273FCC21R0005 - Fabric RFP.pdf

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS

OFFEROR TO COMPLETE BLOCKS 12, 17, 23, 24 & 30

1. REQUISITION NUMBER

OEA2100008

5. SOLICITATION NUMBER

273FCC21R0005

2. CONTRACT NO. 3. AWARD/EFFECTIVE

DATE

4. ORDER NUMBER 6. SOLICITATION ISSUE

DATE

06/01/2021

7. FOR SOLICITATION

INFORMATION CALL:

a. NAME Teresa Dailey

b. TELEPHONE NUMBER (No collect calls)

2024180759

8. OFFER DUE DATE / LOCAL TIME

07/01/2021 16:00:00

CODE EAC

Federal Communications Commission 45 L Street NE Washington, DC 20554

9. ISSUED BY X UNRESTRICTED OR SET ASIDE: % FOR

SMALL BUSINESS

HUBZONE SMALL

BUSINESS

SERVICE-DISABLED

VETERAN-OWNED

SMALL BUSINESS

WOMEN-OWNED SMALL BUSINESS

(WOSB) ELIGIBLE UNDER THE

WOMEN-OWNED SMALL BUSINESS

EDWOSB

8(A)

NAICS: 541519

SIZE STANDARD:

10. THE ACQUISITION IS

SEE

SCHEDULE

11. DELIVERY FOR FOB DESTINATION

UNLESS BLOCK IS MARKED 0 Days: 0.00 %

0 Days: 0.00 % 0 Days: 0.00 % 0 Days: 0.00 %

12. DISCOUNT TERMS

13a. THIS CONTRACT IS

RATED ORDER UNDER DPAS

13b. RATING

RFQ IFB X RFP

14. METHOD OF SOLICITATION

ITCCODE15. DELIVER TO

FCC/ Information Technology Center 45 L Street NE Washington, DC 20554

CODE EAC16. ADMINISTERED BY

Federal Communications Commission 45 L Street NE Washington, DC 20554

FACILITY

CODE

CODE

Telephone No.

17a. CONTRACTOR/

OFFEROR

CODE18a. PAYMENT WILL BE MADE BY

FCC/TOG

45 L Street NE Washington, DC 20554

17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS IN

OFFER SEE ADDENDUM

18b. SUBMIT INVOICES TO ADDRESS SHOWN IN BLOCK 18a UNLESS BLOCK BELOW IS

CHECKED

19. ITEM NO. 20. SCHEDULE OF SUPPLIES/SERVICES

(Use Reverse and/or Attach Additional Sheets as Necessary)

21. QUANTITY 22. UNIT 23. UNIT PRICE 24. AMOUNT

See Lines

25. ACCOUNTING AND APPROPRIATION DATA 26. TOTAL AWARD AMOUNT (For Govt. Use Only)

X 27a. SOLICITATION INCORPORATES BY REFERENCE FAR 52.212-1, 52.212-4, FAR 52.212-3 AND 52.212-5 ARE ATTACHED. ADDENDA ARE X ARE NOT ATTACHED

27b. CONTRACT/PURCHASE ORDER INCORPORATES BY REFERENCE FAR 52.212-4, 52.212-5 IS ATTACHED. ADDENDA ARE ARE NOT ATTACHED

X 28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN 1 COPIES TO

ISSUING OFFICE. CONTRACTOR AGREES TO FURNISH AND DELIVER ALL ITEMS SET FORTH

OR OTHERWISE IDENTIFIED ABOVE AND ON ANY ADDITIONAL SHEETS SUBJECT TO THE

TERMS AND CONDITIONS SPECIFIED.

29. AWARD OF CONTRACT: REF. _____________________________ OFFER

DATED _________________ . YOUR OFFER ON SOLICITATION (BLOCK 5)

INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH HEREIN,

IS ACCEPTED AS TO ITEMS:

30a. SIGNATURE OF OFFEROR/CONTRACTOR 31a. UNITED STATES OF AMERICA (SIGNATURE OF CONTRACTING OFFICER)

30b. NAME AND TITLE OF SIGNER (TYPE OR PRINT) 30c. DATE SIGNED 31b. NAME OF THE CONTRACTING OFFICER (TYPE OR PRINT)

Dailey, Teresa 31c. DATE SIGNED

AUTHORIZED FOR LOCAL REPRODUCTION

PREVIOUS EDITION IS NOT USABLE

STANDARD FORM 1449 (REV. 02/2012)

