12FPC319Q0019_Synopsis_Solicitation.pdf

Food Production and Conservation Business Center

PLOT COMBINE FOR

PLANT MATERIALS CENTER, BISMARCK, NORTH DAKOTA

PLANT MATERIALS CENTER, MANHATTAN, KANSAS

(i) This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in Subpart 12.6, as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; quotes are being requested and a written solicitation will not be issued. The Government will issue a firm fixed price commercial item purchase order resulting from this solicitation.

(ii) The USDA NRCS Plant Materials Center in Bismarck, North Dakota and Manhattan, Kansas need to acquire a plot combine for each PMC. The Plot Combine will serve as the primary plot combine for harvesting study plots, foundation and breeder seed production fields.

(iii) This solicitation is issued as a Request for Quote, and the acquisition procedures at FAR Part 13 are being utilized. The Government will issue award without negotiations. The Government reserves the right to make no award and will not be liable for any costs incurred in response to the RFQ. The Government will evaluate offers based upon meeting the criteria described in the attached requirements document.

(iv) This solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular FAC-2019-02, effective 5/6/2019.

(v) This is a 100% set aside for Small Business. The applicable NAICS code is 333111, Farm Machinery and Equipment Manufacturing, which has a size standard of 1250 employees. For more information on size standards visit http://www.sba.gov/size. In order to be considered for this procurement, interested entities' SAM registration must show the above NAICS.

(vi) Line Item Numbers (CLINs) – See Attachment 2 Price Schedule, price quote must be in US Currency (Dollars)

0001 – Plot Combine – Plant Materials Center ND 0001a – On site training/demonstration (2 days min) 0001b – Shipping and Delivery PMC North Dakota 0002 – Plot Combine – Plant Materials Center KS 0002a – On site training/demonstration (2 days min) 0002b – Shipping and Delivery PMC Kansas

(vii) Description of Requirement. The contractor shall provide a description of the equipment specifications addressed in the attached requirements document and provide literature to be evaluated. The equipment must meet the specifications. Similar products will not be considered.

(viii) Date(s) and Place(s) of Delivery and Acceptance. The estimated delivery date will be approximately six months from award date. Acceptance will occur at the USDA NRCS Plant Materials Center in North Dakota and Kansas.

12FPC319Q0019

Shipping / Delivery address as follows:

Line 0001 – Plot Combine PMC North Dakota

USDA NRCS Plant Materials Center Attn: Wayne Duckwitz 3308 University Drive Bismarck, ND 58504

Line 0002 – Plot Combine PMC Kansas

UDSDA NRCS Plant Materials Center Attn: Frederick Cummings 3800 South 20th Street Manhattan, KS 66502

(ix) The provision at 52.212-1, Instructions to Offerors—Commercial, applies to this acquisition.

The following addenda also apply.

(a) North American Industry Classification System (NAICS) code and small business size standard. The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.

(b) Submission of quotes. Submit signed and dated quotes to the office specified in this solicitation at or before the exact time specified in this solicitation. Quotes may be submitted on the SF 1449, letterhead stationery, or as otherwise specified in the solicitation. As a minimum, quotes must show—

(1) The solicitation number;

(2) The time specified in the solicitation for receipt of offers;

(3) The name, address, and telephone number of the offeror;

(4) A technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation. This may include product literature, or other documents, if necessary;

(5) Terms of any express warranty;

(6) Price and any discount terms;

(7) “Remit to” address, if different than mailing address;

(8) A completed copy of the representations and certifications at FAR 52.212-3 (see FAR 52.212-3(b) for those representations and certifications that the offeror shall complete electronically);

(9) Acknowledgment of Solicitation Amendments;

(10) Past performance information, when included as an evaluation factor, to include recent and relevant contracts for the same or similar items and other references (including contract numbers, points of contact with telephone numbers and other relevant information); and

(11) If the quote is not submitted on the SF 1449, include a statement specifying the extent of agreement with all terms, conditions, and provisions included in the solicitation.

