Draft Section H.doc

TFM-2

DRAFT SIR

Section H

PART I: SECTION H -

Special Contract Provisions

Table of Contents

3H.1

AMS CLAUSE 3.8.2-17 KEY PERSONNEL AND SUBSTITUTION

3H.2 SUBSTITUTIONS OF KEY PERSONNEL

4H.3

RELEASE OF INFORMATION

H.4 AMS CLAUSE 3.13-15, CONFIDENTIALITY OF DATA AND INFORMATION

H.5 REOLACTION COSTS

6H.6

MAINTENANCE OF RECORDS AND LITIGATION SUPPORT

6H.7

ATTORNEY-CLIENT PRIVILEGE

H.8 RESERVED

7H.9

SERVICE LIMITATIONS

7H.10 INCENTIVE FEES (applicable to the CPIF CLINs and sub-CLINs)

7H.10.1 SCHEDULE AND QUALITY INCENTIVES

10H.10.3

INCENTIVE MILESTONE DEFINITIONS

11H.10.4

PROGRAM/PROBLEM TROUBLE REPORT (PTR) CLASSIFICATIONS

12H.10.5 SubCLIN SPECIFIC INCENTIVES

H.1

AMS CLAUSE 3.8.2-17 KEY PERSONNEL AND FACILITIES

3.8.2-17 Key Personnel and Facilities (May 1997)

(a) The personnel as specified below are considered essential to the work being performed hereunder and may, with the consent of the contracting parties, be changed from time to time during the course of the contract. The minimum qualifications for the Key Personnel are identified in Attachment J-7.

(b) Prior to removing, replacing, or diverting any of the specified personnel, the Contractor shall notify in writing, and receive consent from, the Contracting Officer reasonably in advance of the action and shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on this contract.

(c) No diversion shall be made by the Contractor without the written consent of the Contracting Officer.

(d) The key personnel under this contract are:

Program Manager

Deputy Program Manager

Operations & Maintenance Manager

Chief Engineer/Architect

(End of Clause)

H.2 SUBSTITUTIONS OF KEY PERSONNEL

(a) The Contractor must not permit substitutions during the first (18) months of the contract performance period unless due to an individual's inadequate performance, illness, death or termination of employment. If a substitution is necessary, the Contractor must promptly notify the Contracting Officer (in writing) and provide an adequate explanation of the circumstances necessitating the proposed substitution and the resume of the proposed substitute for approval prior to making the permanent substitution.

(b) After the initial 18-month period, Key Personnel substitution requests must be submitted to the Contracting Officer, in writing, at least thirty (30) calendar days in advance of the desired effective date.

H.3

RELEASE OF INFORMATION

Work performed under this Contract may involve access to information, including specifications, cost estimates and other sensitive data. Consequently, the Contractor (including individual employees thereof) must not release or communicate, except as required by law or regulations, such information, including any news release, public announcement, or advertising material concerned with this Contract, whether orally or in writing, to any person except:

(a) FAA personnel with a "need to know",

(b) Employees of the Contractor with a "need to know", or

(c) Such other person(s) as may be designated in writing by the Contracting Officer.

H.4

AMS CLAUSE 3.13-15 CONFIDENTIALITY OF DATA AND INFORMATION

This is a modified version of the noted AMS Clause. The yellow highlighted language is an addition to the normal AMS version of the clause.

(a) The contractor and any of its subcontractors, in performance of this contract, may need access to and use of various types of data and information in the possession of the Government, which the Government obtained under conditions which restrict its right to use and disclose data and information or which may be of a nature that its dissemination or use, other than in the performance of this contract, would be adverse to the interests of the Government or other parties. Therefore, the contractor and its subcontractors agree to abide by any restrictive use conditions on such data and not to: (1) knowingly disclose such data and information to others without written authorization from the Contracting Officer, unless the Government has made data and information available to the public; and (2) use for any purpose other than the performance of this contract any data which bears a restrictive marking or legend. For the sole purpose of this clause, "information" means any communication or representation of knowledge such as facts, data, or opinions in any medium or form, including textual, numerical, graphic, cartographic, narrative or visual form. Data processed in such a way that it can increase the knowledge of the person who receives it. Information is the output, or finished goods, of information systems.

For the sole purpose of performing the system development, automation, operation, analysis and/ or maintenance efforts included in this contract, the FAA is providing the contractor (and its subcontractors) access to National Airspace System (NAS) aircraft position, track, flight identifying, system capacity or weather data. Since this data is being provided both via electronic data feed and via e-mail, it is not always possible to physically mark this data with use conditions. This data is provided “for official use only.” The contractor must not share this data with any individuals other than those contractor and subcontractor employees actually performing work under this contract and must take necessary steps to ensure the data is safeguarded and not released beyond these limited number of individuals.

