05 - The Agreement - Solicitation 47PJ0020R0183.pdf

Sol. Reference No. 47PJ0020R0183 GSA Contract No: TBD

Document: CMc101/OCTOBER 2020 (The Agreement)

Construction Manager as Constructor (CMc) Contract for:

The Frank E. Moss Courthouse, Seismic Upgrades, Backfill, & Building Renovation Project

The Agreement

Project Location(s): Frank E. Moss Courthouse

350 South Main Street

Salt Lake City, UT 84101

Table of Contents

I. Project Information

A. Project Summary

B. The Contract

C. Period Of Performance

D. Work Conditions/Site Requirements

E. Authorized Representatives

F. Contract Liquidated Damages Rate

G. Buy American Exceptions

H. Statement of Work, Specifications, Drawings, Exhibits and Other Attachments

II. Prices

A. Basis of Pricing

B. Contract Price Form

III. Terms and Conditions

A. Definitions

B. Contractor Responsibilities

C. Contractor Management and Personnel

D. Project Schedule

E. Submittals

F. Finality of Contract Modifications

G. Liquidated Damages

H. Insurance Requirements

I. Performance and Payment Bonds

J. Order of Precedence

K. Administrative Matters

L. Non-Compliance with Contract Requirements

M. Safeguarding Sensitive Data and Information Technology Resources

N. Equal Employment Opportunity Plan

O. Additional Terms and Conditions

i. GSAR 552.236-74, Evaluation of Options (Mar 2019)

ii. GSAR 552.236-77, Government’s Right to Exercise Options (Mar 2019)

A. Contract Clauses

(1) GSAR 552.236-79, Construction-Manager-As-Constructor (JAN 2020)

(2) FAR 52.230-2, Cost Accounting Standards (June 2020)

(3)FAR 52.230-3, Disclosure and Consistency of Cost Accounting Practices (June 2020)

(4) FAR 52.230-6, Administration of Cost Accounting Standards (June 2010)

B. Additional Clauses Incorporated in Full Text

1. FAR 52.222-99 Establishing a Minimum Wage for Contractor (JUL 2014) (DEVIATION)

2. FAR 52.223-2 Affirmative Procurement of Biobased Products Under Service and

Construction Contracts (SEP 2013)

3. FAR 52.223-9 Estimate of Percentage of Recovered Material Content for EPA-Designated

Items (May 08)

4. GSAR 552.204-9 Personal Identity Verification Requirements (JUL 2020)

5. GSAR 552.252-6 Authorized Deviations in Clauses (Deviation FAR 52.252-6) (Sep 99)

6. FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video

Surveillance Services or Equipment (AUG 2020)

7. Buy American Requirements

8. FAR 52.228-11, Pledges of Assets (DEVIATION APR 2020)

9. FAR 52.232-40, Providing Accelerated Payments to Small Business Subcontractors

(DEVIATION APR 2020)

10. Additional Clauses

i. FAR 52.222-30, Construction Wage Rate Requirements-Price Adjustment (None or Separately Specified Method) (Aug 2018)

11. Project Labor Agreement

12. FAR 52.244-5, Competition in Subcontracting (DEC 96)

C. Clauses Incorporated by Reference

D. Subcontract Requirements

I. Project Information

I.A. Project Summary

This is a Construction Manager as Constructor (CMc) Contract, and includes requirements for the Design Phase

Services and the option(s) for Construction Services at a Guaranteed Maximum Price (GMP) Option.

The primary objectives of this project are to improve the overall seismic performance of the building for the safety of its occupants in accordance with the PBS P100 as a result of a February 2, 2016 Executive Order 13717

Establishing a Federal Earthquake Risk Management Standard; back-fill the Frank E. Moss U.S. Courthouse with federal agencies, some of which are currently housed in private market leases within the Salt Lake City metropolitan area; preserve and rehabilitate significant historic spaces; and invest in building systems that are at the end of their useful life, improving the overall performance of the building and tenant comfort.

The project’s minimum target is LEED Gold Certification; however the goal is LEED Platinum Certification.

The project shall maximize space utilization for the agencies, creating an advanced and modern work environment. The project team shall ensure a high performing building that employs a whole building design approach which maximizes the building’s original construction and inherent characteristics to drive efficiency cost effectively. The project team will collaborate in order to deliver an award winning project which embraces the ethos of design excellence, construction excellence, balances preservation and advanced technology, and exhibits a high degree of ingenuity, and creativity.

I.B. The Contract

(1) The Contract consists of the SF1442, the Agreement, the Statement of Work, Specifications, Drawings, Exhibits, Amendments, Modifications, and other Attachments identified herein (collectively, the Contract

Documents). The Contract contains the entire agreement of the Parties, and no prior written or oral agreement, express or implied, shall be admissible to contradict or modify any part of the Contract.

(2) The Construction Documents, as that term is defined in this Agreement, shall be deemed incorporated into the Contract Documents upon acceptance of all deliverables described in the Design Phase Services

Statement of Work, and shall supersede and replace all Specifications and Drawings contained in the

Contract Documents at award of the Contract.

(3) In consideration for, and upon condition of, the Contractor's completion of the Design Phase Services, GSA shall pay the Contractor the firm-fixed-price for Design Phase Services, subject to the terms and conditions set forth in this Contract. If the GMP Option is exercised, then the Contractor shall be required to complete the Construction Services. In consideration for completion of the Construction Services under the GMP

Option, the Contractor shall be entitled to the allowable cost of performance not to exceed the GMP, subject to the terms and conditions set forth in this Contract.