Prescribed by GSA - FAR (48 FAR) 53.21.2

FCC : : FCC

FCC : : FCC

Document Number: 273FCC21R0005 Page 1 of 44

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

32a. QUANTITY IN COLUMN 21 HAS BEEN

RECEIVED INSPECTED ACCEPTED, AND CONFORMS TO THE CONTRACT, EXCEPT AS NOTED: _________________________________

32b. SIGNATURE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32c. DATE 32d. PRINTED NAME AND TITLE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32e. MAILING ADDRESS OF AUTHORIZED GOVERNMENT REPRESENTATIVE 32f. TELEPHONE NUMBER OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32g. E-MAIL OF AUTHORIZED GOVERNMENT REPRESENTATIVE

PARTIAL FINAL

33. SHIP NUMBER 34. VOUCHER NUMBER 35. AMOUNT VERIFIED

CORRECT FOR

COMPLETE PARTIAL FINAL

36. PAYMENT 37. CHECK NUMBER

38. S/R ACCOUNT NUMBER 39. S/R VOUCHER NUMBER 40. PAID BY

41a. I CERTIFY THIS ACCOUNT IS CORRECT AND PROPER FOR PAYMENT 42a. RECEIVED BY (Print)

41b. SIGNATURE AND TITLE OF CERTIFYING OFFICER 41c. DATE

42b. RECEIVED AT (Location)

42c. DATE REC'D (YY/MM/DD) 42d. TOTAL CONTAINERS

STANDARD FORM 1449 (REV. 02/2012) BACK

Document Number: 273FCC21R0005 Page 2 of 44

Table of Contents

Section Description Page Number

1 Continuation Sheet 2 Contract Clauses

52.252-2 Clauses Incorporated by Reference (Feb 1998) 52.212-4 Alt I Contract Terms and Conditions-Commercial Items (Oct 2018) - Alternate I (Jan 2017).9 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items (Jan 2021) 52.217-9 Option to Extend the Term of the Contract (Mar 2000) 52.232-39 Unenforceability of Unauthorized Obligations (Jun 2013) 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (Dec 2013) 52.251-1 Government Supply Sources (Apr 2012) LOCAL-1 Security Requirements Suitability and Security Processing LOCAL-2 Limitation of Government's Obligation LOCAL-3 Post-Award Evaluation of Contractor Performance LOCAL-4 Contracting Officer's Representative (COR) LOCAL-5 Invoicing Instructions (MAR 2019) LOCAL-6 Special Considerations Regarding Contract Performance LOCAL-12 Contractor Promotional and Press Releases Relating to the Contract (JUL 2019) LOCAL-13 Nonpersonal Services Contract (JUL 2019) LOCAL-14 Hold Harmless and Indemnity Agreement (JUL 2019) LOCAL-16 Access to Nonpublic Information and its Release (JUL 2019) LOCAL-21 Section 503 of the Rehabilitation Act (JUL 2019) LOCAL-24 Contractor Employee Access to Information Technology Resources (JUL 2019)

4 Solicitation Provisions 52.252-1 Solicitation Provisions Incorporated by Reference (Feb 1998) 52.212-1 Instructions to Offerors-Commercial Items (Jun 2020) 52.212-2 Evaluation-Commercial Items (Oct 2014) 52.212-3 Offeror Representations and Certifications-Commercial Items (Feb 2021) 52.217-5 Evaluation of Options (July 1990) 52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Oct 2020) 52.204-26 Covered Telecommunications Equipment or Services-Representation (Oct 2020)

Document Number: 273FCC21R0005 Page 3 of 44

Section 1 - Continuation Sheet

Number Supplies or Services Quantity Unit Unit Price Total ( Inc. disc., tax, and fees)

0001 Project Management 12.000000 MO

Period of Performance: 09/01/2021 - 08/31/2022

Description: Project Management

Reference Line: OEA2100008 - 0001

Pricing Options: Base

0002 Fabric 1.000000 LOT

Period of Performance: 09/01/2021 - 08/31/2022

Description: Fabric See SOO, para 3.1.1.B Fabric and para 3.3 Data Usage Rights

Reference Line: OEA2100008 - 0001

Pricing Options: Base

0003 Support and Special Projects 1.000000 NTE

Period of Performance: 09/01/2021 - 08/31/2022

Description: Optional - Support and Special Projects See SOO para 3.1.2

This CLIN represents an optional contract line item that the Government may exercise an unlimited number of times in the contract year.

Each item and exercise directs work for a Special Project. When exercised and directed as a time and materials effort, the CLIN and project will be subject to a ceiling amount. With agreement of the Contractor, the CLIN may also be exercised as a Firm Fixed Price optional contract line item.