Quotes that fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration.

https://www.gsa.gov/forms-library/solicitationcontractorder-commercial-items https://www.gsa.gov/forms-library/solicitationcontractorder-commercial-items https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1060550 https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1060550 https://www.gsa.gov/forms-library/solicitationcontractorder-commercial-items

(c) Period for acceptance of quotes. The offeror agrees to hold the prices in its quote firm for 60 calendar days from the date specified for receipt of quotes, unless another time period is specified in an addendum to the solicitation.

(d) Product samples. Prior to the application of the chemical herbicide, the contractor will provide copy of the chemical label to the MN POC to ensure product complies with the contract requirements.

(e) Late submissions, modifications, revisions, and withdrawals of quotes.

(1) Quoters are responsible for submitting quotes, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that offers or revisions are due.

(2)

(i) Any quote, modification, revision, or withdrawal of a quote received at the Government office designated in the solicitation after the exact time specified for receipt of quotes is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late quote would not unduly delay the acquisition; and-

(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of quotes; or

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of quotes and was under the Government’s control prior to the time set for receipt of quotes; or

(C) If this solicitation is a request for proposals, it was the only proposal received.

(ii) However, a late modification of an otherwise successful quote, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

(3) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the offer wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.

(4) If an emergency or unanticipated event interrupts normal Government processes so that quotes cannot be received at the Government office designated for receipt of quotes by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume

(5) Quotes may be withdrawn by written notice received at any time before the exact time set for receipt of quotes. Oral quotes in response to oral solicitations may be withdrawn orally. If the solicitation authorizes facsimile quotes, quotes may be withdrawn via facsimile received at any time before the exact time set for receipt of quotes, subject to the conditions specified in the solicitation concerning facsimile quotes. A quote may be withdrawn in person by a quoter or its authorized representative if, before the exact time set for receipt of quotes, the identity of the person requesting withdrawal is established and the person signs a receipt for the quote.

(g) Contract award (not applicable to Invitation for Bids). The Government intends to evaluate quotes and award a contract without discussions with quoters. Therefore, the quoter’s initial quote should contain the quoter’s best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary. The Government may reject any or all quotes if such action is in the public interest; accept other than the lowest quote; and waive informalities and minor irregularities in quotes received.

(j) Unique entity identifier. (Applies to all offers exceeding $3,500 and offers of $3,500 or less if the solicitation requires the Contractor to be registered in the System for Award Management (SAM).) The Offeror shall enter, in the block with its name and address on the cover page of its offer, the annotation “Unique Entity Identifier” followed by the unique entity identifier that identifies the Offeror's name and address. The Offeror also shall enter its Electronic Funds Transfer (EFT) indicator, if applicable. The EFT indicator is a four-character suffix to the unique entity identifier. The suffix is assigned at the discretion of the Offeror to establish additional SAM records for identifying alternative EFT accounts (see subpart 32.11) for the same entity. If the Offeror does not have a unique entity identifier, it should contact the entity designated at www.sam.gov for unique entity identifier establishment directly to obtain one. The Offeror should indicate that it is an offeror for a Government contract when contacting the entity designated at www.sam.gov for establishing the unique entity identifier.

(k) [Reserved]

(End of provision)

(x) FAR provision 52.212-2, Evaluation-Commercial Items apply to this solicitation.

(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers:

(i) Technical capability of the item offered to meet the Government: Contractor must demonstrate that the equipment being sought meets all the required specifications (literature provided). The Government would like to receive minimum two-day training/demonstration. Contractor shall include their proposed number of days for on site training / demonstration to use equipment. Must show the capability and availability to provide the trainings. Dates for training will be coordinated after award. Contractor shall include the estimated delivery date for the equipment and warranty details.

(ii) Price: USDA seeks to obtain the offeror’s best price based on its evaluation of discounts, terms, conditions, and concessions offered to commercial customers. In an effort to receive the highest quality product at the lowest possible price, the government requests all available discounts on the product offered for this requirement.

