Amendment 7.pdf

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT

1. CONTRACT ID CODE PAGE OF PAGES

1 2

2. AMENDMENT/MODIFICATION NO. 3. EFFECTIVE DATE 4. REQUISITION/PURCHASE REQ. NO. 5. PROJECT NO. (If applicable)

7 05/20/2020

6. ISSUED BY CODE 7. ADMINISTERED BY (If other than Item 6) CODE

USDA Forest Service Central California Acquisition Service Area Tahoe National Forest 631 Coyote Street Nevada City, CA 95959

8. NAME AND ADDRESS OF CONTRACTOR (No., street, county, State, and ZIP Code) (X) 9A. AMENDMENT OF SOLICITATION NO.

129JGP20R0007

9B. DATED (SEE ITEM 11)

02/25/2020

10A. MODIFICATION OF CONTRACT/ORDER NO.

10B. DATED (SEE ITEM 13)

CODE FACILITY CODE

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

The above numbered solicitation is amended as set forth in item 14. The hour and date specified for receipt of Offers is extended, is not extended.

Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods:

(a) By completing Items 8 and 15, and returning copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer submitted;

or (c) By separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter, provided each telegram or letter makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.

12. ACCOUNTING AND APPROPRIATION DATA (If required)

13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS, IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED

IN ITEM 14. (TO BE FILLED OUT BY THE CONTRACTING OFFICER)

(X) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN

THE CONTRACT ORDER NO. IN ITEM 10A.

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).

C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:

D. OTHER (Specify type of modification and authority)

E. IMPORTANT: Contractor is not, is required to sign this document and return copies to the issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter where feasible.

Amendment 7 provides FAR Class Deviation from the Federal Acquisition Regulation (FAR) to Eliminate Hard Copy Original Documents, Signatures, Notarization, Seals on Bonds and Other Seals for Certain Contract Requirements See Attached document. See Attached document.

Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect.

15A. NAME AND TITLE OF SIGNER (Type or print) 16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)

OLAINE MARTINEZ

15B. CONTRACTOR/OFFEROR 15C. DATE SIGNED 16B. UNITED STATES OF AMERICA 16C. DATE SIGNED

05/20/2020 (Signature of person authorized to sign) (Signature of Contracting Officer)

NSN 7540-01-152-8070

Previous edition unusable

30-105 STANDARD FORM 30 (REV. 10-83)

Prescribed by GSA

FAR (48 CFR) 53.243

UNITED STATES DEPARTMENT OF AGRICULTURE May 19, 2020

OFFICE OF CONTRACTING AND PROCUREMENT

FAR Class Deviation from the Federal Acquisition Regulation (FAR) to Eliminate Hard Copy Original Documents, Signatures, Notarization, Seals on Bonds and Other Seals for Certain Contract Requirements

Purpose: This memorandum approves a class deviation from the Federal Acquisition Regulation (FAR) to eliminate hard copy original documents, signatures, notarization, seals on bonds and other seals for certain contract requirements.

Authority: This class deviation is issued under the authority of the FAR 1.404 and through consultation with the Chair of the Civilian Agency Acquisition Council (CAAC) via the CAAC Letter 2020-04.

Background: America and the global economy is experiencing an unprecedented time in history due to the rapid proliferation and devastating impacts of COVID-19. As a result, the Federal Government operational posture now makes it impossible to obtain the services of public notaries, hard copies of original documents, signatures, seals on bonds and other seals of certain contract requirements.

In addition, recognition of the pandemic compelled the Centers for Disease Control and Prevention (CDC) to introduce and implement social distancing guidelines and shelter-in-place orders that have directed public and private sector employees to work from home, making it difficult for notaries to be present to witness oaths and affirmations and to physically affix their signature and notary stamps on documents. Remote online notarization is not approved in many states. Where approved, it requires prior certification of the notary, which adds additional time and money and may be difficult to obtain in the current environment. These same guidelines also apply for vendors who provide notarization, surety service and bond seals.

Deviation: Attachment A outlines changes to the FAR based on this deviation. The following is an explanation of each change.

