21.3 - Attachment 2 - Sample Subcontract RFP-2023-23040.pdf

Alliance for Sustainable Energy, LLC Management and Operating Contractor for the National Renewable Energy Laboratory

Subcontract under DOE Prime Contract No.

DE-AC36-08GO28308

BETWEEN

Contracting Party: Alliance for Sustainable Energy, LLC 15013 Denver West Parkway Golden, CO 80401-3111

AND

This Subcontract (including all executed modifications) contains the entire understanding between the parties, and there are no understandings or representations except those set forth or incorporated by reference herein. No subsequent modifications of this agreement shall be of any force or effect unless in writing signed by a duly authorized official of the Alliance for Sustainable Energy, LLC.

IN WITNESS WHEROF, the parties have executed this Subcontract as of the date below.

ACCEPTED: COMPANY NAME AUTHORIZED: ALLIANCE FOR SUSTAINABLE

ENERGY, LLC

BY:

BY:

NAME:

NAME:

TITLE:

TITLE:

DATE:

DATE:

Agreement Type Labor Hour & Expenses – Commercial Services

Subcontractor: Company Name Street Address City, State Zip + 4

Agreement Number SUB-2023-*****

Modification Number 0

Period of Performance Start

Execution Agreement Ceiling Amount: $500,000.00

Period of Performance End

12 months Agreement Funded Amount $100,000.00

Options Included Option 1 (if exercised) Option 2 (if exercised) Option 3 (if exercised) Option 4 (if exercised)

Y Options Included 12 months 12 months 12 months 12 months

Buyer/Subcontract Administrator: Accounting Specialist: Accounts Payable Caitlyn Alter Technical Monitor/POC: Donny Haupt Caitlyn.Alter@nrel.gov Bill To: accounts.payable@nrel.gov

Payment Terms: Net 15 Project Title:

Maintenance and Repairs for NREL-Owned Photovoltaic Systems

SAMPLE

mailto:Caitlyn.Alter@nrel.gov mailto:accounts.payable@nrel.gov

SUB-2023-XXXXXX (PO TBD)

Line Description Ceiling Amount (USD) 1 Base Period $ 100,000.00 2 Option Period 1 (if exercised) $ 100,000.00 3 Option Period 2 (if exercised) $ 100,000.00 4 Option Period 3 (if exercised) $ 100,000.00 5 Option Period 4 (if exercised) $ 100,000.00

Total: $ 500,000.00

SAMPLE

INTRODUCTION & AGREEMENT

THIS SUBCONTRACT is effective upon execution by the Alliance for Sustainable Energy, LLC, manager and operator of the National Renewable Energy Laboratory and is between the Alliance for Sustainable Energy, LLC, whose principal office is located in Golden, Colorado and ___COMPANY NAME___ (hereinafter called “Subcontractor”).

The Alliance for Sustainable Energy, LLC (hereinafter called “Alliance”) has entered into Contract No. DE-AC36-08GO28308 (hereinafter called “Prime Contract”) with the Department of Energy (hereinafter called “DOE”), an agency of the U.S. Government (hereinafter called “Government”), for the management and operation of the National Renewable Energy Laboratory (hereinafter called “NREL”). All references to “NREL” in this subcontract shall mean the Alliance for Sustainable Energy, LLC.

This subcontract is entered into in furtherance of the performance of the work provided for in the Prime Contract.

NOW, THEREFORE, the parties hereto agree to the following terms and conditions:

WORK TO BE PERFORMED

The Subcontractor shall perform the work specifically provided for in Appendix A, Statement of Work, attached hereto and made a part hereof, pursuant to the provisions of this subcontract.

Specific deliverables, quantities, due dates, reporting requirements, and addresses are set forth in Appendix A hereto.

PERIOD OF PERFORMANCE

The period of performance for this Subcontract shall be as follows:

Basic Period: Execution through Twelve (12) Months Option Period 1: Completion of Basic Period through Twelve (12) Months Option Period 2: Completion of Option Period 1 through Twelve (12) Months Option Period 3: Completion of Option Period 2 through Twelve (12) Months Option Period 4: Completion of Option Period 3 through Twelve (12) Months

Each of these periods may be extended by mutual written agreement of the parties. NREL will make a decision, based on its sole judgement, whether or not to continue and exercise each Option of this subcontract, prior to the completion date of each period. If all Options are exercised by NREL, the total period of performance for the Basic Period and all Options will be sixty (60) months. If NREL should decide not to exercise an Option, the subcontract shall be considered complete upon submittal of the final deliverables for the preceding Basic Period or Option.

PRICE AND PAYMENT (Labor Hour)

1. The Subcontractor shall perform the work called for under this subcontract on a labor hour and expenses (if authorized) basis. The Subcontractor shall receive compensation as specified hereunder, for all services and work performed, up to a ceiling amount of;

Base Period: $100,000.00 Option 1 Period (if exercised): $100,000.00 Option 2 Period (if exercised): $100,000.00 Option 3 Period (if exercised): $100,000.00 Option 4 Period (if exercised): $100,000.00 Total Ceiling if all options exercised: $500,000.00

2. The fixed hourly rates for this subcontract are as follows:

Base Period

Labor Category Time Category Total per

Hour Straight Time

Overtime - Time and a Half Overtime - Double Time

Option 1 (if exercised)

Category Time Category Total per

Hour Straight Time

Option 2 (if exercised)

Category Time Category Total per

Hour Straight Time

Option 3 (if exercised)

Category Time Category Total per

Hour Straight Time

Option 4 (if exercised)

Category Time Category Total per

Hour Straight Time

The following deliverables are calculated as fixed unit prices based on the rates identified per the base or option period (if exercised) above.

