LMIR BPA Call Order Form AMD 0001.doc

Land Management Integrated Resources BPA Call

RFQ 1284LM26Q0059 AMD 0001

Contractor:

BPA No.

BPA RFQ or

Call No.

This will only be sent out to the current BPA Award Holders as of Issue Date.

NAICS Code Exception if Applicable:

______This is a multi-award call order. Contractor needs to only provide pricing for all items listed under the specific award(s) they are interested in.

Contractor:

UEI:

Email:

Issuing and Billing Office:

PROPS/LMS/S&S/C2

Attn: JoAnne Meiers, Contract Specialist joanne.meiers@usda.gov

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

ESTIMATED QUANTITY1

22.

UNIT OF MEASURE

23.

UNIT PRICE

24.

AMOUNT

Remarks: All clauses and provisions in the base BPA award are applicable to call orders, however clauses and/or provisions in BPA Call Orders take precedence. See Attachments for additional terms and conditions. The Period of Performance for this Call Order is from the Date of Award through 07/30/2026. Specific item due dates or deliverable due dates are mandatory, not arbitrary, and must be met accordingly, regardless of the final period of performance date.

1The values in the Quantity column are the maximum expected based on the nursery lift and pack inventory in December, 2025, and materials on hand. Payment will be based on the number of actual trees successfully planted, and reductions from tree culling.

2For Items 4 and 5 Access Walk-in Distance of greater than 1/4-mile, the Unit Price quoted for “Per Tree” will be added to the Item 1 Tree Planting price. Thus, for a tree planting spot in the 1/4-mile to 1/2-mile distance, if the Item 1 Tree Planting quoted per tree piece is $0.50 each, and the

Item 5 Walk-in price quoted is $0.12 each, payment for that tree would be $0.62.

Walk-in Distance

Estimated Number of Seedlings

1/4 to ½ mile

51,430

½ to ¾ mile

2,720

Total Price:

Contractor: (Name, Signature, and Date)

Date:

Ordered By:

JoAnne Meiers, Contracting Officer

1. DESCRIPTION/STATEMENT OF WORK

Hand plant lodgepole pine and Engelmann spruce containerized seedlings on sites that were logged after spruce bark beetle mortality or timber harvesting. Microsite preparation will include scalping the ground to bare mineral soil prior to planting, 16-inch by 16-inch.

Lodgepole pine seedlings will be planted on spacing ranging from 8-feet to 12-feet, and will utilize natural microsite shading. Some 42,660 lodgepole pine seedlings are to be planted. These lodgepole pine will be planted northeast of Gunnison, Colorado in Taylor Park.

Engelmann spruce seedlings will be planted on an average spacing of 10-foot by 10-foot, with a range of 9-feet to 12-feet, and will utilize natural microsite shading. Some 154,140 Engelmann spruce seedlings are to be planted. Trees are to be planted in seven locations scattered across the Gunnison, Paonia, and Grand Valley Ranger Districts.

2. SPECIFICATIONS

Planting will begin between June 1 and June 10, 2026. Completion date must be by July 31, 2026.

Tree planting will be of approximately 1,793 gross acres in 50 units with lodgepole pine and Engelmann spruce container stock, cell size 112. The net planting acreage is 730 acres. See Attachment 002 - Detailed Information Chart AMD 0001.

Item 3 is planting in 270 small cut groups within larger cutting units. Approximately 20% of the larger cutting unit area will be planted.

The planting will be accomplished utilizing a hoedad (planting hoe) technique, on an average spacing of between 8-feet to 12-feet depending on the unit. For the Engelmann spruce, microsite shading using natural stationary and moveable shade (if available within a 10-foot radius) will be required, as well as 16” x 16” clearing and scalping for site preparation. The total trees to be planted are approximately 196,800 seedlings. The project area is at high elevation, ranging from 9,300 feet up to 11,300 feet above sea level.

The Contractor shall furnish all labor, equipment, supervision, a planting inspector, workman’s compensation, unemployment insurance, transportation, supplies (expect those designated as Government-furnished) and incidentals, to perform all work necessary to plant seedlings in the area specified. The contract includes tree handling, planting, and micro-siting. All aspects of the work program shall be performed in an organized, systematic manner to assure services shall be performed over the entire unit.

