Land Management Integrated Resources BPA Call

Revised 04-02-2025 Page 1 of 16

Issue Date:

Due Date/Time:

Contractor:

BPA No. 12363N2__A4_____ Project Name Lava-Nellie Post-Herbicide Reseed

BPA RFQ or Call No. 1284LM26Q0106 Location Boise National Forest

Set-Aside Small Business__X__ Unrestricted_____ This will only be sent out to the current BPA Award Holders as of Issue Date.

Contractor: Confirm business size by NAICS code below: Small___ Large___ Initial:______ NAICS Code Exception if Applicable:

Award Information

___X___This is a multi-award call order for up to three awards based on the items grouped below. One contractor may be awarded all on items if it’s the best value to the government.

Contractor:

UEI:

Email:

Issuing and Billing Office:

19.

ITEM

NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

NAICS

Code (per Scope of Work)

21.

ESTIMATED

QUANTITY

22.

UNIT OF

MEASURE

23.

UNIT PRICE

24.

AMOUNT

GOUP 1

1 Squirreltail, (Elymus elymoides) 2500 PLS LB $ $

2 Idaho fescue (Festuca idahoensis) 700 PLS LB $ $

3 Prairie junegrass (Koeleria macrantha) 200 PLS LB $ $

4 Missouri goldenrod (Solidago missouriensis) 20 PLS LB $ $

5 Sulphur flowered buckwheat (Eriogonum heracleoides) 180 PLS LB $ $

Parsnip flowered buckwheat (Eriogonum umbellatum vars. ellipticum, devestivum, umbellatum) 200 PLS LB $ $

7 Oregon sunshine (Eriophyllum lanatum) 65 PLS LB $ $

8 Hoary tansyaster (Machaeranthera canescens) 110 PLS LB $ $

GROUP TOTAL $

GROUP 2

9 Mountain brome (Bromus marginatus) 2000 PLS LB $ $

Thickspike wheatgrass (Elymus lanceolatus var.

lanceolatus) 2000 PLS LB $ $

11 Purple threeawn (Aristida purpurea var. purpurea) 125 PLS LB $ $

12 Yarrow (Achillea millifolium) 38 PLS LB $ $

Parsnip flowered buckwheat (Eriogonum umbellatum vars. ellipticum, devestivum, umbellatum) 210 PLS LB $ $

14 Sulphur flowered buckwheat (Eriogonum heracleoides) 160 PLS LB $ $

GROUP TOTAL $

GROUP 3

15 Mountain brome (Bromus marginatus) 300 PLS LB $ $

Thickspike wheatgrass (Elymus lanceolatus var.

lanceolatus) 400 PLS LB $ $

17 Showy penstemon (Penstemon speciosus) 80 PLS LB $ $

August 13, 2026 /5pm MST July 30, 2026

Revised 04-02-2025 Page 2 of 16

18 Missouri goldenrod (Solidago missouriensis) 32 PLS LB $ $

GROUP TOTAL

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 09/20/2027. 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.

Total Offer:

Contractor: (Name, Signature, and Date)

Date:

Requested By: (Name and Signature)

COR:

Ordered By: (Name and Signature)

Contracting Officer

1. DESCRIPTION/STATEMENT OF WORK

The purpose of this call order is to procure native plant seed for use in post-fire restoration and emergency stabilization treatments on the Boise National Forest. Seed will be used to reestablish desired native vegetation, suppress invasive annual grasses, stabilize soils, and improve ecological resilience following recent wildfire disturbances.

The Contractor shall furnish all labor, equipment, materials, transportation, documentation, and testing necessary to deliver the specified native seed lots in accordance with Sections 2 and 3 of this call order.

Seed shall meet purity, germination, origin, and labeling requirements described below, and shall be delivered by the date specified.