Occur-rence #

Deliver-able # Description Period Due Date Fixed Unit Price

1 2.a. Annual Inspection - SunPower PVSs

Base Period

Within 60 days of execution of Subcontract.

2 2.b.

Annual Inspection Report - SunPower PVSs

Base Period

Within 10 days of completed inspection.

3 2.a. Annual Inspection - SCHOTT PVSs

Base Period

Within 60 days of execution of Subcontract.

4 2.b.

Annual Inspection Report - SCHOTT PVSs

Base Period

Within 10 days of completed inspection.

5 2.a. Annual Inspection - SunPower PVSs

Option 1 (if exercised)

Annually in same month as base period inspection.

6 2.b.

Annual Inspection Report - SunPower PVSs

Option 1 (if exercised)

Within 10 days of completed inspection.

7 2.a. Annual Inspection - SCHOTT PVSs

Option 1 (if exercised)

Annually in same month as base period inspection.

8 2.b.

Annual Inspection Report - SCHOTT PVSs

Option 1 (if exercised)

Within 10 days of completed inspection.

9 2.a. Annual Inspection - SunPower PVSs

Option 2 (if exercised)

Annually in same month as base period inspection.

10 2.b.

Annual Inspection Report - SunPower PVSs

Option 2 (if exercised)

Within 10 days of completed inspection.

11 2.a. Annual Inspection - SCHOTT PVSs

Option 2 (if exercised)

Annually in same month as base period inspection.

12 2.b.

Annual Inspection Report - SCHOTT PVSs

Option 2 (if exercised)

Within 10 days of completed inspection.

13 2.a. Annual Inspection - SunPower PVSs

Option 3 (if exercised)

Annually in same month as base period inspection.

14 2.b.

Annual Inspection Report - SunPower PVSs

Option 3 (if exercised)

Within 10 days of completed inspection.

15 2.a. Annual Inspection - SCHOTT PVSs

Option 3 (if exercised)

Annually in same month as base period inspection.

16 2.b.

Annual Inspection Report - SCHOTT PVSs

Option 3 (if exercised)

Within 10 days of completed inspection.

17 2.a. Annual Inspection - SunPower PVSs

Option 4 (if exercised)

Annually in same month as base period inspection.

18 2.b.

Annual Inspection Report - SunPower PVSs

Option 4 (if exercised)

Within 10 days of completed inspection.

19 2.a. Annual Inspection - SCHOTT PVSs

Option 4 (if exercised)

Annually in same month as base period inspection.

20 2.b.

Annual Inspection Report - SCHOTT PVSs

Option 4 (if exercised)

Within 10 days of completed inspection.

Payments shall be made after receipt of and acceptance by NREL of the reports and deliverables required under this subcontract and upon submission by the Subcontractor of an invoice, in a form satisfactory to the Subcontract Administrator, in accordance with the subcontract payment provisions.

3. Expenses (if authorized)

a) Authorized travel and other expenses shall be reimbursed based upon substantiating documentation and a determination of allowability, allocability, and reasonableness. The Subcontractor shall obtain economical and reasonable travel expense. For example, coach airfare, meals and incidental expenses (M&IE) at applicable federal government rates, and when possible, lodging accommodations that are within applicable federal government rates. If meals are provided as part of a conference/meeting, the subcontractor shall deduct the cost of the meal from the M&IE claimed on the invoice.

b) The allowability of authorized expenses shall be determined by the Subcontract Administrator in accordance with Part 31 of the Federal Acquisition Regulation as supplemented by Part 931 of the Department of Energy Acquisition Regulation in effect on the execution date of this subcontract.

c) To the extent able, the Subcontractor shall—

i. Obtain required items at the most advantageous prices available with due regard to securing prompt delivery of satisfactory required items; and

ii. Take all cash and trade discounts, rebates, allowances, credits, commissions, and other benefits. When unable to take advantage of the benefits, the Subcontractor shall promptly notify the Subcontract Administrator and give the reasons. Credit shall be given to NREL for cash and trade discounts, rebates, allowances, credits, commissions, and other amounts that have accrued to the benefit of the Subcontractor or would have accrued except for the fault or neglect of the Subcontractor. The benefits lost without fault or neglect on the part of the Subcontractor, or lost through fault of NREL, shall not be deducted from gross costs.

d) The maximum allowable mark-up for expenses are as follows:

Expense Categories Base Rate - Materials

& Expenses Markup % Original Manufacturer Replacement Parts At Cost (Landed Cost) % Third-Party Replacement Parts At Cost (Landed Cost) %

