2.2.1 Combined Synopsis Solicitation Chemical Munitions TR.pdf

RFQ # 70CMSW23Q00000014

Chemical Munitions

Supports OFTP

COMBINED SYNOPSIS SOLICITATION

REQUEST FOR QUOTATION (RFQ)

This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in the Federal Acquisition Regulation (FAR) Subpart 12.6, as supplemented with FAR 13.106-1(a)(2)(i). This announcement constitutes the only solicitation; quotations are being requested and a separate written solicitation will not be issued. This Solicitation is hereby issued as a Request for Quote (RFQ). The RFQ incorporates provisions and clauses are those in effect through Federal Acquisition Circular (FAC) 2023-04, June 2, 2023.

REQUEST FOR QUOTATION (RFQ) #: 70CMSW23Q00000014

REQUIREMENT/TYPE OF CONTRACT/POP: The U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), Office of Acquisition Management (OAQ) is seeking to award a single Firm-Fixed-Price (FFP) Delivery Order (DO) for Chemical Munitions to support the law enforcement officers in the field. The period of performance (POP) for the single DO will include a base period to provide all required items.

NAICS: The associated North American Industrial Classification System (NAICS) code for this procurement is 332994, SMALL ARMS, ORDNANCE, AND ORDNANCE ACCESSORIES

MANUFACTURING.

PSC: The Product Service Code (PSC) is 1040 - CHEMICAL WEAPONS AND EQUIPMENT.

SB SET-ASIDE: This acquisition is a 100% total small business set-aside so the Government will only evaluate quotes from small businesses under the aforementioned NAICS code.

TAA COMPLIANT: The Government will only evaluate products from a United States Trade Agreement Act (TAA) Compliant country.

QUOTE SUBMISSION DUE DATE: Quotes shall be received no later than (NLT) Friday, July 28 at 10AM EST to Tony Ross by e-mail at Tony.Ross@ice.dhs.gov to be considered for award. The vendor agrees to hold the prices in its quote firm for at least 45 calendar days from the date specified for receipt of quotes.

BRAND NAME OR EQUAL EVALUATION: The government will evaluate quotes and make award on a basis of a Brand Name or Equal evaluation method. Details are provided under “Evaluation Process for Factor 1” section in the RFQ.

DELIVERY TERMS: Delivery is free-on-board (FOB) Destination to the following location:

DHS/ICE/OFTP

6760 Upton Ave., Building 234

ATTN: Michael Lavergne Fort Benning, Georgia 31905 mailto:Tony.Ross@ice.dhs.gov

PRICING TABLE:

Manufacturer Part # Product Description Manufacturer Qty Unit Price Total

Price

DT 6170 SKAT SHELL, OC

Defense

Technology 1,000 $ $

DT 1066 ORANGE SMOKE

Defense

Technology 1,000 $ $

DT 1073

MAX SMOKE, LG

CNSTR

Defense Technology 750 $ $

DT 1083

MXM HC SMK MIL

STYLE CNSTR

Defense Technology 700 $ $

DT 1019

POCKET TACTICAL

GRENADE, OC

Defense Technology 750 $ $

SHIP FREIGHT COSTS N/A 1 $ $

FET

FEDERAL EXCISE

TAX (if applicable) N/A 1 $

TOTAL PRICE

BASIS FOR AWARD:

The Government intends to award to the responsible Vendor whose quote, conforming to the RFQ, offers the best value to the Government, price and non-price factors considered. The Government will determine which Vendor is the best suited in terms of the evaluation factors stated above using the evaluation process described below to arrive at this determination.

Award may be made to other than the Vendor with the lowest priced quotation, if the Government determines that a price premium is warranted due to expediency of delivery time, technical merit, or a combination of both. The Government may also award to other than the fastest delivery proposed time, if it determines that a price premium is not warranted based on the technical proposal. The Government will not make an award at a significant higher overall price to achieve only slightly better performance or delivery time. In the event two or more quotes are determined not to have any substantial differences (i.e., technical or delivery), price becomes the determining factor and award may be made to the lower priced Vendor. The Government also reserves the right to award without exchanges or to make no award at all.

EVALUATION FACTORS/WEIGHT OF FACTORS:

The evaluation factors are listed below in descending order of importance:

• Factor 1- Technical Approach

• Factor 2- Delivery Time

• Factor 3- Price

Factor 1 is more important than Factor 2. The non-price factors when combined, are more important than price. As the non-price evaluation of quotation’s determines there are no substantial differences, price becomes more important, but not necessarily determinative, in making the award determination.