2. SPECIFICATIONS:

2.1 Seed Origin and Acceptability

2.1.1 Acceptable Provisional Seed Zones (PSZs)

Seed shall originate from USFS Provisional Seed Zones (PSZs) corresponding to the project climate envelope:

10–15°F / 3–6 C/m 15–20°F / 3–6 C/m 20–25°F / 3–6 C/m

Interactive PSZ map:

https://usfs.maps.arcgis.com/apps/webappviewer/index.html?id=229eb45b7cc2456db6d1ad866145d397 Note: Turn on the “Provisional Seed Zones – Seed Zones 2013” layer to view zones at higher zoom levels.

2.1.2 Excluded Source Regions

To ensure compatibility with the Boise National Forest’s snow-dominated, summer-drought moisture regime, source-identified seed originating from Arizona, New Mexico, southern Utah, or Colorado is not acceptable, regardless of mapped PSZ. These regions receive regular summer precipitation which is expected to result in maladapted seed.

https://usfs.maps.arcgis.com/apps/webappviewer/index.html?id=229eb45b7cc2456db6d1ad866145d397

Revised 04-02-2025 Page 3 of 16

2.1.3 Provenance Requirements When PSZ Labels Are Not Present If a lot is not labeled with a PSZ, vendors shall provide provenance information sufficient for COR verification of seed zone compatibility, including:

• State

• County

• Nearest town or legal description

• Elevation

2.2 Seed Lot Provenance Requirements

2.2.1 Wild-Origin Lots

For all non-cultivar, wild-origin lots, vendors shall report the production generation (G-level)

• Acceptable G0-G5

• G6 may be accepted for perennial grasses and small-seeded forbs with COR approval.

2.2.2 Cultivar Seed Lots:

Vendors offering cultivars shall report the certification class (e.g., Foundation, Registered, Certified) in lieu of G-level.

2.2.3 Vendors Provenance Disclosure Requirements

Vendors shall provide the following information for each lot offered:

• Seed class (G-level or certification class)

• Cultivar status (cultivar, named release, or wild-type)

• Collection or original source location (State/County/elevation if known)

• Applicable PSZ information, if available

2.3 Testing Requirements:

Each seed lot shall include current test results dated within 12 months of quote submission::

• AOSA or ISTA Purity Test

• AOSA or ISTA Germination Test

• Noxious-Weed Free for all 50 states

• Federal Seed Act lot labeling

2.4. Pure Live Seed (PLS) Basis

Final acceptance and payment will be based on actual Pure Live Seed (PLS) content, calculated as:

PLS (%) = Purity (%) × Germination (%)

If PLS differs from quoted values, the Government may adjust payment proportionally or require a substitute lot at no additional cost.

2.5 Substitution Policy

When a specified species is unavailable in required quantities, substitutions may be proposed. Substitutions must:

Be ecologically comparable Belong to the same functional group (perennial bunchgrasses, small-seeded native forbs, large-seeded native forbs) Receive COR approval

All substitutions must also meet origin and provenance requirements defined in Sections 2.2 and 2.3.

Contractors shall also comply with the production risk notification requirements in Section 5.2 when circumstances may affect availability of the specified seed lots.

2.6 Specialty Species Provisions (Line Items 8,9,10 and 12):

• Substitutions may include:

Revised 04-02-2025 Page 4 of 16 o Penstemon wilcoxii for P. speciosus o Penstemon gairdneri for P.speciosus o Erigeron chrysopsidis for Eriophyllum lanatum o Eriogonum strictum for E. heracleoides o Eriogonum strictum for E.umbellatum o Eriogonum umbellatum for E.heracleoides o Eriogonum heracleoides for E.umbellatum

Substituted lots must still meet all specifications described in Sections 2.2 and 2.3. These substitutions are justified because the species requested are expected to have low supply and the alternatives are determined as ecologically and geographically analogous.

2.7 Storage Requirements

2.7.1 Storage

All seed lots shall be stored in a climate-protected, rodent-proof facilities. Storage conditions must ensure that the sum of temperature (°F) + relative humidity (%RH) does not exceed 100. Examples of acceptable conditions include:

85°F and 15% RH 60°F and 40% RH

2.7.2 Vendors Storage Disclosure Requirements

Vendors shall provide a written description of their storage facilities and conditions for all seed lots offered.

