B09__Amend_2_Continuation_Pages_0002.pdf

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Physical Therapist Federal contract opportunity
Solicitation number
140A2326Q0138
Issued by
Department of the Interior Bureau of Indian Affairs Bureau of Indian Education

About this file

This document is Section C (Clauses) and Section E (Provisions) from Solicitation 140A2326Q0138, Amendment 2, issued by the Department of the Interior's Bureau of Indian Education.

The solicitation seeks a Physical Therapist to provide school-based services, with evaluation based on experience, capability, key personnel qualifications, and price. Key personnel must hold a current, valid, unrestricted license to practice as a Physical Therapist in South Dakota; possess a Doctorate Degree in Physical Therapy from a CAPTE-accredited program; have successfully completed the National Physical Therapy Examination (NPTE); and demonstrate a minimum of five years of professional experience as a Physical Therapist in a school-based setting with demonstrated experience working with students with special needs and developing, implementing, and monitoring Individualized Education Programs (IEPs). Contractors must submit an all-inclusive firm fixed price quote covering all costs including Federal/State/Local taxes, TERO fees, delivery, shipping, handling, goods, service, labor, and all other fees necessary to complete the work. The contract includes a five-year maximum term with Government option to extend. Quotations must address the evaluation criteria, include SAM.gov registration and UEI number, provide comprehensive subcontractor details with percentage of work allocation, and comply with the Indian Economic Enterprise (IEE) set-aside requirement via submission of form 1452.280-4. Quotes must be submitted in PDF format to leahr.azure@bie.edu. The solicitation incorporates standard FAR clauses regarding small business utilization, employment eligibility verification, privacy protections, diversity and inclusion compliance, liability insurance requirements ($1,000,000 per person/occurrence and $1,000,000 property damage), and protest procedures, with copies of protests to be served on the Contracting Officer and the Department of Interior Assistant Solicitor for Acquisitions and Intellectual Property.

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SECTION C – CLAUSES

Solicitation – 140A2326Q0138 / Amendment 2

1. DEPARTMENT OF THE INTERIOR ACQUISTION REGULUATION / CLAUSES

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text.

Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es):

https://www.acquisition.gov/diar/part-1452-solicitation-provisions-and-contract-clauses (End of clause)

Clause Title Date

Incorporated in Full Text -

1452.201-70 Authorities and delegations. (Sep 2011)

(a) The Contracting Officer is the only individual authorized to enter into or terminate this contract, modify any term or condition of this contract, waive any requirement of this contract, or accept nonconforming work.

(b) The Contracting Officer will designate a Contracting Officer's Representative (COR) at time of award. The COR will be responsible for technical monitoring of the contractor's performance and deliveries. The COR will be appointed in writing, and a copy of the appointment will be furnished to the Contractor. Changes to this delegation will be made by written changes to the existing appointment or by issuance of a new appointment.

(c) The COR is not authorized to perform, formally or informally, any of the following actions:

(1) Promise, award, agree to award, or execute any contract, contract modification, or notice of intent that changes or may change this contract;

(2) Waive or agree to modification of the delivery schedule;

(3) Make any final decision on any contract matter subject to the Disputes Clause;

(4) Terminate, for any reason, the Contractor's right to proceed;

(5) Obligate in any way, the payment of money by the Government.

(d) The Contractor shall comply with the written or oral direction of the Contracting Officer or authorized representative(s) acting within the scope and authority of the appointment memorandum. The Contractor need not proceed with direction that it considers to have been issued without proper authority. The Contractor shall notify the Contracting Officer in writing, with as much detail as possible, when the COR has taken an action or has issued direction (written or oral) that the Contractor considers to exceed the COR's appointment, within 3 days of the occurrence. Unless otherwise provided in this contract, the Contractor assumes all costs, risks, liabilities, and consequences of performing any work it is directed to perform that falls within any of the categories defined in paragraph (c) prior to receipt of the Contracting Officer's response issued under paragraph (e) of this clause.

(e) The Contracting Officer shall respond in writing within 30 days to any notice made under paragraph (d) of this clause. A failure of the parties to agree upon the nature of a direction, or upon the contract action to be taken with respect thereto, shall be subject to the provisions of the Disputes clause of this contract.