Travel Expenses Per Appendix E – Only If Applicable

NONE

ALLOWED

4. Cost

It is estimated that the total cost to NREL for the performance of this subcontract shall not exceed the ceiling amount set forth in this article and the Subcontractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this subcontract within such ceiling amount. If at any time the Subcontractor has reason to believe that the hourly rate payments and expenses (if authorized) that will accrue in performing this subcontract in the succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling amount in the schedule, the Subcontractor shall notify the Subcontract Administrator giving a revised estimate of the total ceiling amount to NREL for performing this subcontract with supporting reasons and documentation. If at any time during this subcontract, the Subcontractor has reason to believe that the total ceiling amount to NREL for performing this subcontract will be substantially greater or less than the stated ceiling amount, the Subcontractor shall so notify the Subcontract Administrator, giving a revised estimate of the total ceiling amount for performing this subcontract, with supporting reasons and documentation. If at any time during performing this subcontract, NREL has reason to believe that the work to be required in performing this subcontract will be substantially greater or less than the stated ceiling amount, the Subcontract Administrator will so advise the Subcontractor, giving a revised estimate of the total amount of effort to be required under the subcontract.

5. Ceiling Amount

NREL shall not be obligated to pay the Subcontractor any amount in excess of the ceiling amount set forth in this article, and the Subcontractor shall not be obligated to continue performance if to do so would exceed the ceiling amount set forth in this article, unless and until the Subcontract Administrator shall have notified the Subcontractor in writing that the ceiling amount has been increased and shall have specified in the notice a revised ceiling that shall constitute the ceiling amount for performance under this subcontract.

6. Audit

At any time before final payment under this subcontract the Subcontract Administrator may request audit of the invoices and substantiating material. Each payment previously made shall be subject to reduction to the extent of amounts, on preceding invoices, that are found by the Subcontract Administrator not to have been properly payable and shall also be subject to reduction for overpayments or to increase for underpayments. Upon receipt and approval of the invoice designated by the Subcontractor as the "completion invoice" and substantiating documentation, and upon compliance by the Subcontractor with all terms of this subcontract (including, without limitation, terms relating to release of claims, terms relating to patent clearance, and the terms of the TOA Invoices Article), NREL shall promptly pay any balance due the Subcontractor. The completion invoice and substantiating documentation, shall be submitted by the Subcontractor as promptly as practicable following completion of the work under this subcontract, but in no event later than one (1) year (or such longer period as the Subcontract Administrator may approve in writing) from the date of completion.”

INVOICES (LABOR HOUR 2023)

1. Invoices for work accomplished under this Subcontract shall be submitted electronically (Microsoft Word or PDF format) to the following email address.

Accounts.Payable@nrel.gov

2. To facilitate processing and payment each invoice must reference the Subcontract number which appears on the cover sheet of this Subcontract. Payments under this Subcontract shall be made in accordance with this article, the payment terms and to the Subcontractor’s remittance name and address shown on the cover sheet of this Subcontract.

3. The payment terms of this Subcontract shall mean net days from the date of receipt of an acceptable invoice or the date of receipt and acceptance of all deliverables, reporting requirements of closeout documentation for the period covered by the invoice, whichever is later.

4. The Subcontractor is hereby notified that NREL may withhold payment on invoices submitted, if the Subcontractor has failed to comply with or is delinquent in the submission of the reporting or deliverable requirements under this Subcontract, until such time as the Subcontractor has complied or submitted such reporting or deliverable requirements.

5. NREL shall pay the Subcontractor, after the submission of proper invoices, the prices stipulated in this Subcontract under the Price and Payment Article for supplier delivered and accepted or services rendered and accepted, less any deductions provided in this Subcontract.

6. To expedite the payment process please submit one invoice per email and include in the subject line of the email the following:

a. Subcontract Number.

b. Subcontractor Name.

c. Invoice attached.

d. Email Subject Line Example: Subject: SUB-2023-XXXXX – COMPANY NAME –

Invoice attached mailto:Accounts.Payable@nrel.gov

7. To facilitate processing and payment each invoice shall reference the following items:

a. Subcontract Number.

b. Subcontractor remittance name and address.

c. Invoice number and date.

d. Certification and signature.

e. Any other information or documentation required by other provisions of this subcontract.

8. The Subcontractor shall submit its invoices in reasonable detail in accordance with the payment schedule contained in this Article showing the total invoiced both currently and cumulatively. An authorized representative of the Subcontractor shall sign the following certification, which must be included on each invoice submitted for payment:

“I certify that this invoice is correct and proper for payment and reimbursement. This amount has not and will not be received under any other Government contract or subcontract or other source of Government funds.

Authorized Official Date”

9. The Subcontractor is hereby notified that NREL may withhold payment on invoices submitted, if the Subcontractor has failed to comply with or is delinquent in the submission of the reporting or deliverable requirements under this subcontract associated with the Labor Hour payment, until such time as the Subcontractor has complied or submitted such reporting or deliverable requirement.