A ceiling amount shall be established for this CLIN.

Reference Line: OEA2100008 - 0001

Pricing Options: Base

1001 Option - Project Management 12.000000 MO

Period of Performance: 09/01/2022 - 08/31/2023

Description: Option - Project Management

Reference Line: OEA2100008 - 0001

Pricing Options: Option

1002 Option - Fabric 1.000000 LOT

Period of Performance: 09/01/2022 - 08/31/2023

Description: Option - Fabric See SOO, para 3.1.1.B Fabric and para 3.3 Data Usage Rights

Reference Line: OEA2100008 - 0001

Pricing Options: Option

Document Number: 273FCC21R0005 Page 4 of 44 fees)

1003 Option - Support and Special Projects 1.000000 NTE

Period of Performance: 09/01/2022 - 08/31/2023

Description: Optional - Support and Special Projects See SOO para 3.1.2

This CLIN represents an optional contract line item that the Government may exercise an unlimited number of times in the contract year.

Each item and exercise directs work for a Special Project. When exercised and directed as a time and materials effort, the CLIN and project will be subject to a ceiling amount. With agreement of the Contractor, the CLIN may also be exercised as a Firm Fixed Price optional contract line item.

A ceiling amount shall be established for this CLIN.

Reference Line: OEA2100008 - 0001

Pricing Options: Base

2001 Option - Project Management 12.000000 MO

Period of Performance: 09/01/2023 - 08/31/2024

Description: Option - Project Management

Reference Line: OEA2100008 - 0001

Pricing Options: Option

2002 Option - Fabric 1.000000 LOT

Period of Performance: 09/01/2023 - 08/31/2024

Description: Option - Fabric See SOO, para 3.1.1.B Fabric and para 3.3 Data Usage Rights

Reference Line: OEA2100008 - 0001

Pricing Options: Option

2003 Option - Support and Special Projects 1.000000 NTE

Period of Performance: 09/01/2023 - 08/31/2024

Description: Optional - Support and Special Projects See SOO para 3.1.2

This CLIN represents an optional contract line item that the Government may exercise an unlimited number of times in the contract year.

Each item and exercise directs work for a Special Project. When exercised and directed as a time and materials effort, the CLIN and project will be subject to a ceiling amount. With agreement of the Contractor, the CLIN may also be exercised as a Firm Fixed Price optional contract line item.

A ceiling amount shall be established for this CLIN.

Reference Line: OEA2100008 - 0001

Pricing Options: Base

3001 Option - Project Management 12.000000 MO

Period of Performance: 09/01/2024 - 08/31/2025

Description: Option - Project Management

Reference Line: OEA2100008 - 0001

Pricing Options: Option

Document Number: 273FCC21R0005 Page 5 of 44 fees)

3002 Option - Fabric 1.000000 LOT

Period of Performance: 09/01/2024 - 08/31/2025

Description: Option - Fabric See SOO, para 3.1.1.B Fabric and para 3.3 Data Usage Rights

Reference Line: OEA2100008 - 0001

Pricing Options: Option

3003 Option - Support and Special Projects 1.000000 NTE

Period of Performance: 09/01/2024 - 08/31/2025

Description: Optional - Support and Special Projects See SOO para 3.1.2

This CLIN represents an optional contract line item that the Government may exercise an unlimited number of times in the contract year.

Each item and exercise directs work for a Special Project. When exercised and directed as a time and materials effort, the CLIN and project will be subject to a ceiling amount. With agreement of the Contractor, the CLIN may also be exercised as a Firm Fixed Price optional contract line item.

A ceiling amount shall be established for this CLIN.

Reference Line: OEA2100008 - 0001

Pricing Options: Base

4001 Option - Project Management 12.000000 MO

Period of Performance: 09/01/2025 - 08/31/2026

Description: Option - Project Management

Reference Line: OEA2100008 - 0001

Pricing Options: Option

4002 Option - Fabric 1.000000 LOT

Period of Performance: 09/01/2025 - 08/31/2026

Description: Option - Fabric See SOO, para 3.1.1.B Fabric and para 3.3 Data Usage Rights

Reference Line: OEA2100008 - 0001

Pricing Options: Option

4003 Option - Support and Special Projects 1.000000 NTE

Period of Performance: 09/01/2025 - 08/31/2026

Description: Optional - Support and Special Projects See SOO para 3.1.2

This CLIN represents an optional contract line item that the Government may exercise an unlimited number of times in the contract year.

