36C24219Q1265-002.docx

36C24219Q1265

PAGE 1 OF

1. REQUISITION NO.

2. CONTRACT NO.

3. AWARD/EFFECTIVE DATE

4. ORDER NO.

5. SOLICITATION NUMBER

6. SOLICITATION ISSUE DATE

a. NAME

b. TELEPHONE NO. (No Collect Calls)

8. OFFER DUE DATE/LOCAL

TIME

9. ISSUED BY

CODE

10. THIS ACQUISITION IS

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 PROGRAM

EDWOSB

8(A)

NAICS:

SIZE STANDARD:

11. DELIVERY FOR FOB DESTINA-

TION UNLESS BLOCK IS

MARKED

SEE SCHEDULE

12. DISCOUNT TERMS

13a. THIS CONTRACT IS A

RATED ORDER UNDER

DPAS (15 CFR 700)

13b. RATING

14. METHOD OF SOLICITATION

RFQ

IFB

RFP

15. DELIVER TO

CODE

16. ADMINISTERED BY

CODE

17a. CONTRACTOR/OFFEROR

CODE

FACILITY CODE

18a. PAYMENT WILL BE MADE BY

CODE

TELEPHONE NO.

DUNS:

DUNS+4:

PHONE:

FAX:

17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS IN OFFER 18b. SUBMIT INVOICES TO ADDRESS SHOWN IN BLOCK 18a UNLESS BLOCK BELOW IS CHECKED

SEE ADDENDUM

19.

20.

21.

22.

23.

24.

ITEM NO.

SCHEDULE OF SUPPLIES/SERVICES

QUANTITY

UNIT

UNIT PRICE

AMOUNT

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

25. ACCOUNTING AND APPROPRIATION DATA

26. TOTAL AWARD AMOUNT (For Govt. Use Only) 27a. SOLICITATION INCORPORATES BY REFERENCE FAR 52.212-1, 52.212-4. FAR 52.212-3 AND 52.212-5 ARE ATTACHED. ADDENDA

ARE

ARE NOT ATTACHED.

27b. CONTRACT/PURCHASE ORDER INCORPORATES BY REFERENCE FAR 52.212-4. FAR 52.212-5 IS ATTACHED. ADDENDA

ARE

ARE NOT ATTACHED

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN _______________

29. AWARD OF CONTRACT: REF. ___________________________________ OFFER

COPIES TO ISSUING OFFICE. CONTRACTOR AGREES TO FURNISH AND

DATED ________________________________. YOUR OFFER ON SOLICITATION

DELIVER ALL ITEMS SET FORTH OR OTHERWISE IDENTIFIED ABOVE AND ON ANY

(BLOCK 5), INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE

ADDITIONAL SHEETS SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED

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 CONTRACTING OFFICER (TYPE OR PRINT) 31c. DATE SIGNED

AUTHORIZED FOR LOCAL REPRODUCTION

(REV. 2/2012)

PREVIOUS EDITION IS NOT USABLE

Prescribed by GSA - FAR (48 CFR) 53.212

7. FOR SOLICITATION

INFORMATION CALL:

STANDARD FORM 1449

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

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS

36C24219Q1265 10-08-2019

SPATUZZI, MICHAEL

518-626-6984 11-01-2019

4:00 PM EST

Department of Veterans Affairs Samuel S . Stratton VA Medical Center 113 Holland Avenue (2-90NCA) Albany NY 12208-3410 X 334516 1000 Employees N/A X Department of Veterans Affairs VA Western NY Healthcare System 3495 Bailey Avenue Buffalo NY 14215-1129 Department of Veterans Affairs Samuel S . Stratton VA Medical Center Network Contracting Activity 113 Holland Avenue (2-90NCA) Albany NY 12208-3410

Tungsten Network http://www.tungsten-network.com/us/en /veterans-affairs

See CONTINUATION Page Special Stainer Testing for the Buffalo VA Medical Center Laboratory.

All proposals must be emailed to Michael.Spatuzzi@va.gov.

Faxed proposals and proposals sent by the US Mail will not be accepted.