(4) The construction work includes all construction work on the project, including the Work performed under the GMP Option, any firm-fixed-price options, or any Contract modifications for construction work. Any construction work performed under this Contract includes all labor, materials, equipment, tools, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution of the construction work described in and reasonably inferable from the Contract Documents, whether temporary or permanent.

I.C. Period of Performance

(1) Design Phase Services

Frank E. Moss Courthouse:

(a) Commencement of Design Phase Services. The Contractor shall commence performance of the

Design Phase Services within 10 days after the Contractor receives the Notice to Proceed (NTP).

(b) Completion of Design Phase Services. Design Phase Services shall be complete upon acceptance of all deliverables required by the Design Phase Services Statement of Work.

(2) Construction Services (the Work)

Frank E. Moss Courthouse:

(a) Commencement of the Work. If the Government exercises the GMP Option(s), the

Contractor shall commence performance of the construction within 10 days after the Contractor receives the Notice to Proceed (NTP) for the Work.

(b) Substantial Completion. If the Government exercises the GMP Option(s), the Contractor shall achieve Substantial Completion of the Construction Phase Work, as that term is defined in this

Agreement, no later November 30, 2023.

(3) Contract Completion.-Construction Services. If the Government exercises the GMP Option(s), the

Contractor shall achieve Contract Completion, as the term is defined in this Agreement, within 60 calendar days of Substantial Completion for each building.

I.D. Work Conditions/Site Requirements

Refer to the technical package

I.E. Authorized Representatives

(1) This Contract is between the United States of America, acting by and through the Administrator of General

Services (GSA), and the Contractor (the Parties). References in this Contract to "the Owner" or "the

Government" shall be understood to refer to GSA. The following individual is designated as the only authorized GSA representative under this Contract, unless other warranted contracting officers are designated in writing:

Authorized Representative Information:

Contracting Officer’s Information

Name: Rhonda Widick

Address: General Services Administration (GSA), Public Buildings Service (PBS)

Acquisition Division (8PQB

One Denver Federal Center, Building 41

Denver, CO 80225-0546

Telephone: 402-601-8041

Email: rhonda.widick@gsa.gov

(2) For the applicable authorities and limitations, see Section IV of this Agreement, GSAR 552.236-70.

I.F. Contract Liquidated Damages Rate

In accordance with GSAR 552.211-12, Liquidated Damages – Construction in Section IV of this Agreement, liquidated damages shall be calculated at the rate of $3,981.47 per calendar day.

I.G. Buy American Exceptions

For the applicable Buy American clause and any exceptions, see Section IV of this Agreement.

I.H. Statement of Work, Specifications, Drawings, Exhibits, and Other Attachments

The following documents are incorporated by reference into this Contract.

(1) Statement of Work – Frank E. Moss US Courthouse, CMc, dated December 21, 2020

(2) General Decision Number UT20200085 Dated October 30, 2020

(3) Frank E. Moss Courthouse – 50 Concept – Narrative, dated December 16, 2020

(4) Frank E. Moss Courthouse – 50 Concept – Project Manual, Dated December 16, 2020

(5) Frank E. Moss Courthouse – 50 Concept – Drawings, dated December 16, 2020

(6) Small Business Subcontracting Plan, Dated X (fill in at time of award)

(7) Contract Price Form, Dated X (fill in at time award)

II. Prices

II.A. Basis of Pricing

(1) Contract Prices. All Contract prices set forth in this Section include all costs, including, but not limited to the cost of work performed by subcontractors and consultants, indirect costs, fees, expenses, taxes, and profit, necessary to complete the Design Phase Services (Base Contract), and firm-fixed-price options for construction work, if any, in accordance with the Contract Documents. For pricing information regarding the GMP Option, see Paragraph IV.A., Construction Manager as Constructor (CMc) Guaranteed

Maximum Price with CMc Contingency Allowance and Shared Savings.

(2) Knowledge of Conditions Affecting Price. FAR 52.236-3, Site Investigations and Conditions Affecting the

Work, is incorporated by reference in this Contract. The Contractor is presumed to have established all prices with knowledge of general and local conditions that may affect the cost of Contract performance at the site where the Work is to be performed, to the extent that such information is reasonably obtainable.

(3) Unit Prices and Allowances. If any portion of the construction work is to be performed on a unit price basis

(Unit Priced Work), the unit price established in the Contract shall include all costs of coordinating and incorporating the Unit Price Work into the construction work. The Contractor shall only be obligated to perform Unit Priced Work to the extent that an allowance has been established in an amount sufficient to compensate the Contractor for such Unit Priced Work at the established unit prices. The Contractor shall be obligated to perform such work in excess of a unit quantity for which an Allowance is sufficient only if directed by the Contracting Officer in writing. The Contractor shall be bound to the unit price or prices set forth herein in all equitable adjustments for changes including unit priced work, and no markups shall be applied to such unit prices.

(4) Firm-fixed-price Options. If any portion of the construction work is to be performed upon the timely exercise of a firm-fixed-price option, the option price shall include all costs of coordinating and incorporating such work into the remaining construction work. An adjustment to the Contract price for such additional work shall be computed solely on the basis of the option price or prices set forth herein.

