b.solicitation.doc

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS

LOCAL TIME 4:30 PM

INFORMATION CALL

Technical – Mike Johnson (COR)

Administrative – Andrea Stanbro (CO) 541-962-8566 541-969-3554 02/12/2018

10. THIS ACQUISITION IS

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UNRESTRICTED

SET-ASIDE. 100% FOR

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SEE SCHEDULE

SMALL BUSINESS,

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HUBZONE SMALL BUSINESS

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13a. THIS CONTRACT IS A RATED ORDER

1550 DEWEY AVE, SUITE A

BAKER CITY, OR 97814

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8(A)

UNDER DPAS (15 CFR 700)

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SOLE SOURCE

13b. RATING

RFQ

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IFB

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RFP

FACILITY CODE

PO Box 66527

St. Louis, MO 63133

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17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS IN OFFER

IS CHECKED: FORMCHECKBOX

SEE ADDENDA

19.

ITEM NO,

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

Wallowa Whitman and Umatilla National Forest – Prescribed Burn Services Multiple Award IDIQ Contract (see attached for Schedule of Items)

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27a. solicitation incorporates by reference FAR 52.212-1, 52.212-4. FAR 52.212-3 and 52.212-5 and Addenda FORMCHECKBOX are FORMCHECKBOX are not attached.

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27b. contract/purchase order incorporates by reference FAR 52.212-4. FAR 52.212-5 AND Addenda FORMCHECKBOX are FORMCHECKBOX are not attached.

28.

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AWARD OF CONTRACT: YOUR OFFER ON SOLICITATION (BLOCK 5), DATED (BLOCK 30c) INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH HEREIN, IS ACCEPTED AS TO ITEMS:

Andrea Stanbro

AUTHORIZED FOR LOCAL REPRODUCTION

STANDARD FORM 1449 (Rev. 4/2002)

PREVIOUS EDITION IS NOT USABLE

Prescribed by GSA ( FAR (48 CFR) 53.212

MINIMUM AND MAXIMUM CONTRACT AMOUNTS (FEB 1988)

During the period specified in FAR clause 52.216-18 ORDERING, the Government shall place orders totaling a minimum of $5,000.00 , but not in excess of the aggregate amount of $4,999,999.99.

Hourly rates provided in this schedule will be used for negotiation and evaluation purposes only for award of the parent contract. Task Orders issued will be competed and those prices provided will be binding.

32a. QUANTITY IN COLUMN 21 HAS BEEN

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RECEIVED

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INSPECTED

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ACCEPTED, AND CONFORMS TO THE CONTRACT, EXCEPT AS NOTED: _______________________

32.g E-MAIL OF AUTHORIZED GOVERNMENT REPRESENTATIVE

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COMPLETE FORMCHECKBOX

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FINAL

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PARTIAL FORMCHECKBOX

FINAL

42b. RECEIVED AT (Location)

STANDARD FORM 1449 (REV. 4/2002) BACK

PERFORMANCE WORK STATEMENT

Project Location – Work will be performed on the Wallowa-Whitman and Umatilla National Forests’ Ranger Districts as stated on the Schedule of Items.

Introduction

The Wallowa-Whitman and Umatilla National Forests are acquiring services to assist with its 2018 through 2022 prescribed fire programs .These services (nonemergency) will meet the intent of the National Fire Plan in accordance with Public Law 106-291. This is an Indefinite-Delivery, Indefinite-Quantities type contract spanning 5 years of pre priced service items in multiple locations across the National Forest. During the contract period the Government is obligated to place only a minimum of orders totaling 20 hours per sub item and may order up to a maximum of 200 hours per sub item per year.

The government anticipates making awards to single individual companies based on line item locations to meet the minimum needed quantity as stated in the schedule of items (listed above). If contracting companies can clearly show the capacity (through their technical approach) to provide resources in multiple line item locations, then award may be considered to that company for those services indicated in the schedule of items for those project areas. Companies are not required to bid in all locations to be considered responsive to this solicitation.

Scope

This intent of this contract is to provide hand crew(s), engine(s), tender(s), and skidgen(s) to assist with prescribed burning. Prescribed burn services may include contingency availability and operational duties such as fire line construction and/or maintenance, fuel modification zone construction, fuels pullback, brushing/lopping/scattering/pruning, ignition, holding/suppression, mop-up and patrol. The Contracting Officer’s Representative or Inspector will describe the specific objectives of any operational duty, normally during a pre-operational briefing. The objectives and operational duties may change during prescribed fire operations, and the Contracting Officer’s Representative or Inspector will be the only designated person to communicate such changes. The Contractor shall provide all services, supervision, equipment and supplies (except those specified as Government furnished), transportation, and qualified personnel (see the List of Attachments Exhibit B) necessary to meet the contract specifications.