For purposes of this clause, the contractor’s and subcontractor’s parent companies, agents, subsidiaries and affiliates are considered “third parties” and must not be provided access to the data mentioned above nor any data provided under this contract that is marked as sensitive.

(b) In the event the work required to be performed under this contract requires access to proprietary data and information of other companies, the contractor must obtain agreement from such other companies for such use unless such data are provided or made available to the contractor by the Government. Two copies of such company-to-company agreements must be furnished promptly to the Contracting Officer for information only. These agreements must prescribe the scope of authorized use of disclosure and other terms and conditions to be agreed upon between the parties thereto. It is agreed by the contractor that any such data, whether obtained by the contractor pursuant to the aforesaid agreement or from the Government, must be protected from unauthorized use or disclosure to any individual, corporation, or organization so long as it remains proprietary.

(c) The contractor agrees to conduct formal training to make employees aware of the requirement to maintain confidentiality of data and information, as required above, to the end that they will be disciplined if the necessity to refrain from divulging either the proprietary data of other companies or data that are obtained from the Government to anyone except as authorized. The contractor must obtain from each employee engaged in any effort connected with this contract an agreement, in writing, which must in substance provide that such employee will not, during his/her employment by the contractor or anytime thereafter, disclose to others or use for his/her own benefit or the future benefit of any individual any trade secrets, confidential information, or proprietary/restricted data (to include Government "For Official Use Only") received in connection with the work under this contract.

(d) The contractor agrees to hold the Government harmless and indemnify the Government as to any cost/loss resulting from the unauthorized use or disclosure of third party data or software by the contractor, its employees, subcontractors, or agents.

(e) The contractor agrees to include the substance of this clause in all subcontracts awarded under this contract. The Contracting Officer will consider case-by-case exceptions to this requirement for individual subcontracts in the event that: (1) the contractor considers the application of the prohibition of this clause to be inappropriate and unnecessary in the case of a particular subcontract; (2) the contractor provides a written statement affirming absolute unwillingness of a subcontractor to perform, absent some relief from the substance of this prohibition; (3) use of an alternate subcontract source would unreasonably detract from the quality of effort; and (4) the contractor provides the Contracting Officer timely written advance notice of these and any other extenuating circumstances.

(f) Except as the Contracting Officer specifically authorizes in writing, upon completion of all work under this contract, the contractor must return all such data and information obtained from the Government, including all copies, modifications, adaptations, or combinations thereof, to the Contracting Officer. Data obtained from another company must be disposed of in accordance with the contractor's agreement with that company, or if the agreement makes no provision for disposition, must be returned to that company. The contractor must further certify in writing to the CO that all copies, modifications, adaptations, or combinations of such data or information which cannot reasonably be returned to the Contracting Officer (or to the appropriate company), have been deleted from the contractor's (and any subcontractor's) records and destroyed.

(g) These restrictions do not limit the contractor's (or subcontractor's) right to use and disclose any data and information obtained legally from another source without restriction.

(End of clause)

H.5

RELOCATION COSTS

Relocation costs are not allowable direct costs under this Contract unless advance, written approval is granted by the Contracting Officer.

H.6

MAINTENANCE OF RECORDS AND LITIGATION SUPPORT

(a) The Contractor must maintain all records, notes, memoranda, personal diaries, correspondence, and Government documents, upon which notes or annotations have been made. These records must be maintained for a minimum of two (2) years following contract closeout, or longer if required by the Contracting Officer and needed for the completion of any litigation or hearings. The records must be freely delivered to the FAA upon request, and must not be withheld by the Contractor for any reason. The Contractor and its employees waive any statutory rights they may have for withholding the documents. In addition, the Contractor must support the FAA in litigation to whatever extent required by the FAA.

(b) In the event any request for support to the FAA occurs after the period of performance of this contract, separate contractual arrangements will be made for costs incurred.

H.7

ATTORNEY-CLIENT PRIVILEGE

During performance of this contract, the Contractor may be required to attend meetings at which FAA employees seek and receive legal advice from FAA attorneys. The FAA intends, and the Contractor agrees, that such advice is to be treated as confidential legal advice, that the Contractor must not discuss such legal advice with non-FAA personnel, that such advice must not be included in notes, written reports, or minutes of such meetings, and that for purposes of asserting the attorney-client privilege with regard to such information, the Contractor must be considered an agent of the FAA.