EVALUATION METHODOLOGY:

Evaluation Process for Factor 1: BRAND NAME OR EQUAL PRODUCTS

Submission criteria: The government will evaluate offers and make award on a basis of a Brand Name or Equal. If an item number(s) is proposed other than the ones listed in the Pricing Table, please provide a Manufacturer Part Number, Product Description, and Manufacturer for evaluation.

If your solution includes the exact part number(s) in the Pricing Table, then please state that and fill in the pricing portion for Unit Price and Total Price. Vendors shall also state the country of origin for all proposed items.

The government will evaluate Factor 1 “Brand Name or Equal” using the following PASS/FAIL criteria below:

PASS The quote meets all minimum requirements or provides technically acceptable substitute items IAW with the Part number(s) listed in the Pricing Table FAIL The quote fails to meet all minimum requirements or provide technically acceptable substitutes IAW with the Part number(s) listed in the Pricing Table.

A quote receiving a FAIL rating is ineligible for award.

Evaluation Process for Factor 2: DELIVERY TIME

Submission criteria: Vendors shall identify a delivery time with their quote. Failure to identify a delivery time will receive an Unacceptable rating for Factor 2.

Factor 2 will be scored on an adjectival rating basis as follows:

Excellent Delivery within 45 after receipt of award (ARO)

Good Delivery within 90 days after receipt of award (ARO)

Acceptable Delivery within 120 days after receipt of award (ARO)

Unacceptable Delivery exceeds 120 days after receipt of award (ARO). A quote receiving an Unacceptable rating is ineligible for award.

Evaluation Process for Factor 3: PRICE

Submission criteria: Vendors shall fill in the Unit Price and Total Price columns of the PRICING TABLE in the RFQ. Vendors shall identify if their quote includes “GSA SCHEDULE” or “OPEN MARKET” pricing.

IAW FAR 12.209, the CO will evaluate pricing to determine if it is fair and reasonable using the following methods:

Reasonableness- The Government may utilize one or more of the following methods to evaluate price reasonableness:

• Comparison to other quotes received.

• Comparison and/or analysis based on Independent Government Cost

Estimate (IGCE).

• Comparison/analysis to historical prices paid by ICE for similar products.

• Comparison with competitive published price lists for chemical munitions.

Completeness- The Government’s price evaluation will also assess the accuracy and completeness of the quote, which involves verification that:

• All line items are priced.

• Figures are correctly calculated; and

• Prices/discounts are presented in the adequate format.

SOLICITATION FAR CLAUSES AND PROVISIONS:

FAR 52.204-13 System for Award Management – Maintenance (OCT 2018) This clause is incorporated by reference. The full text of the clause is available at:

https://www.acquisition.gov/FAR/.

FAR 52.212-4 Contract Terms and Conditions – Commercial Items (NOV 2021) This clause is incorporated by reference. The full text of the clause is available at:

https://www.acquisition.gov/FAR/.

FAR 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Items (NOV 2021)

(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:

52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements

(JAN 2017)

https://www.acquisition.gov/FAR/

52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (NOV 2021)**

52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance

Services or Equipment (NOV 2021)**

52.209-10 Prohibition on Contracting with Inverted Domestic Corporations (NOV 2015)

52.233-3 Protest After Award (AUG 1996)

52.233-4 Applicable Law for Breach of Contract Claim (OCT 2004)

(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:

52.203-6 Restrictions on Subcontractor Sales to the Government (JUN 2020)

Alternate I (NOV 2021)

52.203-13 Contractor Code of Business Ethics and Conduct (NOV 2021)

52.203-15 Whistleblower Protections under the American Recovery and Reinvestment Act of

2009 (JUNE 2010)

52.204-10 Reporting Executive Compensation and First-Tier Subcontract Awards (JUN 2020)

[Reserved]

52.204-14 Service Contract Reporting Requirements (OCT 2016)

52.204-15 Service Contract Reporting Requirements for Indefinite-Delivery Contracts (OCT

2016)

52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (NOV 2021)

52.209-9 Updates of Publicly Available Information Regarding Responsibility Matters (OCT

2018)

52.219-3 Notice of HUBZone Set-Aside of Sole Source Award (SEP 2021)

52.219-4 Notice of Price Evaluation Preference for HUBZone Small Business Concerns (SEP 2021)