2.1 Key Personnel and Required Qualifications or Certifications

See Attachment 001- Supplemental Contract Information, Section 4.18.

2.2 Government Property FAR 52.245-1 GOVERNMENT PROPERTY (SEP 2021) See Attachment 001- Supplemental Contract Information, Section 3.0.

3. PROJECT LOCATION AND DESCRIPTION

For Items 1 and 2, Gunnison is centrally located to the work sites. Gunnison is the recommended motel housing area.

For Item 1, see Maps 2, 3, and 4 for planting area locations. The project area is 29 airmiles northeast of Gunnison, Colorado in Taylor Park. Access from Gunnison is by driving north eight miles on Colorado Highway 135 to Almont, turn right onto County Road 742 and drive northeast about 28 miles to Taylor Park Reservoir and Taylor Park Trading Post.

The legal description for Unit 1-1 is Section 12 of T.13S, R.83W, 6th PM, Gunnison County, Colorado. From the Trading Post, continue north on CR 742 and FR 742 nine miles, then turn left onto FR 748 for about ¾-miles to Unit 1-1. The unit is on rehabilitated mine tailings adjacent to FR 748.

Units 1-7 to 1-18 are east of Taylor Park Trading Post 3 to 4 miles. Legal description is Sections 13 and 24 of T.14S, R.82W. Turn right or east onto FR 765 for two miles, then turn left at the trailer park onto FR 587 for two miles. A second group of units are located in Sections 17 to 20 of T.14S, R.81W. These units are best accessed from Cottonwood Pass Road CR 209, then south two miles on FR 209.1D.

For Item 2, Units 2-1 to 2-7 are southeast of Gunnison 28 and 34 airmiles off of Colorado Highway 114. See Maps 5, 6, and 7. Travel east from Gunnison eight miles, then turn right-south on Colorado Highway 114 toward Cochetopa Park and North Pass.

Units 2-1 to 2-4 are in Sections 17 and 18 of T.46N, R.4E, NMPM, Saguache County, Colorado. Drive on Highway 14 to about milepost 29, then turn left onto FR 785 and drive northeast two miles to Units 2-1, 2-2, and 2-3. Unit 2-4 is on FR 785.1A about ½-mile further.

Units 2-5 to 2-7 are on the Forest Boundary south of Cochetopa Park in Section 7 of T.44N, R.3E. At mile marker 26 on Highway 114, turn right-south onto Saguache Country Road 17-GG four miles to CR NN-14, turn left-east and go one mile to CR 17-FF (FR 787), turn right or south and drive seven miles to a drop point on a switchback curve. A closed road goes east into Units 2-5 and 2-6. Unit 2-7 can be better accessed from drop points on road FR 741 going east along the ridgeline about a mile.

Units 2-8 to 2-11 are 41 airmiles southwest of Gunnison above Lake City on Colorado Highway 149. See Maps 8, 9, and 10. Travel west of Gunnison nine miles to Highway 149, turn left-south crossing the a bridge at the top of Blue Mesa Reservoir. Drive about 50 miles to Lake City, then continue on Highway 149 about eight miles climbing up Slumgullion Pass.

Units 2-8 to 2-10 are in Sections 4, 9, and 10 of T.43N, R.3W, NMPM, Hinsdale County, Colorado. At Slumgullion Pass, turn left-northeast onto FR 788, drive three miles on FR 788 passed the turn off to Deer Lakes CG to a gated road on the right. Turn onto the gated administrative-use road about a mile and a half keeping right to Unit 2-10. The road continues into Units 2-8 and 2-9.

There is alternative access road to drop points on the high slope southwest and above Units 2-8, 2-9, and 2-10. From Slumgullion Pass continue east on Colorado Highway 149 two miles over Slumgullion Summit and down to the FR 784/784.1B road system. These two roads access the west edges of Units 2-10 and 2-9.

