office is the later of the following two events:
(i) The 10th day after the designated billing office receives a proper invoice from the Contractor. If the designated billing office fails to annotate the invoice with the date of receipt at the time of receipt, the invoice payment due date shall be the 10th day after the date of the Contractor’s invoice; provided the Contractor submitted a proper invoice and no disagreement exists over quantity, quality, or Contractor compliance with contract requirements.
(ii) The 10th day after Government acceptance of supplies delivered or services-performed by the Contractor.
(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.
(i) Payment.
(1) Items accepted. Payment shall be made for items accepted by the Government that have been 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 91 of 155
ATTACHMENT A 628
delivered to the delivery destinations set forth in this contract. (2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315. (3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.
(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made. (5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall —
(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the —
(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);
(B) Affected contract number and delivery order number, if applicable; (C) Affected line item or subline item, if applicable; and (D) Contractor point of contact.
(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.
(6) Interest.
(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid. (ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.
(iii) Final decisions. The Contracting Officer will issue a final decision as required by
33.211 if —
(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;
(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or
(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).
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ATTACHMENT A 629
(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.
(v) Amounts shall be due at the earliest of the following dates:
(A) The date fixed under this contract.
(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.
(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on —
(A) The date on which the designated office receives payment from the Contractor;
(B) The date of issuance of an Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or
(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.
(vii) The interest charge made under this clause may be reduced under the procedures prescribed in FAR 32.608-2 in effect on the date of this contract. (j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:
(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or (2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.
(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties. (l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.
(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.
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ATTACHMENT A 630
(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.
(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract. (p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.
(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract. (r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; “10 U.S.C. 4701” relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.
(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:
(1) The schedule of supplies/services.
(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements – Unenforceable Clauses paragraphs of this clause. (3) The clause at 52.212-5.
(4) Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements – Unenforceable Clauses provision. (5) Solicitation provisions if this is a solicitation.
(6) Other paragraphs of this clause.
(7) The Standard Form 1449.
(8) Other documents, exhibits, and attachments.
(9) The specification.
(t) [Reserved]
(u) Unauthorized Obligations.
(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:
(i) Any such language, provision, or clause is unenforceable against the Government. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 94 of 155
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(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.
(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.
(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.
(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.
(w) Commercial supplier agreements – unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:
(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the Government, the following shall apply:
(i) Applicability. This agreement is a part of a contract between the commercial supplier and the Government for the acquisition of the supply or service that necessitates a license (including all contracts, task orders, and delivery orders under FAR Part 12). (ii) End user. This agreement shall bind the Government as end user but shall not operate to bind an Government employee or person acting on behalf of the Government in his or her personal capacity.
(iii) Law and disputes. This agreement is governed by Federal law. (A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted. (B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted. (C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted. (iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the Government to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in subparagraph (d) (Disputes). (v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).
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(vi) Updating terms.
(A) After award, the contractor may unilaterally revise commercial supplier agreement terms if they are not material. A material change is defined as:
(1) Terms that change the Government’s rights or obligations; (2) Terms that increase Government prices;
(3) Terms that decrease overall level of service; or
(4) Terms that limit any other Government right addressed elsewhere in this contract.
(B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.
(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.
(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative. (viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S.
Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.
(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user’s compliance with this agreement is hereby amended as follows:
(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the Government. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.
(B) This charge, if disputed by the Government, will be resolved in accordance with subparagraph (d) (Disputes); no payment obligation shall arise on the part of the Government until the conclusion of the dispute process. (C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.
(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract. (xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under subparagraph (b) of this clause. (xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 96 of 155
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applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act.
Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.
(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevail to the extent of such inconsistency.
Note: Regulation 552.212-4
This clause applies to fixed price orders.
Begin Regulation
552.212-4 CONTRACT TERMS AND CONDITIONS -
COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
(NOV 2023) (FAR DEVIATION - JAN 2023) (ALTERNATE I - NOV 2021) (DEVIATION - FEB 2007
(a) Inspection/Acceptance.
(1) The Government has the right to inspect and test all materials furnished and services performed under this contract, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the Contractor or any subcontractor engaged in contract performance. The Government will perform inspections and tests in a manner that will not unduly delay the work. (2) If the Government performs inspection or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish and shall require subcontractors to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties. (3) Unless otherwise specified in the contract, the Government will accept or reject services and materials at the place of delivery as promptly as practicable after delivery, and they will be presumed accepted 60 days after the date of delivery, unless accepted earlier. (4) At any time during contract performance, but not later than 6 months (or such other time as may be specified in the contract) after acceptance of the services or materials last delivered under this contract, the Government may require the Contractor to replace or correct services or materials that at time of delivery failed to meet contract requirements. Except as otherwise specified in paragraph (a)(6) of this clause, the cost of replacement or correction shall be determined under paragraph (i) of this clause, but the “hourly rate” for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit.
Unless otherwise specified below, the portion of the “hourly rate” attributable to profit shall be 10 percent. The Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for replacement or correction, and, when required, shall disclose the corrective action taken. [Insert portion of labor rate attributable to profit.]
(5) (i) If the Contractor fails to proceed with reasonable promptness to perform required replacement or correction, and if the replacement or correction can be performed within the ceiling price (or the ceiling price as increased by the Government), the Government may —
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(A) By contract or otherwise, perform the replacement or correction, charge to the Contractor any increased cost, or deduct such increased cost from any amounts paid or due under this contract; or
(B) Terminate this contract for cause.
(ii) Failure to agree to the amount of increased cost to be charged to the Contractor shall be a dispute under the Disputes clause of the contract. (6) Notwithstanding paragraphs (a)(4) and (5) above, the Government may at any time require the Contractor to remedy by correction or replacement, without cost to the Government, any failure by the Contractor to comply with the requirements of this contract, if the failure is due to — (i) Fraud, lack of good faith, or willful misconduct on the part of the Contractor's managerial personnel; or
(ii) The conduct of one or more of the Contractor’s employees selected or retained by the Contractor after any of the Contractor’s managerial personnel has reasonable grounds to believe that the employee is habitually careless or unqualified. (7) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under this contract. (8) The Contractor has no obligation or liability under this contract to correct or replace materials and services that at time of delivery do not meet contract requirements, except as provided in this clause or as may be otherwise specified in the contract. (9) Unless otherwise specified in the contract, the Contractor's obligation to correct or replace Government-furnished property shall be governed by the clause pertaining to Government property.
(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract. (c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.
(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at Federal Acquisition Regulation (FAR) 52.233-1, Disputes, which is incorporated herein by reference.
The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.
(e) Definitions.
(1) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. As used in this clause —
(i) Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.
(ii) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 98 of 155
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are —
(A) Performed by the contractor;
(B) Performed by the subcontractors; or
(C) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.
(iii) Materials means —
(A) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control; (B) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;
(C) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.); (D) The following subcontracts for services which are specifically excluded from the hourly rate: Each order must list separately subcontracts for services excluded from the FSS Hourly Rates; and
(E) Indirect costs specifically provided for in this clause. (iv) Subcontract means any contract, as defined in FAR subpart 2.1, entered into with a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.
(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence. (g) Invoice.
(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include—
(i) Name and address of the Contractor;
(ii) Invoice date and number;
(iii) Contract number, line item number and, if applicable, the order number; (iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;
(v) Shipping number and date of shipment, including the bill of lading number and weight 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 99 of 155
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of shipment if shipped on Government bill of lading;
(vi) Terms of any discount for prompt payment offered;
(vii) Name and address of official to whom payment is to be sent; (viii) Name, title, and phone number of person to notify in event of defective invoice; and (ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.
(x) Electronic funds transfer (EFT) banking information. (A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.
(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer—System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer—Other Than System for Award Management), or applicable agency procedures.
(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.
(2) The due date for making invoice payments by the designated payment office is the later of the following two events:
(i) The 10th day after the designated billing office receives a proper invoice from the Contractor. If the designated billing office fails to annotate the invoice with the date of receipt at the time of receipt, the invoice payment due date shall be the 10th day after the date of the Contractor’s invoice; provided the Contractor submitted a proper invoice and no disagreement exists over quantity, quality, or Contractor compliance with contract requirements.
(ii) The 10th day after Government acceptance of supplies delivered or services performed by the Contractor.
(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.
(i) Payments.
(1) Work performed. The Government will pay the Contractor as follows upon the submission of commercial invoices approved by the Contracting Officer:
(i) Hourly rate.
(A) The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the contract by the number of direct labor hours performed.
Fractional parts of an hour shall be payable on a prorated basis. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 100 of 155
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(B) The rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract. Labor hours incurred to perform tasks for which labor qualifications were specified in the contract will not be paid to the extent the work is performed by individuals that do not meet the qualifications specified in the contract, unless specifically authorized by the Contracting Officer.
(C) Invoices may be submitted once each month (or at more frequent intervals, if approved by the Contracting Officer) to the Contracting Officer or the authorized representative.
(D) When requested by the Contracting Officer or the authorized representative, the Contractor shall substantiate invoices (including any subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment, individual daily job timecards, records that verify the employees meet the qualifications for the labor categories specified in the contract, or other substantiation specified in the contract.
(E) Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis.
(1) If no overtime rates are provided in the Schedule and the Contracting Officer approves overtime work in advance, overtime rates shall be negotiated.
(2) Failure to agree upon these overtime rates shall be treated as a dispute under the Disputes clause of this contract.
(3) If the Schedule provides rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer.
(ii) Materials.
(A) If the Contractor furnishes materials that meet the definition of a commercial product at FAR 2.101, the price to be paid for such materials shall not exceed the Contractor’s established catalog or market price, adjusted to reflect the — (1) Quantities being acquired; and
(2) Any modifications necessary because of contract requirements. (B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of this clause, the Government will reimburse the Contractor the actual cost of materials (less any rebates, refunds, or discounts received by the contractor that are identifiable to the contract) provided the Contractor —
(1) Has made payments for materials in accordance with the terms and conditions of the agreement or invoice; or
(2) Makes these payments within 30 days of the submission of the Contractor’s payment request to the Government and such payment is in accordance with the terms and conditions of the agreement or invoice. (C) To the extent able, the Contractor shall —
(1) Obtain materials at the most advantageous prices available with due regard to securing prompt delivery of satisfactory materials; and (2) Give credit to the Government for cash and trade discounts, rebates, scrap, commissions, and other amounts that are identifiable to the contract. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 101 of 155
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(D) Other Costs. Unless listed below, other direct and indirect costs will not be reimbursed.
(1) Other Direct Costs. The Government will reimburse the Contractor on the basis of actual cost for the following, provided such costs comply with the requirements in paragraph (i)(1)(ii)(B) of this clause: Each order must list separately the elements of other direct costs for that order. (2) Indirect Costs (Material Handling, Subcontract Administration, etc.). The Government will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price:
Each order must list separately the fixed amount for the indirect costs and payment schedule; if no indirect costs are approved, insert “None.” (2) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule and the Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within such ceiling price. If at any time the Contractor has reason to believe that the hourly rate payments and material costs that will accrue in performing this contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling price in the Schedule, the Contractor shall notify the Contracting Officer giving a revised estimate of the total price to the Government for performing this contract with supporting reasons and documentation. If at any time during the performance of this contract, the Contractor has reason to believe that the total price to the Government for performing this contract will be substantially greater or less than the then stated ceiling price, the Contractor shall so notify the Contracting Officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documentation. If at any time during performance of this contract, the Government has reason to believe that the work to be required in performing this contract will be substantially greater or less than the stated ceiling price, the Contracting Officer will so advise the Contractor, giving the then revised estimate of the total amount of effort to be required under the contract.
(3) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price. (4) Access to records. At any time before final payment under this contract, the Contracting Officer (or authorized representative) will have access to the following (access shall be limited to the listing below unless otherwise agreed to by the Contractor and the Contracting Officer):
(i) Records that verify that the employees whose time has been included in any invoice meet the qualifications for the labor categories specified in the contract; (ii) For labor hours (including any subcontractor hours reimbursed at the hourly rate in the schedule), when timecards are required as substantiation for payment — (A) The original timecards (paper-based or electronic); (B) The Contractor’s timekeeping procedures;
(C) Contractor records that show the distribution of labor between jobs or contracts; and
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(D) Employees whose time has been included in any invoice for the purpose of verifying that these employees have worked the hours shown on the invoices. (iii) For material and subcontract costs that are reimbursed on the basis of actual cost — (A) Any invoices or subcontract agreements substantiating material costs; and (B) Any documents supporting payment of those invoices. (5) Overpayments/Underpayments. Each payment previously made shall be subject to reduction to the extent of amounts, on preceding invoices, that are found by the Contracting Officer not to have been properly payable and shall also be subject to reduction for overpayments or to increase for underpayments. The Contractor shall promptly pay any such reduction within 30 days unless the parties agree otherwise. The Government within 30 days will pay any such increases, unless the parties agree otherwise. The Contractor’s payment will be made by check. If the Contractor becomes aware of a duplicate invoice payment or that the Government has otherwise overpaid on an invoice payment, the Contractor shall —
(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the —
(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);
(B) Affected contract number and delivery order number, if applicable; (C) Affected line item or subline item, if applicable; and (D) Contractor point of contact.
(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.
(6) (i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury, as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, and then at the rate applicable for each six month period as established by the Secretary until the amount is paid.
(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.
(iii) Final Decisions. The Contracting Officer will issue a final decision as required by
33.211 if —
(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt in a timely manner;
(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or
(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see FAR 32.607-2). 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 103 of 155
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(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.
(v) Amounts shall be due at the earliest of the following dates:
(A) The date fixed under this contract.
(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.
(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on —
(A) The date on which the designated office receives payment from the Contractor;
(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or
(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.