During the performance period (of September 15 through November 30 and March 1 through June 15), Contractor’s hand crews, tenders, and skidgens shall be available to perform Prescribed Burn activities. The period during which work will actually be performed will be dependent on burn windows and will be designated by the Government in a written task order(s). Notification that a task order will be placed will be at least 48 hours in advance of start work date. However, task orders may be unilaterally cancelled or postponed by the Government if prescribed burn conditions are determined to be unfavorable. See Contingency Availability or details for contingency payments, prescribed fire operations payments and cancellation. There is no guarantee of full-time work for the entire performance period.

Prescribed burn activities will require the use of Contractor provided tools and equipment, Personal Protective Clothing and Equipment (see the List of Attachments Exhibit A).

English Speaking Requirement - Prompt and efficient communications between the Contractor’s hand crew personnel and the Government’s prescribed fire personnel is mandatory for safe and effective performance. At a minimum, the Contractor’s CRWB and Squad Boss (FFT-1) of every hand crew shall be proficient in the English language. The CRWB must be proficient in all languages used by the hand crew. The Squad Bosses (FFT-1) must be able to communicate proficiently in any language used by their squad members. The CRWB and all Squad Bosses (FFT-1) must also be able to read the Prescribed Fire Burn Plan and communicate the information contained therein to all hand crewmembers. All radio communication on Government-assigned frequencies shall be in English.

10 Person Prescribed Fire Hand crew – The Prescribed Fire Hand crew shall consist of 1 qualified Crew Boss (CRWB), 1 qualified Squad Boss (FFT-1) and 8 qualified Hand crew members (FFT-2). Contractor may be allowed to use up to 2 additional trainees at no additional cost to the Government.

For each Prescribed Fire Hand crew, the Contractor will provide and maintain the clothing and equipment as specified in Personal Protective Clothing and Equipment (see List of Attachments Exhibit A). At least two operational chainsaws (per 10 person hand crew) with qualified operators shall be available with the hand crew at all times. Contractor shall ensure each Prescribed Fire Hand crew has adequate supplies for the operational period including food, water, saw gas and oil, batteries for radios and headlamps and first aid supplies. All personnel shall have heavy-duty, leather, laced boots with non-skid soles and minimum 8” tops.

All hand crew personnel shall pass the “Work Capacity Fitness Test” at the arduous level (3-mile hike with a 45-pound pack in 45 minutes or less). Copies of the publication titled “Fitness and Work Capacity,” second edition NFES 1956 April 1997, and associated videos can be purchased from the National Interagency Fire Center, 3833 S. Development Avenue, Boise, ID 83705. If requested by the Government, Contractor shall provide proof that employee(s) has/have met this requirement.

The Prescribed Fire Engine -shall conform to the minimum standards for a Type 6 engine (see List of Attachments Exhibit C). The Prescribed Fire engine crew shall consist of 1 qualified engine boss (ENGB) and one engine crew member (FFT-2). Contractor may be allowed to use 1 trainee at no additional cost to the Government.

For each Prescribed Fire Engine, the Contractor will provide and maintain the clothing and equipment as specified in Personal Protective Clothing and Equipment (see List of Attachments Exhibit A). Contractor shall ensure each Prescribed Fire Engine has adequate supplies for the operational period including food, water, vehicle and pump fuel, saw gas and oil, batteries for radios and headlamps and first aid supplies. All personnel shall have heavy-duty, leather, laced boots with non-skid soles and minimum 8” tops.

All engine crew personnel shall pass the “Work Capacity Fitness Test” at the arduous level (3-mile hike with a 45-pound pack in 45 minutes or less). Copies of the publication titled “Fitness and Work Capacity,” second edition NFES 1956 April 1997, and associated videos can be purchased from the National Interagency Fire Center, 3833 S. Development Avenue, Boise, ID 83705. If requested by the Government, Contractor shall provide proof that employee(s) has/have met this requirement.

Prescribed Fire Tender – The Prescribed Fire Tender shall conform to the minimum standards for a Type 2 tender (see List of Attachments Exhibit C). The Prescribed Fire tender crew shall consist of 1 qualified water tender operator (WTOP). Contractor may be allowed to use 1 trainee at no additional cost to the Government.