Unit 2-11 is in Section 28 and 33 of T.43N, R.3W, NMPM. Unit 2-11 is intended to be the plant-out unit for Item 2. Go east and south from Slumgullion Pass five miles on Colorado Highway 149 to FR 735 on the right. Go west on FR 735 through the seasonal road closure gate about three miles to the drop point in Unit 2-11. Note that the drop point is in a scab rock area not suitable for tree planting.

Item 3 is in four areas of the Grand Mesa and Overland Reservior regions of the GMUG NF. For Item 3, motel housing can be found in the communities of Delta, Cedaredge, Hotchkiss, and Paonia. See Maps 11, 12, 13, and 14 for planting unit locations.

Units 3-1 to 3-6 are in Sections 30 and 31 of T.11S, R.95W; and Sections 24 and 25 of T.1S, R.96 W, NMPM, Mesa County, Colorado. The units are on the north side of Grand Mesa along Colorado Highway 65 north of Cedaredge at Mesa Lakes. See Map 11. Travel north from Cedaredge on Colorado Highway 65 up and over Grand Mesa 19 to 20 road miles. The planting units will be on benches below the highway as you descend the north side of the Mesa. FR 250 is on the right-east side of a long switchback curve. FR 250 provides access to drop points in Units 3-5 and 3-6. Two miles west from FR 250 is a right hand intersection for FR 254.1A. FR 254.1A accesses the drop points for Units 3-1 to 3-3.

The Unit 3-7 to 3-13 planting group are in Section 36 of T.11S, R.92W; and Sections 1 and 12 of T.12S, R.92W; and Sections 6, 7, and 18 of T.12S, R.91W, 6th PM, Delta County, Colorado. The planting group is 12 airmiles north of Paonia. See Map 12. The area is accessed from Paonia on the Stevens Gulch Road, FR 701 at 13 to 15 miles. The drop point for Unit 3-7 is off of FR 701 at about mile marker 13. The rest of the planting units are on a gated administrative-use FR 705.1A west-left of FR 701 to the drop points.

Units 3-14 to 3-28 are in the Overland Reservoir area north of Paonia in Sections 7 and 18 of T.11S, R.91W, and Sections 12, 13, and 14 of T.11S, R.92W. The Unit 3-14 to 3-28 group is 16 airmiles north of Paonia. See Map 13. Access to this project area is by taking the Stevens Gulch Road FR 701 north out of Paonia 19 and 20 road miles. Units 3-14 to 3-19 are accessed from drop points on FR 701 at about mile marker 19. Units 3-20 to 3-28 are along the north side of FR 705 going into Overland Reservoir.

The final group of tree planting units are 3-29 to 3-31 are in the Sheep Flats area 17 airmiles north-northeast of Cedaredge. These three units are intended to be the outplant area for any spare seedlings left for Item 3. The project area is located in Section 35 and 36 of T.10S, R.94W; and Section 1 of T.11S, R.94W, 6th PM, Mesa County, Colorado. See Map 14. From Cedaredge travel north 14 road miles on Colorao Highway 65 to Ward Lake/Grand Mesa, turn right-east on FR 121, then travel 12 miles northeast to FR 279. Turn right-east on FR 279 for four miles. Access is from spur roads off of FR 279.

4. ADDITIONAL INFORMATION

Variation In Quantity

The number of seedlings and/or shading/protection specified in Attachment 2 -- Detailed Information Chart was determined from sample plots or ocular estimation, and are thus subject to statistical error. The value is an estimate only. The Contractor should expect a variation in the number of seedlings planted and materials installed based on the site-specific conditions the Contractor encounters. Variation normally is within plus or minus 15% of the Detailed Information Chart value.

To accommodate the variation in quantity, payment for Schedule Items where a per tree or per thousand tree offer is stated will be based on the number of seedlings successfully planted. The calculation will be measured by “Box Count” of the seedlings and materials delivered to the job site, minus cull trees/materials, minus wasted trees/materials, and reduced by planting quality score if necessary.