(5) Work Packages. The Contractor and the Government may agree to develop early work packages for construction work that stand alone from the remainder of the Work. The Parties must agree bilaterally to the scope, schedule and pricing for any such work package, and Contract must be modified accordingly. If such work package reduces the scope of the Construction Services under the GMP Option, the Estimated

Cost of the Work (ECW) shall be reduced, and the CMc Contingency Allowance (CCA), Fee and GMP shall be adjusted accordingly. These early work packages shall include specific completion milestones.

(6) Bid Rates. If this Contract includes Bid Rates to be used in determination of equitable adjustments (e.g., overhead, profit, daily rates for time-related costs), such rates shall be deemed to include all costs recoverable as components of an equitable adjustment consistent with the requirements, definitions, and exclusions applicable to equitable adjustments set forth in this Contract, and consistent with the

Contractor's cost accounting practices. Unless otherwise specified, the bid rates shall be deemed to include only the Contractor's costs, and not the costs of any subcontractors.

(7) Shared Savings. The Contractor shall be entitled to the percentage of any shared savings as indicated in paragraph (g) of GSAR 552.236-79, Construction-Manager-As-Constructor (see Section IV.A)

II.B. Contract Price Form

DESCRIPTION TOTAL

CLIN 0001 Base Services - Moss Design Phase Services $

CLIN 0002 - Reserved $

CLIN 0003 GMP Optional Item 1 - Moss Construction Services $

CLIN 0004 GMP Optional Item 2 - Replace existing HVAC with new central system with five AHUs $

CLIN 0005 GMP Optional Item 3 - Replace existing HVAC with new central system with five EDEC AHUs $

CLIN 0006 GMP Optional Item 4 - Three new high efficiency boilers $

CLIN 0007 GMP Optional Item 5 - Heat recovery on air handlers $

CLIN 0008 GMP Optional Item 6 - New 5,000-pound capacity service elevator $

CLIN 0009 GMP Optional Item 7 - New 2,500-pount judge's elevator $

CLIN 0010 GMP Optional Item 8 - Upgrade interior car finishes in NE elevator #1 and SE elevator #2 and #3 $

CLIN 0011 GMP Optional Item 9 - South lightwell: replace existing skylight with new single skylight $

CLIN 0012 GMP Optional Item 10 - South lightwell: replace existing skylight with four new 12'x12' modular skylights $

CLIN 0013 GMP Optional Item 11 - North lightwell: add new single skylight $

CLIN 0014 GMP Optional Item 12 - North lightwell: add six new 12'x12' modular skylights $

CLIN 0015 GMP Optional Item 13 - New single bay dock on west side of Moss $

CLIN 0016 GMP Optional Item 14 - Wood frames remain with custom wood sash replacement $

CLIN 0017 GMP Optional Item 15 - Full custom wood frames and custom sash replacement $

TOTAL EVALUATED PRICE (sum of CLINs 0001 and 0003 - 0017)

III. Terms and Conditions

III.A. Definitions

(1) "Design Phase" means the phase of the Project during which the design is developed and completed.

(2) "Design Phase Services" means design phase construction management services, constructability reviews and other related services as described in the Statement of Work.

(3) "Construction Documents" mean the 100% complete specifications and construction drawings developed during the Design Phase.

(4) "Work" means the Construction Services under the GMP Option

III.B. Contractor Responsibilities

(1) GSAR 552.236-71, Contractor Responsibilities (Alternate II JAN 2020) is located in Section IV.A. of this

Agreement and is supplemented as follows

The Contracting Officer has sole discretion to accept or reject all or part of any proposal by the Contractor related to design.

(2) Commencement, Prosecution, and Completion of Work

FAR 52-211-10, Commencement, Prosecution, and Completion of Work, and GSAR 552.211-10, Commencement, Prosecution and Completion of Work is supplemented as follows:

Upon exercise of the GMP Option or issuance of a modification commencing construction work, the

Contractor shall not commence performance until the Contracting Officer has issued NTP for the Work.

The Contractor shall diligently prosecute the construction work so as to achieve Substantial Completion, as defined in GSAR 552.211-70, Substantial Completion (Mar 2019) and within the time specified in

Paragraph I.C. of the Agreement. If this Contract specifies different completion dates for different phases or portions of the construction work, the Contractor shall diligently prosecute the Work so as to achieve

Substantial Completion of such phases or portions of the Work within the times specified.

(3) For the purposes of FAR 52.236-1, Performance of Work by the Contractor, the Contractor shall perform at least fifteen (15) percent of the construction work. The Contractor shall furnish the Contracting Officer within 10 days after the award of the construction option, a letter outlining the items of work he will perform with his own forces.

(4) The Contractor shall be liable to the Government in accordance with applicable law for all damages to the

Government caused by the Contractor’s negligent performance of services furnished under this Contract.

Neither the Government’s review or acceptance of, nor payment for, the design services required under this

Contact shall be construed as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract.

III.C. Contractor Management and Personnel

FAR 52.236-6, Superintendence by the Contractor, and GSAR 552.236-6, Superintendence by the Contractor located in Section IV.A. of this Agreement is supplemented as follows

(1) The Contractor shall designate a principal of the firm or other senior management official to provide executive oversight and problem resolution resources to the Project for the entire life of the Contract, including the GMP Option.