For each Prescribed Fire Tender, the Contractor will provide and maintain the clothing and equipment as specified in Personal Protective Clothing and Equipment (see List of Attachments Exhibit A). Contractor shall ensure each Prescribed Fire Tender has adequate supplies for the operational period including food, water, vehicle and pump fuel, saw gas and oil, batteries for radios and headlamps and first aid supplies. All personnel shall have heavy-duty, leather, laced boots with non-skid soles and minimum 8” tops.

All crew personnel shall pass the “Work Capacity Fitness Test” at the light level (1-mile hike 15 minutes or less). Copies of the publication titled “Fitness and Work Capacity,” second edition NFES 1956 April 1997, and associated videos can be purchased from the National Interagency Fire Center, 3833 S. Development Avenue, Boise, ID 83705. If requested by the Government, the Contractor shall provide proof that employee(s) has/have met this requirement.

Prescribed Fire Skidgen – The Prescribed Fire Skidgen shall consist of a minimum of 1 qualified Skidgen Operator (EQOP).

For each Prescribed Fire Skidgen, the Contractor will provide and maintain the clothing and equipment as specified in Personal Protective Clothing and Equipment (see List of Attachments Exhibit A). Contractor shall ensure each Prescribed Fire Skidgen has adequate supplies for the operational period including food, water, equipment and pump fuel, batteries for radios and headlamps and first aid supplies. All personnel shall have heavy-duty, leather, laced boots with non-skid soles and minimum 8” tops.

The Prescribed Fire Skidgen must be rated at a minimum of 100 horsepower, carry a minimum of 250 gallons of water, equipped with a pump that can pump a minimum of 50 gallons per minute at 150 pounds pressure per square inch. The pump must be attached to a reel carrying a minimum of 200 feet of ¾ inch minimum diameter hose, equipped with an adjustable nozzle. The front blade shall be a minimum of 8 feet in width and be hydraulically raised and lowered. The Prescribed Fire Skidgen will be permitted to operate off system roads, as necessary to accomplish prescribed fire objectives.

Work Environment -The work is performed in a forest and rangeland environment in steep terrain where surfaces may be extremely uneven, rocky, covered with thick tangled vegetation, etc. Temperatures are frequently extreme, both from the weather and from the fire. Smoke and dust conditions are frequently severe.

The normal work shift will be 10 hours per day. If required by the Government, work shifts may be increased to a maximum of 12 hours per day. The work schedule, including time on and off shift and work days, will be established by the Government based on burn day needs. The Government will designate the shift time start and location, normally at the prescribed fire work site. All Contractor personnel shall have the specified PPE and equipment at the shift time start. The typical shift is 0800 (8:00 AM) to 1800 (6:00 PM). The COR or Inspector shall notify the Contractor prior to departure of the work activities for the following day, if required.

Physical Demands -The work requires strenuous physical exertion for extended periods including walking, climbing, chopping, throwing, lifting, pulling and frequently carrying objects weighing fifty (50) pounds or more.

Personnel Requirements and Qualifications – All contract personnel must be qualified for the job/position they are performing according to agency direction found in the “Fire and Aviation Management Qualifications Handbook” (FS-5109.17).

Vehicle Safety - Prescribed Fire Hand crew and Tender Contractor shall provide dependable ground transportation that meets all State and federal laws relating to motor vehicles operating within the States of Oregon and Washington. The vehicle(s) must be capable of carrying the crew and equipment to and from the work site. Vehicle(s) that become inoperable will be towed at Contractor's expense. Contractor shall provide two vehicles for each 10 person hand crew. The Contractor is responsible for vehicle maintenance including normal wear and tear.

The Government reserves the right to conduct pre use vehicle safety inspections upon Contractor arrival. (as per Northwest Interagency Crew Agreement - “Interagency Crew Agreement Inspection Form, Vehicle Information”). Vehicle(s) that are determined to be unsafe for operation may be rejected. Rejected vehicle(s) shall be brought into compliance or replaced by Contractor within 24 hours.

All Contractor vehicles must have external identification. The identification must be located on front driver side and passenger side doors. As a minimum, the identification must include the Contractor’s business name as it appears on the contract.

PROJECT LOCATION

The services may take place on selected project areas on the Umatilla and Wallowa-Whitman National Forest, which includes the States of Oregon and Washington.