See CONTINUATION Page X X X Michael Spatuzzi

VA-VHA-SAOE-2019-A0A282E7

Table of Contents

SECTION B - CONTINUATION OF SF 1449 BLOCKS

B.1 CONTRACT ADMINISTRATION DATA

1. Contract Administration: All contract administration matters will be handled by the following individuals:

a. CONTRACTOR:

b. GOVERNMENT: Contracting Officer 36C242

Department of Veterans Affairs Samuel S . Stratton VA Medical Center 113 Holland Avenue (2-90NCA) Albany NY 12208-3410

2. CONTRACTOR REMITTANCE ADDRESS: All payments by the Government to the contractor will be made in accordance with:

3. INVOICES: Invoices shall be submitted in arrears:

4. GOVERNMENT INVOICE ADDRESS: All Invoices from the contractor shall be submitted electronically in accordance with VAAR Clause 852.232-72 Electronic Submission of Payment Requests.

Tungsten Network http://www.tungsten-network.com/us/en /veterans-affairs

ACKNOWLEDGMENT OF AMENDMENTS: The offeror acknowledges receipt of amendments to the Solicitation numbered and dated as follows:

Page 1 of Page 1 of

Statement of Work

Histopathology is the microscopic study of diseased tissue. Accurate diagnosis of cancer and other diseases usually requires histopathological examination of patient tissue specimens. Special stains are an important tools for pathologists and many special stains are key to detecting and identifying pathogens while others are used to diagnose and monitor cancer. Common stains for identifying microorganisms include AFB, Gram, GMS, and Warthin Starry. The PAS Stain kit is used for demonstrating glycogen in the liver.

1.0 General Requirements:

a. The Contractor shall provide all upgrades to their equipment hardware and operating systems software at no additional charge to the Government. These enhancements to the Contractor’s equipment shall be delivered to the Buffalo Laboratory and installed within thirty (30) days of their issuance or date of first commercial availability. One analyzer is required for the Buffalo Laboratory.

b. The Contractor’s equipment shall be made available in the same condition of production (as newly manufactured and remanufactured state-of-the-art equipment) as offered for a period of at least one (1) year after the date of contract award.

c. The Contractor’s equipment shall perform satisfactorily at any laboratory temperature between 50 and 90 degrees Fahrenheit and 10 and 32 degree Celsius.

d. The Contractor’s equipment shall perform satisfactorily at any laboratory relative humidity between 15 and 85 percent.

e. An operator’s manual shall be furnished with all supplied equipment.

2.0 Schedule Of Supplies And Cost Per Slide (CPS):

a. Special stain system instrument

b. Workstation monitor

c. Report printer

d. Shipping and installation. All shipping shall be FOB Destination to the Buffalo Laboratory without any exceptions. All reagents and Stain packs shall have an expiration date of a minimum of six (6) months or more.

e. Service and warranty

f. The awarded contract shall include a minimum of the following stains listed below in Table 1. The Government shall reserve the right to add stains when required through a bilateral modification with the awarded Contractor.

Table 1

Amyloid Stain, Congo Red Kit

Iron Stain

Alcian Blue PAS

AB/PAS

AB/PAS with alpha Amylase

AB/PAS/Hematoxylin

AFB, AFB Light Green

AB PH 2.5

Colloidal Iron

Elastic Stain

Mucicarmine Kit

MTR Masson’s Trichrome

Gram and Gram Yellow

GMS Kit and GMS Eosin

Giemsa Stain, Gomon’s Blue, and Gomon’s Green Trichrome

Iron

Janner-Wright Giemsa

Orcein

PAS

PAS with alpha amylase

PAS-M H&E

PAS Green

PAS-M Light Green

Reticulin/No Counterstain

Reticulin-NFR Stain Kit

Warthin Starry

3.0 Instrumentation Specifications:

a. The ability to fully automate the special staining process which includes drying, deparaffinization through staining, and providing a finished slide.

b. A consistent quality of special stain results.

c. Individual slide heating which eliminates the need to batch tests.

d. A minimum of forty-eight (48) slide capacity.

e. Minimal maintenance, which consists of less than forty-five (45) minutes maintenance each day.

f. Warthin Starry stain results within fifteen (15) minutes.

g. The system shall be optimized for staining of multiple protocols at the same time.

h. The flexibility to perform heated and non-heated stains in the same run and simultaneously process up to fourteen (14) different protocols.

i. Provide prefilled barcode reagent cartridges minimizing exposure to hazardous reagents and providing automatic waste segregation of solvents, acids, and hazardous chemicals from aqueous waste.

j. Benchtop dimensions shall not exceed 24 inches H x 27.5inches D x 36 Wide.

k. The Reagent capacity shall consist of a minimum of fifty (50) reagent packs.

l. The instrument shall provide expiration date tracking for all reagents.