Items No. 4 and 5 Access – Walk-in Distance, Distances ¼ mile – ½ mile, AND ½ mile – ¾ mile:

Walk-in distances from the tree delivery site, will be paid at the Schedule of Item Cost. The number of seedlings in these walk-in distances were estimated from GIS mapping based on the estimated number of seedlings per acre for the planting unit(s) (Detailed Information Chart) multiplied by the estimated number of acres between in each distance zone and the planting unit shape. The estimated number of seedlings to be planted in each distance zone may vary from the actual number of seedlings planted in the area.

Off-road Vehicles Off-road vehicle use by the Contractor of ATV’s and UTV’s is allowed for this Call Order. The Government will utilize UTV’s as necessary to deliver seedlings to delivery points identified on the map. The Contractor will be required to transport seedlings by hand from the delivery points to the planting units as necessary.

Clarification to 4.7.3 Planting Spot Selection Priority in Natural Shade and Protection

Use of natural shade is required for planting spot selection. See Attachment 1- Supplemental Contract Information, Section 4.7.2 and Section 4.7.3, Item 1.

Stationary material first, then transportable shade. A tree shall be planted next to stationary material when it is available. When stationary material does not exist in the spacing allowance, shade shall be transported to the seedling. When neither stationary nor transportable material exists, no tree shall be planted. Vary the spacing as needed to avoid planting in the open while staying within the Allowable Variations listed in Adjustment to 4.8 below.

Clarification of 4.8 SPACING GUIDELINES

Follow the 50% variation limit in spacing indicated in the Solicitations’ Performance Work Statement, which translates to the following Allowable Spacing Variations:

Spacing:

8 feet x 8 feet Allowable variation of 4 feet to 12 feet

9 feet x 9 feet Allowable variation of 5 feet to 13 feet

10 feet x 10 feet Allowable variation of 5 feet to 15 feet

11 feet x 11 feet Allowable variation of 5 feet to 16 feet

12 feet x 12 feet Allowable variation of 6 feet to 18 feet

Camping: Camping is permitted and suitable locations are present near the planting area.

Typical Weather Conditions/Access Constraints: Cool mornings to warm afternoon temperatures. Late spring season snowstorms could occur. Afternoon thunderstorms are not unusual. If snow cover becomes too deep for effective tree planting, we will switch to alternative planting units in snow-free areas in the general vicinity.

Planting areas are adjacent to or near four-wheel drive road access.

Clarification of 7.2 Per Tree Unit Of Measure.

Tree planting and/or shelter installation. Measurement for Schedule Items where a per tree or per thousand tree offer is stated will be based on the number of seedlings successfully planted. The calculation will be measured by “Box Count” of the seedlings and materials delivered to the job site, minus cull trees/materials, minus wasted trees/materials, and reduced by planting quality score if necessary.

As a crosscheck of the number of seedlings planted, the following calculation will be made from data collected in the Government’s plots (reference columns of Planting Inspection Sheet, R2-FS-2470-9):

Total No. Trees __ Total Wasted

Planted (Col. 7) Trees (Col 8) X Reciprocal of Plot Size X Acres = Number of Trees Number of Plots

5. INSPECTION AND ACCEPTANCE:

5.1

FAR 52.246-4: INSPECTION OF SERVICES--FIXED-PRICE (AUG 1996)

a. Definition. “Services”, as used in this clause, includes services performed, workmanship, and material furnished or utilized in the performance of services.

b. The Contractor shall provide and maintain an inspection system acceptable to the Government covering the services under this contract. Complete records of all inspection work performed by the Contractor shall be maintained and made available to the Government during contract performance and for as long afterwards as the contract requires.

c. The Government has the right to inspect and test all services called for by the contract, to the extent practicable at all times and places during the term of the contract. The Government shall perform inspections and tests in a manner that will not unduly delay the work.

d. If the Government performs inspections or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties.

e. If any of the services do not conform with contract requirements, the Government may require the Contractor to perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in services cannot be corrected by reperformance, the Government may—

1) Require the Contractor to take necessary action to ensure that future performance conforms to contract requirements; and

2) Reduce the contract price to reflect the reduced value of the services performed.

f. If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with contract requirements, the Government may—

1) By contract or otherwise, perform the services and charge to the Contractor any cost incurred by the Government that is directly related to the performance of such service; or

2) Terminate the contract for default.