Each item and exercise directs work for a Special Project. When exercised and directed as a time and materials effort, the CLIN and project will be subject to a ceiling amount. With agreement of the Contractor, the CLIN may also be exercised as a Firm Fixed Price optional contract line item.

A ceiling amount shall be established for this CLIN.

Reference Line: OEA2100008 - 0001

Pricing Options: Base

Document Number: 273FCC21R0005 Page 6 of 44

Section 1 - Continuation Sheet

Terms and Conditions (Basic) TERMS AND CONDITIONS (BASIC) – COMMERCIAL ITEM [CONTINUATION OF

SCHEDULE]

This solicitation incorporates as part of this Schedule the clause titled Terms and Conditions (Basic) – Commercial Item [Continuation of Schedule].

TERMS AND CONDITIONS (BASIC) – COMMERCIAL ITEM [CONTINUATION OF SCHEDULE]

(a) This clause applies to any vendor term, condition, or license (addressed in paragraphs (b) or (c), or both, below) that: is incorpor-ated into this contract directly by the FCC; or is made applicable in any other fashion to goods or services furnished and paid for under this order. This includes any term, condition, or license of a subcontractor or supplier of the contractor pertaining to goods or services resold by the contractor to FCC under this contract.

(b) The FCC specifically does not agree to, and shall not be bound by, any vendor term, condition, or license that:

(1) makes the applicable or governing law controlling this agreement (or any license under it) other than Federal law;

(2) requires the FCC to consent to the jurisdiction or venue, or both, of State or local courts or those of foreign countries;

(3) requires the FCC to indemnify the contractor or any other party, or imposes upon the FCC any currently indefinite liability;

(4) requires the FCC or the United States to tender or assume the defense of a civil or criminal action, or alter the rights or prerogat-ives of the Attorney General of United States in the conduct of litigation on behalf of the United States or its agencies;

(5) requires the FCC to assume nondisclosure obligations that are incompatible with its statutory disclosure obligations under the Freedom of Information Act, court orders, or its regulatory disclosure procedures in 47 C.F.R. Part 0, Subpart C;

(6) requires the FCC to comply with audit, entry, or access provisions that conflict with its facility and data security clearance pro-cedures (FCC may be able to offer self-certification in cases where facility access cannot be granted);

(7) provides for automatic renewal or continuation of the order or license without affirmative action by the contracting officer;

(8) expresses the FCC’s acquiescence or agreement to equitable remedies, such as injunctive relief, to which FCC cannot agree, as they may result in the loss of use rights required for mission critical applications;

(9) except as required by law, commits the FCC to arbitration or other alternative dispute resolution procedures in lieu of following the dispute resolution procedures established in the Contract Disputes Act of 1978 (CDA), implementing regulations at FAR Subpart 33.2, and the FAR 52.233-1 Disputes clause;

(10) provides the contractor or a third party with unilateral termination rights, which would conflict with the contractor’s obligation to continue performance under the CDA and FAR dispute resolution procedures;

(11) provides the contractor with the unilateral right to modify the terms of the order or license, including price;

(12) obliges the FCC to pay the vendor's attorney fees, except as provided by statute;

(13) abrogates or alters in any way: the assignment restriction in FAR 52.212-4(b); the manner of dispute resolution provided by FAR 52.212-4(d); the invoice terms in FAR 52.212- 4(g); the payment terms in FAR 52.212-4(i) (or the Alternate version if applicable to this contract); or the compliance obligations stated at FAR 52.212-4(q)-(r);

(14) without express agreement in writing by a FCC contracting officer: abrogates or alters in any way FCC acceptance and inspection rights found in FAR 52.212-4(a), the indemnity provided by FAR 52.212-4(h), FCC termination rights provided by FAR 52.212-4(l)-(m), or the warranties provided by FAR 52.212-4(o); or expands the limitation of liability in FAR 52.212- 4(p) (including Alternate versions of such paragraphs if applicable to this order); or (15) provides that vendor terms and conditions represent the entire agreement with the FCC or purports to supersede or take precedence over the terms of this order and its clauses (including this clause).