The cost per stain slide price shall include costs covering the following: (a) equipment use; (b) all standards, controls, and related products; (c) shipping of products; (d) all necessary maintenance to keep the Contractor’s equipment in proper operating condition (this element includes both preventative maintenance and emergency repairs); and (e) training for Government personnel. The Contractor shall provide delivery, installation, and repair of their equipment at no additional charge. VA Safety regulations require strict control of chemical waste disposal. The system shall separate hazardous waste form non-hazardous waste for GEMS and EPA compliance: 40 Code of Federal Regulations (CFR) Title 40: Protection of the Environment Part 261- Identification of Hazardous Waste.

The analyzer shall be able to accommodate a 20% increase in workload during the entire five years of the awarded contract.

4.0 Service and Maintenance:

4.1 General Provisions:

a. The Contractor shall provide maintenance (labor and parts) to keep their equipment in proper operating condition and subject to security regulations. The Government shall provide the Contractor access to their equipment for service.

b. The Contractor shall provide regularly scheduled maintenance to assure the continued reliable operation of their equipment. These preventative maintenance visits shall be of a frequency that conforms to the manufacturer’s operation and maintenance instructions for the supported equipment. However, intervals between scheduled maintenance services shall be the same as those provided to commercial customers for the same model of clinical laboratory equipment.

c. Users shall perform daily routine maintenance and cleaning as required in the manufacturer’s operation and maintenance instructions.

4.2 Emergency Repair:

a. Emergency repairs shall be performed after notification that the Contractor’s equipment is inoperative. The Contractor shall provide the Government with a designated point of contact and shall make arrangements to enable the maintenance representative to receive such notifications.

b. The Contractor shall perform emergency repair service within twenty-four (24) hours of notification of a malfunction. All parts and labor needed to repair the malfunction shall be provided by the Contractor. Travel, per diem, and other expenses associated with the repair will be borne by the contractor.

c. The Contractor shall furnish a malfunction incident report to the Buffalo Laboratory upon completion of each maintenance call. The report shall include as a minimum the following information: (1) date and time notified; (2) date and time of arrival; (3) serial number and the type and model numbers of equipment; (4) time spent on the repair; (5) description of the malfunction and repair; (6) proof of repair that includes documentation of a sample run of quality control verifying acceptable performance.

4.3 Replacement of Laboratory Equipment:

a. During the contract period of performance should the repair record of any Contractor supplied equipment reflect a downtime of 10% or more of the normal working days in one calendar month a determination will be made by the Contracting Officer Representative (COR) representative to replace the initial equipment with new equipment.

b. The Government shall maintain the equipment according to the manufacturer’s specifications.

c. The Contractor shall remove their equipment at the expiration of the awarded contract unless the Government opts to retain the equipment at a negotiated price with the Contractor.

5.0 Training:

The Contractor at no additional charge to the Government shall provide training for two operating personnel at the time of installation of the contractor’s equipment. In addition, the Contractor shall provide supplemental operating training to Government personnel without additional charge to the Government upon installation of any upgrade in equipment, and hardware or operating system software connected with the operation of an instrument already furnished.

6.0 Implementation Plan:

The Contractor shall provide with their proposal an implementation plan for installation of their equipment. The implementation plan must be submitted as a separate document detailing the timeline of events that shall occur during the ninety (90) day implementation period that begins on the award date. The Contractor’s submitted plan shall not exceed ninety (90) from the award date for the transition of all requirements to include installation, training of personnel, transition of all testing materials, reagents and supplies, and performance of all correlation and validation studies. Failure of the Contractor to conform to the ninety (90) implementation period shall be considered sufficient reason to terminate the award for cause. At the end of the ninety (90) day implementation period, the awarded Contractor shall have full and sole responsibility for all requirements in the SOW.