(vii) The interest charge made under this clause may be reduced under the procedures prescribed in FAR 32.608-2 in effect on the date of this contract. (viii) Upon receipt and approval of the invoice designated by the Contractor as the “completion invoice” and supporting documentation, and upon compliance by the Contractor with all terms of this contract, any outstanding balances will be paid within 30 days unless the parties agree otherwise. The completion invoice, and supporting documentation, shall be submitted by the Contractor as promptly as practicable following completion of the work under this contract, but in no event later than 1 year (or such longer period as the Contracting Officer may approve in writing) from the date of completion.
(7) Release of claims. The Contractor, and each assignee under an assignment entered into under this contract and in effect at the time of final payment under this contract, shall execute and deliver, at the time of and as a condition precedent to final payment under this contract, a release discharging the Government, its officers, agents, and employees of and from all liabilities, obligations, and claims arising out of or under this contract, subject only to the following exceptions.
(i) Specified claims in stated amounts, or in estimated amounts if the amounts are not susceptible to exact statement by the Contractor.
(ii) Claims, together with reasonable incidental expenses, based upon the liabilities of the Contractor to third parties arising out of performing this contract, that are not known to the Contractor on the date of the execution of the release, and of which the Contractor gives notice in writing to the Contracting Officer not more than 6 years after the date of the release or the date of any notice to the Contractor that the Government is prepared to make final payment, whichever is earlier.
(iii) Claims for reimbursement of costs (other than expenses of the Contractor by reason of its indemnification of the Government against patent liability), including reasonable incidental expenses, incurred by the Contractor under the terms of this contract relating to patents.
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(8) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315. (9) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.
(10) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date that appears on the payment check or the specified payment date if an electronic funds transfer payment is made. (j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:
(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or (2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.
(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties. (l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid an amount for direct labor hours (as defined in the Schedule of the contract) determined by multiplying the number of direct labor hours expended before the effective date of termination by the hourly rate(s) in the contract, less any hourly rate payments already made to the Contractor plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system that have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred that reasonably could have been avoided. (m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.
(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.
(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract. (p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.
(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 105 of 155
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(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 10 U.S.C. 4701 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.
(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:
(1) The schedule of supplies/services.
(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements - Unenforceable Clauses paragraphs of this clause. (3) The clause at 52.212-5.
(4) Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements - Unenforceable Clauses provision. (5) Solicitation provisions if this is a solicitation.
(6) Other paragraphs of this clause.
(7) The Standard Form 1449.
(8) Other documents, exhibits, and attachments.
(9) The specification.
(t) [Reserved].
(u) Unauthorized Obligations.
(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:
(i) Any such language, provision, or clause is unenforceable against the Government. (ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.
(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.
(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.
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(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.
(w) Commercial supplier agreements–unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:
(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:
(i) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR Part 12).
(ii) End user. This agreement shall bind the Government as end user but shall not operate to bind an Government employee or person acting on behalf of the Government in his or her personal capacity.
(iii) Law and disputes. This agreement is governed by Federal law. (A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted. (B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted. (C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted. (iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the Government to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in subparagraph (d) (Disputes). (v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).
(vi) Updating terms.
(A) After award, the contractor may unilaterally revise commercial supplier agreement terms if they are not material. A material change is defined as:
(1) Terms that change Government rights or obligations; (2) Terms that increase Government prices;
(3) Terms that decrease overall level of service; or
(4) Terms that limit any other Government right addressed elsewhere in this contract.
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(B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.
(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.
(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative. (viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S.
Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.
(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user’s compliance with this agreement is hereby amended as follows:
(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the Government. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.
(B) This charge, if disputed by the Government, will be resolved in accordance with subparagraph (d) (Disputes); no payment obligation shall arise on the part of the Government until the conclusion of the dispute process. (C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.
(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract. (xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government’s prior approval, except as expressly permitted under subparagraph (b) of this clause. (xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act.
Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.
(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevail to the extent of such inconsistency.
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Note: Regulation 552.212-4
This clause applies to Time-and-Materials or Labor Hour orders.
Begin Regulation
552.212-71 CONTRACT TERMS AND CONDITIONS APPLICABLE
TO GSA ACQUISITIONS OF COMMERCIAL PRODUCTS AND
COMMERCIAL SERVICES (OCT 2023)
(a) The Contractor agrees to comply with any clause that is incorporated herein by reference to implement agency policy applicable to acquisition of commercial products, including commercial components, and commercial services. The clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The Contracting Officer should check the clauses in paragraph (b) that apply or delete the clauses that do not apply from the list. The Contracting Officer may add the date of the clause if desired for clarity. The GSAR clauses[ ]in paragraph (b) of this section are incorporated by reference. (b) Clauses.
X 552.203-71 Restriction on Advertising
Varies by Category, Subcategory and SIN 552.211-73 Marking Varies by Category, Subcategory and SIN 552.219-70 Allocation of Orders—Partially Set-Aside Items
X 552.229-70 Federal, State, and Local Taxes
Varies by Category, Subcategory and SIN 552.232-72 Final Payment Under Building Services Contracts
Varies by Category, Subcategory and SIN 552.237-71 Qualifications of Employees
N/A 552.242-70 Status Report of Orders and Shipments
(End of Clause)
Begin Regulation
552.212-72 CONTRACT TERMS AND CONDITIONS REQUIRED
TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS
APPLICABLE TO GSA ACQUISITION OF COMMERCIAL
PRODUCTS AND COMMERCIAL SERVICES (OCT 2023)
The Contractor agrees to comply with any provision or clause that is incorporated herein by reference to implement provisions of law or Executive Orders applicable to acquisition of commercial items or components. The provision or clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The contracting officer should either check the provisions and clauses that apply or delete the provisions and clauses that do not apply from the lists in paragraphs (a) and (b). The contracting officer may add the date of the provision or clause if desired for clarity. The GSAR following provisions in paragraph (a) and GSAR clauses [in paragraph (b)] are 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 109 of 155
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incorporated by reference.
(a) Provisions.
Varies by Category, Subcategory and SIN 552.223-72 Hazardous Material Information
(b) Clauses.
* ______* 552.215-70 Examination of Records by GSA
Varies by Category, Subcategory and SIN 552.223-70 Hazardous Substances.
Varies by Category, Subcategory and SIN 552.223-71 Nonconforming Hazardous Material.
X 552.223-73 Preservation, Packaging, Packing, Marking and Labeling of Hazardous Materials (HAZMAT) for Shipments.
X 552.232-23 Assignment of Claims
(End of Clause)
Begin Regulation
552.216-70 ECONOMIC PRICE ADJUSTMENT – FSS MULTIPLE
AWARD SCHEDULE CONTRACTS (SEP 1999) (ALTERNATE I –
SEP 1999)
Price adjustments include price increases and price decreases. Adjustments will be considered as follows:
(a) Contractors shall submit price decreases anytime during the contract period in which they occur.
Price decreases will be handled in accordance with the provisions of the Price Reductions clause. (b) Contractors may request price increases to be effective on or after the first 12 months of the contract period providing all of the following conditions are met:
(1) Increases resulting from a reissue or other modification of the Contractor's commercial catalog/price list that was used as the basis for the contract award. (2) No more than three increases will be considered during each succeeding 12-month period of the contract. (For succeeding contract periods of less than 12 months, up to three increases will be considered subject to the other conditions of this subparagraph (b)). (3) Increases are requested before the last 60 days of the contract period. (4) At least 30 days elapse between requested increases. (c) In any contract period during which price increases will be considered, the aggregate of the increases during any 12-month period shall not exceed SEE CLAUSE NOTE percent of the contract unit price in effect at the end of the preceding 12-month period. The Government reserves the right to raise the ceiling when market conditions during the contract period support such a change. (d) The following material shall be submitted with the request for a price increase:
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(1) A copy of the commercial catalog/price list showing the price increase and the effective date for commercial customers.
(2) Commercial Sales Practices Format regarding the Contractor's commercial pricing practice relating to the reissued or modified catalog/price list, or a certification that no change has occurred in the data since completion of the initial negotiation or a subsequent submission. (3) Documentation supporting the reasonableness of the price increase. (e) The Government reserves the right to exercise one of the following options:
(1) Accept the Contractor's price increases as requested when all conditions of (b), (c), and (d) of this clause are satisfied;
(2) Negotiate more favorable discounts from the new commercial prices when the total increase requested is not supported; or,
(3) Remove the product(s) from contract involved pursuant to the Cancellation clause of this contract, when the increase requested is not supported. (f) The increased contract prices shall apply to delivery orders issued to the Contractor on or after the effective date of the contract modification.
Note: Regulation 552.216-70
The EPA Ceiling Limit for this clause is hereby established as 4% for the Human Capital Category, 5% for the Professional Services Category, 5% for the Travel Category and 10% for all other Large Categories.
NOTE: This clause does not apply to contracts participating in the Transactional Data Reporting (TDR) Pilot. Please refer to clause 552.216-70 Deviation II.
Begin Regulation
552.216-70 ECONOMIC PRICE ADJUSTMENT – FSS MULTIPLE
AWARD SCHEDULE CONTRACTS (SEP 1999) (DEVIATION II –
JUL 2016)
Price adjustments include price increases and price decreases. Adjustments will be considered as follows:
(a) Contractors may submit price decreases anytime during the contract period in which they occur.
Price decreases will be handled in accordance with the provisions of the Price Reduction Clause. (b) Contractors may request price increases to be effective on or after the first 12 months of the contract period providing all of the following conditions are met:
(1) No more than three increases will be considered during each succeeding 12-month period of the contract. For succeeding contract periods of less than 12 months, up to three increases will be considered subject to the other conditions of this subparagraph (b). (2) Increases are requested before the last 60 days of the contract period. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 111 of 155
ATTACHMENT A 648
(3) At least 30 days elapse between requested increases. (c) In any contract period during which price increases will be considered, the aggregate of the increases during any 12-month period shall not exceed SEE CLAUSE NOTE percent of the contract unit price in effect at the end of the preceding 12-month period. The Government reserves the right to raise the ceiling when market conditions during the contract period support such a change. (d) Documentation supporting the reasonableness of the price increase shall be submitted with the request for a price increase.
(e) The Government reserves the right to exercise one of the following options:
(1) Accept the Contractor's price increases as requested when all conditions of (b), (c), and (d) of this clause are satisfied;
(2) Negotiate smaller increases when the total increase requested is not supported; or, (3) Remove the product(s) from contract involved pursuant to the Cancellation Clause of this contract, when the increase requested is not supported. (f) The increased contract prices shall apply to delivery orders issued to the Contractor on or after the effective date of the contract modification.
Note: Regulation 552.216-70
The EPA Ceiling Limit for this clause is hereby established as 4% for the Human Capital Category, 5% for the Professional Services Category, 5% for the Travel Category and 10% for all other Large Categories.
NOTE: This clause applies to contracts participating in the Transactional Data Reporting (TDR) Pilot.
Begin Regulation
552.217-71 NOTICE REGARDING OPTION(S) (NOV 1992)
The General Services Administration (GSA) has included an option to Extend the term of this contract in order to demonstrate the value it places on quality performance by providing a mechanism for continuing a contractual relationship with a successful offeror that performs at a level which meets or exceeds GSA's quality performance expectations as communicated to the Contractor, in writing, by the Contracting Officer or designated representative. When deciding whether to exercise the option, the Contracting Officer will consider the quality of the Contractor's past performance under this contract in accordance with 48 CFR 517.207.
Begin Regulation
552.238-116 OPTION TO EXTEND THE TERM OF THE FSS CONTRACT (MAR 2022) (a) The Government may require continued performance of this contract for an additional 5 year period. This option may be exercised up to three times. (b) The Contracting Officer may exercise the option by providing written notice to the Contractor 30 days before the contract expires.
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(End of Clause)
Begin Regulation
552.238-74 INTRODUCTION OF NEW SUPPLIES/SERVICES (INSS) (MAY 2023)
(a) Definition.
“Introduction of New Supplies and Services Special Item Number (SIN)” means a new or improved supply or service - within the scope of the Federal Supply Schedule (FSS), but not currently available under any Federal Supply Schedule contract- that provides a new service, function, task, or attribute that may provide a more economical or efficient means for ordering activities to accomplish their missions. It may significantly improve an existing supply or service. It may be a supply or service existing in the commercial market, but not yet introduced to the Federal Government. (b) Offerors are encouraged to introduce new or improved supplies or services via the “Introduction of New Supplies and Services SIN” at any time by clearly identifying this SIN item in the offer. (c) The Contracting Officer has the sole discretion to determine whether a supply or service will be accepted as an “Introduction of New Supplies and Services SIN” item. The Contracting Officer will evaluate and process the offer and may perform a technical review. This SIN provides temporary placement until the Contracting Officer formally categorizes the new supply or service. (d) If the Contractor has an existing schedule contract, GSA may, at the sole discretion of the Contracting Officer, modify the existing contract to include the “Introduction of New Supplies and Services SIN” item in accordance with 552.238-82, Modifications (Federal Supply Schedules). (End of provision)
Begin Regulation
552.238-78 IDENTIFICATION OF PRODUCTS THAT HAVE
ENVIRONMENTAL ATTRIBUTES (JAN 2022)
(a) Several laws, Executive orders, and Agency directives require Federal buyers to purchase products that are less harmful to the environment, when they are life cycle cost-effective (see FAR Subpart
23.7). The U.S. General Services Administration (GSA) requires contractors to highlight environmental products under Federal Supply Service schedule contracts in various communications media (e.g., publications and electronic formats).