Documentation must include:

• Facility type (warehouse, climate-controlled room, etc.)

• Temperature and relative humidity ranges typically maintained

• Methods used to control moisture and prevent rodent intrusion

• Confirmation that storage conditions meet the requirement that temperature (°F) + relative humidity

(%RH) ≤ 100

• Whether seed is stored segregated by lot

2.8 Packaging and Labeling:

2.8.1 Packaging

All seed shall be packaged in durable moisture-resistant bags or FIBC containers suitable for safe handling, transportation, and storage. Packaging must maintain seed lot integrity and prevent contamination or moisture ingress. Each species and lot must be packaged separately; pre-mixing is not permitted and will result in refusal of delivery.

For small quantitites packaged in hand-liftable units, bags shall not weigh not more than 60lbs each, be suitable for one-person manual handling and be reinforced and securely sealed.

For mid-sized quantities where small bags would be inefficient, medium FIBC or equivalent (200-1,000lb capacity) are permitted so long as they are designed handling by forklift. Bags must include forklift loops, be palletized and shrink wrapped.

For large quantities (>1,500lbs), full-size FIBC super sacks or equivalent are appropriate, so long as the minimum safe working load exceeds the quantity within bags. Bags must have forklift loops, be palletized and shrink wrapped.

2.8.2 Labeling

• Each bag must be labeled with:

• Species (scientific name)

• Weight

• lot ID

Revised 04-02-2025 Page 5 of 16

• Origin (locality name or state/county)

• Percent purity

• Percent germination

• Date of testing (within 12 months of delivery).

A digital copy of the official seed lab analysis report shall be provided to the COR prior to shipment. The Government reserves the right to reject any lots that do not meet the specifications described in sections 2.1 and 2.2 above.

2.9 Delivery Location and Terms:

All seed shall be delivered F.O.B Destination. The Contractor shall be responsible for all shipping costs, insurance, and risk of loss until the seed is physically offloaded and accepted at the following location:

USFS Lucky Peak Nursery 15169 Highway 21 Boise ID 83716

• Delivery shall be completed no later than September 22, 2027.

• Contractor must provide a minimum of 48 hours’ notice to the Receiving Officer prior to arrival

• Contractor liability ends upon completion of delivery and Government acceptance.

3. PROJECT LOCATION AND DESCRIPTION

Plant materials under this contract will be utilized on the Boise National Forest within areas burned by the 2024 Nellie and Lava Fires. This area is characterized by a dry-summer, snow-dominated climate, with mean annual precipitation of approximately 24–30 inches and winter minimum temperatures varying with elevation. Soils range from coarse granitic substrates in the Nellie Fire area to loamier basalt-derived soils in the Lava Fire area. These climatic and edaphic conditions inform the seed-zone and provenance requirements specified in Section 2.

Both fire areas include non-forest shrub-steppe habitats where native perennial grasses and drought-adapted shrubs were limited prior to the fires and now face elevated risk of invasive species expansion, particularly from cheatgrass and rush skeletonweed. Seed acquired through this call order will support aerial and broadcast seeding to stabilize soils, reduce invasive plant establishment, and initiate recovery of native plant communities. These activities are authorized under the Lava Restoration EA and Snag Nellie EA.

4. INSPECTION AND ACCEPTANCE:

4.1 FAR 52.246-2: INSPECTION OF SUPPLIES--FIXED-PRICE (AUG 1996)

a. 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.

b. The Government has the right to inspect and test all supplies called for by the contract, to the extent practicable at all times and places, including the period of manufacture, and in any event before acceptance.

