52.212-5 FAC 2023-06 eff 11-06-2023.pdf

52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive

Orders--Commercial Products and Commercial Services (NOV 2023)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or

Executive orders applicable to acquisitions of commercial products and commercial services:

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or

Statements (JAN 2017) (section 743 of Division E. Title VII, of the Consolidated and

Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services

Developed or Provided by Kapersky Lab and Other Covered Entities (NOV 2021) (Section 1634 of Pub. L. 115-91).

(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video

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

(4) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (NOV

2015).

(5) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (Mar

2023) ( 31 U.S.C. 3903 and 10 U.S.C. 3801).

(6) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(7) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws

108-77 and 108-78) (19 U.S.C. 3805 note)).

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the

Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial products and commercial services:

[Contracting Officer check as appropriate.]

[ ] (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (JUN 2020), with

Alternate I (NOV 2021) (41 U.S.C. 4704 and 10 U.S.C. 4655).

[ ] (2) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021) (41

U.S.C. 3509)).

[ ] (3) 52.203-15, Whistleblower Protections under the American Recovery and

Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

[ ] (4) 52.203-17, Contractor Employee Whistleblower Rights (Nov 2023) ( 41 U.S.C.

4712); this clause does not apply to contracts of DoD, NASA, the Coast Guard, or applicable elements of the intelligence community—see FAR 3.900(a).

[ X ] (5) 52.204-10, Reporting Executive Compensation & First-Tier Subcontract Awards

(JUN 2020) (Pub. L. 109-282) (31 U.S.C. 6101 note).

[ ] (6) [Reserved].

[ ] (7) 52.204-14, Service Contract Reporting Requirements (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).

[ ] (8) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery

Contracts (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).

[ X ] (9) 52.204-27, Prohibition on a ByteDance Covered Application (JUN 2023) (Section

102 of Division R of Pub L. 117-328).

[ X ] (10) 52.209-6, Protecting the Government’s Interest When Subcontracting with

Contractors Debarred, Suspended, or Proposed for Debarment (NOV 2021) (31 U.S.C. 6101 note).

[ X ] (11) 52.209-9, Updates of Publicly Available Information Regarding Responsibility

Matters (OCT 2018) (41 U.S.C. 2313).

[ ] (12) [Reserved].

[ ] (13) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (OCT 2022) (15

U.S.C. 657a).

[ ] (14) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business

Concerns (OCT 2022) (if the offeror elects to waive the preference, it shall so indicate in its offer)

(15 U.S.C. 657a).

[ ] (15) [Reserved]

][ X ] (16)(i) 52.219-6, Notice of Total Small Business Set-Aside (NOV 2020) (15 U.S.C.

644).

[ ] (ii) Alternate I (MAR 2020) of 52.219-6.

[ ] (17)(i) 52.219-7, Notice of Partial Small Business Set-Aside (NOV 2020) (15 U.S.C.

644).

[ ] (ii) Alternate I (MAR 2020) of 52.219-7.

[ ] (18) 52.219-8, Utilization of Small Business Concerns (SEP 2023) (15 U.S.C. 637(d)(2) and (3)).

[ ] (19)(i) 52.219-9, Small Business Subcontracting Plan (SEP 2023) (15 U.S.C.

637(d)(4)).

[ ] (ii) Alternate I (NOV 2016) of 52.219-9.

[ ] (iii) Alternate II (NOV 2016) of 52.219-9.

[ ] (iv) Alternate III (JUN 2020) of 52.219-9.

[ ] (v) Alternate IV (SEP 2023) of 52.219-9.

[ ] (20)(i) 52.219-13, Notice of Set-Aside of Orders (MAR 2020) (15 U.S.C. 644(r)).

[ ] (ii) Alternate I (MAR 2020) of 52.219-13

[ ] (21) 52.219-14, Limitations on Subcontracting (OCT 2022) (15 U.S.C. 637s). ((a)

[ ] (22) 52.219-16, Liquidated Damages—Subcontracting Plan (SEP 2021) (15 U.S.C.