APPLICABLE DOCUMENTATION

In addition to the terms and conditions contained in this Schedule, the following documents are attached hereto and made a part of this subcontract:

1. Appendix A, entitled “Statement of Work”, dated 1/23/2023.

2. NREL Appendix B-8H, Standard Terms and Conditions for Commercial Items (Goods and Services), dated 1/23/23.

3. NREL Appendix E, Standard Terms and Conditions for Travel Requirements

4. NREL Appendix G, Wage Determination (SCA)

a. SCA 2015-5419 Revision 23 dated 12/27/2022

5. NREL Service and Maintenance Subcontractor Environment, Safety & Health Manual

ORDER OF PRECEDENCE

Any inconsistency in this subcontract shall be resolved by giving precedence in the following order:

1. This Schedule;

2. Statement of Work (Appendix A);

3. Standard Terms and Conditions (Appendix B-8H);

4. NREL Appendix E, Standard Terms and Conditions for Travel Requirements

5. NREL Appendix G, Wage Determination (SCA)

6. NREL Service and Maintenance Subcontractor Environment, Safety & Health Manual

7. Other provisions of this subcontract whether incorporated by reference or otherwise;

and

8. The Subcontractor’s technical proposal, if incorporated in this subcontract by reference of otherwise.

RIGHTS TO PROPOSAL DATA

Except for technical data contained on pages (None) of the Subcontractor's proposal dated **/**/** which are asserted by the Subcontractor and authorized by NREL as being proprietary data, it is agreed that, as a condition of the award of this subcontract, and notwithstanding the provisions of any notice appearing on the proposal, the Government and NREL shall have the right to use, duplicate, disclose and have others do so for any purpose whatsoever, the technical data contained in the proposal upon which this subcontract is based.

SUBCONTRACT ADMINISTRATION RESPONSIBILITIES

A. Signature Authority: This subcontract may only be modified by a formal modification signed by an authorized official of NREL.

B. Subcontract Administration Responsibilities: The authorized NREL official designated as the Subcontract Administrator for this subcontract has the responsibilities for subcontract administration and negotiation of any modifications to this subcontract.

C. Technical Monitoring Responsibilities: The authorized NREL official designated as the Technical Monitor for this subcontract has the responsibilities of monitoring the technical work or services to be performed under this subcontract. The Technical Monitor does not have the authority to make any commitments or authorize any changes which may affect the subcontract's price, scope of work, terms, or conditions. Any such changes shall be referred to the designated Subcontract Administrator.

KEY PERSONNEL

1. It having been determined that the individuals, whose names appear below, are necessary for the successful performance of this subcontract, the Subcontractor agrees to assign or have assigned such individuals to the performance of the work under this subcontract and shall not reassign or remove any of them without the consent of the Subcontract Administrator by modification to this subcontract:

Name Project Title Email Address

NAME PROJECT TITLE

2. Whenever, for any reason, one or more of the key personnel designated above, is unavailable for assignment for work under this subcontract, the Subcontractor shall, with the approval of the Subcontract Administrator, replace such individual with an individual of substantially equal abilities and qualifications.

GENERAL INDEMNITY

The Subcontractor, and the Subcontractor’s heirs and assigns, shall indemnify and hold harmless NREL and the Government, and persons acting on their behalf, from all liability, including costs and expenses incurred, for injury to or death of the Subcontractor, or its employees or damage to property owned, occupied, or used by the Subcontractor, rented to the Subcontractor, or in the care, custody, or control of the Subcontractor arising out of the services performed, materials supplied, or information given in the performance of this Subcontract;

provided that such liability does not directly result from the fault or negligence of NREL or the Government, or persons acting on their behalf.

ONSITE WORKER SAFETY AND HEALTH REQUIREMENTS (SPECIAL-COVID) (DEC 2021)

(Applies to all subcontracts where the Subcontractor or lower-tier Subcontractor, and their employees, officers, agents, or other persons representing the Subcontractor, will perform work on NREL-operated facilities or government-owned or -leased properties.)

THE SUBCONTRACTOR SHALL BE RESPONSIBLE TO ENSURE THAT ALL WORK

PERFORMED UNDER THIS SUBCONTRACT (INCLUSIVE OF LOWER-TIER

SUBCONTRACTORS) IS PERFORMED IN ACCORDANCE WITH THE DEPARTMENT OF

ENERGY’S “WORKER SAFETY AND HEALTH” RULE CODIFIED AT 10 CFR 851. THE

SUBCONTRACTOR SHALL ENSURE THAT ALL WORK IS PERFORMED IN ACCORDANCE

WITH NREL’S DOE-APPROVED SAFETY MANAGEMENT SYSTEM, INCLUDING, BUT NOT

LIMITED TO, THE MOST CURRENT REQUIREMENTS SET FORTH IN THE APPLICABLE

NREL “SERVICE AND MAINTENANCE SUBCONTRACTOR ENVIRONMENT, SAFETY &

HEALTH MANUAL” OR “CONSTRUCTION ENVIRONMENT HEALTH & SAFETY MANUAL,”

BOTH AVAILABLE AT https://www.nrel.gov/about/ehs-construction.html. THE

SUBCONTRACTOR IS RESPONSIBLE FOR ENSURING ONGOING COMPLIANCE WITH

ANY UPDATES AND/OR REVISIONS TO THE APPLICABLE NREL ENVIRONMENT, HEALTH

& SAFETY MANUAL.

ENSURING BUY AMERICAN ACT COMPLIANCE. REQUIRED PRE-APPROVAL) FOR

SUPPLIES OR CONSTRUCTION MATERIAL ABOVE $25,000.00. (SPECIAL-COMMERCIAL

SERVICES)(MAY 2022)

Subcontractor shall request and obtain the prior written approval from the NREL Subcontract Administrator before commencing any activities under this subcontract that require the use, installation or replacement of a single item, part, supplies, or construction material having a cost above $25,000.00. Any such request for approval shall include a description of the item, the cost of the item (exclusive of labor or installation costs), and the country in which the item is manufactured. For items other than commercially available off-the-shelf items, such request shall also include the cost of components (as defined in FAR 25.003) and the country in which each component is mined, produced, or manufactured. Subcontractor’s failure to obtain the required written approval may result in a determination of that such costs are unallowable under this subcontract.