(b) Definitions. As used in this clause —
“Energy-efficient product” means a product that–
(1) Meets Department of Energy and Environmental Protection Agency criteria for use of the ENERGY STAR® trademark label; or
(2) Is in the upper 25 percent of efficiency for all similar products as designated by the Department of Energy's Federal Energy Management Program. “GSA Advantage!” is an on-line shopping mall and ordering system that provides customers with access to products and services under GSA contracts.
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“Other environmental attributes” refers to product characteristics that provide environmental benefits, excluding recovered materials and energy and water efficiency. Several examples of these characteristics are biodegradable, recyclable, reduced pollutants, ozone safe, and low volatile organic compounds (VOCs).
“Post-consumer material” means a material or finished product that has served its intended use and has been discarded for disposal or recovery, having completed its life as a consumer item.
Postconsumer material is part of the broader category of “recovered material.” The Environmental Protection Agency (EPA) has developed a list of EPA-designated products in their Comprehensive Procurement Guidelines (CPGs) to provide Federal agencies with purchasing recommendations on specific products in a Recovered Materials Advisory Notice (RMAN). The RMAN contains recommended recovered and post-consumer material content levels for the specific products designated by EPA (40 CFR part 247 and http://www.epa.gov/cpg/). “Recovered materials” means waste materials and by-products recovered or diverted from solid waste, but the term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process (Executive Order 13101 and 42 U.S.C. 6903(19) and http://www.epa.gov/cpg/). For paper and paper products, see the definition at FAR 11.301 (42 U.S.C. 6962(h)).
“Remanufactured” means factory rebuilt to original specifications. “Renewable energy” means energy produced by solar, wind, geothermal, and biomass power “Renewable energy technology” means –
(1) Technologies that use renewable energy to provide light, heat, cooling, or mechanical or electrical energy for use in facilities or other activities; or (2) The use of integrated whole-building designs that rely upon renewable energy resources, including passive solar design.
(c) Identification Requirements.
(1) The offeror must identify products that —
(i) Are compliant with the recovered and post-consumer material content levels recommended in the Recovered Materials Advisory Notices (RMANs) for EPA-designated products in the CPG program (http://www.epa.gov/cpg/); (ii) Contain recovered materials that either do not meet the recommended levels in the RMANs or are not EPA-designated products in the CPG program (see FAR 23.401 and http://www.epa.gov/cpg/);
(iii) Are energy-efficient, as defined by either ENERGY STAR® and/or FEMP's designated top 25th percentile levels (see ENERGY STAR® at http://www.energystar.gov/ and FEMP at
http://www.eere.energy.gov/femp/procurement/);
(iv) Are water-efficient
(v) Use renewable energy technology;
(vi) Are remanufactured; and
(vii) Have other environmental attributes.
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ATTACHMENT A 651
(2) These identifications must be made in each of the offeror's following mediums:
(i) The offer itself.
(ii) Printed commercial catalogs, brochures, and pricelists. (iii) Online product website.
(iv) Electronic data submission for GSA Advantage! submitted via GSA's Schedules Input Program (SIP) software or the Electronic Data Inter-change (EDI). Offerors can use the SIP or EDI methods to indicate environmental and other attributes for each product that are translated into respective icons in GSA Advantage!. (d) An offeror, in identifying an item with an environmental attribute, must possess evidence or rely on a reasonable basis to substantiate the claim (see 16 CFR part 260, Guides for the Use of Environmental Marketing Claims). The Government will accept an offeror's claim of an product's environmental attribute on the basis of— (1) Participation in a Federal agency sponsored program (e.g., the EPA and DOE ENERGY STAR® product labeling program);
(2) Verification by an independent organization that specializes in certifying such claims; or
(3) Possession of competent and reliable evidence. For any test, analysis, research, study, or other evidence to be “competent and reliable,” it must have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.
Begin Regulation
552.238-80 INDUSTRIAL FUNDING FEE AND SALES REPORTING (JUL 2020)
(a) Reporting of Federal Supply Schedule Sales. The Contractor shall report all contract sales under this contract as follows:
(1) The Contractor shall accurately report the dollar value, in U.S. dollars and rounded to the nearest whole dollar, of all sales under this contract by calendar quarter (January 1-March 31, April 1- June 30, July 1-September 30, and October 1-December 31). The dollar value of a sale is the price paid by the Schedule user for products and services on a Schedule task or delivery order.
The reported contract sales value shall include the Industrial Funding Fee (IFF). The Contractor shall maintain a consistent accounting method of sales reporting, based on the Contractor's established commercial accounting practice. The acceptable points at which sales may be reported include–
(i) Receipt of order;
(ii) Shipment or delivery, as applicable;
(iii) Issuance of an invoice; or
(iv) Payment.
(2) Contract sales shall be reported to Federal Acquisition Services (FAS) within 30 calendar 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 115 of 155
ATTACHMENT A 652
days following the completion of each reporting quarter. The Contractor shall continue to furnish quarterly reports, including “zero” sales, through physical completion of the last outstanding task order or delivery order of the contract.
(3) ) Reportable sales under the contract are those resulting from sales of contract items to authorized users unless the purchase was conducted pursuant to a separate contracting authority such as a Governmentwide Acquisition Contract (GWAC); a separately awarded FAR Part 12, FAR Part 13, FAR Part 14, or FAR Part 15 procurement; or a non-FAR contract. Sales made to state and local governments under Cooperative Purchasing authority shall be counted as reportable sales for IFF purposes.
(4) The Contractor shall electronically report the quarterly dollar value of sales, including “zero” sales, by utilizing the automated reporting system at an Internet website designated by the General Services Administration (GSA)’s Federal Acquisition Service (FAS). Prior to using this automated system, the Contractor shall complete contract registration with the FAS Vendor Support Center (VSC). The website address, as well as registration instructions and reporting procedures, will be provided at the time of award. The Contractor shall report sales separately for each National Stock Number (NSN), Special Item Number (SIN), or sub-item. (5) The Contractor shall convert the total value of sales made in foreign currency to U.S. dollars using the “Treasury Reporting Rates of Exchange” issued by the U.S. Department of Treasury, Financial Management Service. The Contractor shall use the issue of the Treasury report in effect on the last day of the calendar quarter. The report is available from Financial Management Service, International Funds Branch, Telephone: (202) 874-7994, Internet:
http://www.fiscal.treasury.gov/fsreports/rpt/treasRptRateExch/treasRptRateExch_home.htm. (b) The Contractor shall remit the IFF at the rate set by GSA’s FAS. (1) The Contractor shall remit the IFF to FAS in U.S. dollars within 30 calendar days after the end of the reporting quarter; final payment shall be remitted within 30 days after physical completion of the last outstanding task order or delivery order of the contract. (2) The IFF represents a percentage of the total quarterly sales reported. This percentage is set at the discretion of GSA's FAS. GSA's FAS has the unilateral right to change the percentage at any time, but not more than once per year. FAS will provide reasonable notice prior to the effective date of the change. The IFF reimburses FAS for the costs of operating the Federal Supply Schedules Program. FAS recoups its operating costs from ordering activities as set forth in 40 U.S.C. 321: Acquisition Services Fund. Net operating revenues generated by the IFF are also applied to fund initiatives benefitting other authorized FAS programs, in accordance with 40 U.S.C. 321. Offerors must include the IFF in their prices. The fee is included in the award price(s) and reflected in the total amount charged to ordering activities. FAS will post notice of the current IFF at https://srp.fas.gsa.gov/ or successor website as appropriate. (c) Within 60 days of award, an FAS representative will provide the Contractor with specific written procedural instructions on remitting the IFF. FAS reserves the unilateral right to change such instructions from time to time, following notification to the Contractor. (d) Failure to remit the full amount of the IFF within 30 calendar days after the end of the applicable reporting period constitutes a contract debt to the United States Government under the terms of FAR Subpart 32.6. The Government may exercise all rights under the Debt Collection Improvement Act of 1996, including withholding or setting off payments and interest on the debt (see FAR clause
52.232-17, Interest). Should the Contractor fail to submit the required sales reports, falsify them, or fail to timely pay the IFF, this is sufficient cause for the Government to terminate the contract for cause.
End of Clause
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ATTACHMENT A 653
Note: Regulation 552.238-80
FSS contractors are required to report sales and remit IFF for Schedule items sold via FedMall, just as they would for any other Schedule sale. FedMall sales of Schedule items are treated no differently than sales earned via GSA Advantage! or from orders directly placed by an ordering activity.
This clause does not apply to contracts participating in the Transactional Data Reporting (TDR) Pilot. Please refer to clause 552.238-80 Alternate I.
Begin Regulation
552.238-80 INDUSTRIAL FUNDING FEE AND SALES REPORTING (JUL 2020) (ALTERNATE I MAY 2024)
(a) Definition. Transactional data, as used in this clause, encompasses the historical details of the products or services delivered by the Contractor during the performance of task or delivery orders issued against this contract.
(b) Reporting of transactional data. The Contractor must report all transactional data under this contract as follows:
(1) The Contractor must electronically report transactional data by utilizing the reporting system at an internet website designated by the General Services Administration (GSA) or by uploading the data according to GSA instructions. GSA will post registration instructions and reporting procedures on the Vendor Support Center website at https://vsc.gsa.gov. The reporting system website address, as well as registration instructions and reporting procedures, will be provided at the time of award or inclusion of this clause in the contract. (2) The Contractor must provide, at no additional cost to the Government, the following transactional data elements, as applicable:
(i) Contract or Blanket Purchase Agreement (BPA) Number. (ii) Delivery/Task Order Number/Procurement Instrument Identifier (PIID). (iii) Non Federal Entity.
(iv) Description of Deliverable.
(v) Manufacturer Name.
(vi) Manufacturer Part Number.
(vii) Unit Measure.
(viii) Quantity of Item Sold.
(ix) Universal Product Code.
(x) Price Paid per Unit.
(xi) Total Price.
(xii) Special Item Number (SIN).
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(xiii) Agency Name (for OS4 SINs only).
(xiv) Tier 3 Agency Name (for OS4 SINs only).
(3) The Contractor may provide, at no additional cost to the Government, the following transactional data elements, as applicable:
(i) Order Date.
(ii) Ship Date.
(iii) Zip Code Shipped To.
(iv) Federal Customer - Treasury Agency Code.
(4) Based on the reporting points listed in paragraph (b)(8) of this clause, the Contractor must report transactional data within 30 calendar days from the last calendar day of the month. If there was no contract activity during the month, the Contractor must submit a confirmation of no reportable transactional data within 30 calendar days of the last calendar day of the month. (5) The Contractor must report transactional data elements with an associated monetary value (e.g., price paid per unit and total price)] in U.S. dollars. (6) The reported price paid per unit and total price must include the Industrial Funding Fee (IFF). (7) The Contractor must maintain a consistent accounting method of transactional data reporting, based on the Contractor's established commercial accounting practice. (8) Reporting Points. (i) The acceptable points at which transactional data may be reported include—
(A) Issuance of an invoice; or
(B) Receipt of payment.
(ii) The Contractor must determine whether to report transactional data on the basis of invoices issued or payments received.
(9) The Contractor must furnish transactional data reports, including confirmation of no transactional data, through physical completion of the last outstanding task or delivery order of the contract.
(10) Unless otherwise expressly stated by the ordering activity, orders that contain classified information or other information that would compromise national security are exempt from this reporting requirement.
(11) This clause does not exempt the Contractor from fulfilling reporting requirements contained elsewhere in the contract.
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(12) GSA reserves the unilateral right to change reporting instructions and reporting procedures following 60 calendar days advance notification to the Contractor. (c) Industrial Funding Fee.
(1) This contract includes an IFF charged on orders placed against this contract. The IFF is paid by the authorized ordering activity but remitted to GSA by the Contractor. The IFF reimburses GSA for the costs of operating the Federal Supply Schedule program, as set forth in 40 U.S.C. 321. Net operating revenues generated by the IFF are also applied to fund initiatives benefiting other authorized GSA programs, in accordance with 40 U.S.C. 321. (2) GSA has the unilateral right to change the IFF amount at any time, but not more than once per year; GSA will provide reasonable notice prior to the effective date of any change. GSA will post notice of the current IFF on the Vendor Support Center website at https://vsc.gsa.gov. (3) Offerors must include the IFF in their prices. The IFF is included in the awarded price(s) and reflected in the total amount charged to ordering activities. The IFF will not be included in the price of non-contract items purchased pursuant to a separate contracting authority, such as a Governmentwide Acquisition Contract (GWAC); a separately awarded Federal Acquisition Regulation (FAR) part 12, 13, 14, or 15 procurement; or a non-FAR contract. (4) The Contractor must remit the IFF to GSA in U.S. dollars within 30 calendar days after the last calendar day of the reporting quarter; final payment must be remitted within 30 calendar days after physical completion of the last outstanding task order or delivery order issued against the contract.
(5) GSA reserves the unilateral right to change remittance instructions following 60 calendar days advance notification to the Contractor.
(d) Non-compliance. The Contractor's failure to remit the full amount of the IFF within 30 calendar days after the end of the
applicable reporting period constitutes a contract debt to the United States Government under the terms of FAR subpart
32.6. The Government may exercise all rights under the Debt Collection Improvement Act of 1996, including withholding
or offsetting payments and interest on the debt (see FAR clause 52.232-17, Interest). If the Contractor fails to submit the
required transactional data reports, falsifies them, or fails to timely pay the IFF, these reasons constitute sufficient cause for
the Government to terminate the contract for cause.
Note: Regulation 552.238-80
Subpart - paragraph (b)(3) TDR data elements -
Order date - this field is optional for products only
Ship date - this field is optional for products only
Zip Code shipped to - this field is optional for products only Federal Customer -Treasury Agency Code - optional for both products and services FSS contractors are required to report sales and remit IFF for Schedule items sold via FedMall, just as they would for any other Schedule sale. FedMall sales of Schedule items are treated no differently than sales earned via GSA Advantage! or from orders directly placed by an ordering activity.