III.D. Project Schedule

GSAR 552.236-15, Schedules for Construction Contracts is supplemented as follows:

(1) The Contractor shall develop a Design Phase Project Schedule to plan, coordinate, and perform the services during the design phase. This schedule shall be produced using widely used, commercially available computer software such as Microsoft Project, ®. The schedule will be coordinated with the Architect's schedule of design submissions and show milestones for completion of Design Reviews and cost reconciliation. It will also include a milestone for establishing the ECW for the construction option.

(2) The Contractor shall use a Critical Path Method ("CPM") Construction Project Schedule to plan, coordinate, and perform the Work under the GMP Option. The Construction Project Schedule shall be produced using widely used, commercially available computer software that is capable of generating and monitoring a CPM schedule and is compatible with Meridian Proliance.® For example, compatible software includes Microsoft Project,® Primavera P6. The contractor shall submit the Project Schedule both electronic and hardcopy print format.

III.E. Submittals

FAR 52.236-21, Specifications and Drawings for Construction, GSAR 552.236-73, Submittals located in Section

IV.A. of the Agreement is supplemented as follows:

(1) The Contractor shall prepare and submit to the Contracting Officer shop drawings, samples, calculations, product information, mockups, GSA Form 184 (associated 184A and 184B as necessary), and other submittals (collectively, "submittals") demonstrating compliance with Contract requirements for all Work components as specified elsewhere in this Contract.

III.F. Finality of Contract Modifications

As set forth elsewhere in this Contract, the Contractor is entitled to additional consideration under certain conditions, including the issuance of change orders. It is the Contractor's duty to include in proposals for equitable adjustment or other consideration all compensation to which it may be entitled, including cost and time. Unless otherwise explicitly stated in a modification to the Contract providing such consideration, adjustments to the

Contract price or time agreed upon therein shall be deemed to provide all compensation to which the Contractor is entitled, and shall constitute final settlement of the Contractor's entitlement to compensation on account of the change or other condition giving rise to the modification

III.G. Liquidated Damages

The Contractor acknowledges that time is of the essence for the performance of the Work, and that determining actual damages from delay would be extremely difficult and impractical. If the Contractor fails to achieve

Substantial Completion of the Work in accordance with FAR 52.211-12, Liquidated Damages, GSAR 552.211-12, Liquidated Damages and within the time specified in this Contract, the Contractor shall be liable to the Government for liquidated damages at the rate specified in Section I (Project Information), paragraph entitled, “Liquidated

Damages Rate,” for each calendar day following the required completion date that the Work is not Substantially

Complete.

III.H. Insurance Requirements

(1) The Contractor shall obtain and maintain for the entire life of the Contract, in addition to any insurance required by law, the following minimum kinds and amounts of insurance required pursuant to FAR clause

52.228-5, Insurance – Work on a Government Installation, and GSAR 552.228-5, Government as

Additional Insured.

(a) Workers' compensation insurance in the amount required by the jurisdiction in which the Contract is performed. The Contractor shall obtain Employers' liability coverage of at least $2,000,000. If occupational diseases are not covered by workers' compensation insurance, Employers' liability coverage shall include occupational diseases.

(b) Broad form comprehensive commercial general liability insurance in the amount of at least

$5,000,000 per occurrence. Such insurance shall include, but not be limited to, contractual liability, bodily injury and property damage.

(c) Comprehensive automobile liability covering the operation of all automobiles used in connection with performing the Contract in the amount of at least $1,000,000 per person and $2,500,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage.

(2) The Contractor shall promptly provide to the Contracting Officer proof that it has obtained insurance required by the Contract in the form of certificates of insurance. The Contractor shall submit to the

Contracting Officer all renewal certificates issued during the life of this Contract immediately upon issuance.

III.I. Performance and Payment Bonds

FAR 52.228-15, Performance and Payment Bonds – Construction, is supplemented as follows:

(1) "Original Contract Price" means the GMP established at award of this Contract.

(2) The Contractor shall furnish required performance and payment bonds within 10 days of exercise of the

GMP Option.

(3) Receipt by the Government of required performance and payment bonds is a condition precedent to issuance of the NTP.

III.J. Order of Precedence

Different requirements within this Contract shall be deemed inconsistent only if compliance with both cannot be achieved. In case of inconsistency between Contract Documents, the following order of precedence shall apply:

(1) Section IV of the Agreement

(2) Sections I, II, and III of the Agreement

(3) The Statement of Work

(4) The Specifications

(5) The Drawings

(6) Exhibits and Other Attachments

III.K. Administrative Matters

(1) Project Meetings. The Contractor shall attend a preconstruction conference and shall participate in regularly scheduled Project meetings.

(2) Payments. FAR clause 52.232-5, Payments under Fixed-Price Construction Contracts, is supplemented by

GSAR 552.232-5 Payments under Fixed-Price Construction Contracts located in Section IV.A. of this

Agreement. In accordance with the relevant FAR and GSAR clauses, GSA requires the following data be included with each invoice:

(a) Invoices shall be submitted in an original and two (2) copies to the designated billing office specified in this Contract or in individual delivery/work orders.

(b) Invoices must include the Account Document Number (ADN) assigned at award.