SERVICE CONTRACT LABOR STANDARDS (FORMERLY SERVICE CONTRACT ACT OF

1965) (AUG 2018) Derived from FAR 52.222-41 (FD) (Applies to subcontracts exceeding $2,500.00 for services as defined in the Service Contract Labor Standards Statute).

a) Definitions. As used in this clause— “Subcontractor,” when this clause is used in any lower-tier subcontract, shall be deemed to refer to the lower-tier subcontractor, except in the term “Government Prime Subcontractor.” “Service employee” means any person https://www.nrel.gov/about/ehs-construction.html engaged in the performance of this subcontract other than any person employed in a bona fide executive, administrative, or professional capacity, as these terms are defined in Part 541 of Title 29, Code of Federal Regulations, as revised. It includes all such persons regardless of any contractual relationship that may be alleged to exist between a Subcontractor or lower-tier subcontractor and such persons.

b) Applicability. This subcontract is subject to the following provisions and to all other applicable provisions of 41 U.S.C. chapter 67, Service Contract Labor Standards, and regulations of the Secretary of Labor (29 CFR Part 4). This clause does not apply to subcontracts or lower-tier subcontracts administratively exempted by the Secretary of Labor or exempted by 41 U.S.C. 6702, as interpreted in Subpart C of 29 CFR Part 4.

c) Compensation

1) Each service employee employed in the performance of this subcontract by the

Subcontractor or any lower-tier subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this subcontract.

2)

i. If a wage determination is attached to this subcontract, the Subcontractor shall classify any class of service employee which is not listed therein and which is to be employed under the subcontract (i.e., the work to be performed is not performed by any classification listed in the wage determination) so as to provide a reasonable relationship (i.e., appropriate level of skill comparison) between such unlisted classifications and the classifications listed in the wage determination. Such conformed class of employees shall be paid the monetary wages and furnished the fringe benefits as are determined pursuant to the procedures in this paragraph (c).

ii. This conforming procedure shall be initiated by the Subcontractor prior to the performance of subcontract work by the unlisted class of employee. The Subcontractor shall submit Standard Form (SF) 1444, Request For Authorization of Additional Classification and Rate, to the NREL Subcontract Administrator no later than 30 days after the unlisted class of employee performs any subcontract work. The NREL Subcontract Administrator shall review the proposed classification and rate and promptly submit the completed SF 1444 (which must include information regarding the agreement or disagreement of the employees’ authorized representatives or the employees themselves together with the agency recommendation), and all pertinent information to the Wage and Hour Division, U.S. Department of Labor. The Wage and Hour Division will approve, modify, or disapprove the action or render a final determination in the event of disagreement within 30 days of receipt or will notify the NREL Subcontract Administrator within 30 days of receipt that additional time is necessary.

iii. The final determination of the conformance action by the Wage and Hour Division shall be transmitted to the NREL Subcontract Administrator who shall promptly notify the Subcontractor of the action taken. Each affected employee shall be furnished by the Subcontractor with a written copy of such determination or it shall be posted as a part of the wage determination.

iv.

A. The process of establishing wage and fringe benefit rates that bear a reasonable relationship to those listed in a wage determination cannot be reduced to any single formula. The approach used may vary from wage determination to wage determination depending on the circumstances.

Standard wage and salary administration practices which rank various job classifications by pay grade pursuant to point schemes or other job factors may, for example, be relied upon. Guidance may also be obtained from the way different jobs are rated under Federal pay systems (Federal Wage Board Pay System and the General Schedule) or from other wage determinations issued in the same locality. Basic to the establishment of any conformable wage rate(s) is the concept that a pay relationship should be maintained between job classifications based on the skill required and the duties performed.

B. In the case of a subcontract modification, an exercise of an option, or extension of an existing subcontract, or in any other case where a Subcontractor succeeds a subcontract under which the classification in question was previously conformed pursuant to paragraph (c) of this clause, a new conformed wage rate and fringe benefits may be assigned to the conformed classification by indexing (i.e., adjusting) the previous conformed rate and fringe benefits by an amount equal to the average (mean) percentage increase (or decrease, where appropriate) between the wages and fringe benefits specified for all classifications to be used on the subcontract which are listed in the current wage determination, and those specified for the corresponding classifications in the previously applicable wage determination. Where conforming actions are accomplished in accordance with this paragraph prior to the performance of subcontract work by the unlisted class of employees, the Subcontractor shall advise the NREL Subcontract Administrator of the action taken but the other procedures in subdivision (c)(2)(ii) of this clause need not be followed.