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This clause applies to contracts participating in the Transactional Data Reporting (TDR) Pilot.
Begin Regulation
552.238-82 MODIFICATIONS (FEDERAL SUPPLY SCHEDULE)
(JAN 2022) (ALTERNATE I - MAR 2020)
(a) General. The Contractor may request a contract modification by transmitting a request to the Contracting Officer for approval, except as noted in paragraph (d) of this clause. At a minimum, every request shall describe the proposed change(s) and provide the rationale for the requested change(s). (b) Types of Modifications.
(1) Additional items/additional SINs. When requesting additions, the following information must be transmitted:
(i) Information requested in paragraphs (1) and (2) of the Commercial Sales Practice Format to add SINs.
(ii) Discount information for the new items(s) or new SIN(s). Specifically, transmit the information requested in paragraphs 3 through 5 of the Commercial Sales Practice Format. If this information is the same as the initial award, a statement to that effect may be transmitted instead.
(iii) Information about the new item(s) or the item(s) under the new SIN(s) must be transmitted in accordance with the request for proposal. (iv) Delivery time(s) for the new item(s) or the item(s) under the new SIN(s) must be transmitted in accordance with the request for proposal. (v) Production point(s) for the new item(s) or the item(s) under the new SIN(s) must be transmitted if required by 52.215- 6, Place of Performance. (vi) Hazardous Material information (if applicable) must be transmitted as required by FAR
52.223-3 (Alternate I), Hazardous Material Identification and Material Safety Data. (vii) Any information requested by 52.212-3(f), Offeror Representations and Certifications—Commercial Products and Commercial Services, that may be necessary to assure compliance with FAR 52.225-1, Buy American Act—Balance of Payments Programs—Supplies.
(2) Deletions. The Contractors shall provide an explanation for the deletion. The Government reserves the right to reject any subsequent offer of the same item or a substantially equal item at a higher price during the same contract period, if the contracting officer finds the higher price to be unreasonable when compared with the deleted item.
(3) Price Reduction. The Contractor shall indicate whether the price reduction falls under the item (i), (ii), or (iii) of paragraph (c)(1) of the Price Reductions clause at 552.238-81. If the Price reduction falls under item (i), the Contractor shall transmit a copy of the dated commercial price list. If the price reduction falls under item (ii) or (iii), the Contractor shall transmit a copy of the applicable price list(s), bulletins or letters or customer agreements which outline the effective date, duration, terms and conditions of the price reduction. (c) Effective dates. The effective date of any modification is the date specified in the modification, 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 120 of 155
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except as otherwise provided in the Price Reductions clause at 552.238-81. (d) Electronic File Updates. The Contractor shall update electronic file transmissions to reflect all modifications. For additional items or SINs, the Contractor shall obtain the Contracting Officer's approval before transmitting changes. Contract modifications will not be made effective until the Government receives the electronic file updates. The Contractor may transmit price reductions, item deletions, and corrections without prior approval. However, the Contractor shall notify the Contracting Officer as set forth in the Price Reductions clause at 552.238-81. (e) Electronic transmission of modification requests is mandatory via eMod (http://eOffer.gsa.gov), unless otherwise stated in the electronic transmission standards and requirements at the Vendor Support Center website (http://vsc.gsa.gov). If the electronic transmission standards and requirements information is updated at the Vendor Support Center website, Contractors will be notified prior to the effective date of the change.
End of clause
Note: Regulation 552.238-82
This clause does not apply to contracts participating in the Transactional Data Reporting (TDR) Pilot. Please refer to clause 552.238-82 Alternate II.
Begin Regulation
552.238-82 MODIFICATIONS (FEDERAL SUPPLY SCHEDULE)
(JAN 2022) (ALTERNATE II MAY 2019)
(a) General. The Contractor may request a contract modification by transmitting a request to the Contracting Officer for approval, except as noted in paragraph (d) of this clause. At a minimum, every request shall describe the proposed change(s) and provide the rationale for the requested change(s). (b) Types of Modifications.
(1) Additional items/additional SINs. When requesting additions, the Contractor must transmit the following information:
(i) Information about the new item(s) or the item(s) under the new SIN(s) must be submitted in accordance with the instructions in the solicitation. (ii) Delivery time(s) for the new item(s) or the item(s) under the new SIN(s) must be submitted in accordance with the request for proposal.
(iii) Production point(s) for the new item(s) or the item(s) under the new SIN(s) must be submitted if required by FAR 52.215-6, Place of Performance. (iv) Hazardous Material information (if applicable) must be submitted as required by FAR
52.223-3 (Alternate I), Hazardous Material Identification and Material Safety Data. (v) Any information requested by FAR 52.212-3(f), Offeror Representations and Certifications-Commercial Products and Commercial Services, that may be necessary to assure compliance with FAR 52.225-1, Buy American Act-Balance of Payments Programs-Supplies.
(2) Deletions. The Contractor must provide an explanation for the deletion. The Government reserves the right to reject any subsequent offer of the same item or a substantially equal item at a higher price during the same contract period, if the Contracting Officer determines that the higher 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 121 of 155
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price is unreasonable compared to the price of the deleted item. (c) Effective dates. The effective date of any modification is the date specified in the modification, except as otherwise provided in the Price Reductions clause at 552.238-81. (d) Electronic File Updates. The Contractor shall update electronic file transmissions to reflect all modifications. For additional items or SINs, the Contractor shall obtain the Contracting Officer's approval before transmitting changes. Contract modifications will not be made effective until the Government receives the electronic file updates. The Contractor may transmit price reductions, item deletions, and corrections without prior approval. However, the Contractor shall notify the Contracting Officer as set forth in the Price Reductions clause at 552.238-81.
End of clause
Note: Regulation 552.238-82
This clause applies to contracts participating in the Transactional Data Reporting (TDR) Pilot.
Begin Regulation
C-FSS-370 CONTRACTOR TASKS / SPECIAL REQUIREMENTS
(DEC 2022)
(a) Security clearances. The Contractor may be required to obtain/possess varying levels of security clearances in the performance of orders issued under this contract. All costs associated with obtaining/possessing such security clearances should be factored into the price offered under the Multiple Award Schedule (MAS).
(b) Travel. The Contractor may be required to travel in performance of orders issued under this contract. Allowable travel and per diem charges are governed by FAR part 31, and are reimbursable by the ordering agency or can be priced as a fixed price item on orders placed under MAS. Travel in performance of a task order will only be reimbursable to the extent authorized by the ordering agency.
The Industrial Funding Fee does not apply to travel and per diem charges. (c) Certifications, licenses and accreditations. As a commercial practice, the Contractor may be required to obtain/possess any variety of certifications, licenses, and accreditations for specific Federal Supply Code (FSC)/Product Service Code (PSC) classifications offered. All costs associated with obtaining/ possessing such certifications, licenses, and accreditations should be factored into the price offered under MAS.
(d) Insurance. As a commercial practice, the Contractor may be required to obtain/possess insurance coverage for specific FSC/PSC classifications offered. All costs associated with obtaining/possessing such insurance should be factored into the price offered under MAS. (e) Personnel. The Contractor may be required to provide key personnel, resumes or skill category descriptions in the performance of orders issued under this contract. Ordering agencies may require prior approval of additions or replacements to key personnel. (f) Organizational conflicts of interest. Where there may be an organizational conflict of interest as determined by the ordering agency, the Contractor’s participation in such an order may be restricted in accordance with FAR part 9.5.
(g) Documentation/Standards. The Contractor may be requested to provide products or services in accordance with rules, regulations, Office of Management and Budget orders, standards and documentation as specified by the order.
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(h) Data/Deliverable requirements. Any required data/deliverables at the order level will be specified or negotiated by the ordering agency.
(i) Government-furnished property. As specified by the order, the Government may provide property, equipment, materials or resources as necessary.
(j) Availability of funds. Many ordering agencies operating funds are appropriated for a specific fiscal year. Funds may not be presently available for any orders placed under the contract or any option year.
The Government’s obligation on orders placed under this contract is contingent upon the availability of appropriated funds from which payment for ordering purposes can be made. No legal liability on the part of the Government for any payment may arise until funds are available to the ordering Contracting Officer.
(k) Overtime. For professional services, the labor rates in the Schedule should not vary by virtue of the Contractor having worked overtime. For services applicable to the Service Contract Act (as identified in the Schedule), the labor rates in the Schedule will vary as governed by labor laws (usually assessed a time and a half of the labor rate).
(End of clause)
Begin Regulation
G-FSS-900-C CONTACT FOR CONTRACT ADMINISTRATION
(DEC 2022)
Offerors should complete paragraphs (a) and (b) of this clause if providing both domestic and overseas delivery. Complete paragraph (a) of this clause if providing domestic delivery only. Complete paragraph (b) of this clause if providing overseas delivery only.
The Contractor shall designate a person to serve as the contract administrator for the contract both domestically and overseas. The contract administrator is responsible for overall compliance with contract terms and conditions. The contract administrator is also the responsible official for issues concerning GSAR clause 552.238-80, Industrial Funding Fee and Sales Reporting, including reviews of Contractor records. The Contractor’s designation of representatives to handle certain functions under this contract does not relieve the contract administrator of responsibility for contract compliance. Any changes to the designated individual must be provided to the Contracting Officer in writing, with the proposed effective date of the change.
(a) Domestic.
NAME ______________________________________________________________________ TITLE ______________________________________________________________________ ADDRESS ___________________________________________________________________ ZIP CODE ___________________________________________________________________ TELEPHONE NO. (_______) __________________ FAX NO. ________________________ E-MAIL ADDRESS ___________________________________________________________ (b) Overseas. Overseas contact points are mandatory for local assistance with the resolution of any delivery, performance, or quality complaint from ordering agencies. (Also, see the requirement in GSAR clause 552.238-97, Parts and Service) At a minimum, a contact point must be furnished for each 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 123 of 155
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area in which deliveries are contemplated, e.g., Europe, South America, Far East, etc.
NAME ______________________________________________________________________ TITLE ______________________________________________________________________ ADDRESS ___________________________________________________________________ ZIP CODE ___________________________________________________________________ TELEPHONE NO. (_______) __________________ FAX NO. ________________________ E-MAIL ADDRESS ___________________________________________________________ (End of provision)
Begin Regulation
I-FSS-106 GUARANTEED MINIMUM (DEC 2022)
(a) The guaranteed minimum that the Government agrees to order during the period of this contract is $2,500. If the Contractor receives total orders for less than $2,500 during the term of the contract, the Government will pay the difference between the amount ordered and $2,500. (b) Payment of any amount due under this clause shall be contingent upon the Contractor’s timely submission of reportable sales and fees and receipt of the close-out sales report pursuant to GSAR clause 552.238-80, Industrial Funding Fee and Sales Reporting. (c) The guaranteed minimum applies only if the contract expires or contract cancellation is initiated by the Government. The guaranteed minimum does not apply if the contract is terminated for cause or if the contract is canceled at the request of the Contractor.
Begin Regulation
I-FSS-40 CONTRACTOR TEAM ARRANGEMENTS (DEC 2022)
Contractors participating in contractor team arrangements must abide by all terms and conditions of their respective contracts. This includes compliance with GSAR clause 52.238-80, Industrial Funding Fee and Sales Reporting (i.e., each contractor participating in a contractor team arrangement must report sales and remit the Industrial Funding Fee for all products and services provided under its individual contract). (End of clause)
Begin Regulation
I-FSS-600 CONTRACT PRICE LISTS (DEC 2022)
(a) Electronic Contract Data.
(1) At the time of award, the Contractor will be provided instructions for submitting electronic contract data in a prescribed format as required by GSAR clause 552.238-77, Submission and Distribution of Authorized Federal Supply Schedule (FSS) Price Lists. (2) The Contractor will have a choice to transmit its file submissions electronically through 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 124 of 155
ATTACHMENT A 661
Electronic Data Interchange (EDI) in accordance with the Federal Implementation Convention (IC) or use the application made available at the time of award. The Contractor’s electronic files must be complete, correct, readable, virus free, and contain only those supplies and services, prices, and terms and conditions that were accepted by the Government. They will be added to GSA’s electronic ordering system known as GSA Advantage!®, a menu driven database system that provides online access to contract ordering information, terms and conditions, current pricing, and the option to create an electronic order. The Contractor’s electronic files must be received no later than 30 days after award. Contractors should refer to the GSAR clause at 552.238-88, GSA Advantage!®, for further information.
(3) Further details on EDI, ICs, and GSA Advantage! ® can be found in GSAR clause 552.238-103, Electronic Commerce.
(4) The Contractor is encouraged to place the GSA logo on their website for those supplies or services covered by this contract. Contractors may link the GSA logo to their FSS price list. Only GSA Schedule holders may use the GSA logo, which is at https://www.gsa.gov/logos. All resultant “web price lists” shown on the Contractor’s website must be in accordance with paragraph (b)(3)(ii) of this clause and nothing other than what was accepted/awarded by the Government may be included. If the Contractor elects to use contract identifiers on its website (either logos or contact number) the website must clearly distinguish between those items awarded on the contract and any other items offered by the Contractor on an open market basis. (5) The Contractor is responsible for keeping all electronic catalogs data current, accurate, and complete; e.g., prices, product deletions and replacements, etc. (b) Federal Supply Schedule Price Lists.
(1) The Contractor must prepare and distribute an FSS price list as required by GSAR clause 552.238-77, Submission and Distribution of Authorized Federal Supply Schedule (FSS) Price Lists.