(iii) Past performance – capability to meet delivery on time, meet the requirements, and provide 3 references

Technical and past performance, when combined, are more important than price.

(b) Options. The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are significantly unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).

https://www.acquisition.gov/content/part-32-contract-financing#i1080713 http://www.sam.gov/ http://www.sam.gov/

(c) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer’s specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.

(End of provision)

The Government will evaluate offers based on meeting the specifications set forth in the document.

To be considered for this procurement, the contractor must RETURN with their quote the following documents:

1. Attachment 2 – Price Schedule

2. Narrative describing the evaluation factors, technical capability, price and past performance, as described above

3. Attachment 3 – Vendor Information Sheet and Certifications

4. Copy of the SAM’s Representations and Certifications, showing NAICS 333111

If the contractor fails to provide any of this information, will be considered non-responsive.

(xi) Offerors are required to complete the provision at 52.212-3, Offeror Representations and Certifications—Commercial Items. This must be completed at SAM.gov and the registration in an “Active” status.

(xii) The clause at 52.212-4, Contract Terms and Conditions—Commercial Items, applies to this acquisition and addenda are attached.

(xiii) The clause at 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items, applies to this acquisition and the following additional FAR clauses cited in the clause are applicable to this acquisition. Addenda are attached.

(xiv) Additional contract requirement(s) or terms and conditions determined by the Contracting Officer to be necessary for this acquisition and consistent with customary commercial practices.

1. Warranty included

2. Servicing locations in ND and KS

3. Hard copy service/operator manual

(xv) Not applicable.

(xvi) Quotes are to be received no later than 4:30 pm Atlantic Standard Time, on Friday May 24, 2019. Quotes may be submitted via email at oriel.velez@usda.gov.Please take into consideration the time difference. Ensure that you send the quotes in advanced time as to reach the destination prior to the closing time.

(xvii) Questions regarding this requirement may be sent via email to oriel.velez@usda.gov or by phone at 787-370-0562. POC for this action is Ms. Oriel Vélez, Contracting Officer.

Please identify in the subject line the solicitation number.

END OF SOLICITATION

mailto:oriel.velez@usda.gov

ATTACHMENT 1 – Requirements Document

PLOT COMBINE for

PLANT MATERIALS CENTER BISMARCK, NORTH DAKOTA

PLANT MATERIALS CENTER, MANHATTAN, KANSAS

The Bismarck Plant Materials Center, (PMC) located at Bismarck, North Dakota and the Plant Materials Center located at Manhattan, Kansas, are looking to purchase a plot combine for each PMC. The combine will serve as the primary plot combine for harvesting study plots, foundation and breeder seed production fields. This is considered specialized equipment. It is required that literature for the equipment be included to ensure it meets the PMC requirements.

The Bismarck and Manhattan PMC require a specialized machine that will provide the features to perform the work needed in the most safe and efficient manner. Some of the major features needed in this combine to increase harvesting efficiency at the PMC are:

1. Combine that is easily accessible making cleaning after each harvest more efficient.

This is a major part of the entire combine process as large amounts of staff time and labor are spent cleaning the combine after every field.

2. 10-gallon air compressor powered by the combine with approximately 40 feet of air hose to clean the machine in the field.

3. Interior of combine thrashing parts painted white for easy detection of contaminates

4. All seams sealed both inside and outside. Includes all gaps and corners.

5. Rubber gaskets along all gaps to seal so no seed will hang up.

6. Covers on engine are easily removed offering a safe access for servicing and cleaning.

7. Covers on axles for elimination of straw and seed to hang up

8. Hydraulically operated system eliminating traditionally large numbers of rubber belts

9. Grain tank located at the back of combine that can be easily tipped for access and cleaning.

10. Constructed with as many parts that are readily available from major dealers located close to the center in each state.

All feature specifications required and needed in a combine are listed below. The requirements are for a fast-easy cleaning combine with superior harvesting quality and quantity of our diverse seed products.

The machine must be built durable and be easy to operate and maintain. Replacement parts must be readily accessible to purchase in the US. The equipment must include all of the below specifications.