Accessibility - All work areas may be reached by Forest roads that are accessible by standard two-wheel drive pickup trucks during normal operating seasons. The Government will not plow snow or do special maintenance to keep roads open. Vehicle travel is limited to designated open roads. Spur roads are not maintained and are frequently blocked by earth barricades or designated closed by “carsonite” stakes. Blocked roads or closed roads are not open to vehicle travel. Vehicle travel on some closed roads may be allowed with prior written permission. Some units may require walk-in distances, such work is considered incidental and no additional payment will be made.

DEFINITIONS

Contracting Officer - The person executing this contract on behalf of the Government, including any duly appointed successor and authorized representative of the Contracting Officer acting within the limits of his authority.

Contracting Officer's Representative - the COR is the on-site Contract Administrator for the Contracting Officer. The duties and responsibilities of a COR are defined in the letter of designation issued by the Contracting Officer.

Inspector – Inspectors will be designated by the COR. The duties and responsibilities of an Inspector are defined in the letter of designation issued by the COR.

Contractor - The legal entity, whether by and through its owners, corporate officer of the company or legally appointed representative, to whom this contract has been awarded.

Contractor’s Representative - Contractor shall appoint a representative to deal with all matters pertaining to this contract, including work assignments and time on shift. The Contractor’s Representative shall be on the work site during all prescribed fire activities.

Certifying Authority - Contractor who is responsible for all training, safety and employer requirements for all fire crew members and all equipment operators.

Single Resource Boss-crew (CRWB): Responsible for supervising and directing a fire suppression hand crew. The Crew Boss shall have met the training and experience requirements for Single Resource - Crew Boss and the performance tasks in PMS 311-13 (PTB) for CRWB.

Squad Boss (FFT-1): Responsible for supervising and directing up to five fire crew members (FFT-2). Each Squad Boss shall have met the training and experience requirements for Advanced Firefighter/Squad Boss and the performance tasks in PMS 311-14 (PTB) for FFT1.

Fire Crew Member (FFT-2): All other Crew Members shall have met the training requirements for Firefighter Type 2 and the performance tasks in PMS 311-15 (PTB) for FFT2.

Tender Operator – (WTOP) An experienced and competent tender operator. The tender operator must have experience on the equipment type and model provided by the contractor.

Engine Boss – (ENGB) Each Squad Boss shall have met the training and experience requirements for Engine Boss and the performance tasks in PMS 311-14 (PTB) for FFT1.

Skidgen Operator – (EQOP) An experienced and competent skidgen operator. The skidgen operator must have experience on the equipment type and model provided by the Contractor.

Annual Fireline Safety Refresher Training - In addition to the training requirements for the CRWB, ENGB, FFT-1, and FFT-2 positions described above, Tender and Skidgeon Operator, the Contractor shall ensure that all of its returning certified employees complete the Annual Fireline Safety Refresher Training prior to a prescribed fire assignment. The Contractor shall place in the employee’s training file a course roster and training certificate, signed and dated after January 1 of the current calendar year, by the instructor, that confirms firefighter attendance and completion of the required annual refresher training. Annual Fireline Safety Refresher Training must be at least six (6) hours in length and must include the following core topics:

Entrapments – Use training and reference materials to study the risk management process (as identified in the Incident Response Pocket Guide) and rules of engagement (e.g., LCES, 10, 18, Look Up, Look Down, Look Around). Current Issues – Review and discuss identified “hot topics” and “national emphasis topics” including the “Do the Right Thing” video. Review forecasts and assessments for the upcoming fire season and discuss implications for firefighter safety. Fire Shelter – review and discuss last resort survival. Conduct “hands-on” fire shelter inspections. Practice shelter deployments in applicable crew/module configurations. No “live fire” exercises for the purpose of fire shelter deployment training will be conducted. Other Hazards and Safety Issues – Choose additional hazard and safety subjects, which could include SAFENET, current safety alerts, site/unit specific safety issues and hazards.

WFIQC - Each CRWB/FIRB, FFT-2, FFT-1, WTOPand EQOP shall possess a valid Wildland Fire Incident Qualification Card (WFIQC (also known as a Red Card) or similar official agency document) issued by any of the NWCG member agencies in the western states (Oregon, Washington, California, Idaho, Nevada, Alaska, Arizona, Utah and Montana) and have acceptable support documentation that the individual has met the training and experience requirements for such position(s).