5.2 CONTRACTOR INSPECTION PROCEDURES

See Attachment 001 – Supplemental Contract Information, Section 6.0 for details of the Contractor Quality Control Plan.

(A) General Instructions

1) The Contractor shall conduct inspections of i.e., treatment units and record the results using procedures described herein. Inspections shall be maintained concurrent with contract work. Completed inspection forms shall be made available to the Government within 24 hours of completion of each i.e., treatment unit and will remain part of the permanent contract file.

2) By submission of inspection forms to the Government, the Contractor is considered to be certifying that the unit is satisfactorily completed and that the inspection forms reflect the work accomplished.

3) The Contractor shall submit legible inspection forms. Illegible and incomplete forms shall be returned to the Contractor for correction and re-submission.

4) In the event the Contractor falsifies inspection results, as determined by the Contracting Officer, the Government may declare the Contractor to be in default of the contract. Additionally, the Government may refer such falsifications to the US Attorney’s Office for possible prosecution pursuant to 18 U.S.C. 1001 (Falsification of Government Documents) or 18 U.S.C. 287 (Fraud).

5.3 GOVERNMENT INSPECTION PROCEDURES – COMPLIANCE INSPECTION:

See Attachment 1, Sections 6.0, 7.0, 8.0, and 9.0 for detailed Government inspection procedures and payment calculations.

(A) The COR, or a designated inspector, will conduct compliance inspections while work is in progress, usually daily at first, to assure that work is proceeding satisfactorily. Compliance inspections will be accomplished by 100 percent visual inspection of each treatment unit and will be based on adherence to the required specifications / cutting prescriptions.

(B) The Contractor shall notify the COR when units are completed prior to his moving out of the general area. Compliance inspections will be conducted within three (3) business days of completion of treatment units and the Contractor notified of any part of the unit(s) requiring additional work or rework.

Work will be accepted on the basis of visual inspection for compliance with specifications on areas reported as completed by the Contractor.

6. COMMENCEMENT PROSECUTION, AND COMPLETION OF WORK

The Contractor shall be required to (a) commence work under this contract within 7 calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than July 30, 2026.

7. POST AWARD CONFERENCE

A post award conference with the successful offeror is required. It will be scheduled within 10 days after the date of contract award. The meeting will be via MS Teams.

8.

EVALUATION CRITERIA:

Contractor must send a technical capability statement briefly explaining:

How they intend to complete this contract as far as time frame, personnel, and deliverables as well as explaining experience in survey work. Include relevant past performance information.

The Government will consider the relevance of past performance information obtained in relation to the scope of this procurement with respect to both similar efforts, and the length, scope, number, complexity, and diversity of contracts completed by the firm. Past performance, either positive or negative, which is considered by the Government to be more closely related to the scope of this effort will be given additional weight in the evaluation process.

Government evaluators may avail themselves of various federal, state, and local past performance databases. The Government may research offeror performance on any federal, state, local, and commercial contract performance of the offeror that is known to the Government, but not included on the submitted performance information. Additionally, the personal experience and evaluator knowledge of offeror performance may be utilized.

Quotes will be evaluated in two steps:

· Step 1: Quotes will be reviewed initially under a Pass/Fail evaluation to determine if the Technical Capability meets requirements of the call order. Quotes must be signed. Those that do not meet the requirements will be marked unresponsive. Acceptable quotes will then be evaluated under Step 2.

· Step 2: Lowest Price with an acceptable quote will receive the award 9.

CONTRACTING OFFICER’S REPRESENTATIVE:

COR information will be provide upon award.

10.

LIST OF ATTACHMENTS

The following attachments are made a part of this solicitation and any resultant contract.

March 2025 Class Deviation

This Call Order incorporates two FAR class deviations to ensure compliance with Executive Orders 14148, 14173, 14168, and 14208, issued since January 20, 2025. It also removes references to AGAR clauses and provisions that have been rescinded. These updates reflect recent policy changes and remove outdated requirements, as detailed below.