(2) The Contractor must prepare an FSS price list by composing a price list in which only those items, terms, and conditions accepted by the Government are included, and which contain only net prices, based upon the commercial price list or commercial market prices less discounts accepted by the Government. The cover page of the FSS price list must include the following statement: "Prices Shown Herein are Net (discount deducted)”. (3) The cover page of the FSS price list must include the following information prepared in the following format:
GENERAL SERVICES ADMINISTRATION
Federal Acquisition Service Authorized Federal Supply Schedule FSS Price List Online access to contract ordering information, terms and conditions, pricing, and the option to create an electronic delivery order are available through GSA Advantage!®. The website for GSA Advantage!® is: https://www.GSAAdvantage.gov.
Schedule title
FSC Group, Part, and Section or Standard Industrial Group (as applicable) FSC Class(es)/Product Code(s) and/or Service Codes (as applicable).
Contract number
Contract period
Contractor's name, address, and phone number (include toll free WATS number and FAX 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 125 of 155
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number, if applicable)
Contractor’s internet address/website where Schedule information can be found (as applicable)
Contract administration source (if different from preceding entry) Business size
For more information on ordering go to the following website: https://www.gsa.gov/schedules.
CUSTOMER INFORMATION: The following information should be placed under this heading in consecutively numbered paragraphs in the sequence set forth below. If this information is placed in another part of the FSS price list, a table of contents must be shown on the cover page that refers to the exact location of the information.
1a. Table of awarded special item number(s) with appropriate cross reference to item descriptions and awarded price(s).
1b. Identification of the lowest priced model number and lowest unit price for that model for each special item number awarded in the contract. This price is the Government price based on a unit of one, exclusive of any quantity/dollar volume, prompt payment discounts, or any other concession affecting price. Contracts that have unit prices based on the geographic location of the customer, should show the range of the lowest price, and cite the areas to which the prices apply.
1c. If the Contractor is proposing hourly rates, a description of all corresponding commercial job titles, experience, functional responsibility, and education for those types of employees or subcontractors who will perform services shall be provided. If hourly rates are not applicable, the Contractor shall insert “Not applicable” for this item.
2. Maximum order.
3. Minimum order.
4. Geographic coverage (delivery area).
5. Point(s) of production (city, county, and State or foreign country).
6. Discount from list prices or statement of net price.
7. Quantity discounts.
8. Prompt payment terms. The Contractor must insert the following statement after identifying the prompt payment terms: "Information for Ordering Offices: Prompt payment terms cannot be negotiated out of the contractual agreement in exchange for other concessions."
9. Foreign items (list items by country of origin).
10a. Time of delivery. (Contractor insert number of days.) 10b. Expedited Delivery. The Contractor must insert the sentence “Items available for expedited delivery are noted in this price list.” under this heading. The Contractor may use a symbol of its choosing to highlight items in its FSS price list that have expedited delivery. 10c. Overnight and 2-day delivery. The Contractor must indicate whether overnight and 2-day delivery are available. Also, the Contractor must indicate that the ordering activity may contact the Contractor for rates for overnight and 2-day delivery. 10d. Urgent Requirements. The Contractor must note in its FSS price list that ordering agencies can request accelerated delivery for urgent requirements.
11. F.O.B. point(s).
12a. Ordering address(es).
12b. Ordering procedures: See Federal Acquisition Regulation (FAR) 8.405-3.
13. Payment address(es).
14. Warranty provision.
15. Export packing charges, if applicable.
16. Terms and conditions of rental, maintenance, and repair (if applicable).
17. Terms and conditions of installation (if applicable). 18a. Terms and conditions of repair parts indicating date of parts price lists and any discounts from list prices (if applicable).
18b. Terms and conditions for any other services (if applicable).
19. List of service and distribution points (if applicable).
20. List of participating dealers (if applicable).
21. Preventive maintenance (if applicable).
22a. Special attributes such as environmental attributes (e.g., recycled content, energy efficiency, and/or reduced pollutants).
22b. If applicable, indicate that Section 508 compliance information is available for the information and communications technology (ICT) products and services offered and show 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 126 of 155
ATTACHMENT A 663
where full details can be found (e.g., Contractor’s website or other location). ICT accessibility standards can be found at https://www.section508.gov/.
23. Unique Entity Identifier (UEI) number.
24. Notification regarding registration in the System for Award Management (SAM) database. (4) Amendments to the FSS price lists must include on the cover page the same information as the current FSS price list plus the title "Supplement No. (sequentially numbered)" and the effective date(s) of such supplements.
(5) Accuracy of information and computation of prices is the responsibility of the Contractor. (6) Inclusion of incorrect information in the FSS price list will cause the Contractor to resubmit/correct the FSS price list, and may constitute sufficient cause for termination, pursuant to GSA clause 552.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services, and application of any other remedies as provided by law—including monetary recovery. (End of clause)
Note: Regulation I-FSS-600
- All Commercial Off the Shelf (COTS) and commercial type products are prohibited from being duplicated and published to the text file posted on GSA eLibrary. - All Commercial Off the Shelf (COTS) and commercial type products should be published for sale on GSA Advantage OR to the text file posted on GSA Advantage! Begin Regulation
(Note: This is an FSS reproduction using word processing software) STANDARD FORM 1449 (10-95) (BACK) I-FSS-969 ECONOMIC PRICE ADJUSTMENT – FSS MULTIPLE
AWARD SCHEDULE (OCT 2014) (ALTERNATE II – JUL 2016)
Price adjustments include price increases and price decreases. Adjustments will be considered as follows:
(a) Contractors shall submit price decreases anytime during the contract period in which they occur.
Price decreases will be handled in accordance with the provisions of the Price Reductions clause. (b) There are two types of economic price adjustments (EPAs) possible under the Multiple Award Schedules (MAS) program for contracts not based on commercial catalogs or price lists as described below. Price adjustments may be effective on or after the first 12 months of the contract period on the following basis:
(1) Adjustments based on escalation rates negotiated prior to contract award. Normally, when escalation rates are negotiated, they result in a fixed price for the term of the contract. No separate contract modification will be provided when increases are based on negotiated escalation rates. Price increases will be effective on the 12-month anniversary date of the contract effective date, subject to paragraph (f), below.
(2) Adjustments based on an agreed-upon market indicator prior to award. The market indicator, as used in this clause, means the originally released public index, public survey or other public-based market indicator. The market indicator shall be the originally released index, survey or market indicator, not seasonally adjusted, published by the [to be negotiated], and made available at [to be identified]. Any price adjustment shall be based on the percentage change in the designated (i.e. indicator identification and date) market indicator from the initial award to the latest available as of the anniversary date of the contract effective date, subject to paragraph (e), below. If the market indicator is discontinued or deemed no longer available or reliable by the Government, the Government and the Contractor will mutually agree to a substitute. The contract 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 127 of 155
ATTACHMENT A 664
modification reflecting the price adjustment will be effective upon approval by the Contracting Officer, subject to paragraph (g), below.
(c) Notwithstanding the two economic price adjustments discussed above, the Government recognizes the potential impact of unforeseeable major changes in market conditions. For those cases where such changes do occur, the contracting officer will review requests to make adjustments, subject to the Government's examination of industry-wide market conditions and the conditions in paragraph (d) and (e), below. If adjustments are accepted, the contract will be modified accordingly. The determination of whether or not extra-ordinary circumstances exist rests with the contracting officer. The determination of an appropriate mechanism of adjustment will be subject to negotiations. (d) Conditions of Price change requests under paragraphs b(2) and c above:
(1) No more than three increases will be considered during each succeeding 12-month period of the contract. (For succeeding contract periods of less than 12 months, up to three increases will be considered subject to the other conditions of subparagraph (b)). (2) Increases are requested before the last 60 days of the contract period, including options. (3) At least 30 days elapse between requested increases. (4) In any contract period during which price increases will be considered, the aggregate of the increases during any 12-month period shall not exceed SEE CLAUSE NOTE percent (SEE CLAUSE NOTE%) of the contract unit price in effect at the end of the preceding 12-month period. The Government reserves the right to raise the ceiling when market conditions during the contract period support such a change.
(e) The following material shall be submitted with request for a price increase under paragraphs b(2) and c above:
(1) A copy of the index, survey or pricing indicator showing the price increase and the effective date.
(2) Any other documentation requested by the Contracting Officer to support the reasonableness of the price increase.
(f) The Government reserves the right to exercise one of the following options:
(1) Accept the Contractor's price increases as requested when all conditions of (b), (c), (d), and (e) of this clause are satisfied;
(2) Negotiate more favorable prices when the total increase requested is not supported; or, (3) Decline the price increase when the request is not supported. The Contractor may remove the item(s) from contract involved pursuant to the Cancellation Clause of this contract. (g) Effective Date of Increases: The increased contract prices shall apply to orders issued to the Contractor on or after the effective date of the contract modification.
Note: Regulation I-FSS-969
The EPA Ceiling Limit for this clause is hereby established as 4% for the Human Capital Category, 5% for the Professional Services Category, 5% for the Travel Category and 10% for all other Large Categories.
NOTE: This clause applies to contracts participating in the Transactional Data Reporting 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 128 of 155
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(TDR) Pilot.
Begin Regulation
I-FSS-969 ECONOMIC PRICE ADJUSTMENT—FSS MULTIPLE AWARD
SCHEDULE (OCT 2014)
Price adjustments include price increases and price decreases. Adjustments will be considered as follows:
(a) Contractors shall submit price decreases anytime during the contract period in which they occur.
Price decreases will be handled in accordance with the provisions of the Price Reduction Clause. (b) There are two types of economic price adjustments (EPAs) possible under the Multiple Award Schedules (MAS) program for contracts not based on commercial catalogs or price lists as described below. Price adjustments may be effective on or after the first 12 months of the contract period on the following basis:
(1) Adjustments based on escalation rates negotiated prior to contract award. Normally, when escalation rates are negotiated, they result in a fixed price for the term of the contract. No separate contract modification will be provided when increases are based on negotiated escalation rates.
Price increases will be effective on the 12-month anniversary date of the contract effective date, subject to paragraph (f), below.
(2) Adjustments based on an agreed-upon market indicator prior to award. The market indicator, as used in this clause, means the originally released public index, public survey or other public, based market indicator. The market indicator shall be the originally released index, survey or market indicator, not seasonally adjusted, published by the [to be negotiated], and made available at [to be identified]. Any price adjustment shall be based on the percentage change in the designated (i.e. indicator identification and date) market indicator from the initial award to the latest available as of the anniversary date of the contract effective date, subject to paragraph (e), below. If the market indicator is discontinued or deemed no longer available or reliable by the Government, the Government and the Contractor will mutually agree to a substitute. The contract modification reflecting the price adjustment will be effective upon approval by the Contracting Officer, subject to paragraph (g), below. The adjusted prices shall apply to orders issued to the Contractor on or after the effective date of the contract modification. (c) Nothwithstanding the two economic price adjustments discussed above, the Government recognizes the potential impact of unforeseeable major changes in market conditions. For those cases where such changes do occur, the contracting officer will review requests to make adjustments, subject to the Government’s examination of industry-wide market conditions and the conditions in paragraph (d) and (e), below. If adjustments are accepted, the contract will be modified accordingly. The determination of whether or not extra-ordinary circumstances exist rests with the contracting officer. The determination of an appropriate mechanism of adjustment will be subject to negotiations. (d) Conditions of Price change requests under paragraphs b(2) and c above.:
(1) No more than three increases will be considered during each succeeding 12-month period of the contract. (For succeeding contract periods of less than 12 months, up to three increases will be considered subject to the other conditions of subparagraph (b)). (2) Increases are requested before the last 60 days of the contract period, including options. (3) At least 30 days elapse between requested increases. (4) In any contract period during which price increases will be considered, the aggregate of the 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 129 of 155
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increases during any 12-month period shall not exceed SEE CLAUSE NOTE percent (SEE CLAUSE NOTE%) of the contract unit price in effect at the end of the preceding 12-month period. The Government reserves the right to raise the ceiling when market conditions during the contract period support such a change.
(e) The following material shall be submitted with request for a price increase under paragraphs b(2) and c above:
(1) A copy of the index, survey or pricing indicator showing the price increase and the effective date.
(2) Commercial Sales Practice format, per contract clause 52.215-21 Alternate IV, demonstrating the relationship of the Contractor's commercial pricing practice to the adjusted pricing proposed or a certification that no change has occurred in the data since completion of the initial negotiation or a subsequent submission.
(3) Any other documentation requested by the Contracting Officer to support the reasonableness of the price increase.
(f) The Government reserves the right to exercise one of the following options:
(1) Accept the Contractor's price increases as requested when all conditions of (b), (c), (d), and (e) of this clause are satisfied;
(2) Negotiate more favorable prices when the total increase requested is not supported; or, (3) Decline the price increase when the request is not supported. The Contractor may remove the item(s) from contract involved pursuant to the Cancellation Clause of this contract. (g) Effective Date of Increases: No price increase shall be effective until the Government receives the electronic file updates pursuant to GSAR 552.238-81, Modifications (Federal Supply Schedule). (h) All MAS contracts remain subject to contract clauses GSAR 552.238-75, “Price Reductions”; and 552.215-72, “Price Adjustment -- Failure to Provide Accurate Information.” In the event the application of an economic price adjustment results in a price less favorable to the Government than the price relationship established during negotiation between the MAS price and the price to the designated customer, the Government will maintain the price relationship to the designated customer.
Note: Regulation I-FSS-969
The EPA Ceiling Limit for this clause is hereby established as 4% for the Human Capital Category, 5% for the Professional Services Category, 5% for the Travel Category and 10% for all other Large Categories.
NOTE: This clause does not apply to contracts participating in the Transactional Data Reporting (TDR) Pilot. Please refer to clause I-FSS-969 Alternate II. 47QSMD20R0001 Refresh: 0021 Section III A. Terms and Conditions Related to Schedule Contract Administration Page: 130 of 155
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Section III B. Terms and Conditions Related to the Performance of an Order
These clauses outline key components of your contract that flow down to the order level and may impact the ordering activity.