The Government reserves the right to reject any CRWB/FIRB, FFT-1, FFT-2, WTOP or EQOP who is not in full compliance with the specifications listed above. In addition, failure of any personnel to demonstrate an ability to perform the tasks listed in the Position Task Book (PTB) for that individual’s position shall be cause for immediate release of that individual from the prescribed fire operation.

Contingency Availability – The Government may order prescribed fire hand crews, engines, tender and skidgen to be available to respond and assist with prescribed burning operations. When ordered for contingency, resources will not be on the prescribed burn site, but must be able to arrive at the burn unit location within 2 hours, unless another location is mutually agreed upon. The Government’s order will state the start time of contingency availability.

Prescribed Burning - The burning of forest or range fuels on a specific area under predetermined conditions so that the fire is confined to that area to fulfill silvicultural, wildlife management, sanitary or hazard reduction requirements, or otherwise achieve forestry or range objectives.

Fireline Construction and Maintenance – Building, improving and maintaining a barrier to stop or limit fire spread. Fireline construction consists of clearing an area of all live and dead vegetative material to a specified width (usually 4-8 feet) and clearing a line or trail of a specified width (usually 12-24 inches) to mineral soil along the outer half of the cleared area. The minimum performance level for fire line construction is 1 chain (66 feet) completed per person per hour (Fireline Handbook PMS-410-1 A-21, fuel model 10 & 11) or 8-25 chains per hour for Type 3 dozer “skidgen”, (Fireline Handbook PMS-410-1 A-21 and A-24, fuel model 10 & 11).

Fuel Modification Zone Construction - Treatment of an area to reduce adverse fire effects, limit rate of spread, and establish defensible areas during fire suppression activities by slashing shrubs, small vegetation and the pruning of live vegetation. Treated areas are usually along ridge lines, between separate stand and vegetative types, or adjacent to private property.

Fuels Pullback - Removing surface fuels from the base of standing trees and snags for a designated distance and removal of ladder fuels by pruning for a designated height.

Brushing/lopping/scattering - Removing live or dead vegetation by slashing and pruning for the purpose of hazardous fuel reduction and safety. Severed vegetation may be scattered or piled. Lopping is the cutting of tops, branches and tree boles of felled material so that the material will lie close to the ground. Scattering is the spreading of cut or lopped material so that is evenly distributed across the ground.

Pruning - Removal of live and dead limbs from standing trees for a specified height for the purpose of removing ladder fuels. Pruned material is usually pulled back from the tree bole for a specified distance.

Ignition – The act of starting the prescribed fire. Ignition devices that may be used are drip torches and fusees. Contractor will ensure any hand crew members assigned to ignition duties are trained and qualified to operate ignition devices safely and competently.

Mop-up - The act of extinguishing the prescribed fire after the initial burn period. Water, water foam mixtures and dirt may be used to extinguish burning material, or burning material may be removed from near firelines, logs may be trenched to prevent rolling, and burning or burnt material may be carefully examined and monitored to ensure it is extinguished. The minimum performance level for mop up is 1/3 acre per person per 8 hour day.

Holding/suppression – Monitoring the burning area closest to the fire line, detecting and extinguishing fire or smokes that are outside of the fire line. Water, water foam mixtures and dirt may be used to extinguish burning material. Holding activities occur near the fire line, or in the event of dense smoke and reduced visibility, holding may occur in an area of improved visibility a short distance outside of the fire line. Holding distance from the fire line will be the expected spotting distance as described in the pre-operational briefing. Generally, holding activities follow the flaming front of the prescribed fire.

Patrol – Similar to holding activities except that patrolling begins after the ignition has been completed. Patrolling may occur immediately after ignition, or during subsequent burn periods.

FAR 52.212-4 CONTRACT TERMS AND CONDITIONS—COMMERCIAL ITEMS (JAN 2017) ALT. 1

(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—

(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 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 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: [Insert any subcontracts for services to be excluded from the hourly rates prescribed in the schedule.]; 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 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) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

(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.

(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 item at 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.

(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: [Insert each element of other direct costs (e.g., travel, computer usage charges, etc. Insert “None” if no reimbursement for other direct costs will be provided. If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the elements of other direct charge(s) for that order or, if no reimbursement for other direct costs will be provided, insert ‘None’.”]

(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: [Insert a fixed amount for the indirect costs and payment schedule. Insert “$0” if no fixed price reimbursement for indirect costs will be provided. (If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the fixed amount for the indirect costs and payment schedule or, if no reimbursement for indirect costs, 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

(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).

(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 32.608-2 of the Federal Acquisition Regulation 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…