The following FAR provisions and clauses are hereby removed in their entirety from the LMIR BPA:

· 52.222-21 Prohibition of Segregated Facilities

· 52.222-26 Equal Opportunity

· 52.222-55 Minimum Wages for Contractor Workers Under Executive Order 14026/1 1/This provision was removed to comply with the Executive Order 14236 titled "Additional Rescissions of Harmful Executive Orders and Actions," dated March 14, 2025.

The following FAR clauses now include deviations to align with recent Executive Orders:

· 52.212-3 Offeror Representations and Certifications—Commercial Products and Commercial Services (MAY 2024) (DEVIATION FEB 2025)

· 52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services (JAN 2025) (DEVIATION FEB 2025)

· 52.223-1 Biobased Product Certification (MAY 2024) (DEVIATION FEB 2025)

· 52.223-2 Reporting of Biobased Products Under Service and Construction Contracts (MAY 2024) (DEVIATION FEB 2025)

Ther following references to AGAR Clauses and provisions are hereby removed to comply with AGAR Rule 2024-22463 (89 FR 81014):

· AGAR 452.211-74 Period of Performance (FEB 1988)/2

· AGAR 452.215-73 Post Award Conference (NOV 1996) /2

· AGAR 452.219-70 Size Standard and NAICS Code Information (SEP 2001) /2

· AGAR 452.236-72 Use of Premises (NOV 1996) /2

· AGAR 452.236-77 Emergency Response (NOV 1996)

· AGAR 452.236-78 Fire Suppression and Liability (MAY 2014)

· AGAR 452.237-74 Key Personnel (FEB 1988) /2 2/AGAR clauses and provisions that were included in full text have been retained, with only the AGAR reference removed.

The following AGAR clauses is hereby included:

· AGAR 452.236-70 Emergency Response, Fire Suppression and Liability (NOV 2024)

All call orders will incorporate these changes by reference at award.

Disclaimer: System updates may lag policy updates. The System for Award Management (SAM) may continue to require entities to complete representations based on provisions that are not included in agency solicitations. Examples include 52.222-25, Affirmative Action Compliance, and paragraph (d) of 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services. Contracting officers will not consider these representations when making award decisions or enforce requirements. Entities are not required to, nor are they able to, update their entity registration to remove these representations in SAM.

In advancement of Section 2 of Executive Order 14208, the removal of requirements related to Executive Order 14057 eliminates all non-statutory sustainability requirements or preferences in purchases of food service wares, including paper straws. In addition to removing requirements related to Executive Order 14057, the attachment also reflects recent updates to Code of Federal Regulation citations for the U.S. Department of Agriculture’s BioPreferred® Program, a statutory purchasing preference program.

These class deviations will remain in effect until rescinded or incorporated into the FAR.

FAR 52.222-90

Addressing DEI Discrimination by Federal Contractors (Apr 2026)

AGAR 452.203-72 Unenforceable Supplier Terms

(a) Definitions.

Supplier terms mean provisions customarily drafted by vendors of supplies or services and intended to create a binding legal obligation on the end user. The term applies:

1. Regardless of the format or style of the document. For example, supplier terms may appear in standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order or otherwise become effective after the contract date.

Regardless of the media or delivery mechanism used. For example, supplier terms may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery, registration for a service, or another transaction.

(b) Applicability. When any supply or service acquired under this contract is subject to supplier terms, the supplier terms are deemed part of the contract only to the extent they are consistent with this clause. Supplier terms that conflict with any part of this clause, the contract, or Federal law are void and will not be considered incorporated into a contract, even if they are physically present in a contract documentation or systems. In the event of any inconsistency between supplier terms and this contract, this clause and the terms of the Government contract shall govern and supersede any supplier terms in all cases.

(c) Authorization Required. Notwithstanding any other provision, no supplier terms shall be binding on the Government unless the term is expressly authorized on the USDA Supplier Terms Authorization Form signed by the Contracting Officer, and the completed Authorization Form has been incorporated into the contract.