Begin Regulation
(Note: This is an FSS reproduction using word processing software) STANDARD FORM 1449 (10-95) (BACK)
52.204-2 SECURITY REQUIREMENTS (MAR 2021)
(a) This clause applies to the extent that this contract involves access to information classified “Confidential,” “Secret,” or “Top Secret.”
(b) The Contractor shall comply with –
(1) The Security Agreement (DD Form 441), including the National Industrial Security Program Operating Manual (32 CFR part 117); and
(2) Any revisions to that manual, notice of which has been furnished to the Contractor. (c) If, subsequent to the date of this contract, the security classification or security requirements under this contract are changed by the Government and if the changes cause an increase or decrease in security costs or otherwise affect any other term or condition of this contract, the contract shall be subject to an equitable adjustment as if the changes were directed under the Changes clause of this contract.
(d) The Contractor agrees to insert terms that conform substantially to the language of this clause, including this paragraph (d) but excluding any reference to the Changes clause of this contract, in all subcontracts under this contract that involve access to classified information.
Begin Regulation
52.216-22 INDEFINITE QUANTITY (OCT 1995)
(a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract.
(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the "maximum." The Government shall order at least the quantity of supplies or services designated in the Schedule as the "minimum."
(c) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. (d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 131 of 155
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if the order were completed during the contract's effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after the completion of customer order, including options, 60 months following the expiration of the FSS contract ordering period.
End of clause
Begin Regulation
52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT
(MAR 2000)
(a) The Government may extend the term of this contract by written notice to the Contractor within To be determined at the task order level; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least To be determined at the task order level days before the contract expires. The preliminary notice does not commit the Government to an extension. (b) If the Government exercises this option, the extended contract shall be considered to include this option clause.
(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed To be determined at the task order level (months) (years).
Begin Regulation
52.219-18 NOTIFICATION OF COMPETITION LIMITED TO
ELIGIBLE 8(a) PARTICIPANTS (OCT 2022) (DEVIATION)
(a) Offers are solicited only from—
(1) Small business concerns expressly certified by the Small Business Administration (SBA) for
participation in SBA's 8(a) program and which meet the following criteria at the time of submission of offer—
(i) The Offeror is in conformance with the 8(a) support limitation set forth in its approved business
plan; and
(ii)The Offeror is in conformance with the Business Activity Targets set forth in its approved
business plan or any remedial action directed by SBA;
(2) A joint venture, in which at least one of the 8(a) program participants that is a party to the joint venture complies with the criteria set forth in paragraph (a)(1) of this clause, that complies with 13 CFR 124.513(c); or
(3) A joint venture—
(i) That is comprised of a mentor and an 8(a) protégé with an approved mentor-protégé agreement under the 8(a) program;
(ii) In which at least one of the 8(a) program participants that is a party to the joint venture complies with the criteria set forth in paragraph (a)(1) of this clause; and
(iii) That complies with 13 CFR 124.513(c).
(b) By submission of its offer, the Offeror represents that it meets the applicable criteria set forth in
paragraph (a) of this clause.
(c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror selected through the evaluation criteria set forth in 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 132 of 155
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this solicitation.
(d) The ____________ [insert name of SBA's contractor]will notify the____________ [insert name of
contracting agency]Contracting Officer in writing immediately upon entering an agreement (either
oral or written) to transfer all or part of its stock.
(End of clause)
Begin Regulation
52.222-54 EMPLOYMENT ELIGIBILITY VERIFICATION (MAY
2022)
(a) Definitions. As used in this clause –
Commercially available off-the-shelf (COTS) item –
(1) Means any item of supply that is –
(i) A commercial product (as defined in paragraph (1) of the definition of “commercial product” at Federal Acquisition Regulation (FAR) 2.101); (ii) Sold in substantial quantities in the commercial marketplace; and (iii) Offered to the Government, without modification, in the same form in which it is sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. Per 46 CFR 525.1(c)(2), “bulk cargo” means cargo that is loaded and carried in bulk onboard ship without mark or count, in a loose unpackaged form, having homogenous characteristics. Bulk cargo loaded into intermodal equipment, except LASH or Seabee barges, is subject to mark and count and, therefore, ceases to be bulk cargo.
Employee assigned to the contract means an employee who was hired after November 6, 1986 (after November 27, 2009, in the Commonwealth of the Northern Mariana Islands), who is directly performing work, in the United States, under a contract that is required to include the clause prescribed at 22.1803. An employee is not considered to be directly performing work under a contract if the employee –
(1) Normally performs support work, such as indirect or overhead functions; and (2) Does not perform any substantial duties applicable to the contract.
Subcontract means any contract, as defined in 2.101, entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders.
Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime Contractor or another subcontractor.
United States, as defined in 8 U.S.C. 1101(a)(38), means the 50 States, the District of Columbia, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands. (b) Enrollment and verification requirements.
(1) If the Contractor is not enrolled as a Federal Contractor in E-Verify at time of contract award, 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 133 of 155
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the Contractor shall –
(i) Enroll. Enroll as a Federal Contractor in the E-Verify program within 30 calendar days of contract award;
(ii) Verify all new employees. Within 90 calendar days of enrollment in the E-Verify program, begin to use E-Verify to initiate verification of employment eligibility of all new hires of the Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); and
(iii) Verify employees assigned to the contract. For each employee assigned to the contract, initiate verification within 90 calendar days after date of enrollment or within 30 calendar days of the employee's assignment to the contract, whichever date is later (but see paragraph (b)(4) of this section).
(2) If the Contractor is enrolled as a Federal Contractor in E-Verify at time of contract award, the Contractor shall use E-Verify to initiate verification of employment eligibility of – (i) All new employees.
(A) Enrolled 90 calendar days or more. The Contractor shall initiate verification of all new hires of the Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); or
(B) Enrolled less than 90 calendar days. Within 90 calendar days after enrollment as a Federal Contractor in E-Verify, the Contractor shall initiate verification of all new hires of the Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); or
(ii) Employees assigned to the contract. For each employee assigned to the contract, the Contractor shall initiate verification within 90 calendar days after date of contract award or within 30 days after assignment to the contract, whichever date is later (but see paragraph (b)(4) of this section).
(3) If the Contractor is an institution of higher education (as defined at 20 U.S.C. 1001(a)); a State or local government or the government of a Federally recognized Indian tribe; or a surety performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond, the Contractor may choose to verify only employees assigned to the contract, whether existing employees or new hires. The Contractor shall follow the applicable verification requirements at (b)(1) or (b)(2), respectively, except that any requirement for verification of new employees applies only to new employees assigned to the contract. (4) Option to verify employment eligibility of all employees. The Contractor may elect to verify all existing employees hired after November 6, 1986 (after November 27, 2009, in the Commonwealth of the Northern Mariana Islands), rather than just those employees assigned to the contract. The Contractor shall initiate verification for each existing employee working in the United States who was hired after November 6, 1986 (after November 27, 2009, in the Commonwealth of the Northern Mariana Islands), within 180 calendar days of – (i) Enrollment in the E-Verify program; or
(ii) Notification to E-Verify Operations of the Contractor's decision to exercise this option, using the contact information provided in the E-Verify program Memorandum of Understanding (MOU).
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(5) The Contractor shall comply, for the period of performance of this contract, with the requirements of the E-Verify program MOU.
(i) The Department of Homeland Security (DHS) or the Social Security Administration (SSA) may terminate the Contractor's MOU and deny access to the E-Verify system in accordance with the terms of the MOU. In such case, the Contractor will be referred to a suspension or debarment official.
(ii) During the period between termination of the MOU and a decision by the suspension or debarment official whether to suspend or debar, the Contractor is excused from its obligations under paragraph (b) of this clause. If the suspension or debarment official determines not to suspend or debar the Contractor, then the Contractor must reenroll in E-Verify.
(c) Web site. Information on registration for and use of the E-Verify program can be obtained via the Internet at the Department of Homeland Security Web site: https://www.e-verify.gov. (d) Individuals previously verified. The Contractor is not required by this clause to perform additional employment verification using E-Verify for any employee – (1) Whose employment eligibility was previously verified by the Contractor through the E-Verify program;
(2) Who has been granted and holds an active U.S. Government security clearance for access to confidential, secret, or top secret information in accordance with the National Industrial Security Program Operating Manual; or
(3) Who has undergone a completed background investigation and been issued credentials pursuant to Homeland Security Presidential Directive (HSPD)-12, Policy for a Common Identification Standard for Federal Employees and Contractors. (e) Subcontracts. The Contractor shall include the requirements of this clause, including this paragraph (e) (appropriately modified for identification of the parties), in each subcontract that – (1) Is for –
(i) Services (except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for that COTS item); or (ii) Construction;
(2) Has a value of more than $3,500; and
(3) Includes work performed in the United States.
End of clause
Begin Regulation
52.223-7 NOTICE OF RADIOACTIVE MATERIALS (JAN 1997)
(a) The Contractor shall notify the Contracting Officer or designee, in writing, To be determined at the task order level days prior to the delivery of, or prior to completion of any servicing required by this contract of, items containing either (1) radioactive material requiring specific licensing under the regulations issued pursuant to the Atomic Energy Act of 1954, as amended, as set forth in Title 10 of the Code of Federal Regulations, in effect on the date of this contract, or (2) other radioactive material not requiring specific licensing in which the specific activity is greater than 0.002 microcuries per gram 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 135 of 155
ATTACHMENT A 672
or the activity per item equals or exceeds 0.01 microcuries. Such notice shall specify the part or parts of the items which contain radioactive materials, a description of the materials, the name and activity of the isotope, the manufacturer of the materials, and any other information known to the Contractor which will put users of the items on notice as to the hazards involved (OMB No. 9000-0107). (b) If there has been no change affecting the quantity of activity, or the characteristics and composition of the radioactive material from deliveries under this contract or prior contracts, the Contractor may request that the Contracting Officer or designee waive the notice requirement in paragraph (a) of this clause. Any such request shall—
(1) Be submitted in writing;
(2) State that the quantity of activity, characteristics, and composition of the radioactive material have not changed; and
(3) Cite the contract number on which the prior notification was submitted and the contracting office to which it was submitted.
(c) All items, parts, or subassemblies which contain radioactive materials in which the specific activity is greater than 0.002 microcuries per gram or activity per item equals or exceeds 0.01 microcuries, and all containers in which such items, parts or subassemblies are delivered to the Government shall be clearly marked and labeled as required by the latest revision of MIL-STD 129 in effect on the date of the contract.
(d) This clause, including this paragraph (d), shall be inserted in all subcontracts for radioactive materials meeting the criteria in paragraph (a) of this clause.
Begin Regulation
52.225-19 Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States (MaY 2020)
(a) Definitions. As used in this clause--
Chief of mission means the principal officer in charge of a diplomatic mission of the United States or of a United States office abroad which is designated by the Secretary of State as diplomatic in nature, including any individual assigned under section 502(c) of the Foreign Service Act of 1980 (Pub. L. 96-465) to be temporarily in charge of such a mission or office.
Combatant commander means the commander of a unified or specified combatant command established in accordance with 10 U.S.C. 161. Designated operational area means a geographic area designated by the combatant commander or subordinate joint force commander for the conduct or support of specified military operations.
Supporting a diplomatic or consular mission means performing outside the United States under a contract administered by Federal agency personnel who are subject to the direction of a chief of mission.
(b) General.
(1) This clause applies when Contractor personnel are required to perform outside the United States--
(i) In a designated operational area during--
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(A) Contingency operations;
(B) Humanitarian or peacekeeping operations; or
(C) Other military operations; or military exercises, when designated by the Combatant Commander; or
(ii) When supporting a diplomatic or consular mission-- (A) That has been designated by the Department of State as a danger pay post (see https://aoprals.state.gov/); or
(B) That the Contracting Officer has indicated is subject to this clause. (2) Contract performance may require work in dangerous or austere conditions. Except as otherwise provided in the contract, the Contractor accepts the risks associated with required contract performance in such operations.
(3) Contractor personnel are civilians.
(i) Except as provided in paragraph (b)(3)(ii) of this clause, and in accordance with paragraph (i)(3) of this clause, Contractor personnel are only authorized to use deadly force in self-defense.
(ii) Contractor personnel performing security functions are also authorized to use deadly force when use of such force reasonably appears necessary to execute their security mission to protect assets/persons, consistent with the terms and conditions contained in the contract or with their job description and terms of employment. (4) Service performed by Contractor personnel subject to this clause is not active duty or service under 38 U.S.C. 106 note.
(c) Support. Unless specified elsewhere in the contract, the Contractor is responsible for all logistical and security support required for Contractor personnel engaged in this contract. (d) Compliance with laws and regulations. The Contractor shall comply with, and shall ensure that its personnel in the designated operational area or supporting the diplomatic or consular mission are familiar with and comply with, all applicable--
(1) United States, host country, and third country national laws; (2) Treaties and international agreements;
(3) United States regulations, directives, instructions, policies, and procedures; and (4) Force protection, security, health, or safety orders, directives, and instructions issued by the Chief of Mission or the Combatant Commander; however, only the Contracting Officer is authorized to modify the terms and conditions of the contract. (e) Preliminary personnel requirements.
(1) Specific requirements for paragraphs (e)(2)(i) through (e)(2)(vi) of this clause will be set forth in the statement of work, or elsewhere in the contract. (2) Before Contractor personnel depart from the United States or a third country, and before Contractor personnel residing in the host country begin contract performance in the designated operational area or supporting the diplomatic or consular mission, the Contractor shall ensure the 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 137 of 155
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following:
(i) All required security and background checks are complete and acceptable. (ii) All personnel are medically and physically fit and have received all required vaccinations.