7.0 Delivery:

a. Products ordered by the VA Western New York Healthcare System (WNYHS) shall be delivered within seven (7) calendar days after the Contractor receives the order.

b. The COR shall be informed if products are not available for shipment due to shipping problems or any other problems.

c. All products provided by the Contractor shall be of the highest quality ensuring sensitivity, specificity, and tested to assure precision and accuracy. The quality of the products shall be high enough to satisfy proficiency testing standards of the College of American Pathologists (CAP) and the Joint Commission Authority (JCA).

8.0 System Acceptance:

The equipment shall be installed by the Contractor at the Buffalo Laboratory. The Contractor shall test their equipment and confirm that it operates in accordance with the equipment specifications. The Government shall accept the equipment at the time of confirmation.

9.0 Ownership Of Equipment:

a. Title to equipment provided under the awarded contract shall remain with the Contractor. All accessories furnished by the Contractor shall accompany their equipment when their equipment is returned.

b. The Contractor upon contract expiration, replacement of their equipment, or contract termination shall remove their equipment. The Contractor shall disconnect their equipment and will be responsible for all packing and shipping required to remove their equipment within seven (7) calendar days.

10.0 Characterization of Hazardous Waste:

The Contractor shall provide a description of the characteristics of the hazardous waste produced as a byproduct of the instrument operations and address the criteria listed in the Code of Federal Regulations (CFR) Title 40 “Protection of the Environment” Part 261 et al. In addition, the list shall also identify any “hazardous materials” defined as Hazardous under the latest version of Federal Standard No. 313 that may be provided as a part of this contract. Material Safety Data Sheets (MSDS) shall be submitted for all products. The Contractor will provide a complete chemical analysis of waste, to include mercury, sodium azides, carcinogens, reproductive toxins, acute toxins and all other waste that may be considered ignitable, corrosive, reactive or toxic. Subsequent waste analysis studies for any new test or new test formation introductions shall be provided. Documentation of all analysis will be provided to the Buffalo Laboratory COR for review. The analysis documentation shall address the following:

· Waste toxicity (Reference 40CFR261.11 and 40CFR261.24)

· Waste ignitability (Reference 40CFR261.21)

· Waste corrosivity (Reference 40CFR261.22)

· Waste reactivity (Reference 40CFR261.23)

· Hazardous waste from non-specific sources (F-listed) (Reference 40CFR261.31)

· Discarded commercial products (acutely toxic or P-listed and toxic or U-listed) (Reference 40CFR261.33)

· The Contractor shall provide a written guide describing the proper disposal and care of all reagents, consumables, and equipment.

· The Contractor shall also provide their own reports of effluent studies associated with their instrument.

The Contractor shall also provide documentation to the Buffalo Laboratory COR concerning any items that contain cyanide.

11.0 Federal Holidays:

The Laboratory is not open on Federal Holidays

Federal Holidays are as follows:

New Year's Day Martin Luther King's Birthday President's Day Memorial Day Independence Day Labor Day Columbus Day Veterans Day Thanksgiving Day Christmas Day

12.0 Designation Of Contract Officer Representation (COR)

The COR shall be designated in writing. The COR shall furnish technical guidance and advice regarding the work being performed against the awarded contract. The COR is not authorized to interpret or furnish advice and information to the Contractor relative to the financial or legal aspects of the contract, as these items are the responsibility of the Contracting Officer.

13.0 Schedule of Items

The period of performance of the awarded contract shall run from October 1, 2020 through September 30, 2025. The awarded contract period of performance shall not exceed five years and six months.

The cost per slide price shall include all the following: equipment, consumables, service and maintenance, and training.

The Contractor shall provide new equipment, reagents, consumables, preventative maintenance, repairs, and training. Contractor owned equipment shall be installed, configured, and validated by the Contractor.