Similar products will not be considered.

Plot Combine Specifications

Combine will need to be thoroughly cleaned many times each season. The clean out specifications are extremely important in this equipment. Thorough and rapid clean out is high priority for foundation seed harvest. The machine must include the following options:

• Pneumatic grain delivery system that prevents seed leakage and enables rapid cleanout.

• Hydraulically tilting grain tank for rapid, thorough clean out.

• Cleanout tray below the grain tank auger.

• Covered front axle to prevent seed and straw accumulation.

• Spacers between all hydraulic lines to prevent accumulation of seed and straw.

• Silicon sealing in corners and edges around threshing area to prevent seed buildup.

• Rubber seal around engine covers that are easily removed and replaced for cleanout.

• Spacers between hoses that route between engine and correlating components.

• White painted interior of separating chamber for easier visual inspection.

• Air compressor w/10-gallon air tank and 40 feet of hose; enables whole machine cleanout in the field.

Technical Specifications:

Self-propelled, 4-wheel drive plot combine capable of harvesting and processing a variety of native seed crops ranging from very small (>3 million seeds per pound) to relatively large (~ 10,000 seeds per pound).

• 60-70 horse power turbo diesel engine, Tier 4.

• 4-wheel drive

• Hydrostatic variable speed transmission with a minimum of 2 speed ranges

• Power steering

• Emergency stop foot pedal

• Enclosed air-conditioned cab with operator seat mounted in the center of the combine.

• Variable speed header and reel.

• Variable speed threshing drum with a minimum of 6 rasp bars, minimum width of 47 inches.

• Easily removeable universal concave and shaker sieves for all crop threshing.

• 3-step cleaning surface with straw shake, adjustable middle sieve and 4 bottom sieves with different hole sizes for all crop threshing.

• Concave including at least 4 de-awning bars

• Mechanical reverser of threshing drum

• Optimized weight distribution, engine located in center of combine

• Easy maintenance of machine:

o Locally available cabin filters.

o 5 or less belts to reduce maintenance costs and downtime.

• Double sieve system for cleaning seed

• Aluminum Shaker (Cereal Shaker) and heavy material shaker (corn shaker). Includes a quick-change option to change shaker within 5 minutes.

• Hydraulically driven variable speed cleaning fan.

• Pneumatic grain delivery system that guarantees performance without any seed leakage.

• A side bagging option, allowing either direct bagging of seed, or delivery to the seed hopper.

• Heavy duty steel construction of frame, wheels and wheelbases

- Tie Down Rings for front wheels

- Tool Kit

- Fire extinguisher

• A grain type header with compatible pick-up attachment.

• Header must have:

- a cutting width of 6.5 feet

- Hydraulically driven, adjustable speed sickle.

- Feeder/intake auger

- Two standard row dividers and two longer row dividers for use on lodged plants.

- Crop lifters for lifting prostrate seed heads.

- Horizontal adjustment of reel

- Hydraulically adjustable variable speed intake auger and feeding roller.

- Header must be capable of reaching a 3.6 ft. height at cutting knife

- Hydraulically driven variable speed reel

- 6- bar finger reel. Two of the bars will be mounted with brushes to aid in cleaning of sickle.

- Reverse mechanism for header (feeding belt and auger), for faster clean out.

- Separate pickup header attachment for picking up swaths.

• A minimum 30- gallon grain tank that hydraulically tilts to the back for safe, fast cleanout.

- Stepladder and platform on grain tank.

- Grain Tank unloading Auger w/ 11 ft. minimum reach; can be operated from the cab.

- Grain level sensor in the grain tank.

- Hydraulic reverser on grain tank auger

• Straw chopper and straw beater

• On-site set-up and operator training.

• Measurements:

- 76-inch tire Track Width (Center to Center of tire)

- 15- inch ground clearance

- 3.6 feet maximum cutting height

- Front tires: 11LR16

- Back tires: 200/60-14.5

Training:

The vendor will be required to provide at a minimum two-day on-site training or demonstration for this equipment or as the contractor considers appropriate. Must provide a hard copy pamphlet/guide operator manual for reference material. Do not provide CD copies.