C. No employee engaged in performing work on this subcontract shall in any event be paid less than the currently applicable minimum wage specified under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended.

v. The wage rate and fringe benefits finally determined under this paragraph (c)(2) of this clause shall be paid to all employees performing in the classification from the first day on which subcontract work is performed by them in the classification. Failure to pay the unlisted employees the compensation agreed upon by the interested parties and/or finally determined by the Wage and Hour Division retroactive to the date such class of employees commenced subcontract work shall be a violation of the Service Contract Labor Standards statute and this subcontract.

vi. Upon discovery of failure to comply with paragraph (c)(2) of this clause, the Wage and Hour Division shall make a final determination of conformed classification, wage rate, and/or fringe benefits which shall be retroactive to the date such class or classes of employees commenced subcontract work.

3) Adjustment of compensation. If the term of this subcontract is more than 1 year, the minimum monetary wages and fringe benefits required to be paid or furnished thereunder to service employees under this subcontract shall be subject to adjustment after 1 year and not less often than once every 2 years, under wage determinations issued by the Wage and Hour Division.

d) Obligation to furnish fringe benefits. The Subcontractor or lower-tier subcontractor may discharge the obligation to furnish fringe benefits specified in the attachment or determined under paragraph (c)(2) of this clause by furnishing equivalent combinations of bona fide fringe benefits, or by making equivalent or differential cash payments, only in accordance with Subpart D of 29 CFR Part 4.

e) Minimum wage. In the absence of a minimum wage attachment for this subcontract, neither the Subcontractor nor any lower-tier subcontractor under this subcontract shall pay any person performing work under this subcontract (regardless of whether the person is a service employee) less than the minimum wage specified by section 6(a)(1) of the Fair Labor Standards Act of 1938. Nothing in this clause shall relieve the Subcontractor or any lower-tier subcontractor of any other obligation under law or subcontract for payment of a higher wage to any employee.

f) Successor subcontracts. If this subcontract succeeds a subcontract subject to the Service Contract Labor Standards statute under which substantially the same services were furnished in the same locality and service employees were paid wages and fringe benefits provided for in a collective bargaining agreement, in the absence of the minimum wage attachment for this subcontract setting forth such collectively bargained wage rates and fringe benefits, neither the Subcontractor nor any lower-tier subcontractor under this subcontract shall pay any service employee performing any of the subcontract work (regardless of whether or not such employee was employed under the predecessor subcontract), less than the wages and fringe benefits provided for in such collective bargaining agreement, to which such employee would have been entitled if employed under the predecessor subcontract, including accrued wages and fringe benefits and any prospective increases in wages and fringe benefits provided for under such agreement. No Subcontractor or lower-tier subcontractor under this subcontract may be relieved of the foregoing obligation unless the limitations of 29 CFR 4.1b(b) apply or unless the Secretary of Labor or the Secretary’s authorized representative finds, after a hearing as provided in 29 CFR 4.10 that the wages and/or fringe benefits provided for in such agreement are substantially at variance with those which prevail for services of a character similar in the locality, or determines, as provided in 29 CFR 4.11, that the collective bargaining agreement applicable to service employees employed under the predecessor subcontract was not entered into as a result of arm’s length negotiations. Where it is found in accordance with the review procedures provided in 29 CFR 4.10 and/or 4.11 and Parts 6 and 8 that some or all of the wages and/or fringe benefits contained in a predecessor Subcontractor’s collective bargaining agreement are substantially at variance with those which prevail for services of a character similar in the locality, and/or that the collective bargaining agreement applicable to service employees employed under the predecessor subcontract was not entered into as a result of arm’s length negotiations, the Department will issue a new or revised wage determination setting forth the applicable wage rates and fringe benefits. Such determination shall be made part of the subcontract or lower-tier subcontract, in accordance with the decision of the Administrator, the Administrative Law Judge, or the Administrative Review Board, as the case may be, irrespective of whether such issuance occurs prior to or after the award of a subcontract or lower-tier subcontract (53 Comp. Gen. 401 (1973)). In the case of a wage determination issued solely as a result of a finding of substantial variance, such determination shall be effective as of the date of the final administrative decision.

g) Notification to employees. The Subcontractor and any lower-tier subcontractor under this subcontract shall notify each service employee commencing work on this subcontract of the minimum monetary wage and any fringe benefits required to be paid pursuant to this subcontract, or shall post the wage determination attached to this subcontract. The poster provided by the Department of Labor (Publication WH 1313) shall be posted in a prominent and accessible place at the worksite. Failure to comply with this requirement is a violation of 41 U.S.C. 6703 and of this subcontract.

h) Safe and sanitary working conditions. The Subcontractor or lower-tier subcontractor shall not permit any part of the services called for by this subcontract to be performed in buildings or surroundings or under working conditions provided by or under the control or supervision of the Subcontractor or lower-tier subcontractor which are unsanitary, hazardous, or dangerous to the health or safety of the service employees. The Subcontractor or lower-tier subcontractor shall comply with the safety and health standards applied under 29 CFR Part 1925.

i) Records.

1) The Subcontractor and each lower-tier subcontractor performing work subject to the

Service Contract Labor Standards statute shall make and maintain for 3 years from the completion of the work, and make them available for inspection and transcription by authorized representatives of the Wage and Hour Division, a record of the following:

i. For each employee subject to the Service Contract Labor Standards statute— A. Name and address and social security number;

B. Correct work classification or classifications, rate or rates of monetary wages paid and fringe benefits provided, rate or rates of payments in lieu of fringe benefits, and total daily and weekly compensation;

C. Daily and weekly hours worked by each employee; and D. Any deductions, rebates, or refunds from the total daily or weekly compensation of each employee.

ii. For those classes of service employees not included in any wage determination attached to this subcontract, wage rates or fringe benefits determined by the interested parties or by the Administrator or authorized representative under the terms of paragraph (c) of this clause. A copy of the report required by subdivision (c)(2)(ii) of this clause will fulfill this requirement.

iii. Any list of the predecessor Subcontractor’s employees which had been furnished to the Subcontractor as prescribed by paragraph (n) of this clause.