52.219-6 Notice of Total Small Business Set-Aside (NOV 2020)

Alternate I (MAR 2020)

52.219-7 Notice of Partial Small Business Set-Aside (NOV 2020)

52.219-8 Utilization of Small Business Concerns (OCT 2018)

52.219-9 Small Business Subcontracting Plan (NOV 2021)

Alternate I (NOV 2016)

Alternate II (NOV 2016)

Alternate III (JUN 2020)

Alternate IV (SEP 2021)

52.219-13 Notice of Set-Aside of Orders (MAR 2020)

52.219-14 Limitations on Subcontracting (SEP 2021)**

52.219-16 Liquidated Damages – Subcontracting Plan (SEP 2021)

52.219-27 Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (SEP 2021)

52.219-28 Post Award Small Business Program Rerepresentation (SEP 2021)

52.219-29 Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (SEP 2021)

52.219-30 Notice of Set-Aside for, or Sole Source Award to, Women-Owned Small Business

Concerns Eligible Under the Women-Owned Small Business Program (SEP 2021)

52.219-32 Orders Issued Directly Under Small Business Reserves (MAR 2020)

52.219-33 Nonmanufacturer Rule (SEP 2021)

52.222-3 Convict Labor (JUN 2003)

52.222-19 Child Labor – Cooperation with Authorities and Remedies (JAN 2020)

52.222-21 Prohibition of Segregated Facilities (APR 2015)

52.222-26 Equal Opportunity (SEPT 2016)

Alternate I (FEB 1999)

52.222-35 Equal Opportunity for Veterans (JUN 2020)

Alternate I (JUL 2014)

52.222-36 Equal Opportunity for Workers with Disabilities (JUN 2020)

Alternate I (JUL 2014)

52.222-37 Employment Reports on Veterans (JUN 2020)

52.222-40 Notification of Employee Rights Under the National Labor Relations Act (DEC 2010)

52.222-50 Combating Trafficking in Persons (NOV 2021)

Alternate I (MAR 2015)

52.222-54 Employment Eligibility Verification (NOV 2021)

52.223-9 Estimate of Percentage of Recovered Material Content for EPA-Designated Products

(MAY 2008)

Alternate I (MAY 2008)

52.223-11 Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons

(JUN 2016)

52.223-12 Maintenance, Service, Repair or Disposal of Refrigeration Equipment and Air Conditioners (JUN 2016)

52.223-13 Acquisition of EPEAT®-Registered Imaging Equipment (JUNE 2014)

Alternate I (OCT 2015)

52.223-14 Acquisition of EPEAT®-Registered Televisions (JUNE 2014)

Alternate I (JUNE 2014)

52.223-15 Energy Efficiency in Energy-Consuming Products (MAY 2020)

52.223-16 Acquisition of EPEAT®-Registered Personal Computer Products (OCT 2015)

Alternate I (JUNE 2014)

52.223-18 Encouraging Contractor Policies to Ban Text Messaging While Driving (JUN 2020)

52.223-20 Aerosols (JUN 2016)

52.223-21 Foams (JUN 2016)

52.224-3 Privacy Training (JAN 2017)

Alternate 1 (JAN 2017)

52.225-1 Buy American – Supplies (NOV 2021)

52.225-3 Buy American – Free Trade Agreements – Israeli Trade Act (NOV 2021)

Alternate I (JAN 2021)

Alternate II (JAN 2021)

Alternate III (JAN 2021)

52.225-5 Trade Agreements (OCT 2019)

52.225-13 Restrictions on Certain Foreign Purchases (FEB 2021)

52.225-26 Contractors Performing Private Security Functions Outside the United States (OCT 2016)

52.226-4 Notice of Disaster or Emergency Area Set-Aside (NOV 2007)

52.226-5 Restrictions on Subcontracting Outside Disaster or Emergency Area (NOV 2007)

52.229-12 Tax on Certain Foreign Procurements (FEB 2021)

52.232-29 Terms for Financing of Purchases of Commercial Items (NOV 2021)

52.232-30 Installment Payments for Commercial Items (NOV 2021)

52.232-33 Payment by Electronic Funds Transfer—System for Award Management (OCT 2018)

52.232-34 Payment by Electronic Funds Transfer—Other than System for Award Management

(JUL 2013)

52.232-36 Payment by Third Party (MAY 2014)

52.239-1 Privacy or Security Safeguards (AUG 1996)