Parts and Service:

The vendor must provide the parts and labor warranty for the equipment in addition to a list of locations to obtain service in the PMC area.

ATTACHMENT 2 - PRICE SCHEDULE

PLOT COMBINE

PLANT MATERIALS CENTER, MANHATTAN, KANSAS

PLANT MATERIALS CENTER, BISMARCK, NORTH DAKOTA

ITEM DESCRIPTION Qty Unit PRICE

0001 PLOT COMBINE, PMC NORTH DAKOTA 1 EA $

0001a On site training / demonstration PMC North Dakota 1 Job $

0001b Shipping and Delivery to North Dakota 1 EA $

TOTAL PMC NORTH DAKOTA $

0002 PLOT COMBINE, PMC KANSAS 1 EA $

0002a On site training / demonstration PMC Kansas 1 Job $

0002b Shipping and Delivery to Kansas 1 EA $

TOTAL PMC KANSAS

*Pricing will include all applicable discounts and cost for TOTAL $ on site training demonstration, shipping and delivery *Pricing must be in US Currency (Dollars)

VENDOR INFORMATION SHEET

Offeror’s Name (Print): __________________________________________________

Business Name: ____________________________________________________

Business Address: ____________________________________________________

Business Phone: _______________________________________________________

Email: _______________________________________________________________

Authorized Representatives (Print and Title):

DUNS:________________________________________________

SAM ACTIVE STATUS: Y _____ N ____

REPS AND CERTS ATTACHED: Y ____ N ____

SMALL BUSINESS: Y ____ N ____

Signature Authorized Representative Date

ATTACHMENT 3

Certifications

52.209-7 INFORMATION REGARDING RESPONSIBILITY MATTERS.

(a)Definitions. As used in this provision—

“Administrative proceeding” means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract Appeals Proceedings). This includes administrative proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include agency actions such as contract audits, site visits, corrective plans, or inspection of deliverables.

“Federal contracts and grants with total value greater than $10,000,000” means—

(1) The total value of all current, active contracts and grants, including all priced options; and

(2) The total value of all current, active orders including all priced options under indefinite-delivery, indefinite-quantity, 8(a), or requirements contracts (including task and delivery and multiple-award Schedules).

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

(b)The offeror [ ] has [ ] does not have (check one) current active Federal contracts and grants with total value greater than $10,000,000.

(c)If the offeror checked “has” in paragraph (b) of this provision, the offeror represents, by submission of this offer, that the information it has entered in the Federal Awardee Performance and Integrity Information System(FAPIIS) is current, accurate, and complete as of the date of submission of this offer with regard to the following information:

(1) Whether the offeror, and/or any of its principals, has or has not, within the last five years, in connection with the award to or performance by the offeror of a Federal contract or grant, been the subject of a proceeding, at the Federal or State level that resulted in any of the following dispositions:

(i) In a criminal proceeding, a conviction.

(ii) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.

(iii) In an administrative proceeding, a finding of fault and liability that results in—

(A) The payment of a monetary fine or penalty of $5,000 or more; or

(B) The payment of a reimbursement, restitution, or damages in excess of $100,000.

(iv) In a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the Contractor if the proceeding could have led to any of the outcomes specified in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this provision.

(2) If the offeror has been involved in the last five years in any of the occurrences listed in (c)(1) of this provision, whether the offeror has provided the requested information with regard to each occurrence.

(d) The offeror shall post the information in paragraphs (c)(1)(i) through (c)(1)(iv) of this provision in FAPIIS as required through maintaining an active registration in the Central Contractor Registration database via https://www.acquisition.gov (see 52.204-7).

(End of provision)

AGAR 452.209-70 REPRESENTATION BY CORPORATIONS REGARDING AN UNPAID

DELINQUENT TAX LIABILITY OR A FELONY CONVICTION (DEVIATION 2012-01) (FEB 2012)

(a) Awards made under this solicitation are subject to the provisions contained in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012 (P.L. No.