(f) The Contractor shall provide copies of all correspondence to the Contracting Officer and the COR.

(g) Any action(s) taken by the Contractor, in response to any direction given by any person acting on behalf of the Government or any Government official other than the Contracting Officer or the COR acting within his or her appointment, shall be at the Contractor's risk. (End of clause)

1452.228-70 Liability Insurance. (Jul 1996)

(a) The Contractor shall procure and maintain during the term of this contract and any extension thereof liability insurance in form satisfactory to the Contracting Officer by an insurance company which is acceptable to the Contracting Officer. The named insured parties under the policy shall be the Contractor and the United States of America. The amounts of the insurance shall be not less than as follows:

$1,000,000.00 each person $1,000,000.00 each occurrence $1,000.000.00 property damage

(b) Each policy shall have a certificate evidencing the insurance coverage. The insurance company shall provide an endorsement to notify the Contracting Officer 30 days prior to the effective date of cancellation or termination of the policy or certificate; or modification of the policy or certificate which may adversely affect the interest of the Government in such insurance. The certificate shall identify the contract number, the name and address of the Contracting Officer, as well as the insured, the policy number, and a brief description of contract services to be performed. The contractor shall furnish the Contracting Officer with a copy of an acceptable insurance certificate prior to beginning the work. (End of clause)

2. FEDERAL ACQUISITION REGULATION / CLAUSES

52.252-2 Clauses Incorporated by Reference. (Feb 1998) This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es): https://www.acquisition.gov/far-overhaul (End of clause)

Incorporated by Reference – Clause Title Date 52.203-3 Gratuities. (Apr 1984) 52.203-6 Restrictions on Subcontractor Sales to the Government, with Alternate 1. (Nov 2021) 52.203-12 Limitation on Payments to Influence Certain Federal Transactions. (Jun 2020) 52.203-16 Preventing Personal Conflicts of Interest. (Jun 2020) 52.203-17 Contractor Employee Whistleblower Rights. (Nov 2023) 52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements. (Jan 2017) 52.204-9 Personal Identity Verification of Contractor Personnel. (Jan 2011) 52.204-13 System for Award Management Maintenance. (Oct 2018) 52.204-14 Service Contract Reporting Requirements. (Oct 2016) (DEVIATION Mar 2026) 52.204-19 Incorporation by Reference of Representations and Certifications. (Dec 2014) 52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Jan 2025) (DEVIATION May 2026) 52.209-10 Prohibition on Contracting with Inverted Domestic Corporations. (Nov 2015). (DEVIATION May 2026) 52.212-4 Terms and Conditions—Commercial Products and Commercial Services. (Nov 2023) (DEVIATION Mar 2026) 52.219-6 Notice of Total Small Business Set-Aside. (Nov 2020)(DEVIATION Jan 2026) 52.219-8 Utilization of Small Business Concerns. (Jan 2025)(DEVIATION Jan 2026) 52.219-14 Limitations on Subcontracting. (Oct 2022) (DEVIATION Jan 2026) 52.222-3 Convict Labor. (Jun 2003) (DEVIATION May 2026) 52.222-19 Child Labor—Cooperation with Authorities and Remedies. (Jan 2025) (DEVIATION May 2026) 52.222-35 Equal Opportunity for Veterans. (Jun 2020) (DEVIATION May 2026) 52.222-36 Equal Opportunity for Workers with Disabilities. (Jun 2020) (DEVIATION May 2026) 52.222-37 Employment Reports on Veterans. (Jun 2020) (DEVIATION May 2026) 52.222-40 Notification of Employee Rights Under the National Labor Relations Act. (Dec 2010) (DEVIATION May 2026) 52.222-54 Employment Eligibility Verification. (Jan 2025) (DEVIATION May 2026) 52.222-90 Addressing DEI Discrimination by Federal Contractors. (DEVIATION May 2026) 52.223-23 Sustainable Products and Services. (May 2024)(DEVIATION May 2026) 52.224-1 Privacy Act Notification. (JUL 1996) (Deviation) 52.224-2 Privacy Act. (Apr 1984) 52.224-3 Privacy Training. (Jan 2017) 52.226-8 Encouraging Contractor Policies to Ban Text Messaging While Driving. (May 2024) 52.232-18 Availability of Funds. (Apr 1984) 52.232-33 Payment by Electronic Funds Transfer—System for Award Management. (Oct 2018) 52.232-40 Providing Accelerated Payments to Small Business Subcontractors. (Mar 2023) 52.233-3 Protest After Award. (Aug 1996) 52.233-4 Applicable Law for Breach of Contract Claim. (Oct 2004) 52.237-2 Protection of Government Buildings, Equipment, and Vegetation. (Apr 1984) 52.240-90 Security Prohibitions and Exclusions Representations and Certifications. (DEVIATION Mar 2026) 52.240-91Security Prohibitions and Exclusions. (DEVIATION Mar 2026) 52.240-93 Basic Safeguarding of Covered Contractor Information Systems. (DEVIATION Mar 2026) 52.242-5, Payments to Small Business Subcontractors (Jan 2017) 52.242-13 Bankruptcy. (Jul 1995) 52.244-6 Subcontracts for Commercial Products and Commercial Services (Jan 2025) (DEVIATION May 2026) 52.247-34 F.o.b. Destination. (Jan 1991)