When obtaining financial protection against losses under contracts per FAR part 28, contracting officers shall use:

• 28.101-3(c) allowing the use of electronic means is moved to an added section at 28.002 to apply the same flexibilities to all of part 28;

• 28.106-1 adding an exception to stamping a corporate seal on bonds;

• 28.106-8 allowing a signed statement by the contractor that the payment is due and owed;

• 28.203(b) not requiring the Standard Form 28 to be sworn and notarized;

• 28.203-5 allowing a written authorization of the release signed by the surety saying that it approves of such release;

• 52.228-11, Pledges of Assets (Aug 2018) (DEVIATION APR 2020), not requiring the Standard

Form 28 to be sworn and notarized, in place of 52.228-11, Pledges of Assets (Aug 2018);

• 52.228-15, Performance and Payment Bonds—Construction (OCT 2010) (DEVIATION APR

2020), not requiring the seal when executing the standard forms required by the clause; and

• 52.228-16, Performance and Payment Bonds—Other than Construction (NOV 2006)

(DEVIATION APR 2020), not requiring the seal when executing the standard forms required by the clause.

When processing assignment of claims per FAR subpart 32.8, contracting officers shall use:

• 32.802(e) allowing the use of a copy of the assignment instrument; and

• 32.805(a), (b), (c), and (e) allowing the use of electronically signed documents and a copy of the assignment instrument.

When executing novation agreements and change-of-name agreements per FAR part 42, contracting officers shall use:

• 42.1204(f) allowing the use of a copy of the documents;

• 42.1204(i) not requiring a seal on the Novation Agreement; and

• 42.1205(b) not requiring a seal on the Change-of-Name Agreement.

https://www.acquisition.gov/sites/default/files/page_file_uploads/CAAC-Letter-2020-04.pdf

Action: Contracting officers shall apply the clauses as revised in Attachment A.

Effective Date: This deviation is effective immediately and remains in effect until rescinded or incorporated into the FAR.

Point of Contact: Questions regarding this deviation may be directed to Procurement.Policy@usda.gov.

Attachment A

FAR Deviation Text

Baseline is FAC 2020-05, effective on March 30, 2020.

Deviations are shown by [bracketed bold additions] and strikeouts.

FAR text unchanged shown as asterisks *** or *****

Part 28 – Bonds and Insurance

[28.002 Policy.

For purposes of this part, electronic, mechanically applied and printed signatures, seals and dates may be used and shall be considered original signatures, seals and dates, without regard to the order in which they were affixed.]

Subpart 28.1 – Bonds and Other Financial Protections

28.101-3 Authority of an attorney-in-fact for a bid bond.

(c) For purposes of this section, electronic, mechanically-applied and printed signatures, seals and dates on the power of attorney shall be considered original signatures, seals and dates, without regard to the order in which they were affixed.

[(c)] (d) * * *

[(d)] (e) * * *

[(e)] (f) * * *

28.106 Administration.

28.106-1 Bonds and bond-related forms.

The following Standard Forms (SF’s) and Optional Forms (OF’s), shall be used, except in foreign countries, when a bid bond, performance or payment bond, or an individual surety is required. The bond forms shall be used as indicated in the instruction portion of each form [ , except that a seal is not required. For SF 28 also see 28.203(b)].

28.106-8 Payment to subcontractors or suppliers.

The contracting officer will only authorize payment to subcontractors or suppliers from an ILC (or any other cash equivalent security) upon a judicial mailto:Procurement.Policy@usda.gov determination of the rights of the parties, a signed notarized statement by the contractor that the payment is due and owed, or a signed agreement between the parties as to amount due and owed.

Subpart 28.2 – Sureties and Other Security for Bonds

28.203 Acceptability of individual sureties.

* * * (b) An individual surety must execute the bond, and the unencumbered value of the assets (exclusive of all outstanding pledges for other bond obligations) pledged by the individual surety, must equal or exceed the penal amount of each bond. The individual surety shall execute the Standard Form 28[, except that the words “being duly sworn, depose and say” on the Standard Form 28 are replaced with the word “affirm” and such Standard Form 28 is not required to be sworn and notarized,] and provide a security interest in accordance with 28.203-1. One individual surety is adequate support for a bond, provided the unencumbered value of the assets pledged by that individual surety equal or exceed the amount of the bond.

An offeror may submit up to three individual sureties for each bond, in which case the pledged assets, when combined, must equal or exceed the penal amount of the bond. Each individual must accept both joint and several liability to the extent of the penal amount of the bond. * * *

28.203-5 Release of lien.