B.2 PRICE/COST SCHEDULE

ITEM INFORMATION

B.3 DELIVERY SCHEDULE

STATEMENT OF WORK

Special Histology Stainer

SECTION C - CONTRACT CLAUSES

52.212-2 EVALUATION--COMMERCIAL ITEMS (OCT 2014)

(a) The Government shall award a contract resulting from this solicitation to the responsible Offeror whose offer conforming to the solicitation shall be most advantageous to the Government. The following factors shall be used to evaluate offers: Technical Approach and Capabilities, Past Performance, and Price.

In accordance with FAR 13.106-2 Evaluation of quotations or offers, a tradeoff process shall be used. The Government shall make a single award for this requirement. To be considered for award, all requirements listed in the Statement of Work (SOW) must be met or exceeded. Offeror’s proposals cannot take exceptions to any of the requirements identified in the SOW, otherwise their offer will not be considered for award.

i. The Government will award a contract from this solicitation to the responsible Offeror whose proposal provides the best value to the Government.

ii. Technical Approach and Capabilities is more important than Past Performance and Price. The sub factors identified in Factor I under Technical Approach and Capabilities are amongst the most important technical factors, but all technical factors listed in the SOW are of importance when it comes to meeting the Special Stainer testing requirements for the Buffalo Laboratory. Past Performance is more important than Price.

iii. The Contracting Officer shall conduct a price evaluation in accordance with FAR 12.209 Determination of price reasonableness. Offerors are reminded that award may not necessarily be made to the Offeror with the lowest price proposal.

iv. To receive consideration for award, proposals must receive an overall rating of no less than:

Acceptable for the overall rating under Factor I, Technical Approach and Capabilities and Unknown Risk for Factor II Past Performance. Price must be determined to be Fair and Reasonable in accordance with FAR 12.209 Determination of price reasonableness.

v. Offerors will be required to submit their Technical Approach and Capabilities, Past Performance, and Cost per Slide Pricing. Offerors proposals shall be evaluated against these three evaluation factors. To determine which Offerors proposal represents the best value to the Government, the Offerors proposal will be evaluated against these three evaluation factors identified in the below paragraphs.

FACTOR I – Technical Approach and Capabilities: The Offeror shall provide supporting documents that they possess adequate resources, capabilities, experience, responsibility, and integrity to meet all requirements of the SOW. This shall include the below technical requirements, but it is not limited to only these twelve below technical requirements:

1. The proposed instrument shall meet the physical constraint requirements of 24 inches H x 27.5 inches D x 36 inches wide.

2. The proposed instrument shall perform satisfactorily at any laboratory temperature between 50 and 90 degrees Fahrenheit, and between 10 and 32 degrees Celsius.

3. The stainer shall have a slide capacity for a minimum of forty-eight (48) slides.

4. All reagents shall be barcoded.

5. The proposed instrument shall provide expiration tracking date for all reagents.

6. The proposed instrument shall provide all twenty-eight (28) stains listed on pages one and two in the table in the SOW.

7. The proposed instrument shall have a reagent capacity for fifty (50) reagent packs.

8. The proposed instrument shall have the capability to perform up to fourteen (14) different stain protocols concurrently.

9. The proposed instrument shall require a minimal amount of maintenance which is defined as less than forty-five (45) minutes per workday.

10. The proposed system shall fully automate the staining process which includes drying, cleaning, and staining.

11. The proposed instrument shall provide waste segregation of solvents, acids, and hazardous chemicals from aqueous waste.

12. All stain kits and reagents shall have an expiration date of six (6) months or longer.

Technical Capabilities responses must be addressed on separate documents and the responses must include specific details on how Offerors will meet each of these twelve technical requirements that will be evaluated by the Buffalo Laboratory. A simple yes answer is not an acceptable response as to how Offerors will meet or exceed a technical requirement. Offerors must provide specific details to answer all twelve technical factors. Product Literature may be submitted; however product literature may not be used as a substitute for providing specific details to answer all twelve technical factors.

FACTOR II - Past Performance: Offerors shall provide a minimum of three (3) references of current contracts or contracts within the past three years of similar size, scope, or complexity. References may include Federal, State, and Local Government, as well as private customers. At a minimum, references shall include the below required information identified in i through iii:

i. Name and Address of the Contracting Activity: Medical Center or Company.

ii. Name, Telephone Number, and Email Address of the Point of Contact (Contracting Officer, Lab Contracting Officer Representative, or Lab Manager) who would have firsthand knowledge of the contract performance.

iii. Contract Number and the Contract Period of Performance Beginning and Ending Dates.