The Government shall perform inspections and tests in a manner that will not unduly delay the work.

c. 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.

d. The Government may reject or require correction of nonconforming supplies. Supplies are nonconforming when they do not conform to contract requirements. The Government may reject any nonconforming supplies. IF the Contractor fails or is unable to correct or replace nonconforming supplies within the

Revised 04-02-2025 Page 6 of 16 delivery schedule, The Contracting Officer may, by contract or otherwise, correct the defect or replace the supplies and charge the cost to the Contractor, or terminate the contract for default.

e. The Government shall accept or reject supplies as promptly as practicable after delivery, unless otherwise provided in the contract. Government acceptance shall be conclusive, except for latent defects, fraud, gross mistakes amounting to fraud, or as otherwise provided in the contract.

f. Unless otherwise provided in the contract, the Contractor is responsible for ensuring that all supplies conform to contract requirements before tendering them to the Government for acceptance.

4.2 CONTRACTOR INSPECTION PROCEDURES

General Instructions

1) The Contractor shall ensure that all seed lots offered for delivery meet the purity, germination, labeling, and provenance requirements described in Section 2.

2) Prior to shipment, the Contractor shall provide to the COR complete and legible copies of the official laboratory analysis reports, all states noxious-weed-free documentation, and required provenance disclosures for each lot.

3) By submitting documentation and shipping the seed, the Contractor certifies that all lots conform to contract specifications and reflect the conditions described in the submitted test reports.

4) Illegible, incomplete or missing documentation may result in rejection of the associated lot and require correction prior to acceptance.

5) Falsification of test results, provenance, or certification documents may result in the Contractor being declared in default, as determined by the Contracting Officer. 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).

4.3 GOVERNMENT INSPECTION PROCEDURES – COMPLIANCE INSPECTION:

4.3.1 Initial Receiving Inspection

The COR or designated Government representative will conduct an initial inspection at the time of delivery.

This inspection will occur during offloading and will verify:

• delivered quantities,

• intact packaging and pallet condition,

• presence and legibility of required bag labels, and

• absence of obvious damage or contamination.

This inspection is limited to confirming that the shipment was delivered in acceptable physical condition. The contractor/carrier is not required to remain on site once offloading is complete.

4.3.2 Documentation and Compliance Review

All required test reports, provenance information, storage disclosures, and notifications under Section 2 shall be submitted electronically via email unless otherwise directed by the COR. Following delivery, the Government will review all seed test results and required documentation submitted by the Contractor, including:

• purity and germination test reports,

• noxious-weed-free certification for all 50 states,

• provenance and seed-zone information,

• storage disclosures, and

• certification class or generation level.

Revised 04-02-2025 Page 7 of 16

The documentation review will typically be completed within three business days after delivery.

4.3.3 Determination of Final Acceptance

Final acceptance will be based on verification that each lot meets all specifications in Section 2, including origin, labeling, purity, germination, documentation completeness, and packaging requirements. Any lot found non-conforming may be rejected, and the Contractor may be required to replace the lot at no additional cost unless otherwise approved by the COR.

4.3.4 Notification of Non-Compliance

If deficiencies are identified during the documentation review or physical inspection, the Government will notify the Contractor of the specific non-conforming items. The Government may hold, reject, or require correction or replacement of affected lots. Contractor liability continues until final acceptance is issued by the Government.

5. DELIVERY DATE AND ADMINISTRATIVE REQUIREMENTS

The period of performance begins upon award and continues until final delivery and Government acceptance of all seed. All seed must be delivered no later than September 22, 2027.

5.1 Communication Protocol Between the Contractor, COR, and Contracting Officer To ensure timely coordination and reduce misunderstandings during contract performance, the following communication procedures apply:

1. The Contracting Officer (CO) is the only official authorized to modify contract terms, approve price adjustments, or authorize substitutions that affect contract value or performance requirements.

2. The Contracting Officer’s Representative (COR) may provide technical guidance, review documentation, and recommend acceptance or rejection of seed lots but may not alter contract terms.

3. The Contractor shall direct all technical questions, documentation submissions, provenance disclosures, storage information, and production-risk notifications to the COR.