52.242-5 Payments to Small Business Subcontractors (JAN 2017)

52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels (NOV 2021)

Alternate I (APR 2003)

Alternate II (NOV 2021)

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, 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:

52.222-41 Service Contract Labor Standards (AUG 2018)

52.222-42 Statement of Equivalent Rates for Federal Hires (MAY 2014)

52.222-43 Fair Labor Standards Act and Service Contract Labor Standards—Price Adjustment (Multiple Year and Option Contracts) (AUG 2018)

52.222-44 Fair Labor Standards Act and Service Contract Act—Price Adjustment (MAY 2014)

52.222-51 Exemption from Application of the Service Contract Labor Standards to Contracts for

Maintenance, Calibration, or Repair of Certain Equipment—Requirements (MAY 2014)

52.222-53 Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services—Requirements (MAY 2014)

52.222-55 Minimum Wages Under Executive Order 13658 (NOV 2020)

52.222-62 Paid Sick Leave Under Executive Order 13706 (JAN 2017)

52.226-6 Promoting Excess Food Donation to Nonprofit Organizations (JUN 2020)

(d) Comptroller General Examination of Record. The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, and does not contain the clause at 52.215-2, Audit and Records-Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller

General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement.

Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or https://www.acquisition.gov/sites/default/files/current/far/html/52_215.html#wp1144470 https://www.acquisition.gov/sites/default/files/current/far/html/Subpart%204_7.html#wp1082800 maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e)(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause-

(i) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021) (41 U.S.C. 3509).

(ii) 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)).

(iii) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (NOV 2021) (Section 1634 of Pub. L.

115-91).

(iv) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance

Services or Equipment (NOV 2021) (Section 889(a)(1)(A) of Pub. L. 115-232.)**

(v) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds the applicable threshold specified in FAR 19.702(a) on the date of the subcontract award, the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

(vi) 52.222-21, Prohibition of Segregated Facilities (Apr 2015)

(vii) 52.222-26, Equal Opportunity (Sept 2015) (E.O. 11246).

(viii) 52.222-35, Equal Opportunity for Veterans (Jun 2020) (38 U.S.C. 4212).

(ix) 52.222-36, Equal Opportunity for Workers with Disabilities (Jun 2020) (29 U.S.C. 793).

(x) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212)

(xi) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC

2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40.

(xii) 52.222-41, Service Contract Labor Standards (Aug 2018) (41 U.S.C. chapter 67).

(xiii)

__(A) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C. chapter 78 and E.O 13627).

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__(B) Alternate I (MAR 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O 13627).

(xiv) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (May 2014) (41 U.S.C. chapter 67).

(xv) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-Requirements (May 2014) (41 U.S.C. chapter 67).

(xvi) 52.222-54, Employment Eligibility Verification (NOV 2021).

(xvii) 52.222-55, Minimum Wages Under Executive Order 13658 (Nov 2020).

(xviii) 52.222-62, Paid Sick Leave Under Executive Order 13706 (Jan 2017) (E.O. 13706).

(xix)

(A) 52.224-3, Privacy Training (JAN 2017) (5U.S.C. 552a).

(B) Alternate I (JAN 2017) of 52.224-3.

(xx) 52.225-26, Contractors Performing Private Security Functions Outside the United States (OCT

2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).

(xxi) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (Jun 2020) (42 U.S.C.

1792). Flow down required in accordance with paragraph (e) of FAR clause 52.226-6.

(xxii) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (NOV 2021) 46

U.S.C. 55305 and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-64.

(2) While not required, the contractor may include in its subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

FAR 52.232-39 Unenforceability of Unauthorized Obligations (JUNE 2013) This clause is incorporated by reference. The full text of the clause is available at:

https://www.acquisition.gov/FAR/.

FAR 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (DEC 2013) ** This clause is incorporated by reference. The full text of the clause is available at:

https://www.acquisition.gov/FAR/.

FAR 52.237-2 Protection of Government Buildings, Equipment and Vegetation (APR 1984) The Contractor shall use reasonable care to avoid damaging existing buildings, equipment, and vegetation on the Government installation. If the Contractor’s failure to use reasonable care causes damage to any of this property, the Contractor shall replace or repair the damage at no expense to the Government as the Contracting Officer directs. If the Contractor fails or refuses to make such repair or replacement, the Contractor shall be liable for the cost, which may be deducted from the contract price.