Incorporate by Full Text –

Clause Title Date

52.217-9 Option to Extend the Term of the Contract. (Mar 2000)

(a) The Government may extend the term of this contract by written notice to the Contractor within one day; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least five days before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed five (years).

(End of clause)

52.224-1 Privacy Act Notification. (JUL 1996) (Deviation) The Contractor will be required to design, develop, or operate a system of records on individuals, to accomplish an agency function subject to the Privacy Act of1974, Public Law93-579, December 31,1974 (5 U.S.C. 552a) and applicable agency regulations. Violation of the Act may involve the imposition of criminal penalties.

Applicable Department of the Interior regulations concerning the Privacy Act are set forth in 43 CFR 2, subpart D. The CFR is available for public inspection at the Departmental Library, Main Interior Bldg., 1849 C St. NW, Washington DC, at each of the regional offices of bureaus of the Department and at many public libraries.

(End of Clause)

52.222-90 Addressing DEI Discrimination by Federal Contractors (Deviation May 2026)

(a) Definitions. As used in this clause— 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)

SECTION E – PROVISIONS

52.252-1 Solicitation Provisions Incorporated by Reference (Feb 1998) This solicitation incorporates one or more solicitation provisions by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. The offeror is cautioned that the listed provisions may include blocks that must be completed by the offeror and submitted with its quotation or offer. In lieu of submitting the full text of those provisions, the offeror may identify the provision by paragraph identifier and provide the appropriate information with its quotation or offer. Also, the full text of a solicitation provision may be accessed electronically at this/these address(es): https://www.acquisition.gov/far-overhaul (End of provision)

Incorporated by Reference – Clause Title Date 52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions. (Sep 2024) 52.203-18 Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or Statements-Representation. (Jan 2017) 52.204-7 System for Award Management. (Nov 2024) (Deviation Mar 2026) 52.209-2 Prohibition on Contracting with Inverted Domestic Corporations—Representation. (Nov 2015) (Deviation May 2026) 52.209-5 Certification Regarding Responsibility Matters. (Aug 2020) (Deviation May 2026) 52.209-11 Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. (Feb 2016) (Deviation May 2026) 52.212-1 Instructions to Offerors—Commercial Products and Commercial Services. (Sep 2023) (Deviation Mar 2026)

Incorporated in Full Text –

Clause Title Date

52.203-2 Certificate of Independent Price Determination. (Apr 1985)

(a) The offeror certifies that-

(1) The prices in this offer have been arrived at independently, without, for the purpose of restricting competition, any consultation, communication, or agreement with any other offeror or competitor relating to-

(i) Those prices;

(ii) The intention to submit an offer; or

(iii) The methods or factors used to calculate the prices offered.