637(d)(4)(F)(i)).

[ ] (23) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside

(OCT 2022) (15 U.S.C. 657f).

[ ] (24) (i) 52.219-28, Post Award Small Business Program Rerepresentation (SEP 2023)

(15 U.S.C. 632(a)(2)).

[ ] (ii) Alternate I (MAR 2020) of 52.219-

[ ] (25) 52.219-29, Notice of Set-Aside for, or Sole Source Award to, Economically

Disadvantaged Women-Owned Small Business Concerns (OCT 2022) (15 U.S.C. 637(m))

[ ] (26) 52.219-30, Notice of Set-Aside for, or Sole Source Award to, Women-Owned

Small Business Concerns Eligible Under the Women-Owned Small Business Program (OCT

2022) (15 U.S.C. 637(m))

[X ] (27) 52.219-32, Orders Issued Directly Under Small Business Reserves (MAR 2020)

(15 U.S.C. 644(r)).

[ X ] (28) 52.219-33, Nonmanufacturer Rule (SEP 2021) (15 U.S.C. 637(a)(17)).

[ ] (29) 52.222-3, Convict Labor (JUN 2003) (E.O. 11755).

[ X ] (30) 52.222-19, Child Labor--Cooperation with Authorities and Remedies (DEC

2022) (E.O. 13126).

[ ] (31) 52.222-21, Prohibition of Segregated Facilities (APR 2015).

[ ] (32)(i) 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).

[ ] (ii) Alternate I (FEB 1999) of 52.222-26.

[ X ] (33)(i) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 U.S.C. 4212).

[ ] (ii) Alternate I (JUL 2014) of 52.222-35

[ X ] (34) (i) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29

U.S.C. 793).

[ ] (ii) Alternate I (JUL 2014) of 52.222-36

[ ] (35) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212).

[ ] (36) 52.222-40, Notification of Employee Rights Under the National Labor Relations

Act (DEC 2010) (E.O. 13496)

[ X ] (37)(i) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C. chapter

78 and E.O. 13627).

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

[ X ] (38) 52.222-54, Employment Eligibility Verification (MAY 2022). (Executive Order

12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial products or commercial services as prescribed in FAR 22.1803.)

[ ] (39)(i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-

Designated Products (MAY 2008) (42 U.S.C. 6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

[ ] (ii) Alternate I (MAY 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

[ ] (40) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential

Hydrofluorocarbons (JUN 2016) (E.O. 13693).

[ ] (41) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (JUN 2016) (E.O. 13693).

[ ] (42)(i) 52.223-13, Acquisition of EPEAT®-Registered Imaging Equipment (JUN 2014)

(E.O. 13423 and 13514).

[ ] (ii) Alternate I (OCT 2015) of 52.223-13.

[ ] (43)(i) 52.223-14, Acquisition of EPEAT®-Registered Televisions (JUN 2014) (E.O.

13423 and 13514).

[ ] (ii) Alternate I (JUN 2014) of 52.223-14

[ ] (44) 52.223-15, Energy Efficiency in Energy-Consuming Products (MAY 2020) (42

U.S.C. 8259b).

[ ] (45)(i) 52.223-16, Acquisition of EPEAT®-Registered Personal Computer Products

(OCT 2015) (E.O.s 13423 and 13514).

[ ] (ii) Alternate I (JUN 2014) of 52.223-16.

[ X ] (46) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging While

Driving (JUN 2020) (E.O. 13513)

[ ] (47) 52.223-20, Aerosols (JUN 2016) (E.O. 13693).

[ ] (48) 52.223-21, Foams (JUN 2016) (E.O. 13693).

[ ] (49)(i) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a

[ ] (ii) Alternate I (JAN 2017) of 52.224-3.

[ X ] (50)(i) 52.225-1, Buy American--Supplies (OCT 2022) (41 U.S.C. chapter 83).

[ ] (ii) Alternate I (OCT 2022) of 52.225-1.