(iii) All personnel have all necessary passports, visas, entry permits, and other documents required for Contractor personnel to enter and exit the foreign country, including those required for in-transit countries.
(iv) All personnel have received--
(A) A country clearance or special area clearance, if required by the chief of mission; and
(B) Theater clearance, if required by the Combatant Commander. (v) All personnel have received personal security training. The training must at a minimum--
(A) Cover safety and security issues facing employees overseas; (B) Identify safety and security contingency planning activities; and (C) Identify ways to utilize safety and security personnel and other resources appropriately.
(vi) All personnel have received isolated personnel training, if specified in the contract.
Isolated personnel are military or civilian personnel separated from their unit or organization in an environment requiring them to survive, evade, or escape while awaiting rescue or recovery.
(vii) All personnel who are U.S. citizens are registered with the U.S. Embassy or Consulate with jurisdiction over the area of operations on-line at http://www.travel.state.gov.
(3) The Contractor shall notify all personnel who are not a host country national or ordinarily resident in the host country that--
(i) If this contract is with the Department of Defense, or the contract relates to supporting the mission of the Department of Defense outside the United States, such employees, and dependents residing with such employees, who engage in conduct outside the United States that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, may potentially be subject to the criminal jurisdiction of the United States (see the Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. 3261 et seq.);
(ii) Pursuant to the War Crimes Act, 18 U.S.C. 2441, Federal criminal jurisdiction also extends to conduct that is determined to constitute a war crime when committed by a civilian national of the United States; and
(iii) Other laws may provide for prosecution of U.S. nationals who commit offenses on the premises of United States diplomatic, consular, military or other United States Government missions outside the United States (18 U.S.C. 7(9)). 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 138 of 155
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(f) Processing and departure points. The Contractor shall require its personnel who are arriving from outside the area of performance to perform in the designated operational area or supporting the diplomatic or consular mission to--
(1) Process through the departure center designated in the contract or complete another process as directed by the Contracting Officer;
(2) Use a specific point of departure and transportation mode as directed by the Contracting Officer; and
(3) Process through a reception center as designated by the Contracting Officer upon arrival at the place of performance.
(g) Personnel data.
(1) Unless personnel data requirements are otherwise specified in the contract, the Contractor shall establish and maintain with the designated Government official a current list of all Contractor personnel in the areas of performance. The Contracting Officer will inform the Contractor of the Government official designated to receive this data and the appropriate system to use for this effort.
(2) The Contractor shall ensure that all employees on this list have a current record of emergency data, for notification of next of kin, on file with both the Contractor and the designated Government official.
(h) Contractor personnel. The Contracting Officer may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who fail to comply with or violate applicable requirements of this contract. Such action may be taken at the Government's discretion without prejudice to its rights under any other provision of this contract, including termination for default or cause.
(i) Weapons.
(1) If the Contracting Officer, subject to the approval of the Combatant Commander or the Chief of Mission, authorizes the carrying of weapons--
(i) The Contracting Officer may authorize an approved Contractor to issue Contractor-owned weapons and ammunition to specified employees; or (ii) The To be determined at the task order level [Contracting Officer to specify individual, e.g., Contracting Officer Representative, Regional Security Officer, etc,] may issue Government-furnished weapons and ammunition to the Contractor for issuance to specified Contractor employees.
(2) The Contractor shall provide to the Contracting Officer a specific list of personnel for whom authorization to carry a weapon is requested.
(3) The Contractor shall ensure that its personnel who are authorized to carry weapons-- (i) Are adequately trained to carry and use them--
(A) Safely;
(B) With full understanding of, and adherence to, the rules of the use of force issued by the Combatant Commander or the Chief of Mission; and (C) In compliance with applicable agency policies, agreements, rules, regulations, 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 139 of 155
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and other applicable law;
(ii) Are not barred from possession of a firearm by 18 U.S.C. 922; and (iii) Adhere to all guidance and orders issued by the Combatant Commander or the Chief of Mission regarding possession, use, safety, and accountability of weapons and ammunition.
(4) Upon revocation by the Contracting Officer of the Contractor's authorization to possess weapons, the Contractor shall ensure that all Government-furnished weapons and unexpended ammunition are returned as directed by the Contracting Officer. (5) Whether or not weapons are Government-furnished, all liability for the use of any weapon by Contractor personnel rests solely with the Contractor and the Contractor employee using such weapon.
(j) Vehicle or equipment licenses. Contractor personnel shall possess the required licenses to operate all vehicles or equipment necessary to perform the contract in the area of performance. (k) Military clothing and protective equipment.
(1) Contractor personnel are prohibited from wearing military clothing unless specifically authorized by the Combatant Commander. If authorized to wear military clothing, Contractor personnel must wear distinctive patches, armbands, nametags, or headgear, in order to be distinguishable from military personnel, consistent with force protection measures. (2) Contractor personnel may wear specific items required for safety and security, such as ballistic, nuclear, biological, or chemical protective equipment. (l) Evacuation.
(1) If the Chief of Mission or Combatant Commander orders a mandatory evacuation of some or all personnel, the Government will provide to United States and third country national Contractor personnel the level of assistance provided to private United States citizens. (2) In the event of a non-mandatory evacuation order, the Contractor shall maintain personnel on location sufficient to meet contractual obligations unless instructed to evacuate by the Contracting Officer.
(m) Personnel recovery.
(1) In the case of isolated, missing, detained, captured or abducted Contractor personnel, the Government will assist in personnel recovery actions.
(2) Personnel recovery may occur through military action, action by non-governmental organizations, other Government-approved action, diplomatic initiatives, or through any combination of these options.
(3) The Department of Defense has primary responsibility for recovering DoD contract service employees and, when requested, will provide personnel recovery support to other agencies in accordance with DoD Directive 2310.2, Personnel Recovery. (n) Notification and return of personal effects.
(1) The Contractor shall be responsible for notification of the employee-designated next of kin, and notification as soon as possible to the U.S. Consul responsible for the area in which the event occurred, if the employee--
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(i) Dies;
(ii) Requires evacuation due to an injury; or
(iii) Is isolated, missing, detained, captured, or abducted. (2) The Contractor shall also be responsible for the return of all personal effects of deceased or missing Contractor personnel, if appropriate, to next of kin. (o) Mortuary affairs. Mortuary affairs for Contractor personnel who die in the area of performance will be handled as follows:
(1) If this contract was awarded by DoD, the remains of Contractor personnel will be handled in accordance with DoD Directive 1300.22, Mortuary Affairs Policy. (2) (i) If this contract was awarded by an agency other than DoD, the Contractor is responsible for the return of the remains of Contractor personnel from the point of identification of the remains to the location specified by the employee or next of kin, as applicable, except as provided in paragraph (o)(2)(ii) of this clause. (ii) In accordance with 10 U.S.C. 1486, the Department of Defense may provide, on a reimbursable basis, mortuary support for the disposition of remains and personal effects of all U.S. citizens upon the request of the Department of State. (p) Changes. In addition to the changes otherwise authorized by the Changes clause of this contract, the Contracting Officer may, at any time, by written order identified as a change order, make changes in place of performance or Government-furnished facilities, equipment, material, services, or site. Any change order issued in accordance with this paragraph shall be subject to the provisions of the Changes clause of this contract.
(q) Subcontracts. The Contractor shall incorporate the substance of this clause, including this paragraph (q), in all subcontracts that require subcontractor personnel to perform outside the United States-- (1) In a designated operational area during--
(i) Contingency operations;
(ii) Humanitarian or peacekeeping operations;or
(iii) Other military operations; or military exercises, when designated by the Combatant Commander; or
(2) When supporting a diplomatic or consular mission--
(i) That has been designated by the Department of State as a danger pay post (see https://aoprals.state.gov/);or
(ii) That the Contracting Officer has indicated is subject to this clause.
Begin Regulation
52.228-3 WORKER’S COMPENSATION INSURANCE (DEFENSE BASE ACT) (JUL 2014)
(a) The Contractor shall
(1) Before commencing performance under this contract, establish provisions to provide for the 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 141 of 155
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payment of disability compensation and medical benefits to covered employees and death benefits to their eligible survivors, by purchasing workers’ compensation insurance or qualifying as a self-insurer under the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 932) as extended by the Defense Base Act (42 U.S.C.1651, etseq.), and continue to maintain provisions to provide such Defense Base Act benefits until contract performance is completed; (2) Within ten days of an employee’s injury or death or from the date the Contractor has knowledge of the injury or death, submit Form LS-202 (Employee’s First Report of Injury or Occupational Illness) to the Department of Labor in accordance with the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 930(a), 20 CFR 702.201 to 702.203); (3) Pay all compensation due for disability or death within the time frames required by the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 914, 20 CFR 702.231 and 703.232); (4) Provide for medical care as required by the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 907, 20 CFR 702.402 and 702.419);
(5) If controverting the right to compensation, submit Form LS-207 (Notice of Controversion of Right to Compensation) to the Department of Labor in accordance with the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 914(d), 20 CFR 702.251); (6) Immediately upon making the first payment of compensation in any case, submit Form LS-206 (Payment Of Compensation Without Award) to the Department of Labor in accordance with the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 914(c), 20 CFR 702.234); (7) When payments are suspended or when making the final payment, submit Form LS-208 (Notice of Final Payment or Suspension of Compensation Payments) to the Department of Labor in accordance with the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 914(c) and (g), 20 CFR 702.234 and 702.235); and
(8) Adhere to all other provisions of the Longshore and Harbor Workers’ Compensation Act as extended by the Defense Base Act, and Department of Labor regulations at 20 CFR Parts 701 to 704.
(b) For additional information on the Longshore and Harbor Workers’ Compensation Act requirements see http://www.dol.gov/owcp/dlhwc/lsdba.htm.
(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts to which the Defense Base Act applies.
(End of clause)
Begin Regulation
52.232-40 PROVIDING ACCELERATED PAYMENTS TO
SMALL BUSINESS SUBCONTRACTORS (MAR 2023)
(a)
(1) In accordance with 31 U.S.C. 3903 and 10 U.S.C. 3801, within 15 days after receipt of
accelerated payments from the Government, the Contractor shall make accelerated payments to its small business subcontractors under this contract, to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract, after receipt of a proper invoice and all other required documentation from the small business subcontractor.
(2) The Contractor agrees to make such payments to its small business subcontractors without any
further consideration from or fees charged to the subcontractor. (b) The acceleration of payments under this clause does not provide any new rights under the
Prompt Payment Act.
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(c) Include the substance of this clause, including this paragraph (c), in all subcontracts with small
business concerns, including subcontracts with small business concerns for the acquisition of
commercial products or commercial services.
(End of clause)
Begin Regulation
552.219-74 SECTION 8(a) DIRECT AWARD (SEP 1999)
(a) This contract is issued as a direct award between the contracting activity and the 8(a)Contractor pursuant to the Memorandum of Understanding between the Small Business Administration (SBA) and the General Services Administration. SBA retains the responsibility for 8(a)certifications, 8(a)eligibility determinations, and related issues, and will provide counseling and assistance to the 8(a)contractor under the 8(a)program.
The cognizant SBA district office is:
[Complete at time of award]
(b) The contracting activity is responsible for administering the contract and taking any action on behalf of the Government under the terms and conditions of the contract.
However, the contracting activity shall give advance notice to SBA before it issues a final notice terminating performance, either in whole or in part, under the contract. The contracting activity shall also coordinate with SBA prior to processing any advance payments or novation agreements. The contracting activity may assign contract administration functions to a contract administration office. (c) The Contractor agrees:
(1)To notify the Contracting Officer, simultaneous with its notification to SBA (as required by SBA’s 8(a)regulations), when the owner or owners upon whom 8(a)eligibility is based plan to relinquish ownership or control of the concern.
Consistent with 15 U.S.C. 637(a)(21), transfer of ownership or control shall result in termination of the contract for convenience, unless SBA waives the requirement for termination prior to the actual relinquishing of ownership and control.
(2)To the requirements of 52.219-14, Limitations on Subcontracting. (End of clause)
Begin Regulation
552.228-5 GOVERNMENT AS ADDITIONAL INSURED (JAN 2016)
(a) This clause supplements the requirements set forth in FAR clause 52.228-5, Insurance–Work on a Government Installation.
(b) Each insurance policy required under this contract, other than workers’ compensation insurance, shall contain an endorsement naming the United States as an additional insured with respect to operations performed under this contract. The insurance carrier is required to waive all subrogation rights against any of the named insured.
Begin Regulation
552.238-100 TRANSSHIPMENTS (MAY 2019)
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(a) The Contractor shall complete two (2) DD Forms 1387, Military Shipment Labels and, if applicable, four copies of DD Form 1387-2, Special Handling/Data Certification-used when shipping chemicals, dangerous cargo, etc.
(1) Two copies of the DD Form 1387 will be attached to each shipping container delivered to the port Transportation Officer for subsequent transshipment by the Government as otherwise provided for under the terms of this contract.
(2) These forms will be attached to one end and one side, not on the top or bottom, of the container.
(3) The Contractor will complete the bottom line of these forms, which pertains to the number of pieces, weight and cube of each piece, using U.S. weight and cubic measures. Weights will be rounded off to the nearest pound. (One kg = 2.2 U.S. pounds; one cubic meter = 35.3156 cubic feet.)
(b) In addition, if the cargo consists of chemicals, or is dangerous, one copy of the DD Form 1387-2 will be attached to the container, and three copies will be furnished to the Transportation Officer with the Bill of Lading.