(a) After consultation with legal counsel, the contracting officer shall release the security interest on the individual surety’s assets using the Optional Form 90, Release of Lien on Real Property, or Optional Form 91, Release of Personal Property from Escrow, or a similar release as soon as possible consistent with the conditions in subparagraphs (a)(1) and (2) of this subsection. A surety’s assets pledged in support of a payment bond may be released to a subcontractor or supplier upon Government receipt of a Federal district court judgment, or a sworn statement by the subcontractor or supplier that the claim is correct along with a notarized [written] authorization of the release [signed] by the surety saying that it approves of such release.* * *

Part 32 – Contract Financing

Subpart 32.8 – Assignment of Claims

32.802 Conditions.

* * *(e) The assignee sends a written notice of assignment together with a true copy of the assignment instrument to the-

(1) Contracting officer or the agency head;

(2) Surety on any bond applicable to the contract; and

(3) Disbursing officer designated in the contract to make payment.

32.805 Procedure.

(a) Assignments.

(1) Assignments by corporations shall be-

(i) Executed [Signed] by an authorized representative;

(ii) Attested [Signed] by the secretary or the assistant secretary of the corporation; and

(iii) Impressed with the corporate seal or accompanied [Accompanied] by a true copy of the resolution of the corporation’s board of directors authorizing the signing representative to [sign] execute the assignment.

* * * (3) Assignments by an individual shall be signed by that individual[.] and the signature acknowledged before a notary public or other person authorized to administer oaths.

(b) Filing. The assignee shall forward [by email or other electronic means the notice of assignment and a copy of the instrument of assignment] to each party specified in 32.802(e)[.] an original and three copies of the notice of assignment, together with one true copy of the instrument of assignment. The true copy shall be a certified duplicate or photostat copy of the original assignment.

(c) Format for notice of assignment. The following is a suggested format for use by an assignee in providing the notice of assignment required by 32.802(e).

Notice of Assignment

To: ___________ [[Name, address and email address for] Address to one of the parties specified in 32.802(e)].

This has reference to Contract No. __________ dated ______, entered into between ______ [Contractor’s name and address] and ______

[Government agency, name of office, and address], for ________ [Describe nature of the contract].

Monies due or to become due under the contract described above have been assigned to the undersigned under the provisions of the

Assignment of Claims Act of1940, as amended, (31 U.S.C.3727, 41 U.S.C.6305).

A true copy of the instrument of assignment executed by the Contractor on ___________ [Date], is attached to the original [this] notice.

Payments due or to become due under this contract should be made to the undersigned assignee.

Please return to the undersigned the three enclosed copies of this notice with appropriate notations showing the date and hour of receipt and signed by the person acknowledging [acknowledge] receipt on behalf of the addressee [by return email or other electronic means to the undersigned].

Very truly yours, ______________________________________________ [Name of Assignee]

By ______________________________________ [Signature of Signing Officer]

_____________________________________________ [Title of Signing Officer]

______________________________________________ [Address of Assignee]

[ _______________________________________ [Email Address of Assignee]]

Acknowledgement

Receipt is acknowledged of the above notice and of a copy of the instrument of assignment. They were received ____(a.m.) (p.m.) on ______, 20___.

__________________________________________________ [Signature]

__________________________________________________ [Title]

__________________________________________________ On behalf of

__________________________________________________ [Name of Addressee of this Notice]

(e) Release of assignment.

* * * (2) The assignee, under a further assignment or reassignment, in order to establish a right to receive payment from the Government, must file with [send to] the addressees listed in 32.802(e) a-

(i) Written notice of release of the contractor by the assigning financing institution;

(ii) Copy of the release instrument;

(iii) Written notice of the further assignment or reassignment; and

(iv) Copy of the further assignment or reassignment instrument.

(3) If the assignee releases the contractor from an assignment of claims under a contract, the contractor, in order to establish a right to receive payment of the balance due under the contract, must [send] file a written notice of release together with a true copy of the release of assignment instrument with [to] the addressees noted in 32.802(e).

PART 42—CONTRACT ADMINISTRATION AND AUDIT SERVICES

Subpart 42.12—Novation and Change-of-Name Agreements

42.1204 Applicability of novation agreements.

(f) Except as provided in paragraph (g) of this section, the contractor shall submit to the responsible contracting officer one copy of each of the following documents, as applicable, as the documents become available:

(1) An authenticated copy of the instrument effecting the transfer of assets; e.g., bill of sale, certificate of merger, contract, deed, agreement, or court decree.