Past performance information is one indicator on the ability to perform a contract successfully. The Government shall assess how well the Offeror provided service to other customers in the past. Generally, the Government shall rely upon the information provided by the Offeror. The Government shall consider this information as well as information obtained from any other sources, when evaluating the Offerors past performance.

The Past Performance Factor evaluation will assess the relevance and breadth of the Offerors experience and the quality of the Offerors past performance. The Government is seeking to determine whether the Offeror has experience that will enhance its technical capability to perform, and whether the Offeror consistently delivers quality products and services in a timely and cost effective manner. In evaluating past performance, the Government will only take into consideration the relevant experience from the Offerors customers.

Information obtained from Offerors through the PPIRS database and any other sources deemed appropriate, will be used by the Government in conducting past performance evaluations. The Government will analyze the historical facts of the Offerors past performance made by its customers, make qualitative judgements about the facts and observations, and assign an overall adjectival rating for the Offerors past performance.

Offerors with no relevant past performance history shall not be evaluated favorably or unfavorably on past performance. Offerors may provide information on problems encountered on identified contracts and the Offerors corrective action. The Government shall determine the relevance of similar past performance information that an Offeror provides.

Factor III - Price: Offerors Cost per Slide Open Market pricing is to be inclusive of all necessary and appropriate labor, materials, equipment, consumables, reagents, and supplies to provide Special Stainer Cost Per Slide pricing in accordance with the terms, conditions, specifications, and requirements listed in the SOW. If there are separate additional charges for consumables, kits, reagents, supplies, etc. they must be included on a spreadsheet with the unit price for each of these items. If there are any charges associated with the implementation and validation process, these charges shall be listed on a separate document. All pricing charges shall be included with your proposal documents without any exceptions.

Pricing will be evaluated for the entire contract period. No adjectival rating score will be applied to the price evaluation. Price analysis of the Offerors price will be conducted in accordance with FAR 13.106-2 Evaluation of quotations or offers. The Government shall not pay any costs incurred in preparation and submission of an Offerors proposal.

The Government may award to an Offeror whose proposal is sufficiently more advantageous than lower priced proposals as to justify payment of the higher price. Offerors are advised to address each of the Technical Factors in writing by providing specific and thorough details. An Offeror whose proposal does not address the Technical Factors identified in the SOW, will not have their proposal be evaluated, and their proposal will not be considered eligible for contract award.

Relative Order of Importance of Factors: Each proposal shall be evaluated with respect to Price, Past Performance, and Technical Approach and Capabilities. Factors shall establish an overall merit. The factors are listed in order of importance: Technical Approach and Capabilities, Past Performance, and Price.

TECHNICAL APPROACH AND CAPABILITIES AND PAST PERFORMANCE WHEN COMBINED, ARE SIGNIFICANTLY MORE IMPORTANT THAN PRICE.

Evaluation Ratings: Proposals will be rated using adjectival ratings against each of the evaluation factors set forth in this solicitation. Ratings for Factor I, Technical Approach and Capabilities are below under Table 1. Ratings for Sub Factors 1 - 12 are below under Table 2. Ratings for Factor II, Past Performance are below under Table 3.

i. The below ratings will be used for the evaluation of Overall Technical Approach and Capabilities:

Table 1

ii. The below ratings will be used for the evaluation of Sub Factors 1 through 12 as identified above in Factor I:

Table 2

iii. The below ratings will be used for the evaluation of Past Performance:

Table 3

C.1 52.212-4 CONTRACT TERMS AND CONDITIONS—COMMERCIAL ITEMS (OCT 2018)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights—

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(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 agreement 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. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable 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 contract.

(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, including 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) Payment.—

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) 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.

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

(4) 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 which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or 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 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) Interest.

(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, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed 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 within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand 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 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 Acquisition Regulation in effect on the date of this contract.

(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) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments

(9) The specification.

(t) [Reserved]

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and…