(c) If this contract concerns or involves the procurement of rights in data (including software):

(1) the FCC specifically does not agree to, and shall not be bound by, any vendor license that: (i) contradicts, limits, modifies, or con-ditions the FCC’s rights with respect to software or other data as set forth in FAR 52.227-19(b) or FAR 52.227-14(g)(3) (Alternate II), respectively (to the extent this contract incorporates those FAR clauses), except as expressly provided in this contract; or (ii) provides for a different allocation of data rights between the contractor and FCC than that specified in FAR 52.227-17 (relating as to special works), to the extent the contract incorporates that clause; and,

(2) the contractor understands and agrees that only a FCC contracting officer is authorized to bind the FCC to a contract for goods and services, including a license for intellectual property rights or other agreement (collectively “license”), or to a modification of the terms and conditions of this contract. To the extent the contractor, in contract to discharge its ob-ligation to the FCC under this contract, as part of its business processes or those of its subcontractors or suppliers, requires an FCC employee to “accept” license terms by way of written or electronic signature or other manner, or by shrink-wrap, box-wrap, click-wrap, or browse-wrap agreement, the terms of that license shall not be binding upon the FCC. FCC employees who “accept” such li-censes do so on this condition, and only for the purpose of allowing the contractor and its subcontractors and suppliers, for the sake of their convenience, to use the same process to perform this contract that they use for commercial customers (however, only under the terms to which an FCC contracting officer has agreed in writing).

Document Number: 273FCC21R0005 Page 7 of 44

DATA RIGHTS ADDENDUM

(a) FAR 52.227-19, Commercial Computer Software License (DEC 2007) is incorporated by reference in this order and the parties agree that the rights described in that clause shall apply to all data acquired under this order, not only computer software. For purposes of this order, "computer software" and "data" have the meanings prescribed in the definitions in FAR 52.227-14(a).

(b) In addition to the set of rights provided under FAR 52.227-1 9(b)(2), and notwithstanding any provisions in the any end user li-cense agreements incorporated into this contract directly by the FCC; or made applicable in any other fashion to goods or services fur-nished and paid for under this contract, the FCC and the entities described below shall have at a minimum the following rights in all data delivered under this contract:

• The Contractor shall grant to the FCC, including its agents (e.g., third-party contractors) and any FCC-established entities (e.g., the Universal Service Administration Company), a non-exclusive, perpetual license to the data provided as a deliver-able under this contract.

• This FCC license shall provide:

• Unlimited rights to access, prepare, use, copy, modify, reproduce, prepare derivative works (e.g., maps, reports of location-weighted broadband availability by geography, sample frames for auditing, or additional quality reports), and distribute the data for internal use, including by and to personnel, third-party contractors, and other entities granted the same license, as necessary to accomplish the goals of the Broadband Data Collection;

• Rights to publish aggregate/derivative data, such as broadband coverage by state, county, Metropol-itan Statistical Area, Congressional District, Census Designated Place, tribal area, or other US Census Bureau-defined boundary;

• Rights to publish and display data via an online map, or in reports or other static formats (e.g. PDF);

• Rights to publish all the Fabric data, the relevant fields listed in section 3.1.1., paragraph B.ii above, about BSLs for a subset of locations to support Universal Service Fund programs; and

• Rights to publish metadata (information about data such as content, format, source, rights, accuracy, provenance, frequency, periodicity, granularity, publisher or responsible party, contact information, method of collection, and other descriptions) via certain federal channels and websites, including data.gov (or its successors), consistent with the requirements of the Foundations for Evidence Based Policymaking Act, and the National Spatial Data Infrastructure.[1]

• The FCC’s rights to access, prepare, use, copy, modify, reproduce, prepare derivative works, and otherwise publish the data provided as a deliverable under this contract as set forth above shall not expire at the conclu-sion of the contract (i.e. they shall be perpetual).

• The Contractor shall allow the FCC to provide Broadband Data Collection filers, including service providers, Tribal, state and local government entities, and approved third parties with access to the data provided in Activ-ity 3.1.1, as described above, if the Contractor is unable or unwilling to provide such access directly.

• The FCC shall retain full, unlimited rights to any correction data submitted to the FCC by third parties (i.e., the FCC can use, copy, modify reproduce, prepare derivative works or publish the data, in whole or in part, in any manner, for any purpose, or authorize others to do so, in perpetuity), but shall grant the Contractor a non-exclusive, perpetual, irrevocable license to use such data for the purpose of correcting or otherwise modifying the Contractor’s data.

• The Contractor shall grant to filers of availability data in the Broadband Data Collection - including service providers; Tri-bal, state, and local governmental entities; and approved third parties - a limited end-user license to the data provided as a deliverable under this contract.

• This end-user license shall provide:

• Rights to access, use, copy, modify, reproduce, and prepare derivative works from the data subject to this end-user license as necessary to generate and submit broadband availability data to the FCC in the Broadband Data Collection; and

• Rights to access the data subject to this end-user license via API and/or download from the FCC’s website.