(d) Unenforceable Terms. Any supplier terms that impose obligations or restrictions inconsistent with applicable Federal law are unenforceable against the Government and deemed stricken from the agreement. This includes, but is not limited to, any clause that:

(1) Requires the Government to pay future fees, penalties, interest, legal costs, early‑termination fees, cancellation fees, minimum purchase commitments, true‑up payments, seat‑count minimums, usage minimums, continued‑use charges, or any other financial obligation not expressly authorized by the contract.

(2) Requires the Government to indemnify the contractor or any other entity.

(3) Restricts the Government’s ability to obtain similar supplies or services from another source.

(4) Imposes any penalty, financial or otherwise, based on the Government’s decision not to exercise an option.

(5) Subjects the United States Government to the laws of any U.S. state, territory, district, municipality, or foreign nation, except where Federal law expressly permits such application.

(6) Requires dispute resolution in a forum or venue other than one prescribed by applicable Federal law.

(7) Establishes a period of limitations for bringing an action that differs from that provided by applicable Federal law.

(8) Grants the contractor rights to use, mine, access, aggregate, analyze, or otherwise exploit Government data, usage data, or metadata.

(9) Deems the Government to have accepted initial or revised terms based on silence, continued performance, or failure to object.

(10) Grants the supplier the right to audit Government facilities, systems, records, or use of the product or service, except as expressly authorized by the contract and applicable Federal law.

(11) Requires the Government to accept supplier security requirements, network access requirements, monitoring, penetration testing, or other technical or security measures.

(12) Permits the supplier to suspend, degrade, or terminate access to products or services based on alleged non‑payment, alleged breach, automated security triggers.

(13) Limits the Government’s right to use, install, access, test, evaluate, or transfer the licensed product or service in any manner consistent with the contract and Federal law.

(14) Requires the Government to store, process, maintain, or transmit data in a particular geographic location, or permits the supplier to transfer Government data outside the United States, except as expressly authorized by applicable Federal law.

(15) Authorizes the supplier to use the Government’s name, seal, trademark, logo, or any reference to the Government as an end user or customer for marketing, publicity, promotional activities, press releases, or similar purposes.

(16) Incorporates by reference, or requires the Government to accept, terms or conditions imposed by any third party, subcontractor, or upstream service provider, unless such terms are expressly incorporated into the contract by bilateral modification.

(17) Limits, conditions, or negates the contractor’s performance obligations, service levels, or remedies through a supplier‑provided service level agreement (SLA).

(18) Uses Government data, usage data, metadata, prompts, content, or interactions to train, fine‑tune, improve, or derive any artificial intelligence, machine learning, or automated decision‑making model.

(19) Subjects the Government to automated decision‑making, automated risk scoring, automated content moderation, or any algorithmic process that may affect access, performance, or rights under the contract.

(20) Utilizes artificial intelligence or algorithmic tools that produce decisions, recommendations, or outputs affecting contract performance without providing transparency, explainability, auditability, and bias‑mitigation consistent with applicable Federal law and policy.

(21) Profiles, tracks, or analyzes Government user behavior, preferences, communications, or interactions for personalization, marketing, or algorithmic optimization purposes.

(e) Non-binding Actions. Neither the Government nor any Government authorized end user is deemed to have consented to any term, condition, or clause by virtue of its inclusion in the supplier agreement or through the use of clickwrap, browsewrap, “I agree” mechanisms, or similar means. Execution of such mechanisms does not bind the Government or its authorized end users to any unenforceable terms.

(f) End user. The supplier agreement shall bind the ordering activity as the end user to the extent it does not conflict with the terms of this clause, but it shall not bind or impose personal liability on any Government employee or any person acting on behalf of the Government in their personal capacity.

(g) Law and disputes. The supplier agreement is governed by Federal law.

(h) Statutory exception. This clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(i) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate, or suspend any rights granted to the Government except as allowed by the contract. If the supplier or licensor believes the ordering activity to be in breach of the supplier agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while proceeding diligently with performance, pending final resolution of any dispute in accordance with the Disputes Clause at FAR 52.212‑4(d) or FAR 52.233‑1, as applicable.