(c) Dangerous cargo will not be intermingled with non-dangerous cargo in the same container. (d) Copies of the above forms and preparation instructions will be obtained from the ordering activity issuing the Delivery Order. Reproduced copies of the forms are acceptable. (e) Failure to include DD Form 1387, and DD Form 1387-2, if applicable, on each shipping container will result in rejection of shipment by the port Transportation Officer.
Begin Regulation
552.238-101 FOREIGN TAXES AND DUTIES (MAY 2019)
Prices offered must be net, delivered, f.o.b. to the destinations accepted by the Government. (a) The Contractor warrants that such prices do not include any tax, duty, customs fees, or other foreign Governmental costs, assessments, or similar charges from which the U.S. Government is exempt. (b) Standard commercial export packaging, including containerization, if necessary, packaging, preservation, and/or marking are included in the pricing offered and accepted by the Government.
Begin Regulation
552.238-106 INTERPRETATION OF CONTRACT REQUIREMENTS
(MAY 2019)
No interpretation of any provision of this contract, including applicable specifications, shall be binding on the Government unless furnished or agreed to in writing by the Contracting Officer or his designated representative.
Begin Regulation
552.238-112 DEFINITIONS- FEDERAL SUPPLY SCHEDULE
CONTRACTS (MAR 2024)
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As used in this contract,
Eligible means an entity that meets the requirements prescribed by statute, regulation, or other authority for purposes of being able to use Federal Supply Schedule (FSS) contracts. Information about FSS eligibility is available at https://www.gsa.gov/eligibilitydeterminations.
Ordering activity (also called “ordering agency” and “ordering office”) means an entity that is eligible to place orders or establish blanket purchase agreements (BPA) under this contract. (End of clause)
Begin Regulation
552.238-113 AUTHORITIES SUPPORTING USE OF FEDERAL
SUPPLY SCHEDULE CONTRACTS (MAR 2024)
(a) Ordering activities are able to use Federal Supply Schedule (FSS) contracts based upon a number of statutes, regulations, and other authorities. Authorities allowing ordering activities use of FSS contracts include, but are not limited to:.
(1) 25 U.S.C. 1660g(e), which provides for the use by urban Indian organizations, as defined in 25 U.S.C. 1603, for the purposes of carrying out a contract or grant pursuant to 25 U.S.C. chapter 18, subchapter IV.
(2) 25 U.S.C. 2507, which provides for the use by tribally controlled schools, as defined in 25 U.S.C. 2511, for the purposes of carrying out a grant pursuant to 25 U.S.C. chapter 27 (known as the Tribally Controlled Schools Act).
(3) 25 U.S.C. 4111(j), which provides for the use by Indian Tribes, as defined in 25 U.S.C. 4103, and tribally designated housing entities, as defined in 25 U.S.C. 4103, for the purposes of carrying out a contract, grant, or cooperative agreement pursuant to 25 U.S.C. chapter 43 (known as the Native American Housing Assistance and Self Determination Act (NAHASDA)). (4) 25 U.S.C. 5324(k), which provides for the use by Tribal organizations, as defined in 25 U.S.C 5304, for the purposes of carrying out a contract, grant, or cooperative agreement pursuant to 25 U.S.C. chapter 46 (known as the Indian Self-Determination and Education Assistance Act (ISDEAA)).
(5) 25 U.S.C. 5370 and 25 U.S.C. 5396, which provides for the use by Indian Tribes, as defined in 25 U.S.C. 5304, for the purpose of carrying out a compact or funding agreement pursuant to 25 U.S.C. chapter 46 (known as ISDEAA).
(6) 40 U.S.C. 113(d), which provides for the use by the Senate, the House of Representatives, and the Architect of the Capitol (including any building, activity, or function under the direction of the Architect of the Capitol).
(7) 40 U.S.C. 501, which provides for the use by executive agencies as defined in 5 U.S.C. 105. (8) 40 U.S.C. 502(a), which provides for the use by Federal agencies as defined in 40 U.S.C. 102, the District of Columbia, and mixed-ownership Government corporations as defined in 31 U.S.C. 9101.
(9) 40 U.S.C. 502(b), which provides for the use by qualified nonprofit agencies for other severely disabled, as defined in 41 U.S.C. 8501(6), and qualified nonprofit agencies for the blind, as defined in 41 U.S.C. 8501(7), for the purposes of making or providing to the Government a 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 145 of 155
ATTACHMENT A 682
commodity or service that has been determined by the Committee for Purchase From People Who Are Blind or Severely Disabled under 41 U.S.C. 8503 to be suitable for procurement by the Government.
(10) 40 U.S.C. 502(c), which provides for the use by State or local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the purpose of purchasing the types of supplies and services described in 40 U.S.C. 502(c). The types of supplies and services described in 40 U.S.C. 502(c) are limited to those available in the Information Technology Category and the Security and Protection Category (or any successor categories). The GSA program implementing this authority is the Cooperative Purchasing program.
(11) 40 U.S.C. 502(d), which provides for the use by State or local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the purposes of facilitating disaster preparedness or response, facilitating recovery from a major disaster declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5121 et seq.), or facilitating recovery from terrorism, nuclear, biological, chemical, or radiological attack. The GSA program implementing this authority is the Disaster Purchasing program.
(12) 40 U.S.C. 502(e), which provides for the use by the American National Red Cross and other qualified organizations, as defined in 40 U.S.C. 502(e)(3). Purchases under this authority by the American National Red Cross shall be used in furtherance of the purposes of the American National Red Cross set forth in 36 U.S.C. 300102. Purchases under this authority by other qualified organizations shall be used in furtherance of purposes determined to be appropriate to facilitate emergency preparedness and disaster relief and set forth in guidance by the Administrator of General Services, in consultation with the Administrator of the Federal Emergency Management Agency.
(13) 42 U.S.C. 247d, which provides for the use by State or local governments, as defined in 40 U.S.C.502(c)(3)(A), when a public health emergency has been declared by the Secretary of Health and Human Services under section 319 of the Public Health Services Act. The GSA program implementing this authority is the Public Health Emergencies program. (14) FAR subpart 51.1, which provides for the use by contractors, including subcontractors, when such use is authorized pursuant to FAR subpart 51.1.
(End of clause)
Begin Regulation
552.238-114 USE OF FEDERAL SUPPLY SCHEDULE CONTRACTS
BY NON-FEDERAL ENTITIES (MAR 2024)
(a) Definition — Non-Federal entity, as used in this clause, means any State, local, territorial, or Tribal government, or any instrumentality thereof (including any local educational agency or institution of higher education); and any other non-Federal organization ( e.g., a qualified nonprofit agency as defined in 40 U.S.C. 502(b)
(b) Responsibilities. Eligible non-Federal entities are responsible for complying with— (1) FSS ordering guidance. Information about GSA's FSS contracts, including ordering guidance is available at https://www.gsa.gov/schedules
(2) Any conditions of the underlying authority(ies) supporting the use of FSS contracts ( e.g., 40 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 146 of 155
ATTACHMENT A 683
U.S.C. 502(c) limits purchases to specific supplies and services available under FSS contracts). (c) Acceptance. (1) The Contractor is encouraged, but not obligated, to accept orders from eligible non-Federal entities under this contract. The Contractor may, within 5 business days of receipt of an order, reject an order from an eligible non-Federal entity for any reason. However, purchase card orders must be rejected within 24 hours of receipt of the order. Failure to reject an order within these timeframes shall constitute acceptance. (2) The Contractor is encouraged, but not obligated, to enter into blanket purchase agreements (BPAs) with eligible non-Federal entities under the terms of this contract. The Contractor should respond to any requests to enter into a BPA within 5 business days of receipt of the request. (d) Conditions of acceptance. If the Contractor accepts an order from or enters into a BPA with an eligible non-Federal entity under this contract, the following conditions apply:
(1) For orders, a separate contract is formed between the Contractor and the eligible non-Federal entity (herein “the parties”). For BPAs, a separate agreement is formed between the parties. (2) The resultant order or BPA shall incorporate by reference all the terms and conditions of this contract except for:
(i)FAR clause 52.233-1, Disputes, and
(ii)Paragraphs (d) Disputes, (h) Patent indemnity, and (r) Compliance with laws unique to Government contracts, of GSAR clause 552.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services. (3) The U.S. Government is not liable for the performance or nonperformance of any order or BPA entered into under this contract by the parties. Disputes which cannot be resolved by the parties may be litigated in any State or Federal court with jurisdiction over the parties, applying Federal procurement law, including statutes, regulations, and case law, and, if pertinent, the Uniform Commercial Code. To the extent authorized by law, the parties are encouraged to resolve disputes through alternative dispute resolution.
(4) Neither party will look to, primarily or in any secondary capacity, or file any claim against the U.S.
Government or any of its agencies with respect to any failure of performance by the other party. (e) Additional terms and conditions. Terms and conditions required by statute, ordinance, regulation, or as otherwise required by an eligible non-Federal entity may be made a part of an order or a BPA to the extent that these terms and conditions do not conflict with the terms and conditions of this contract. The Contractor should review any such additional terms and conditions prior to accepting an order or entering into a BPA with an eligible non-Federal entity. (f) Payment. (1) The Contractor is responsible for obtaining all payments due to the Contractor from the eligible non-Federal entity under the terms and conditions of the order or the BPA entered into under this contract, without recourse to the U.S. Government or any of its agencies that awarded this contract or administer this contract.
(2) If an eligible non-Federal entity is subject to a State prompt payment law, the terms and conditions of the applicable State law apply to the orders placed under this contract by such entities. If an eligible non-Federal entity is not subject to a State prompt payment law, the terms and conditions of paragraph (i) of the GSAR clause at 552.212-4, apply to such entities in the same manner as to Federal entities. (g) Fee and sales reporting. The requirements of the GSAR clause at 552.238-80, Industrial Funding Fee and Sales Reporting, apply to any sales to eligible non-Federal entities under this contract. (End of clause)
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Begin Regulation
552.238-117 PRICE ADJUSTMENT—FAILURE TO PROVIDE
ACCURATE INFORMATION (OCT 2023)
(a) The Government, at its election, may reduce the price of this contract or contract modification if the Contracting Officer determines after award of this contract or contract modification that the price negotiated was increased by a significant amount because the Contractor failed to:
(1) provide information required by this solicitation/contract or otherwise requested by the Government; or
(2) submit information that was current, accurate, and complete; or (3) disclose changes in the Contractor’s commercial pricelist(s), discounts or discounting policies which occurred after the original submission and prior to the completion of negotiations. (b) The Government will consider information submitted to be current, accurate and complete if the data is current, accurate and complete as of 14 calendar days prior to the date it is submitted. (c) If any reduction in the contract price under this clause reduces the price for items for which payment was made prior to the date of the modification reflecting the price reduction, the Contractor shall be liable to and shall pay the United States—
(1) The amount of the overpayment; and
(2) Simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the Contractor to the date the Government is repaid by the Contractor at the applicable underpayment rate effective each quarter prescribed by the Secretary of Treasury under 26 U.S.C.6621(a)(2).
(d) Failure to agree on the amount of the decrease shall be resolved as a dispute. (e) In addition to the remedy in paragraph (a) of this clause, the Government may terminate this contract for default. The rights and remedies of the Government specified herein are not exclusive, and are in addition to any other rights and remedies provided by law or under this contract. (End of clause)
Begin Regulation
552.238-84 DISCOUNTS FOR PROMPT PAYMENT (MAY 2019)
(a) Discounts for early payment (hereinafter referred to as “discounts” or “the discount”) will be considered in evaluating the relationship of the Offeror's concessions to the Government vis-a-vis the Offeror's concessions to its commercial and Federal non-schedule customers, but only to the extent indicated in this clause.
(b) Discounts will not be considered to determine the low Offeror in the situation described in the “Offers on Identical Products” provision of this solicitation. (c) Uneconomical discounts will not be considered as meeting the criteria for award established by the Government. In this connection, a discount will be considered uneconomical if the annualized rate of return for earning the discount is lower than the “value of funds” rate established by the Department of 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 148 of 155
ATTACHMENT A 685
the Treasury and published quarterly in the Federal Register. The “value of funds” rate applied will be the rate in effect on the date specified for the receipt of offers. (d) Discounts for early payment may be offered either in the original offer or on individual invoices submitted under the resulting contract. Discounts offered will be taken by the ordering activity if payment is made within the discount period specified.
(e) Discounts that are included in offers become a part of the resulting contracts and are binding on the Contractor for all orders placed under the contract. Discounts offered only on individual invoices will be binding on the Contractor only for the particular invoice on which the discount is offered. (f) In connection with any discount offered for prompt payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the date on which an electronic funds transfer was made.
Begin Regulation
552.238-85 CONTRACTOR'S BILLING RESPONSIBILITIES
(MAY 2019)
(a) The Contractor is required to perform all billings made pursuant to this contract. However, if the Contractor has dealers that participate on the contract and the billing/payment process by the Contractor for sales made by the dealer is a significant administrative burden, the following alternative procedures may be used. Where dealers are allowed by the Contractor to bill ordering activities and accept payment in the Contractor's name, the Contractor agrees to obtain from all dealers participating in the performance of the contract a written agreement, which will require dealers to (1) Comply with the same terms and conditions as the Contractor for sales made under the contract;
(2) Maintain a system of reporting sales under the contract to the manufacturer, which includes (i) The date of sale;
(ii) The ordering activity to which the sale was made;
(iii) The service or supply/model sold;
(iv) The quantity of each service or supply/model sold; (v) The price at which it was sold, including discounts; and (vi) All other significant sales data.
(3) Be subject to audit by the Government, with respect to sales made under the contract; and (4) Place orders and accept payments in the name of the Contractor in care of the dealer. (b) An agreement between a Contractor and its dealers pursuant to this procedure will not establish privity of contract between dealers and the Government.