• End-user license terms must allow for:

• Access to the data subject to this end-user license by any filer of broadband availability data in the

Broadband Data Collection;

• Ability to submit challenge/correction data to correct the data subject to this end-user license; and

• Ability to generate a list of points from the data subject to this end-user license from GIS data sub-mitted in the Broadband Data Collection.

• The Contractor shall grant to other federal government agencies, including but not limited to the U.S. Department of Agri-culture’s Rural Utility Service, the National Telecommunications and Information Administration, the U.S. Department of

Document Number: 273FCC21R0005 Page 8 of 44

Transportation, and the Federal Geographic Data Committee, a limited end-user license to the data provided as a deliver-able under this contract.

• This end-user license shall provide:

• Rights to publish aggregate/derivative data, such as broadband coverage by state, county, Metropol-itan Statistical Area, Congressional District, Census Designated Place, tribal area, or other US Census Bureau-defined, or by other program- or project-defined areas;

• Rights to publish and display data via an online map, or in reports or other static formats (e.g. PDF);

and

• Rights to access the data subject to this end-user license via API and/or download from the FCC’s website.

• End-user license terms must allow for:

• Access to the data subject to this end-user license by any other federal government agency;

• Ability to submit challenge/correction data to correct the data subject to this end-user license; and

• Ability to generate a list of points from the data subject to this end-user license from GIS data sub-mitted in the Broadband Data Collection

• The Contractor shall grant to other individuals (and non-filer third parties)

• Web access to view and correct BSL data, but shall not be required to grant programmatic or scripted access;

and

• The ability to submit challenge/correction data (including appropriate privacy notice).

(c) To the extent the awardee proposes to provide license rights to the Government or the third parties described above in addition to these minimum required rights, this Data Rights Addendum shall be amended at the time of award to include such additional rights as described in the awardee’s proposal.

[1]See, e.g., 44 U.S.C §3511(c), which requires the establishment of a Federal Data Catalog, and 43 U.S.C. §2804, which describes the requirements for the National Spatial Data Infrastructure.

Section 2 - Contract Clauses

52.252-2 Clauses Incorporated by Reference (Feb 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon re-quest, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/ these address(es):

www.acquisition.gov [Insert one or more Internet addresses]

(End of clause)

52.212-4 Alt I Contract Terms and Conditions-Commercial Items (Oct 2018) - Alternate I (Jan 2017)

(a) Inspection/Acceptance. (1) The Government has the right to inspect and test all materials furnished and services performed under this contract, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance.

The Government may also inspect the plant or plants of the Contractor or any subcontractor engaged in contract performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

(2) If the Government performs inspection or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish and shall require subcontractors to furnish all reasonable facilities and assistance for the safe and convenient performance of these du-ties.

(3) Unless otherwise specified in the contract, the Government will accept or reject services and materials at the place of delivery as promptly as practicable after delivery, and they will be presumed accepted 60 days after the date of delivery, unless accepted earlier.

(4) At any time during contract performance, but not later than 6 months (or such other time as may be specified in the contract) after acceptance of the services or materials last delivered under this contract, the Government may require the Contractor to replace or cor-rect services or materials that at time of delivery failed to meet contract requirements. Except as otherwise specified in paragraph

Document Number: 273FCC21R0005 Page 9 of 44

(a)(6) of this clause, the cost of replacement or correction shall be determined under paragraph (i) of this clause, but the "hourly rate" for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit. Un-less otherwise specified below, the portion of the "hourly rate" attributable to profit shall be 10 percent. The Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for re-placement or correction, and, when required, shall disclose the corrective action taken. _______________ [Insert portion of labor rate attributable to profit.]

(5)(i) If the Contractor fails to proceed with reasonable promptness to perform required replacement or correction, and if the replace-ment or correction can be performed within the ceiling price (or the ceiling price as increased by the Government), the Government may--

(A) By contract or otherwise, perform the replacement or correction, charge to the Contractor any increased cost, or deduct such in-creased cost from any amounts paid or due under this contract; or

(B) Terminate this contract for cause.

(ii) Failure to agree to the amount of increased cost to be charged to the Contractor shall be a dispute under the Disputes clause of the contract.

(6) Notwithstanding paragraphs (a)(4) and (5) above, the Government may at any time require the Contractor to remedy by correction or replacement, without cost to the Government, any failure by the Contractor to comply with the requirements of this contract, if the failure is due to--

(i) Fraud, lack of good faith, or willful misconduct on the part of the Contractor's managerial personnel; or

(ii) The conduct of one or more of the Contractor's employees selected or retained by the Contractor after any of the Contractor's ma-nagerial personnel has reasonable grounds to believe that the employee is habitually careless or unqualified.