4. Any request requiring a change in contract terms shall be submitted in writing to the CO with a courtesy copy to the COR.

5. The Government will make reasonable efforts to respond to routine Contractor inquiries within five business days.

6. Time-sensitive matters (delivery coordination, production-risk notifications, or documentation deficiencies) shall be clearly marked as such by the Contractor.

7. The Contractor shall maintain written records of all communications related to contract performance.

8. Verbal discussions do not constitute approval unless confirmed in writing by the appropriate

Government official.

5.2 Production Risk Notification Requirement

The Contractor shall notify the COR in writing within 10 business days of becoming aware of any condition that is reasonably expected to affect the Contractor’s ability to produce, acquire, test, or deliver the seed lots identified in this call order. Such conditions may include, but are not limited to: crop failure, low yield projections, adverse weather impacts, disease, unavailability of seed from subcontract growers, testing laboratory delays, or storage issues affecting seed quality.

The notification shall include:

1. The affected species and estimated quantity shortfall,

2. A description of the cause of the production risk,

3. The Contractor’s proposed corrective action or mitigation plan, and

4. Whether a substitution request is anticipated under Section 2.5.

Notification under this clause does not constitute approval for substitution or modification of contract

Revised 04-02-2025 Page 8 of 16 terms. Failure to provide timely notice may be considered a failure to perform in accordance with the terms of the call order.

5.3 Limited-Scope Price Adjustment for Market Volatility

Because native seed production is subject to significant year-to-year variability, the Government may consider a limited price adjustment for specific line items when the Contractor demonstrates that the quoted price has been materially affected by documented, industry-wide market conditions arising after quote submission.

Any request for a price adjustment must meet all of the following conditions:

1. The request is submitted within 30 days of the Contractor becoming aware of the market shift, and prior to delivery;

2. The Contractor provides verifiable evidence of a market-wide price increase (such as independent industry data, market reports, or subcontract grower pricing);

3. The requested adjustment does not exceed 15 percent of the original unit price;

4. The request does not result from the Contractor’s internal business decisions, inventory choices, or failure to secure production in a timely manner; and

5. The adjustment is approved in writing by the Contracting Officer.

The Government reserves the right to deny any price adjustment request that does not clearly meet the criteria above. Price increases above the 15-percent threshold will not be considered; in such cases the Contractor may instead request consideration under Section 2.5 Substitution Policy.

6. 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 conference will be held virtually via Microsoft Teams, with meeting details and a calendar invitation provided to the Contractor after award.

7. OFFER EVALUATION

The provision at Federal Acquisition Regulation (FAR) 52.212-2 Evaluation of Commercial Items is not applicable to this solicitation. In lieu of this provision, quotes will be evaluated in accordance with FAR 12.203 based on the criteria listed below. Award will be made to the offeror representing the best value to the Government.

Price:

The offeror’s quotation will be evaluated in accordance with FAR 12.204, to determine if it is fair and reasonable.

Technical Acceptability:

Technical Acceptability will be evaluated to receive an overall rating of "acceptable" or "unacceptable." This will be based on the offeror's ability to provide a sound and compliant approach that meets all requirements and shows a thorough understanding of them. It is the contractor's responsibility to ensure their quotation clearly demonstrates their capability to meet these requirements. All offerors must provide the following minimum information and documentation with their quotations to be considered responsive and have their offers evaluated:

a) Technical Experience -Detailed explanation of the offeror’s experience in fulfilling this type of requirement in size and scope over the last three years including reference contact information.