(c) The Contractor shall submit the following information or documentation with each invoice:

(i) GSA Form 184A and/or 184B - Construction Progress Report (Construction Phases

Only), including the updated Schedule of Values upon which the payment request is based;

(ii) GSA Form 2419 - Certification of Progress Payments Under Fixed-Price

Construction Contract;

(iii) The payment terms that apply for the particular services rendered

(iv) Additional documentation: Updated Schedule

(3) Prompt Payment. In accordance with FAR clause 52.232-27, the period for payments is as follows:

(a) Progress Payments: 14 days

(b) Subsequent Subcontractor Payments: 7 days

(4) Payment Information. The General Services Administration (GSA) makes information on contract payments available electronically at Office of the Chief Financial Officer

(https://finance.ocfo.gsa.gov/pii/piinotice.aspx?token=PI002). The Contractor may register at the site and review its record of payments. This site provides information only on payments made by GSA, not by other agencies.

(5) Security Clearances. Contractor shall comply with the following requirements pertaining to security clearances.

(a) All personnel performing work under the Contract on the Project site must obtain an Enter on

Duty (EOD) determination before they will be granted access to the site.

(b) To obtain an EOD determination, Contractor shall submit for all such personnel fingerprints on

Form SF87 and a completed Contractor Information Worksheet (CIW). Detailed information is available at GSA Access Card . USAccess Credentialing Centers can be located at US Access

Centers .

(c) In addition, all such personnel who will be on site 6 months or longer must apply for and receive clearance in accordance with Homeland Security Presidential Directive 12 (HSPD-12). See

Section IV, Contract Clauses, GSAR 552.204-9.

(6) Safeguarding and Dissemination of Controlled Unclassified Information (CUI) Building

Information

This clause applies to all recipients of CUI building information (which falls within the CUI Physical

Security category), including offerors, bidders, awardees, contractors, subcontractors, lessors, suppliers and manufacturers.

Marking CUI. Contractors must submit any contractor-generated documents that contain building information to GSA for review and identification of any CUI building information that may be included. In addition, any documents GSA identifies as containing CUI building information must be marked in accordance with the Order and the Marking Controlled Unclassified Information Handbook (the current version may be found at https://www.archives.gov/files/cui/20161206-cui-marking-handbook-v1-1.pdf) before the original or any copies are disseminated to any other parties. If CUI content is identified, the CO may direct the contractor, as specified elsewhere in this contract, to imprint or affix CUI document https://finance.ocfo.gsa.gov/pii/piinotice.aspx?token=PI002 http://www.gsa.gov/portal/category/107203 http://www.fedidcard.gov/centerlist.aspx http://www.fedidcard.gov/centerlist.aspx https://www.archives.gov/files/cui/20161206-cui-marking-handbook-v1-1.pdf markings (CUI) to the original documents and all copies, before any dissemination, or authorized GSA employees may mark the documents.

1. Authorized recipients.

a. Building information designated as CUI must be protected with access strictly controlled and limited to those individuals having a Lawful Government Purpose to access such information, as defined in 32 C.F.R. § 2002.4(bb). Those with such a Lawful

Government Purpose may include Federal, state and local government entities, and non-governmental entities engaged in the conduct of business on behalf of or with GSA. Non-governmental entities may include architects, engineers, consultants, contractors, subcontractors, suppliers, utilities, and others submitting an offer or bid to GSA, or performing work under a GSA contract or subcontract. Recipient contractors must be registered as “active” in the System for Award Management (SAM) database at www.sam.gov, and have a Lawful Government Purpose to access such information. If a subcontractor is not registered in the SAM database and has a Lawful Government

Purpose to possess CUI building information in furtherance of the contract, the subcontractor must provide to the contractor its DUNS number or its tax ID number and a copy of its business license. The contractor must keep this information related to the subcontractor for the duration of the contract and subcontract.

b. All GSA personnel and contractors must be provided CUI building information when needed for the performance of official Federal, state, and local government functions, such as for code compliance reviews and the issuance of building permits. Public safety entities such as fire and utility departments may have a Lawful Government Purpose to access CUI building information on a case-by-case basis. This clause must not prevent or encumber the necessary dissemination of CUI building information to public safety entities.

2. Dissemination of CUI building information:

a. By electronic transmission. Electronic transmission of CUI information outside of the

GSA network must use session encryption (or alternatively, file encryption) consistent with National Institute of Standards and Technology (NIST) SP 800- 171. Encryption must be through an approved NIST algorithm with a valid certification, such as

Advanced Encryption Standard or Triple Data Encryption Standard, in accordance with

Federal Information Processing Standards Publication 140-2, Security Requirements for

Cryptographic Modules, as required by GSA policy.

b. By nonelectronic form or on portable electronic data storage devices. Portable electronic data storage devices include CDs, DVDs, and USB drives. Nonelectronic forms of CUI building information include paper documents, photographs, and film, among other formats.

i. By mail. Contractors must only use methods of shipping that provide services for monitoring receipt such as track and confirm, proof of delivery, signature confirmation, or return receipt.

ii. In person. Contractors must provide CUI building information only to authorized recipients with a Lawful Government Purpose to access such information. Further information on authorized recipients is found in section 1 of this clause.