(7) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under this contract.

(8) The Contractor has no obligation or liability under this contract to correct or replace materials and services that at time of delivery do not meet contract requirements, except as provided in this clause or as may be otherwise specified in the contract.

(9) Unless otherwise specified in the contract, the Contractor's obligation to correct or replace Government-furnished property shall be governed by the clause pertaining to Government property.

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

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

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

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

(i) Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.

(ii) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are--

(A) Performed by the contractor;

(B) Performed by the subcontractors; or

(C) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.

(iii) Materials means--

Document Number: 273FCC21R0005 Page 10 of 44

(A) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control;

(B) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;

(C) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.);

(D) The following subcontracts for services which are specifically excluded from the hourly rate:

_______________ [Insert any subcontracts for services to be excluded from the hourly rates prescribed in the schedule.]; and

(E) Indirect costs specifically provided for in this clause.

(iv) Subcontract means any contract, as defined in FAR subpart 2.1, entered into with a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.

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

(g) Invoice.

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

(i) Name and address of the Contractor;

(ii) Invoice date and number;

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

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

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

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

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

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

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

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

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

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer--System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer--Other Than System for Award Management), or applicable agency procedures.

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

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, includ-

Document Number: 273FCC21R0005 Page 11 of 44 ing costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payments. (1) Work performed. The Government will pay the Contractor as follows upon the submission of commercial invoices approved by the Contracting Officer:

(i) Hourly rate.

(A) The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the contract by the number of direct labor hours performed. Fractional parts of an hour shall be payable on a prorated basis.

(B) The rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract. Labor hours incurred to perform tasks for which labor qualifications were specified in the contract will not be paid to the extent the work is performed by individuals that do not meet the qualifications specified in the contract, unless specifically authorized by the Contracting Officer.

(C) Invoices may be submitted once each month (or at more frequent intervals, if approved by the Contracting Officer) to the Con-tracting Officer or the authorized representative.

(D) When requested by the Contracting Officer or the authorized representative, the Contractor shall substantiate invoices (including any subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment, individual daily job timecards, records that verify the employees meet the qualifications for the labor categories specified in the contract, or other substantiation spe-cified in the contract.

(E) Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis.

(1) If no overtime rates are provided in the Schedule and the Contracting Officer approves overtime work in advance, overtime rates shall be negotiated.

(2) Failure to agree upon these overtime rates shall be treated as a dispute under the Disputes clause of this contract.

(3) If the Schedule provides rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer.

(ii) Materials.

(A) If the Contractor furnishes materials that meet the definition of a commercial item at 2.101, the price to be paid for such materials shall not exceed the Contractor's established catalog or market price, adjusted to reflect the--

(1) Quantities being acquired; and

(2) Any modifications necessary because of contract requirements.

(B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of this clause, the Government will reimburse the Contractor the actu-al cost of materials (less any rebates, refunds, or discounts received by the contractor that are identifiable to the contract) provided the Contractor--

(1) Has made payments for materials in accordance with the terms and conditions of the agreement or invoice; or

(2) Makes these payments within 30 days of the submission of the Contractor's payment request to the Government and such payment is in accordance with the terms and conditions of the agreement or invoice.

(C) To the extent able, the Contractor shall--

(1) Obtain materials at the most advantageous prices available with due regard to securing prompt delivery of satisfactory materials;

and

(2) Give credit to the Government for cash and trade discounts, rebates, scrap, commissions, and other amounts that are identifiable to the contract.

(D) Other Costs. Unless listed below, other direct and indirect costs will not be reimbursed.

(1) Other Direct Costs. The Government will reimburse the Contractor on the basis of actual cost for the following, provided such

Document Number: 273FCC21R0005 Page 12 of 44 costs comply with the requirements in paragraph (i)(1)(ii)(B) of this clause: _______________[Insert each element of other direct costs (e.g., travel, computer usage charges, etc. Insert "None" if no reimbursement for other direct costs will be provided. If this is an indefinite delivery contract, the Contracting Officer may insert "Each order must list separately the elements of other direct charge(s) for that order or, if no reimbursement for other direct costs will be provided, insert 'None'."]