(2) The prices in this offer have not been and will not be knowingly disclosed by the offeror, directly or indirectly, to any other offeror or competitor before bid opening (in the case of a sealed bid solicitation) or contract award (in the case of a negotiated solicitation) unless otherwise required by law; and

(3) No attempt has been made or will be made by the offeror to induce any other concern to submit or not to submit an offer for the purpose of restricting competition.

(b) Each signature on the offer is considered to be a certification by the signatory that the signatory-

(1) Is the person in the offeror’s organization responsible for determining the prices being offered in this bid or proposal, and that the signatory has not participated and will not participate in any action contrary to paragraphs (a)(1) through (a)(3) of this provision; or (2)(i) Has been authorized, in writing, to act as agent for the following principals in certifying that those principals have not participated, and will not participate in any action contrary to paragraphs (a)(1) through (a)(3) of this provision ____________ [insert full name of person(s) in the offeror’s organization responsible for determining the prices offered in this bid or proposal, and the title of his or her position in the offeror’s organization];

(ii) As an authorized agent, does certify that the principals named in subdivision (b)(2)(i) of this provision have not participated, and will not participate, in any action contrary to paragraphs (a)(1) through (a)(3) of this provision; and

(iii) As an agent, has not personally participated, and will not participate, in any action contrary to paragraphs (a)(1) through (a)(3) of this provision.

(c) If the offeror deletes or modifies subparagraph (a)(2) above, the offeror must furnish with its offer a signed statement setting forth in detail the circumstances of the disclosure.

(End of provision)

52.212-1 Instructions to Offerors—Commercial Products and Commercial Services. (Sep 2023) (Deviation Mar 2026) Addendum-

• Prospective Contractors shall assume that the government “has no prior knowledge” of their capabilities and experience and will base its evaluation on the information presented in each quote. Simply stating that the company will perform in accordance with the statement of work and/or providing a copy of the solicitation in response to the solicitation is considered unacceptable. The quote may be determined nonresponsive and removed from further consideration. The contractor shall follow the solicitation instructions in this section, 52.212-1 Instructions to Offerors—Commercial Products and Commercial Services, including the addendum below, and clearly address the evaluation criteria, 52.212-2, on its own document. Failure to comply with all instructions and address the evaluation factors in the quote may result in the quote being found nonresponsive and/or technically unacceptable and removal from consideration.

• Price.

The contractor shall submit an all-inclusive firm fixed price quote in response to this solicitation. All-inclusive is defined as all costs/expenses which include but are not limited to Federal/State/Local Taxes, TERO fees, Delivery, Shipping & Handling, Goods, Service, Labor, and all other fees necessary to complete the work. The quote may be determined unacceptable and removed from further consideration of the quote contains incomplete pricing or verbiage which indicates that price is subject to change after award. The Contractor shall complete and submit Section B – Price, with the quote.

• Set-aside Compliance. The contractor shall complete and submit with the quote the DIAR IEE representation, 1452.280-4 Indian Economic Enterprise Representation (FEB 2021), included in this solicitation.

Incomplete information, alternate forms or substitutes shall not be accepted. Prospective contractors who do not qualify under the solicitation set aside will be removed from further consideration.

• Contractor Capability. Prospective contractors must demonstrate sufficient resources to fulfill the contract or the ability to acquire them. The possession and retention of key personnel are fundamental requirements for successful contract execution. The government seeks companies who possess staff ready for placement upon contract award. Contractors should outline in their quote how they plan to staff and manage the contract, specifying the methods they will use to meet all contractual obligations. The quote shall include acceptable evidence of the contractor’s ability to secure necessary resources. Acceptable evidence consists of a commitment or explicit arrangement, that will be in existence at the time of contract award, to acquire the key personnel. The commitment or arrangement shall identify the length of commitment time.

• Experience. The prospective contractor shall demonstrate in the quote sufficient experience providing the same or similar services, as it relates to this requirement. Sufficient experience is considered to be at least one year of successful contract performance. The information shall include a brief description of the service provided, length of time, and location. Having a track record of experience providing the same or similar service under a contract is an indicator of future performance and reducing risk. Relevant experience with similar contracts shows a contractor's capabilities, expertise, and understanding of the specific requirements.