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FAR 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 address: https://www.acquisition.gov/FAR/.

**FAR DEVIATIONS** If any of the below clauses are checked above, the below text will be applicable.

FAR 52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (DEVIATION 20-05)

(a) Definitions. As used in this clause—

“Covered article” means any hardware, software, or service that–

(1) Is developed or provided by a covered entity.

(2) Includes any hardware, software, or service developed or provided in whole or in part by a covered entity; or

(3) Contains components using any hardware or software developed in whole or in part by a covered entity.

“Covered entity” means–

(1) Kaspersky Lab.

(2) Any successor entity to Kaspersky Lab.

(3) Any entity that controls, is controlled by, or is under common control with Kaspersky Lab; or

(4) Any entity of which Kaspersky Lab has a majority ownership.

(b) Prohibition. Section 1634 of Division A of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) prohibits Government use of any covered article. The Contractor is prohibited from—

(1) Providing any covered article that the Government will use on or after October 1, 2018; and

(2) Using any covered article on or after October 1, 2018, in the development of data or deliverables first produced in the performance of the contract.

(c) Reporting requirement.

(1) In the event the Contractor identifies a covered article provided to the Government during contract performance, or the Contractor is notified of such by a subcontractor at any tier or any other source, the Contractor shall report, in writing via email, to the Contracting Officer, Contracting Officer’s Representative, and the Enterprise Security Operations Center (SOC) at NDAA_Incidents@hq.dhs.gov, with required information contained in the body of the email. In mailto:NDAA_Incidents@hq.dhs.gov the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Enterprise SOC, Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) and Contracting Officer’s Representative(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2) The Contractor shall report the following information pursuant to paragraph (c)(1) of this clause:

(i) Within 1 business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; brand; model number (Original Equipment Manufacturer (OEM) number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the report pursuant to paragraph (c)(1) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of a covered article, any reasons that led to the use or submission of the covered article, and any additional efforts that will be incorporated to prevent future use or submission of covered articles.

(d) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts, including subcontracts for the acquisition of commercial items.

(End of clause)

FAR 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (DEVIATION 2020-05) (DEC 2020)

(a) Definitions. As used in this clause—

“Backhaul” means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).

“Covered foreign country” means The People’s Republic of China.

“Covered telecommunications equipment or services” means–

(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).

(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou https://dibnet.dod.mil/

Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).

(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or

(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

“Critical technology” means–

(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations.

(2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled-

(i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

(ii) For reasons relating to regional stability or surreptitious listening.

(3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities).

(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material).

(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or

(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).

“Interconnection arrangements” means arrangements governing the physical connection of two or more networks to allow the use of another’s network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.

“Reasonable inquiry” means an inquiry designed to uncover any information in the entity’s possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.

“Roaming” means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.

“Substantial or essential component” means any component necessary for the proper function or performance of a piece of equipment, system, or service.

(b) Prohibition.

(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115–232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.

The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104.

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115–232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a federal contract.

(c) Exceptions. This clause does not prohibit contractors from providing—

(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(d) Reporting requirement.

(1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause in writing via email to the Contracting Officer, Contracting Officer’s Representative, and the Network Operations Security Center (NOSC) at NDAA_Incidents@hq.dhs.gov, with required information in the body of the email. In the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, mailto:NDAA_Incidents@hq.dhs.gov the Contractor shall report to the NOSC, Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) and Contracting Officer’s Representative(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause

(i) Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.

(e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.

FAR 52.219-14 Limitations on Subcontracting (OCT 2021) (DEVIATION OCT 2021)

(a) This clause does not apply to the unrestricted portion of a partial set-aside.

(b) Definition. Similarly situated entity, as used in this clause, means a first tier subcontractor, including an independent contractor, that—

(1) Has the same small business program status as that which qualified the prime contractor for the award (e.g., for a small business set-aside contract, any small business concern, without regard to its socioeconomic status); and

(2) Is considered small for the size standard under the North American Industry Classification System (NAICS) code the prime contractor assigned to the subcontract.

(c) Applicability. This clause applies only to –

(1) Contracts that have been set aside for any of the small business concerns identified in 19.000(a)(3).

(2) Part or parts of a multiple-award contract that have been set aside for any of the small business concerns identified in 19.000(a)(3).

(3) Contracts that have been awarded on a sole-source basis in accordance with subparts 19.8, 19.13, 19.14, and 19.15.