2) The Subcontractor shall also make available a copy of this subcontract for inspection or transcription by authorized representatives of the Wage and Hour Division.

3) Failure to make and maintain or to make available these records for inspection and transcription shall be a violation of the regulations and this subcontract, and in the case of failure to produce these records, the NREL Subcontract Administrator, upon direction of the Department of Labor and notification to the Subcontractor, shall take action to cause suspension of any further payment or advance of funds until the violation ceases.

4) The Subcontractor shall permit authorized representatives of the Wage and Hour Division to conduct interviews with employees at the worksite during normal working hours.

j) Pay periods. The Subcontractor shall unconditionally pay to each employee subject to the Service Contract Labor Standards statute all wages due free and clear and without subsequent deduction (except as otherwise provided by law or regulations, 29 CFR Part 4), rebate, or kickback on any account. These payments shall be made no later than one pay period following the end of the regular pay period in which the wages were earned or accrued. A pay period under this statute may not be of any duration longer than semi-monthly.

k) Withholding of payments and termination of subcontract. The NREL Subcontract Administrator shall withhold or cause to be withheld from the Subcontractor under this or any other Government subcontract with the Subcontractor such sums as an appropriate official of the Department of Labor requests or such sums as the NREL Subcontract Administrator decides may be necessary to pay underpaid employees employed by the Subcontractor or lower-tier subcontractor. In the event of failure to pay any employees subject to the Service Contract Labor Standards statute all or part of the wages or fringe benefits due under the Service Contract Labor Standards statute, the NREL Subcontract Administrator may, after authorization or by direction of the Department of Labor and written notification to the Subcontractor, take action to cause suspension of any further payment or advance of funds until such violations have ceased. Additionally, any failure to comply with the requirements of this clause may be grounds for termination of the right to proceed with the subcontract work. In such event, NREL may enter into other subcontracts or arrangements for completion of the work, charging the Subcontractor in default with any additional cost.

l) Lower-tier subcontracts. The Subcontractor agrees to insert this clause in all lower-tier subcontracts subject to the Service Contract Labor Standards statute.

m) Collective bargaining agreements applicable to service employees. If wages to be paid or fringe benefits to be furnished any service employees employed by the Subcontractor or any lower-tier subcontractor under the subcontract are provided for in a collective bargaining agreement which is or will be effective during any period in which the subcontract is being performed, the Subcontractor shall report such fact to the NREL Subcontract Administrator, together with full information as to the application and accrual of such wages and fringe benefits, including any prospective increases, to service employees engaged in work on the subcontract, and a copy of the collective bargaining agreement. Such report shall be made upon commencing performance of the subcontract, in the case of collective bargaining agreements effective at such time, and in the case of such agreements or provisions or amendments thereof effective at a later time during the period of subcontract performance such agreements shall be reported promptly after negotiation thereof.

n) Seniority list. Not less than 10 days prior to completion of any subcontract being performed at a Federal facility where service employees may be retained in the performance of the succeeding subcontract and subject to a wage determination which contains vacation or other benefit provisions based upon length of service with a Subcontractor (predecessor) or successor (29 CFR 4.173), the incumbent Subcontractor shall furnish the NREL Subcontract Administrator a certified list of the names of all service employees on the Subcontractor’s or lower-tier subcontractor’s payroll during the last month of subcontract performance. Such list shall also contain anniversary dates of employment on the subcontract either with the current or predecessor Subcontractors of each such service employee. The NREL Subcontract Administrator shall turn over such list to the successor Subcontractor at the commencement of the succeeding

o) Rulings and interpretations. Rulings and interpretations of the Service Contract Labor Standards statute are contained in Regulations, 29 CFR Part 4.

p) Subcontractor’s certification.

1) By entering into this subcontract, the Subcontractor (and officials thereof) certifies that neither it nor any person or firm who has a substantial interest in the Subcontractor’s firm is a person or firm ineligible to be awarded Government subcontracts by virtue of the sanctions imposed under 41 U.S.C. 6706.

2) No part of this subcontract shall be lower-tier subcontracted to any person or firm ineligible for award of a Government subcontract under 41 U.S.C. 6706.

3) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.

q) Variations, tolerances, and exemptions involving employment. Notwithstanding any of the provisions in paragraphs (b) through (o) of this clause, the following employees may be employed in accordance with the following variations, tolerances, and exemptions, which the Secretary of Labor, pursuant to 41 U.S.C. 6707 prior to its amendment by Pub. L. 92-473, found to be necessary and proper in the public interest or to avoid serious impairment of the conduct of Government business:

1) Apprentices, student-learners, and workers whose earning capacity is impaired by age, physical or mental deficiency, or injury may be employed at wages lower than the minimum wages otherwise required by 41 U.S.C. 6703(1) without diminishing any fringe benefits or cash payments in lieu thereof required under 41 U.S.C.