In the event of litigation involving third parties to which the Contractor is not a named party, the Contractor must support the FAA by promptly providing to the FAA any documents requested as part of discovery which the Contractor may have in its possession, and by making Contractor employees available for depositions or testimony at hearings. This provision does not preclude the Contractor or the Contractor employees from being represented by counsel retained by the Contractor or the Contractor employee, provided such representation is at no direct cost to the Government.

H.8

RESERVED

H.9

SERVICE LIMITATIONS

The Contractor agrees that this contract is a not a personal services contract. The contractor further agrees that it must not perform any inherently government function.

For all the purposes of the contract the Contractor is not, or must it hold itself out to be, an agent or partner of, or joint venture with, the Government (except as stated in H.7 above); and that it must neither supervise, nor accept supervision from, Government employees.

H.10 INCENTIVE FEES (applicable to the CPIF CLINs and sub-CLINs) CPIF CLINs will have sub-CLIN-specific cost incentives as enumerated and/or defined in Sections B, F (dates only) and H.10.

H.10.1 Schedule and Quality Incentives CPIF CLINs and sub-CLINs will also have schedule and quality incentives as enumerated in Sections B, F (dates only) and H.10. Applicable definitions for the Schedule and Quality Incentives are provided below:

Definitions:

(a) Target Schedule Incentive, as used in this contract, means a specified target “Schedule Fee” that may be earned if and when the noted CLIN or sub-CLIN is performed meeting the noted schedule milestones specified for the CLIN or sub-CLIN. The Target Schedule Incentive (or Schedule Fee) may be distributed between one or more specified schedule milestones. Should the FAA have any concerns, during the performance period for any CPIF CLIN or sub-CLIN, about whether the contractor has sacrificed “Quality” for “Schedule”, the FAA may choose to withhold payment of the Schedule Incentive Fee until such time that the CLIN performance has been 100% completed.

(b) Target Quality Incentive, as used in this contract, means a specified target “Quality Fee” that may be earned if the contractor’s performance for the noted CLIN or sub-CLIN meets the quality criteria specified for the noted CLIN or sub-CLIN.

Specific numbers will be defined in Section H.10.5 as each sub-CLIN is negotiated and awarded.

H.10.2 AMS Clause 3.2.4-8 Incentive Fee (April 1996)

(a) General. The FAA shall pay the Contractor for performing this contract a fee determined as provided in this contract.

(b) Target cost and target fee. The target cost and target fee specified in the "Schedule" are subject to adjustment if the contract is modified in accordance with paragraph (d) below.

(1) Target cost, as used in this contract, means the estimated cost of this contract as initially negotiated, adjusted in accordance with paragraph (d) below.

(2) Target fee, as used in this contract, means the fee initially negotiated on the assumption that this contract would be performed for a cost equal to the estimated cost initially negotiated, adjusted in accordance with paragraph (d) below.

(c) Withholding of payment. Normally, the FAA shall pay the fee to the Contractor as specified in the Schedule. However, when the Contracting Officer considers that performance or cost indicates that the Contractor will not achieve target, the FAA shall pay on the basis of an appropriate lesser fee. When the Contractor demonstrates that performance or cost clearly indicates that the Contractor will earn a fee significantly above the target fee, the Government may, at the sole discretion of the Contracting Officer, pay on the basis of an appropriate higher fee. After payment of 85 percent of the applicable fee, the Contracting Officer may withhold further payment of fee until a reserve is set aside in an amount that the Contracting Officer considers necessary to protect the FAA's interest. This reserve shall not exceed 15 percent of the applicable fee or $100,000, whichever is less.

(d) Equitable adjustments. When the work under this contract is increased or decreased by a modification to this contract or when any equitable adjustment in the target cost is authorized under any other clause, equitable adjustments in the target cost, target fee, minimum fee, and maximum fee, as appropriate, shall be stated in a supplemental agreement to this contract.

(e) Fee payable.

(1) The fee payable under this contract shall be the target fee increased by _____TBD______ [Contracting Officer insert Contractor's participation] cents for every dollar that the total allowable cost is less than the target cost or decreased by _____TBD______ [Contracting Officer insert Contractor's participation] cents for every dollar that the total allowable cost exceeds the target cost. In no event shall the fee be greater than ____TBD_______ [Contracting Officer insert percentage] percent or less than _____TBD________ [Contracting Officer insert percentage] percent of the target cost. Specific numbers will be defined in Section H.10.5 as each CLIN or sub-CLIN is negotiated and awarded

(2) The fee shall be subject to adjustment, to the extent provided in paragraph (d) above, and within the minimum and maximum fee limitations in subparagraph (1) above, when the total allowable cost is increased or decreased as a consequence of (i) payments made under assignments or (ii) claims excepted from the release as required by paragraph (h)(2) of the "Allowable Cost and Payment" clause.