(4) Orders expected to exceed the simplified acquisition threshold and that are—

(i) Set aside for small business concerns under multiple-award contracts, as described in 8.405-5 and 16.505(b)(2)(i)(F); or

(ii) Issued directly to small business concerns under multiple-award contracts as described in 19.504(c)(1)(ii).

(5) Orders, regardless of dollar value, that are—

(i) Set aside in accordance with subparts 19.8, 19.13, 19.14, or 19.15 under multiple award contracts, as described in 8.405-5 and 16.505(b)(2)(i)(F); or

(ii) Issued directly to concerns that qualify for the programs described in subparts 19.8, 19.13, 19.14, or 19.15 under multiple-award contracts, as described in 19.504(c)(1)(ii); and

(6) Contracts using the HUBZone price evaluation preference to award to a HUBZone small business concern unless the concern waived the evaluation preference.

(d) Independent contractors. An independent contractor shall be considered a subcontractor.

(e) Limitations on subcontracting. By submission of an offer and execution of a contract, the Contractor agrees to the following requirements in the performance of a contract assigned a North American Industry Classification System (NAICS) code applicable to this contract:

(1) Services (except construction). It will not pay more than 50 percent of the amount paid by the Government for contract performance, excluding certain other direct costs and certain work performed outside the United States (see paragraph (e)(1)(i)), to subcontractors that are not similarly situated entities. Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 50 percent subcontract amount that cannot be exceeded. When a contract includes both services and supplies, the 50 percent limitation shall apply only to the service portion of the contract.

(i) The following services may be excluded from the 50 percent limitation:

(A) Other direct costs, to the extent they are not the principal purpose of the acquisition and small business concerns do not provide the service. Examples include airline travel, work performed by a transportation or disposal entity under a contract assigned the environmental remediation NAICS code (562910), cloud computing services, or mass media purchases.

(B) Work performed outside the United States on awards made pursuant to the Foreign Assistance Act of 1961, orders set aside for service-disabled veteran-owned small business concerns under multiple award contracts as described in 8.405-5 and 16.505(b)(2)(i)(F); and

(2) Supplies (other than procurement from a nonmanufacturer of such supplies). It will not pay more than 50 percent of the amount paid by the Government for contract performance, excluding the cost of materials, to subcontractors that are not similarly situated entities. Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 50 percent subcontract amount that cannot be exceeded.

When a contract includes both supplies and services, the 50 percent limitation shall apply only to the supply portion of the contract.

(3) General construction. It will not pay more than 85 percent of the amount paid by the Government for contract performance, excluding the cost of materials, to subcontractors that are not similarly situated entities. Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 85 percent subcontract amount that cannot be exceeded.

(4) Construction by special trade contractors. It will not pay more than 75 percent of the amount paid by the Government for contract performance, excluding the cost of materials, to subcontractors that are not similarly situated entities. Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 75 percent subcontract amount that cannot be exceeded.

(f) The Contractor shall comply with the limitations on subcontracting as follows:

(1) For contracts, in accordance with paragraphs (c)(1), (2), (3) and (6) of this clause –

__ By the end of the base term of the contract and then by the end of each subsequent option period; or

__ By the end of the performance period for each order issued under the contract.

(2) For orders, in accordance with paragraphs (c)(4) and (5) of this clause, by the end of the performance period for the order.

(g) A joint venture agrees that, in the performance of the contract, the applicable percentage specified in paragraph (e) of this clause will be performed by the aggregate of the joint venture participants.

FAR 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (DEC 2013)

(DEVIATION APR 2020)

(a)(1) In accordance with 31 U.S.C. 3903 and 10 U.S.C. 2307, upon receipt of accelerated payments from the Government, the Contractor shall make accelerated payments to its small business subcontractors under this contract in accordance with the accelerated payment date established, to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract, with a goal of 15 days after receipt of a proper invoice and all other required documentation from the small business subcontractor if a specific payment date is not established by contract.

(2) The Contractor agrees to make such payments to its small business subcontractors without any further consideration from or fees charged to the subcontractor.

(b) The acceleration of payments under this clause does not provide any new rights under the Prompt Payment Act.

(c) Include the substance of this clause, including this paragraph (c), in all subcontracts with small business concerns, including subcontracts with small business concerns for the acquisition of commercial items.

End of Solicitation

(2) The Contractor agrees to make such payments to its small business subcontractors without any further consideration from or fees charged to the subcontractor.