3. Record keeping. Contractors must maintain a list of all entities to which CUI is disseminated, in accordance with sections 2 and 3 of this clause. This list must include, at a minimum: (1) the name of the state, Federal, or local government entity, utility, or firm to which CUI has been disseminated; (2) the name of the individual at the entity or firm who is responsible for protecting the CUI building information, with access strictly controlled and limited to those individuals having a Lawful Government Purpose to access such information; (3) contact information for the named individual; and (4) a description of the CUI building information provided. Once “as built” drawings are submitted, the contractor must collect all lists maintained in accordance with this clause, including those maintained by any subcontractors and suppliers, and submit them to the

CO. For Federal buildings, final payment may be withheld until the lists are received.

4. Safeguarding CUI documents. CUI building information (both electronic and paper formats) must be stored within controlled environments that prevent unauthorized access. GSA contractors and subcontractors must not take CUI building information outside of GSA or their own facilities or network, except as necessary for the performance of that contract. Access to the information must be limited to those with a Lawful Government Purpose for access.

5. Destroying CUI building information. When no longer needed, CUI building information must either be returned to the CO or destroyed in accordance with guidelines in NIST Special

Publication 800-88, Guidelines for Media Sanitization.

6. Notice of disposal. The contractor must notify the CO that all CUI building information has been returned or destroyed by the contractor and its subcontractors or suppliers in accordance with paragraphs 4 and 5 of this clause, with the exception of the contractor's record copy. This notice must be submitted to the CO at the completion of the contract to receive final payment. For leases, this notice must be submitted to the CO at the completion of the lease term.

7. CUI security incidents. All improper disclosures or receipt of CUI building information must be immediately reported to the CO and the GSA Incident Response Team Center at gsa-ir@gsa.gov.

If the contract provides for progress payments, the CO may withhold approval of progress payments until the contractor provides a corrective action plan explaining how the contractor will prevent future improper disclosures of CUI building information. Progress payments may also be withheld for failure to comply with any provision in this clause until the contractor provides a corrective action plan explaining how the contractor will rectify any noncompliance and comply with the clause in the future.

8. Subcontracts. The contractor and subcontractors must insert the substance of this clause in all subcontracts.

III.L. Non-Compliance with Contract Requirements

In the event the Contractor, after receiving written notice from the Contracting Officer of non-compliance with any requirement of this Contract, fails to initiate promptly such action as may be appropriate to comply with the specified requirement within a reasonable period of time, the Contracting Officer shall have the right to order the

Contractor to stop any or all work under the Contract until the Contractor has complied or has initiated such action as may be appropriate to comply within a reasonable period of time. The Contractor will not be entitled to any extension of Contract time or payment for any costs incurred as a result of being ordered to stop work for such cause.

III.M. Safeguarding Sensitive Data and Information Technology Resources

In accordance with FAR 39.105, this section is included in the contract. This section applies to all users of sensitive data and information technology (IT) resources, including awardees, contractors, subcontractors, lessors, suppliers and manufacturers. The following GSA policies must be followed. These policies can be found at Directives

Library.

1. CIO P 2100.1K GSA Information Technology (IT) Security Policy mailto:gsa-ir@gsa.gov http://www.gsa.gov/directives http://www.gsa.gov/directives

2. CIO P 2100.2B GSA Wireless Local Area Network (LAN) Security

3. CIO 2100.3C Mandatory Information Technology (IT) Security Training Requirement for Agency and

Contractor Employees with Significant Security Responsibilities

4. CIO 2104.1A CIO CHGE 1 GSA Information Technology IT General Rules of Behavior

5. CIO 2105.1 C CHGE 1 GSA Section 508: Managing Electronic and Information Technology for

Individuals with Disabilities

6. CIO 2106.1 GSA Social Media Policy

7. CIO 2107.1 Implementation of the Online Resource Reservation Software

8. CIO 2160.4A Provisioning of Information Technology (IT) Devices

9. CIO 2162.1 Digital Signatures

10. CIO P 2165.2 GSA Telecommunications Policy

11. CIO P 2180.1 GSA Rules of Behavior for Handling Personally Identifiable Information (Pll)

12. CIO 2182.2 Mandatory Use of Personal Identity Verification (PIV) Credentials

13. CIO P 1878.2A Conducting Privacy Impact Assessments (PIAs) in GSA

14. CIO IL-13-01 Mobile Devices and Applications

15. CIO 2102 Information Technology (IT) Integration Policy

16. HCO 9297.1 GSA Data Release Policy

17. HCO 9297.2B GSA Information Breach Notification Policy

18. ADM P 9732.1 D Suitability and Personnel Security

The contractor and subcontractors must insert the substance of this section in all subcontracts.

III.N Paragraph (i) of GSAR 552.236-79, Construction-Manager-As-Constructor, is supplemented as follows:

Prior to the use of the CMc Contingency Allowance (CCA), the Contractor shall coordinate approval following these procedures:

1. Except in emergencies, prior to any CCA expenditure, the Contractor must submit a CCA proposal to

Contracting Officer for review and approval.

2. In the case of an emergency, the Contractor must submit a CCA request proposal to the Contracting Officer no later than the following business day, unless the Contracting Officer agrees to an extension.