(2) A certified copy of each resolution of the corporate parties’ boards of directors authorizing the transfer of assets.

(3) A certified copy of the minutes of each corporate party’s stockholder meeting necessary to approve the transfer of assets.

(4) An authenticated copy of the transferee’s certificate and articles of incorporation, if a corporation was formed for the purpose of receiving the assets involved in performing the Government contracts.

(i)

NOVATION AGREEMENT

(b)* * *

(9) The contracts shall remain in full force and effect, except as modified by this Agreement. Each party has executed this Agreement as of the day and year first above written.

United States of America, By _______________________________________________

Title _____________________________________________

ABC Corporation, [Corporate Seal]

XYZ Corporation, Certificate

I, ___________, certify that I am the Secretary of ABC Corporation, that ________________, who signed this Agreement for this corporation, was then _____________ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporate powers. Witness my hand and the seal of this corporation this day of __________________ 20 ___.

Certificate

I, ____________, certify that I am the Secretary of XYZ Corporation, that ________________, who signed this Agreement for this corporation, was then _____________ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporate powers. Witness my hand and the seal of this corporation this day of ____________________20___.

42.1205 Agreement to recognize contractor’s change of name.

(b)* * *

CHANGE-OF-NAME AGREEMENT

(b) In consideration of these facts, the parties agree that-

(1) The contracts covered by this Agreement are amended by substituting the name “ABC Corporation” for the name “XYZ Corporation” wherever it appears in the contracts; and

(2) Each party has executed this Agreement as of the day and year first above written.

United States of America, ABC Corporation, By _______________________________________________

Certificate

I, ___________, certify that I am the Secretary of ABC Corporation; that ___________, who signed this Agreement for this corporation, was then _____________ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporate powers. Witness my hand and the seal of this corporation this ________ day of ____________ 20___.

Part 52 – Solicitation Provisions and Contract Clauses

52.228 [Reserved].

52.228-11 Pledges of Assets.

As prescribed in 28.203-6, insert the following clause:

Pledges of Assets (Aug 2018) [(DEVIATION APR 2020)]

(a) Offerors shall obtain from each person acting as an individual surety on a bid guarantee, a performance bond, or a payment bond -

(1) Pledge of assets; and

(2) Standard Form 28, Affidavit of Individual Surety [, except that the words “being duly sworn, depose and say” on the Standard Form 28 are replaced with the word “affirm” and the Standard Form 28 is not required to be sworn and notarized in block 12].

(b) Pledges of assets from each person acting as an individual surety shall be in the form of - ***

52.228-15 Performance and Payment Bonds-Construction.

As prescribed in 28.102-3(a), insert a clause substantially as follows:

PERFORMANCE AND PAYMENT BONDS-CONSTRUCTION (OCT 2010) [(DEVIATION APR 2020)]

(b) Amount of required bonds. Unless the resulting contract price is $150,000 or less, the successful offeror shall furnish performance and payment bonds to the Contracting Officer as follows:

(1) Performance bonds (Standard Form 25 [, except that a seal is not required]). The penal amount of performance bonds at the time of contract award shall be 100 percent of the original contract price.

(2) Payment bonds (Standard Form 25A [, except that a seal is not required]). The penal amount of payment bonds at the time of contract award shall be 100 percent of the original contract price.

(3) Additional bond protection. (i) The Government may require additional performance and payment bond protection if the contract price is increased. The increase in protection generally will equal 100 percent of the increase in contract price.

(ii) The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond.

52.228-16 Performance and Payment Bonds-Other Than Construction.

As prescribed in 28.103-4, insert a clause substantially as follows:

PERFORMANCE AND PAYMENT BONDS-OTHER THAN CONSTRUCTION (NOV 2006) [(DEVIATION APR 2020)]

(b) The Contractor shall furnish a performance bond (Standard Form 1418 [, except that a seal is not required]) for the protection of the Government in an amount equal to _______ percent of the original contract price and a payment bond Standard Form 1416[, except that a seal is not required]) in an amount equal to ___percent of the original contract price.

Alternate I (JUL 2000) [(DEVIATION APR 2020)]. As prescribed in 28.103-4, substitute the following paragraphs (b) and (d) for paragraphs (b) and (d) of the basic clause:

(b) The Contractor shall furnish a performance bond (Standard Form 1418[, except that a seal is not required]) for the protection of the Government in an amount equal to ______ percent of the original contract price.