• Key Personnel.

Designated personnel must demonstrate appropriate education, licensure, experience, and capability to independently fulfill the responsibilities as outlined in the statement of work, Required Skills and Qualifications.

The quote shall address the following:

On-site Service: The quotation must confirm the provider's ability to deliver on-site service.

Licensure, Certification, Education.

o Must hold a current, valid, and unrestricted license to independently practice as a

Physical Therapist, in the State of South Dakota.

o Doctorate Degree in Physical Therapy from a program accredited by the

Commission on Accreditation in Physical Therapy Education (CAPTE).

o Successful completion of the National Physical Therapy Examination (NPTE).

Experience.

o Minimum of five (5) years of professional experience as a Physical Therapist, in a school-based setting.

o Demonstrated experience working with students with special needs.

o Experience developing, implementing, and monitoring Individualized Education Programs (IEPs).

• Subcontracting. The quotation must provide a comprehensive list of all subcontractors involved, detailing the specific tasks assigned to each subcontractor and indicating the percentage of work they are responsible for. The Contractor is obligated to review and complete the attached Subcontracting Limitations Certification and submit it along with the quotation. If all work is self-performed, the quotation should explicitly state that subcontractors will not be utilized and that all work will be completed internally.

• The contractor shall identify the company SAM,gov Registration Cage Code and UEI number in the quote.

• The contractor shall include a current point of contact information which includes first name, last name, e-mail, telephone number, and physical mailing address.

• The contractor shall acknowledge all amendments.

• The contractor shall be properly registered in SAM.gov to include small business status.

• The Government shall not be liable for any fees/costs incurred by quotation preparation. Preparing and submitting a quote in response to this solicitation is strictly voluntary.

• E-mail attachments shall be in PDF format and compatible with Microsoft Office software. NO zipped files permitted.

• All inquiries, questions, quotations, & amendments shall be submitted to: leahr.azure@bie.edu

52.212-2 Evaluation—Commercial Products and Commercial Services. (Nov 2021) (Deviation Mar 2026) Evaluation factors. The Government will award a contract resulting from this solicitation to the responsible Contractor whose quote conforming to the solicitation will be most advantageous to the Government, price and other factors considered.

Quotes will undergo a comparative evaluation to determine which quote provides the best value for the Government.

The government reserves the right to select a quote other than the lowest priced quote, if the benefits justify the additional cost. Selection for award is not based on price alone.

The Government intends to make an award without engaging in discussions or negotiations; therefore, quoters should ensure their initial submission presents optimal technical and pricing terms. The Government retains the discretion to clarify elements of any quote and may elect not to award a contract, subject to the quality of submissions and available funding.

The following factors shall be used to evaluate quotes:

Experience The quote will be evaluated based on the contractor’s demonstrated experience in delivering services that are identical or closely aligned with the requirements specified in this solicitation. Such experience illustrates the contractor’s capacity to meet the responsibilities defined within the scope of work.

Capability Key personnel constitute a critical resource for achieving successful contractor performance; consequently, the contractor's capability will be assessed. Evidence of a formal arrangement or agreement between the Contractor and key personnel—contingent upon award—will be evaluated to determine the contractor’s ability to deploy qualified staff promptly following contract award. The ability to retain key personnel will be assessed to include length of commitment time.

Key Personnel Quotes will be evaluated to ascertain the Contractor’s capacity to supply key personnel who meet the qualifications, possess relevant experience, and demonstrate capability as outlined in Section D - Statement of Work, and Section E

- Instructions.

Price The quotation will be assessed to determine its fairness and reasonableness.

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

52.233-2 Service of Protest Department of the Interior (JUL 1996) (Deviation)

(a) Protests, (as defined in FAR 33.102), that are filed directly with an agency, and copies of any protests that are filed with the Government Accountability Office (GAO), must be served on the Contracting Officer identified in the solicitation by obtaining written and dated acknowledgment of receipt from them.

(b) The copy of any protest must be received in the office designated above within one day of filing a protest with the GAO.