3. The Contractor shall track all CCA usage on their schedule of values submitted with each payment request.

III.O. Equal Employment Opportunity Plan

(1) Within 30 days following award, the Contractor shall furnish the Contracting Officer with an EEO

Compliance Plan. The plan shall include the following:

(a) Name of contractor’s EEO Manager for the contract and point of contact information. The EEO

Manager is responsible for:

(i) Monitor all employment-related activity to ensure that the Contractor’s equal employment policy is being carried out;

(ii) Submit reports as my be required by the Government; and

(iii) Keep records that shall at least include for each employee the name, address, telephone number, construction trade, union affiliation (if any), employee identification number, social security number, race, sex, status (e.g. mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy his requirement, separate records are not required to be maintained.

(b) Address how the contractor intends to include the EEO provisions of the contract in all subcontracts in excess of $10,000.

(c) Address what type of efforts will be used to ensure equal employment opportunity in accordance with FAR 52.222-27 Affirmative Action Compliance Requirements for Construction. Discuss organized meeting with subcontractors, labor organizations and/or other community stakeholders.

Meetings should focus on increased employment opportunities, perceived problems and working to achieve the goals established. DOL representatives are available to participate in such meetings.

(2) During the performance of this contract, the Contractor shall submit to the Contracting Officer semi-annually an EEO Compliance Report containing the following:

(a) List of awarded subcontractors by trade, date of award, and amount of subcontract. If subcontract is in excess of $10,000, date of Deputy Assistant Secretary for Federal Contract Compliance, U.S.

Department of Labor was notified of award.

(b) Narrative of actions taken to comply with the affirmative action procedures in paragraphs (g)(1) through (g)(16) of FAR 52.222-27.

(c) List of participation in any voluntary associations that may assist in fulfilling the contractor’s affirmative action obligations.

Semi-annual reports are due on the 30th calendar day (or next business day) following the March 31st and September

30th.

III.P. Additional Terms and Conditions

(1) GSAR 552.236-74, Evaluation of Options (MAR 2019)

The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the options.

(2) GSAR 552.236-77, Government’s Right to Exercise Options (MAR 2019)

(a) The Government may exercise any option in writing in accordance with the terms and conditions of the contract within 475 calendar days of contract award.

(b) If the Government exercises the option, the contract shall be considered to include this option clause.

IV. Contract Clauses

IV.A. Clauses Incorporated in Full Text

(1) GSAR 552.236-79, Construction-Manager-As-Constructor. (JAN 2020)

(a) General. Pricing for the Guaranteed Maximum Price (GMP) for the option for construction services shall be subject to the requirements below.

(b) Definitions. The following definitions shall apply to this clause:

“Construction-Manager-as-Constructor (CMc) Contingency Allowance (CCA)” means an allowance for the exclusive use of the construction contractor to cover reimbursable costs during construction that are not the basis of a change order. These costs could include estimating, scheduling, and planning errors in the final Estimated Cost of the Work (ECW) or other contractor errors.

“Cost” means allowable costs in accordance with FAR Part 31.

“Cost of Performance” means the final sum of cost of the construction work and fee for the construction work.

“Early Work Package” means a set of construction activities that can be clearly defined and separately performed from the remainder of the construction work. Demolition is an example of an early work package.

“Estimated Cost of the Work (ECW)” means the estimated cost of the construction work, not including home office overhead.

“Fee for the Construction Work” means the amount established for the contractor's profit and home office overhead costs, as described in FAR Part 31, for the construction work.

“Guaranteed Maximum Price (GMP)” means the sum of the ECW, CCA, and the fee for the construction work.

(c) Guaranteed Maximum Price. This contract at award includes a GMP.

(d) Estimated Cost of the Work. The proposed ECW incorporated into the contract at award is a target

ECW. A final ECW is negotiated during the design phase and is incorporated into the contract prior to exercise of the GMP option.

(e) Final Estimated Cost of the Work.

(1) Submission Requirements for Final ECW Proposal. During the design phase, and at a time agreed by the Contracting Officer, the Contractor shall submit the following:

(i) A detailed statement of all construction costs, including early work packages in the performance of the construction work to date;

(ii) A detailed breakdown of home office overhead costs and a statement that the accounting practices used for the allocation of home office overhead on this contract is in accordance with the Contractor's established cost accounting practices;

(iii) A proposed final ECW;

(iv) Sufficient data to support the accuracy and reliability of the estimate;

(v) An explanation of the difference between the proposed final ECW and the target

ECW used to establish the GMP; and

(vi) The Contractor's affirmation that:

(A) The Contractor is satisfied that the project as described in the specifications and construction drawings is constructible using commercially practicable means and methods;

https://www.acquisition.gov/content/part-31-contract-cost-principles-and-procedures https://www.acquisition.gov/content/part-31-contract-cost-principles-and-procedures

(B) The Contractor is satisfied that the construction work has been sufficiently described to enable it to estimate the cost of the work with reasonable accuracy;

(C) The Contractor has disclosed to the Contracting Officer all of its actual knowledge relating to design errors and omissions that may affect the cost of the work; and

(D) The Contractor acknowledges that the final ECW and time established for completion shall not be adjusted on account of cost or time attributable to known design errors and omissions disclosed by the

Contractor pursuant to paragraph (e)(1)(v)(C) of this clause. Unknown design errors and omissions that form the basis for a change order may still be settled in accordance with GSAR 552.243-71 Equitable

Adjustments.

(2) Establishment of the Final ECW. The parties shall negotiate a final ECW based on the data provided under paragraph (e)(1) of this clause. The final ECW shall be established and incorporated into the Contract by bilateral modification. The Contracting Officer will not accept a final ECW proposal that does not include the written affirmation described in this clause. The Contracting Officer will not exercise the GMP option for construction work unless the final ECW has been incorporated into the contract.