6703(2), in accordance with the conditions and procedures prescribed for the employment of apprentices, student-learners, persons with disabilities, and disabled clients of work centers under section 14 of the Fair Labor Standards Act of 1938, in the regulations issued by the Administrator (29 CFR parts 520, 521, 524, and 525).

2) The Administrator will issue certificates under the statute for the employment of apprentices, student-learners, persons with disabilities, or disabled clients of work centers not subject to the Fair Labor Standards Act of 1938, or subject to different minimum rates of pay under the two statutes, authorizing appropriate rates of minimum wages (but without changing requirements concerning fringe benefits or supplementary cash payments in lieu thereof), applying procedures prescribed by the applicable regulations issued under the Fair Labor Standards Act of 1938 (29 CFR parts 520, 521, 524, and 525).

3) The Administrator will also withdraw, annul, or cancel such certificates in accordance with the regulations in 29 CFR parts 525 and 528.

r) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed and individually registered in a bona fide apprenticeship program registered with a State Apprenticeship Agency which is recognized by the U.S. Department of Labor, or if no such recognized agency exists in a State, under a program registered with the Office of Apprenticeship Training, Employer, and Labor Services (OATELS), U.S. Department of Labor. Any employee who is not registered as an apprentice in an approved program shall be paid the wage rate and fringe benefits contained in the applicable wage determination for the journeyman classification of work actually performed. The wage rates paid apprentices shall not be less than the wage rate for their level of progress set forth in the registered program, expressed as the appropriate percentage of the journeyman’s rate contained in the applicable wage determination. The allowable ratio of apprentices to journeymen employed on the subcontract work in any craft classification shall not be greater than the ratio permitted to the Subcontractor as to his entire work force under the registered program.

s) Tips. An employee engaged in an occupation in which the employee customarily and regularly receives more than $30.00 a month in tips may have the amount of these tips credited by the employer against the minimum wage required by 41 U.S.C. 6703(1), in accordance with section 3(m) of the Fair Labor Standards Act and Regulations, 29 CFR Part 531. However, the amount of credit shall not exceed $1.34 per hour beginning January 1, 1981. To use this provision—

1) The employer must inform tipped employees about this tip credit allowance before the credit is utilized;

2) The employees must be allowed to retain all tips (individually or through a pooling arrangement and regardless of whether the employer elects to take a credit for tips received);

3) The employer must be able to show by records that the employee receives at least the applicable Service Contract Labor Standards minimum wage through the combination of direct wages and tip credit; and

4) The use of such tip credit must have been permitted under any predecessor collective bargaining agreement applicable by virtue of 41 U.S.C. 6707(c).

t) Disputes concerning labor standards. The U.S. Department of Labor has set forth in 29 CFR parts 4, 6, and 8 procedures for resolving disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those procedures and not the Disputes clause of this subcontract. Disputes within the meaning of this clause include disputes between the Subcontractor (or any of its lower-tier subcontractors) and NREL, the U.S. Department of Labor, or the employees or their representatives.

ALTERATIONS TO TERMS AND CONDITIONS

Appendix B-8H is hereby modified to add the following:

DRUG-FREE WORKPLACE (MAY 2001)

Derived from FAR 52.223-6 (MAY 2001) (Applies to all subcontracts where work is to be performed on NREL operated facilities, including Government-owned or - leased property.)

(a) Definitions, as used in this clause,

(1) “Controlled substance,” means a controlled substance in subcontract schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812) and as further defined in regulation at 21 CFR 1308.11 1308.15.

(2) “Conviction,” means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes.

(3) “Criminal drug statute,” means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, possession, or use of any controlled substance.

(4) “Drug-free workplace,” means the NREL-operated site(s) for the performance of work done by the Subcontractor in connection with a specific subcontract where employees of the Subcontractor are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.

(5) “Employee,” means an employee of a Subcontractor directly engaged in the performance of work under a NREL subcontract. “Directly engaged” is defined to include all direct cost employees and any other Subcontractor employee who has other than a minimal impact or involvement in subcontract performance.

(6) “Individual,” means a Subcontractor that has no more than one employee including the Subcontractor.

The Subcontractor, if other than an individual, shall—within thirty (30) days after award (unless a longer period is agreed to in writing for subcontracts of thirty (30) days or more performance duration), or as soon as possible for subcontracts of less than thirty (30) days performance duration—

(1) Publish a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the Subcontractor’s workplace and specifying the actions that will be taken against employees for violations of such prohibition;

(2) Establish an ongoing drug-free awareness program to inform such employees about—

(ii) The dangers of drug abuse in the workplace;

(iii) The Subcontractor’s policy of maintaining a drug-free workplace;

(iv) Any available drug counseling, rehabilitation, and employee assistance programs;

and

(v) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;

(3) Provide all employees engaged in performance of the Subcontract with a copy of the statement required by subparagraph (b)(1) of this clause.

(4) Notify such employees in writing in the statement required by subparagraph (b)(1) of this clause that, as a condition of continued employment on this Subcontract, the employee will—

(ii) Abide by the terms of the statement; and

(iii) Notify the employer in writing of the employee’s conviction under a criminal drug statute for a violation occurring in the workplace no later than five (5) days after such conviction.

(5) Notify the NREL…