(j) Arbitration. Binding arbitration shall not be used unless specifically authorized by agency guidance.

(k) Equitable or injunctive relief. Equitable or injunctive relief, including the award of attorney fees, costs, or interest, may be awarded against the United States Government only when explicitly provided by statute (e.g., the Prompt Payment Act or the Equal Access to Justice Act).

(l) Revisions to supplier agreements. Any revisions to the supplier agreement must be incorporated into the contract using a bilateral modification. Unilateral revisions are not binding on the Government.

(m) No automatic renewals. If any license or service tied to periodic payment is provided under the supplier agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express written consent from an authorized Government representative.

(n) Indemnification. Any clause of the supplier agreement requiring the supplier or licensor to defend or indemnify the end user is amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

(o) Taxes or surcharges. Any taxes or surcharges which the supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the associated Government contract or order and must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed otherwise.

(p) Non‑assignment. The supplier agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government’s prior approval, except as expressly permitted by FAR 52.212-4(b) or FAR 52.232-23, as applicable.

(q) Confidential information. If the supplier agreement includes a confidentiality clause, such clause is amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in the supplier agreement to the contrary, the Government may retain any confidential information as required by law, regulation, or its internal document retention procedures for legal, regulatory, or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of the supplier agreement.

(r) Conflict with Federal law. If any other language, provision, or clause of the supplier agreement conflicts or is inconsistent with Federal law or the terms and conditions of this contract, such language, provisions, or clauses will be considered null and void and will not be binding on the United States Government.

NOTICE FOR FILING AGENCY PROTESTS

United States Department of Agriculture (USDA) Ombudsman Program

The USDA is committed to issuing solicitations and awarding contracts in a fair and prompt manner. The Ombudsman Program for Agency Protests (OPAP) was established to address protest issues within the agency, providing an alternative to costly and time-consuming litigation. Operating independently, OPAP offers relief comparable to that granted by the Government Accountability Office (GAO). Interested parties are encouraged to resolve concerns through USDA’s internal Alternative Dispute Resolution (ADR) process before pursuing external forums such as the GAO. Concerns may be addressed informally or through a formal agency protest filed with either the Contracting Officer or the Ombudsman.

Informal Forum with the Ombudsman

1. Initial Point of Contact: Interested parties who believe a specific USDA procurement is unfair or otherwise defective should first direct their concerns to the applicable Contracting Officer.

2. Escalation: If the Contracting Officer is unable to address their concerns, interested parties are encouraged to contact the USDA Ombudsman for Agency Protests. Under this informal process, the agency is not required to suspend contract award performance. Utilization of the informal forum does not suspend any time requirement for filing a formal protest with the agency or other forums.

3. Required Information: To ensure a timely response, interested parties should provide the following information to the Ombudsman: solicitation/contract number, contracting office, Contracting Officer, and solicitation closing date (if applicable).

Formal Agency Protest with the Ombudsman

1. Effort to Resolve: Prior to submitting a formal agency protest, protesters must first use their best efforts to resolve their concerns with the Contracting Officer through open and frank discussions.

2. Independent Review: If the protester’s concerns remain unresolved, an Independent Review is available by the Ombudsman. The protester may file a formal agency protest with either the Contracting Officer or, alternatively, with the Ombudsman under the OPAP program. Contract awards or performance will be suspended during the protest period unless justified in writing for urgent and compelling reasons or determined in writing to be in the best interest of the Government.

3. Resolution Timeline: The agency’s goal is to resolve protests within 35 calendar days from the date of filing.

4. Required Information: Protests shall include the information set forth in FAR 33.104(a)(3). Failure to submit the required information may result in a delay or dismissal of the protest.

5. Timeliness: Protests must be filed within the timeframes specified in FAR 33.104.

6. Submission: Formal protests under the OPAP program should be submitted electronically to SPE.inquiry@usda.gov and the Contracting Officer.

Election of Forum. By initiating a protest with the USDA, the protester agrees not to pursue the same matter with the Government Accountability Office (GAO) or any other external forum while the agency protest is pending. If a protest is filed externally, the agency protest will be dismissed.

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