(f) CMc Contingency Allowance. The CCA shall be ____ percent of the ECW.

Note: the CCA shall not exceed 3 percent of the ECW.

(g) Shared Savings Incentive. The Contractor shall be entitled to 30 percent of the difference between the final GMP and the final cost of performance.

(h) Adjustment of ECW and GMP. The ECW and GMP shall be subject to adjustment for changes and any other conditions giving rise to entitlement to an adjustment under this contract. The ECW and

GMP may be adjusted down for deletions to the scope of the construction services through a bilateral modification.

(i) Adjustment of CCA. If the sum of the final ECW, CCA, and fee for the construction work is greater than the GMP as established at contract award or as adjusted in accordance with FAR Part

43, then the Contractor should work with the Contracting Officer to identify measures to reduce the overall GMP, including reducing the CCA, reducing the fee, or as a last resort, reducing the scope of the project. At any time, the parties may agree to a different CCA than the amount expressed at time of contract award. Prior to the use of the CCA, the Contractor shall coordinate approval following the procedures identified in the contract. For approved CCA uses, the CCA shall be reduced and the ECW shall be adjusted accordingly.

(j) Adjustment of the Fee for the Construction Work. The fee for the construction work may be adjusted for changes that are the basis for a change order, including scope changes, differing site conditions, and Government-caused delays. The fee for the construction work associated with a change order shall not be driven by a fixed percentage. The fee for the construction work is not increased or decreased based on fluctuations in the actual costs of the work. At time of proposal submission, the fee elements may be expressed as a percentage of the ECW, but shall be converted to a fixed amount prior to executing the GMP option.

(k) Conversion to Firm-Fixed-Price Prior to Final Settlement.

(1) Submission Requirements for Conversion to Firm-Fixed Price. If the parties agree to negotiate and establish a firm-fixed-price for construction work prior to the exercise of https://www.acquisition.gov/content/part-552-solicitation-provisions-and-contract-clauses#i1874272 https://www.acquisition.gov/content/part-43-contract-modifications https://www.acquisition.gov/content/part-43-contract-modifications the GMP option, or at the request of the Contracting Officer, the Contractor shall submit the following:

(i) A proposed firm-fixed-price proposal for the completion of the construction work, which shall include all markups, including profit

(ii) A detailed statement of any costs incurred in the performance of the contract work to date.

(2) Establishment of Firm-Fixed-Price.

(i) Prior to Exercise of GMP Option. The parties may negotiate and establish a firm-fixed-price for construction work prior to the exercise of the GMP option based on the data provided under paragraph (k)(1) of this clause; provided that the firm-fixed-price shall not exceed the GMP. The Contracting Officer shall have the right, but not the obligation, to bilaterally exercise the GMP option at the firm-fixed-price within 120 calendar days of the establishment of such price.

(ii) After Exercise of the GMP Option. At any time prior to final settlement, the

Contracting Officer may request that the Contractor provide a firm-fixed-price proposal for the completion of construction work in accordance with paragraph

(k)(1) of this clause. Within 60 calendar days of such request, the Contractor shall provide such data. Within 60 calendar days of receipt of the Contractor's proposal, the Contracting Officer shall have the right, but not the obligation, to convert the contract to a firm-fixed-price contract through a bilateral modification at the proposed fixed-price or as otherwise negotiated by the parties; provided that the firm-fixed-price, plus any costs incurred in the performance of the construction work, shall not exceed the GMP.

(iii) If any portion of the contract is converted to a firm-fixed-price, then that portion of the contract is no longer subject to open book accounting, a shared savings incentive, or the need for final settlement. If the contract is not converted to a firm-fixed-price contract, then the final settlement of the Contractor's compensation shall be determined in accordance with paragraph (l) of this clause.

(3) Payments. If this contract is converted to a firm-fixed-price contract, the Contractor shall submit a revised schedule of values for the construction work allocating the unpaid balance of the fixed price to the itemized work activities remaining uncompleted, which shall be the basis for remaining progress payments.

(l) Final Settlement. The final settlement amount shall consist of the cost of performance and the

Contractor's shared savings incentive, if any, provided that in no event shall the final settlement exceed the GMP. The final settlement amount shall be the Contractor's total compensation due under the contract.

(1) Submission Requirements for Final Settlement Proposal. The Contractor shall submit a final settlement proposal within 120 days of substantial completion to determine the cost of the construction work, which shall include the following:

(i) A detailed statement of all costs incurred by the Contractor in performing the construction work;

(ii) A firm-fixed-price proposal for the performance of the remaining work, if any, that may be necessary to complete performance of the construction work;

(iii) An executed release of claims, which shall describe any and all exceptions, including a description of any outstanding claims; and

(iv) Any other relevant data that the Contracting Officer may reasonably require.

(2) Determination of the Cost of the Work. The cost of the construction work shall be the sum of all costs incurred by the Contractor in performing the construction work, the proposed fixed price for performance of remaining work, if any, less the residual value of any Contractor retained inventory. In order to determine the cost of the construction work, the Contractor shall be subject to an audit of the Contractor's records and/or the

Contractor's proposal. Establishment of the cost of the construction work shall be subject to negotiation between the…