112-55), Division A, Sections 738 and 739 regarding corporate felony convictions and corporate Federal tax delinquencies. To comply with these provisions, all offerors must complete paragraph (1) of this representation, and all corporate offerors also must complete paragraphs (2) and (3) of this representation.

(b) The Offeror represents that –

(1) The Offeror is [ ], is not [ ] (check one) an entity that has filed articles of incorporation in one of the fifty states, the District of Columbia, or the various territories of the United States including American Samoa, Federated States of Micronesia, Guam, Midway Islands, Northern Mariana Islands, Puerto Rico, Republic of Palau, Republic of the Marshall Islands, U.S. Virgin Islands. (Note that this includes both for-profit and non-profit organizations.)

If the Offeror checked “is” above, the Offeror must complete paragraphs (2) and (3) of the representation.

If Offeror checked “is not” above, Offeror may leave the remainder of the representation blank.

(2)

(i) The Offeror has [ ], has not [ ] (check one) been convicted of a felony criminal violation under Federal or State law in the 24 months preceding the date of offer.

(ii) The Offeror has [ ], has not [ ] (check one) had any officer or agent of Offeror convicted of a felony criminal violation for actions taken on behalf of Offeror under Federal or State law in the 24 months preceding the date of offer.

(3) The Offeror does [ ], does not [ ] (check one) have any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.

(End of provision)

52.212-4 Contract Terms and Conditions-Commercial Items (Oct 2018)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights-

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g.,use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

a. (1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include-

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance

CONTRACT CLAUSES

http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1048610 https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1063244 with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer-System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer-Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by

EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C.3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.-

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C.3903) and prompt payment regulations at 5 CFR Part1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall-

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the-

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if–

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

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(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on-

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in

32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts;

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18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws

Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) [Reserved]

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti- Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement.

If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

(End of clause)

52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders- Commercial Items (Jan 2019)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).

(3) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015).

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(4) 52.233-3, Protest After Award (Aug 1996) (31U.S.C.3553).

(5) 52.233-4, Applicable Law for Breach of Contract Claim (Oct 2004) (Public Laws 108-77 and 108-

78 (19 U.S.C. 3805 note)).

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C.4704 and 10 U.S.C.2402).

(2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509)).

(3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of

2009 (June 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

(4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Oct 2018) (Pub. L. 109-282) (31 U.S.C. 6101 note).

(5) [Reserved].

(6) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of

Div. C).

(7) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (Oct 2016)

(Pub. L. 111-117, section 743 of Div. C).

X (8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Oct 2015) (31 U.S.C. 6101 note).

(9) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (Oct 2018) (41 U.S.C. 2313).

(10) [Reserved].

(11) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Nov 2011) (15 U.S.C.657a).

(ii) Alternate I (Nov 2011) of 52.219-3.

(12) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Oct

2014) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

(ii) Alternate I (Jan 2011) of 52.219-4.

(13) [Reserved]

(14) 52.219-6, Notice of Total Small Business Set-Aside (Nov 2011) (15 U.S.C.644).

(ii) Alternate I (Nov 2011).

(iii) Alternate II (Nov 2011).

(15) 52.219-7, Notice of Partial Small Business Set-Aside (June 2003) (15 U.S.C. 644).

(ii) Alternate I (Oct 1995) of 52.219-7.

(iii) Alternate II (Mar 2004) of 52.219-7.

(16) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C. 637(d)(2) and (3)).

(17) 52.219-9, Small Business Subcontracting Plan (Aug2018) (15 U.S.C. 637(d)(4))

(ii) Alternate I (Jan 2017) of 52.219-9.

(iii) Alternate II (Nov 2016) of 52.219-9.

(iv) Alternate III (Nov 2016) of 52.219-9.

(v) Alternate IV (Aug 2018) of 52.219-9

(18) 52.219-13, Notice of…