[ ] (51)(i) 52.225-3, Buy American--Free Trade Agreements--Israeli Trade Act (DEC

2022) (19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, 19

U.S.C. chapter 29 (sections 4501-4732), Public Law 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-43.

[ ] (ii) Alternate I [Reserved].

[ ] (ii) Alternate II (DEC 2022) of 52.225-3.

[ ] (ii) Alternate III (JAN 2021) of 52.225-3.

[ ] (v) Alternate IV (OCT 2022) of 52.225-3

[ ] (52) 52.225-5, Trade Agreements (DEC 2022) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

[ X ] (53) 52.225-13, Restrictions on Certain Foreign Purchases (FEB 2021) (E.O’.s, proclamations and statutes administered by the Office of Foreign Assets Control of the

Department of the Treasury).

[ ] (54) 52.225-26, Contractors Performing Private Security Functions Outside the United

States (OCT 2016) (Section 862, as amended, of the National Defense Authorization Act for

Fiscal Year 2008; 10 U.S.C. Subtitle A, Part V, Subpart G Note)

[ ] (55) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (NOV 2007) (42

U.S.C. 5150)

[ ] (56) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area

(NOV 2007) (42 U.S.C. 5150)

[ ] (57) 52.229-12, Tax on Certain Foreign Procurements (FEB 2021)

[ ] (58) 52.232-29, Terms for Financing of Purchases of Commercial Products and

Commercial Services (NOV 2021) (41 U.S.C. 4505, 10 U.S.C. 3805).

[ ] (59) 52.232-30, Installment Payments for Commercial Products and Commercial

Services (NOV 2021) (41 U.S.C. 4505, 10 U.S.C. 3805.

[ X ] (60) 52.232-33, Payment by Electronic Funds Transfer - System for Award

Management (OCT 2018) (31 U.S.C. 3332).

[ ] (61) 52.232-34, Payment by Electronic Funds Transfer - Other than System for Award

Management (JUL 2013) (31 U.S.C. 3332).

[ ] (62) 52.232-36, Payment by Third Party (MAY 2014) (31 U.S.C. 3332).

[ ] (63) 52.239-1, Privacy or Security Safeguards (AUG 1996) (5 U.S.C. 552a).

[ X ] (64) 52.242-5, Payments to Small Business Subcontractors (JAN 2017) (15 U.S.C.

637(d)(13)).

[ ] (65)(i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels

(NOV 2021) (46 U.S.C. 55305 and 10 U.S.C. 2631).

[ ] (ii) Alternate I (APR 2003) of 52.247-64.

[ ] (iii) Alternate II (NOV 2021) of 52.247-64.

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial products and commercial services:

[Contracting Officer check as appropriate.]

[ ] (1) 52.222-41, Service Contract Labor Standards (AUG 2018) (41 U.S.C. chapter 67).

[ ] (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (MAY 2014) (29 U.S.C.

206 and 41 U.S.C. chapter 67).

[ ] (3) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards - Price

Adjustment (Multiple Year and Option Contracts) (AUG 2018) (29 U.S.C. 206 and 41 U.S.C.

chapter 67).

[ ] (4) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards - Price

Adjustment (MAY 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

[ ] (5) 52.222-51, Exemption from Application of the Service Contract Labor Standards to

Contracts for Maintenance, Calibration, or Repair of Certain Equipment - Requirements (MAY

2014) (41 U.S.C. chapter 67)

[ ] (6) 52.222-53, Exemption from Application of the Service Contract Labor Standards to

Contracts for Certain Services - Requirements (MAY 2014) (41 U.S.C. chapter 67).

[ ] (7) 52.222-55, Minimum Wages for Contractor Workers Under Executive Order 14026

(JAN 2022).

[ ] (8) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2022) (E.O.

13706).

[ ] (9) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (JUN 2020)

(42 U.S.C. 1792).

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

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

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

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor

Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the

Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

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

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

3509).

(ii) 52.203-17, Contractor Employee Whistleblower Rights (NOV 2023) (41 U.S.C.