Revised 04-02-2025 Page 9 of 16

b) Technical Capability Statement – Detailed explanation of how the offeror intends to complete this contract with respect to time frame and deliverables that includes the following:

• Species offered and alignment with the requested species list

• Provenance suitability and site appropriateness

• Compliance with origin requirements and acceptable seed zones

• Completeness of required documentation (all applicable subsections of Section 2)

• Verification of noxious-weed-free certification for all 50 states

• Storage condition disclosures (Section 2.7)

• Seed quality metrics (purity, germination, and test dates)

Past Performance:

The Government may utilize any references provided by the Contractor, along with information available from past contracts/orders with the USDA and any information found using sources such as Federal Government sources or the Contractor Performance Assessment Reporting System (CPARS) to determine if the Contractor has acceptable or neutral Past Performance. Past Performance will be evaluated using the following rating system:

• Acceptable: The contractor shows a demonstrated ability to meet contract requirements in prior or current contracts, including quality of work, timeliness, cost control, business relations, and adherence to contract terms.

• Neutral: Offeror does not have a past performance record.

• Unacceptable: The contractor has a documented history of failing to meet contract requirements, including poor quality, missed deadlines, cost overruns, lack of responsiveness, or unethical behavior.

Evaluation Method The Government will evaluate quotations based on the lowest price technically acceptable criteria. Only the lowest priced offer will be evaluated for Technical Acceptability. Should the lowest priced offer not receive an acceptable technical or past performance rating, the process will continue in order of lowest priced offer until the lowest price, technically acceptable offer with acceptable or neutral past performance is identified.

The Government will consider multiple technical factors, including but not limited to:

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

Revised 04-02-2025 Page 10 of 16 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.

As prescribed in AGAR 433.104-4 (a)(5)(ii), the following Notice for Filing Agency Protests shall be included in every solicitation.

NOTICE FOR FILING AGENCY PROTESTS

Revised 04-02-2025 Page 11 of 16

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.

Page last modified on October 15, 2025

52.222-90 Addressing DEI Discrimination by Federal Contractors. As prescribed in 22.2203:

Addressing DEI Discrimination by Federal Contractors (Deviation DATE)

(a) Definitions. As used in this clause— mailto:SPE.inquiry@usda.gov

Revised 04-02-2025 Page 12 of 16

Program participation means membership or participation in, or access or admission to: training, mentoring, or leadership development programs; educational opportunities; clubs; associations; or similar opportunities that are sponsored or established by the contractor or subcontractor.

Racially discriminatory diversity, equity, and inclusion (DEI) activities means disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity's resources.

(b) In connection with the performance of work under this contract, the Contractor agrees as follows:

(1) The Contractor will not engage in any racially discriminatory DEI activities;

(2) The Contractor will furnish all information and reports, including providing access to books, records, and accounts, as required by the Contracting Officer, for purposes of ascertaining compliance with this clause;

(3) In the event of the Contractor's or a subcontractor's noncompliance with this clause, this contract may be canceled, terminated, or suspended in whole or in part, and the Contractor or subcontractor may be declared ineligible for further Government contracts;

(4) The Contractor will report any subcontractor's known or reasonably knowable conduct that may violate this clause to the Contracting Officer and take any appropriate remedial actions directed by the Contracting Officer; and

(5) The Contractor will inform the Contracting Officer if a subcontractor sues the Contractor and the suit puts at issue, in any way, the validity of this clause.

(6) The Contractor recognizes that compliance with the requirements of this clause are material to the Government's payment decisions for purposes of 31 U.S.C. 3729(b)(4).

(c) The Contractor must include the substance of this clause, including this paragraph (c), in subcontracts at any tier, including those for commercial products and commercial services, except those where the place of delivery or performance is outside the United States.

(End of clause)

AGAR 452.203-72 Unenforceable Supplier Terms

As prescribed in AGAR 403.571 (c), insert the following clause:

AGAR 452.203-72 Unenforceable Supplier Terms (APR 2026)

(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:

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

Revised 04-02-2025 Page 13 of 16 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:

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.

Requires the Government to indemnify the contractor or any other entity.

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

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

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.

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

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

Revised 04-02-2025 Page 14 of 16

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

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

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.

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

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

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.

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.

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.

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.

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

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.

Revised 04-02-2025 Page 15 of 16

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.

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.

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.

Revised 04-02-2025 Page 16 of 16

(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.

(End of Clause)