(2) Indirect Costs (Material Handling, Subcontract Administration, etc.). The Government will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price: _______________ [Insert a fixed amount for the indirect costs and payment schedule. Insert "$0" if no fixed price reimbursement for indirect costs will be provided. (If this is an indefinite delivery contract, the Contracting Officer may insert "Each order must list separately the fixed amount for the in-direct costs and payment schedule or, if no reimbursement for indirect costs, insert 'None')."]

(2) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule and the Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within such ceiling price. If at any time the Contractor has reason to believe that the hourly rate pay-ments and material costs that will accrue in performing this contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling price in the Schedule, the Contractor shall notify the Contracting Of-ficer giving a revised estimate of the total price to the Government for performing this contract with supporting reasons and document-ation. If at any time during the performance of this contract, the Contractor has reason to believe that the total price to the Government for performing this contract will be substantially greater or less than the then stated ceiling price, the Contractor shall so notify the Contracting Officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documenta-tion. If at any time during performance of this contract, the Government has reason to believe that the work to be required in perform-ing this contract will be substantially greater or less than the stated ceiling price, the Contracting Officer will so advise the Contractor, giving the then revised estimate of the total amount of effort to be required under the contract.

(3) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Sched-ule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Sched-ule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been in-curred after the increase in the ceiling price.

(4) Access to records. At any time before final payment under this contract, the Contracting Officer (or authorized representative) will have access to the following (access shall be limited to the listing below unless otherwise agreed to by the Contractor and the Con-tracting Officer):

(i) Records that verify that the employees whose time has been included in any invoice meet the qualifications for the labor categories specified in the contract;

(ii) For labor hours (including any subcontractor hours reimbursed at the hourly rate in the schedule), when timecards are required as substantiation for payment--

(A) The original timecards (paper-based or electronic);

(B) The Contractor's timekeeping procedures;

(C) Contractor records that show the distribution of labor between jobs or contracts; and

(D) Employees whose time has been included in any invoice for the purpose of verifying that these employees have worked the hours shown on the invoices.

(iii) For material and subcontract costs that are reimbursed on the basis of actual cost--

(A) Any invoices or subcontract agreements substantiating material cost; and

(B) Any documents supporting payment of those invoices.

(5) Overpayments/Underpayments. Each payment previously made shall be subject to reduction to the extent of amounts, on preceding invoices, that are found by the Contracting Officer not to have been properly payable and shall also be subject to reduction for over-payments or to increase for underpayments. The Contractor shall promptly pay any such reduction within 30 days unless the parties agree otherwise. The Government within 30 days will pay any such increases, unless the parties agree otherwise. The Contractor's payment will be made by check. If the Contractor becomes aware of a duplicate invoice payment or that the Government has other-wise overpaid on an invoice payment, the Contractor shall--

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

Document Number: 273FCC21R0005 Page 13 of 44 the--

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

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

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

(D) Contractor point of contact.

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

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

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

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

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt in a timely man-ner;

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

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

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

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

(A) The date fixed under this contract.

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

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

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

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

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

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisi-tion Regulation in effect on the date of this contract.

(viii) Upon receipt and approval of the invoice designated by the Contractor as the "completion invoice" and supporting documenta-tion, and upon compliance by the Contractor with all terms of this contract, any outstanding balances will be paid within 30 days un-less the parties agree otherwise. The completion invoice, and supporting documentation, shall be submitted by the Contractor as promptly as practicable following completion of the work under this contract, but in no event later than 1 year (or such longer period as the Contracting Officer may approve in writing) from the date of completion.

(7) Release of claims. The Contractor, and each assignee under an assignment entered into under this contract and in effect at the time of final payment under this contract, shall execute and deliver, at the time of and as a condition precedent to final payment under this contract, a release discharging the Government, its officers, agents, and employees of and from all liabilities, obligations, and claims arising out of or under this contract, subject only to the following exceptions.

(i) Specified claims in stated amounts, or in estimated amounts if the amounts are not susceptible to exact statement by the Contractor.

(ii) Claims, together with reasonable incidental expenses, based upon the liabilities of the Contractor to third parties arising out of per-forming this contract, that are not known to the Contractor on the date of the execution of the release, and of which the Contractor

Document Number: 273FCC21R0005 Page 14 of 44 gives notice in writing to the Contracting Officer not more than 6 years after the date of the release or the date of any notice to the Contractor that the Government is prepared to make final payment, whichever is earlier.

(iii) Claims for reimbursement of costs (other than expenses of the Contractor by reason of its indemnification of the Government against patent liability), including reasonable incidental expenses, incurred by the Contractor under the terms of this contract relating to patents.

(8) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315.

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

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

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

(1)…