4712)

(iii) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or

Statements (JAN 2017) (section 743 of Division E, Title VII, or the Consolidated and Further

Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(iv) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services

Developed or Provided by Kaspersky Lab and Other Covered Entities (NOV 2021) (Section

1634 of Pub. L. 115-91).

(v) 52.204-25, Prohibition on Contracting for Certain Telecommunication and Video

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

(vi) 52.204-27, Prohibition on a ByteDance Covered Application. (JUN 2023) (Section

102 of Division R of Pub L. 117-328).

(vii) 52.219-8, Utilization of Small Business Concerns (SEP 2023) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract

(except subcontracts to small business concerns) exceeds the applicable threshold specified in

FAR 19.702(a) on the date of subcontract award, the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

(viii) 52.222-21, Prohibition of Segregated Facilities (APR 2015)

(ix) 52.222-26, Equal Opportunity (SEP 2015) (E.O. 11246).

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

(xi) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29 U.S.C.

793).

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

(xiii) 52.222-40, Notification of Employee Rights Under the National Labor Relations

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

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

https://www.acquisition.gov/far/part-4#FAR_Subpart_4_7

(xv) (A) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C. chapter

78 and E.O. 13627).

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

(xvi) 52.222-51, Exemption from Application of the Service Contract Labor Standards to

Contracts for Maintenance, Calibration, or Repair of Certain Equipment – Requirements

(MAY 2014) (41 U.S.C. chapter 67).

(xvii) 52.222-53, Exemption from Application of the Service Contract Labor Standards to

Contracts for Certain Services – Requirements (MAY 2014) (41 U.S.C. chapter 67).

(xviii) 52.222-54, Employment Eligibility Verification (MAY 2022) (E.O. 12989).

(xix) 52.222-55, Minimum Wages for Contractor Workers Under Executive Order 14026

(JAN 2022).

(xx) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2022) (E.O. 13706).

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

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

(xxii) 52.225-26, Contractors Performing Private Security Functions Outside the United

States (OCT 2016) (Section 862, as amended, of the National Defense Authorization Act for

Fiscal Year 2008; 10 U.S.C. Subtitle A, Part V, Subpart G Note)

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

2020) (42 U.S.C. 1792). Flow down required in accordance with paragraph (e) of FAR clause 52.226-6.

(xxiv) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors

(Mar 2023) ( 31 U.S.C. 3903 and 10 U.S.C. 3801). Flow down required in accordance with paragraph (c) of 52.232-40.

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

2021) (46 U.S.C. 55305 and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-64.

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

(End of clause)

Alternate I (FEB 2000).

Alternate II (NOV 2023).

FAR 2.101 defines Micro-purchase as $10,000 and the Simplified Acquisition Threshold

(SAT) as $250,000. However, the Micro-Purchase Threshold for Services subject to Service

Contract Labor Standards is still $2,500 and Construction Labor Standards is $2,000.

NOTES:

1. Updated through FAC 2023-06 effective 11/06/2023

2. Updated through FAC 2023-05 effective 09/22/2023; VAAR and VAAR Update

2008-37 effective 7/28/2023 & Acquisition Policy Flash 23-15 effective 07/28/2023.

3. Updated thru FAC 2023-04 effective 06/02/2023; VAAR and VAAR Update 2008-

34 effective 12/21/2022 & Acquisition Policy Flash 23-06 effective 01/01/2023.

Added 52.204-27…In the Federal Register notice it says the following:

Applicability:

In solicitations issued on or after June 2, 2023; and

In solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date. The amendment of the solicitation must be accomplished by July 3, 2023.

• For existing indefinite-delivery contracts only, contracting officers shall modify them, in accordance with FAR 1.108(d)(3), to include the FAR clause at 52.204–27, Prohibition on a ByteDance Covered Application, by

July 3, 2023, to apply to future orders.

• If exercising an option or modifying an existing contract or task or delivery order to extend the period of performance, contracting officers shall include the clause. When exercising an option, agencies should consider modifying the existing contract to add the clause in a sufficient amount of time before exercising the option and to provide contractors with adequate time to comply with the clause.

1.

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