(3) If this contract is terminated in its entirety, the portion of the target fee payable shall not be subject to an increase or decrease as provided in this paragraph. The termination shall be accomplished in accordance with other applicable clauses of this contract.

(4) For the purpose of fee adjustment, total allowable cost shall not include allowable costs arising out of-

(i) Any of the causes covered by the "Excusable Delays" clause to the extent that they are beyond the control and without the fault or negligence of the Contractor or any subcontractor;

(ii) The taking effect, after negotiating the target cost, of a statute, court decision, written ruling, or regulation that results in the Contractor's being required to pay or bear the burden of any tax or duty or rate increase in a tax or duty;

(iii) Any direct cost attributed to the Contractor's involvement in litigation as required by the Contracting Officer pursuant to a clause of this contract, including furnishing evidence and information requested pursuant to the "Notice and Assistance Regarding Patent and Copyright Infringement" clause;

(iv) The purchase and maintenance of additional insurance not in the target cost and required by the Contracting Officer, or claims for reimbursement for liabilities to third persons pursuant to the "Insurance-Liability to Third Persons" clause;

(v) Any claim, loss, or damage resulting from a risk for which the Contractor has been relieved of liability by the FAA Property clause; or

(vi) Any claim, loss, or damage resulting from a risk defined in the contract as unusually hazardous or as a nuclear risk and against which the FAA has expressly agreed to indemnify the Contractor.

(5) All other allowable costs are included in total allowable cost for fee adjustment in accordance with this paragraph (e), unless otherwise specifically provided in this contract.

(f) Contract modification. The total allowable cost and the adjusted fee determined as provided in this clause shall be evidenced by a modification to this contract signed by the Contractor and Contracting Officer.

(g) Inconsistencies. In the event of any language inconsistencies between this clause and provisioning documents or FAA options under this contract, compensation for spare parts or other supplies and services ordered under such documents shall be determined in accordance with this clause.

(End of clause) H.10.3

INCENTIVE MILESTONE DEFINITIONS

The following are expected to be common to all CPIF subCLINs. See next section for PTR severity definitions. See Section F for subCLIN specific due dates.

(a) Detailed Design Review (DDR)

This schedule incentive will be considered earned if all of the following criteria are met by the Section F schedule date:

(1) Design review information is delivered in accordance with the CDRL dates and the FAA determines it adequate to conduct DDR.

(2) FAA approves start of software development. If approval is given conditionally based on completion of certain actions in response to FAA comments, the contractor will complete those actions within 30 calendar days of receipt of FAA’s comments. Upon verification of closure of the actions with the FAA, the schedule milestone is deemed “successful”. The verification must occur within 14 days of receipt by the FAA.

(b) Acceptance Test

This schedule incentive will be considered earned if all of the following criteria are met by the Section F schedule date:

(1) All test procedures are executed and verified for all SSS and IRS requirements allocated to the FAA approved WSAT test procedures for the release.

(2) There are no open severity 1 PTRs, i.e., fixed and passed upon retest

(3) Disposition of all open severity 2 PTRs is accepted by the FAA.

(4) Regression test is complete, if applicable

(5) FAA concurs with the initiation of OT&E. If completion of acceptance test is given conditionally based on completion of certain actions in response to FAA comments, the contractor will complete those actions within 30 calendar days from receipt of FAA comments at the Post Test Briefing.

(c) Ready for Operations (RO)

This schedule incentive will be considered earned if all of the following criteria are met by the Section F schedule date:

(1) All Key Site Acceptance Test procedures are executed and verified by the FAA.

(2) All severity 1, and 2 PTRs are closed, i.e., fixed and passed upon retest.

(3) All severity 3 PTRs have alternative work-around solutions approved and applied.

(4) The aggregate impact of severity 3 PTR work-around solutions is operationally acceptable to the FAA.

(5) Regression test is complete, if applicable.

(d) Quality (Q)

This quality incentive will be earned if all of the following criteria are met 90 days after release deployment:

(1) No more than ___ Release specific severity-1 PTRs were opened

(2) No more than ___ Release specific severity-2 PTRs were opened

(3) The sum of all severity 1, 2 and 3 Release specific PTRs opened did not exceed ___.

Specific numbers will be defined in Section H.10.5 as each CLIN or sub-CLIN is negotiated and awarded.

H.10.4

PROGRAM/PROBLEM TROUBLE REPORT (PTR) CLASSIFICATIONS

The following PTR classifications must be used in performance on this contract:

H.10.5 SubCLIN Specific Incentives

TBD