(c) A copy of the protest served on the Contracting Officer shall be simultaneously furnished by the protester to the Department of the Interior Assistant Solicitor, Acquisitions and Intellectual Property, 1849 C Street, NW., Room 6511, Washington, DC 20240.

Bureau of Indian Education Attn: Leah Azure 1011 Indian School Rd NW Albuquerque, NM 87104 Email: leahr.azure@bie.edu

2. DEPARTMENT OF THE INTERIOR ACQUISTION REGULUATION (DIAR) PROVISIONS

Clause Title Date

Incorporated by Full Text –

1452.215-71 Use and Disclosure of Proposal Information - Department of the Interior Apr 1984

(a) Definitions. For the purposes of this provision and the Freedom of Information Act (5 U.S.C. 552), the following terms shall have the meaning set forth below:

(1) “Trade Secret” means an unpatented, secret, commercially valuable plan, appliance, formula, or process, which is used for making, preparing, compounding, treating or processing articles or materials which are trade commodities.

(2) “Confidential commercial or financial information” means any business information (other than trade secrets) which is exempt from the mandatory disclosure requirement of the Freedom of Information Act, 5 U.S.C. 552. Exemptions from mandatory disclosure which may be applicable to business information contained in proposals include exemption (4), which covers “commercial and financial information obtained from a person and privileged or confidential,” and exemption (9), which covers “geological and geophysical information, including maps, concerning wells.”

(b) If the offeror, or its subcontractor(s), believes that the proposal contains trade secrets or confidential commercial or financial information exempt from disclosure under the Freedom of Information Act, (5 U.S.C. 552), the cover page of each copy of the proposal shall be marked with the following legend:

“The information specifically identified on pages ____________ of this proposal constitutes trade secrets or confidential commercial and financial information which the offeror believes to be exempt from disclosure under the Freedom of Information Act. The offeror requests that this information not be disclosed to the public, except as may be required by law. The offeror also requests that this information not be used in whole or part by the government for any purpose other than to evaluate the proposal, except that if a contract is awarded to the offeror as a result of or in connection with the submission of the proposal, the Government shall have the right to use the information to the extent provided in the contract.”

(c) The offeror shall also specifically identify trade secret information and confidential commercial and financial information on the pages of the proposal on which it appears and shall mark each such page with the following legend:

“This page contains trade secrets or confidential commercial and financial information which the offeror believes to be exempt from disclosure under the Freedom of Information Act and which is subject to the legend contained on the cover page of this proposal.”

(d) Information in a proposal identified by an offeror as trade secret information or confidential commercial and financial information shall be used by the Government only for the purpose of evaluating the proposal, except that (i) if a contract is awarded to the offeror as a result of or in connection with submission of the proposal, the Government shall have the right to use the information as provided in the contract, and (ii) if the same information is obtained from another source without restriction it may be used without restriction.

(e) If a request under the Freedom of Information Act seeks access to information in a proposal identified as trade secret information or confidential commercial and financial information, full consideration will be given to the offeror's view that the information constitutes trade secrets or confidential commercial or financial information. The offeror will also be promptly notified of the request and given an opportunity to provide additional evidence and argument in support of its position, unless it is administratively unfeasible to do so. If it is determined that information claimed by the offeror to be trade secret information or confidential commercial or financial information is not exempt from disclosure under the Freedom of Information Act, the offeror will be notified of this determination prior to disclosure of the information.

(f) The Government assumes no liability for the disclosure or use of information contained in a proposal if not marked in accordance with paragraphs (b) and (c) of this provision. If a request under the Freedom of Information Act is made for information in a proposal not marked in accordance with paragraphs (b) and (c) of this provision, the offeror concerned shall be promptly notified of the request and given an opportunity to provide its position to the Government. However, failure of an offeror to mark information contained in a proposal as trade secret information or confidential commercial or financial information will be treated by the Government as evidence that the information is not exempt from disclosure under the Freedom of Information Act, absent a showing that the failure to mark was due to unusual or extenuating circumstances, such as a showing that the offeror had intended to mark, but that markings were omitted from the offeror's proposal due to clerical error.

(End of provision)

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