36C26018Q9746-001.docx

36C26018Q9746

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 SI

GN 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. SIGN

ATURE 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

36C26018Q9746 08-24-2018 Darlene Anderson 253-888-4905 08-23-2019 12:00am Pacific Department of Veterans Affairs Network Contracting Office 20 1495 Wilmington Drive Suite 360 Dupont WA 98327 X 623110 $27.5 Million Net 30 days X N/A X Department of Veterans Affairs Veterans Integrated Services Network 20 Washington, Oregon, Idaho & Alaska

Department of Veterans Affairs Network Contracting Office 20 1495 Wilmington Drive Suite 360 Dupont WA 98327

Department of Veterans Affairs

FMS-VA-2(101)

Financial Services Center PO Box 149971 Austin TX 78714-9971 866-372-5540 See CONTINUATION Page This is an open and continuous solicitation for Community Nursing Home Services within Veterans Integrated Service Network 20 (VISN 20), incorporating the states of Washington, Oregon, Idaho, and Alaska. Multiple Basic Ordering Agreements (BOA) are anticipated to be awarded against this Request for Quotes, as requ ired in response to Veteran Healthcare Administration social workers acting on behalf of qualified Veterans seeking this care.

Specific locations of services and the applicable periods of performance will be stated in the individual BOAs for these services. BOA periods of performance will be for a total of five (5) years with no incorporated option periods.

Interested parties should note the instructions for submitting a quote in the Basis of Award section of this solicitation, page 46.

$0.00 See CONTINUATION Page X X X one(1) Darlene Anderson

NCO2015L3-2479

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:

b. GOVERNMENT:

Contracting Officer 36C260 Department of Veterans Affairs Network Contracting Office 20 1495 Wilmington Drive Suite 360 Dupont WA 98327

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 mailed to the following address: (To be specified at time of award)

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

B.2 RATE DETERMINATION

B.4.1. The per diem rate is established by the current Medicaid rate for Medicaid approved nursing homes plus a fair market amount (percentage) to cover the cost of supplies, services, and equipment above that provided under Medicaid established by the local state Medicaid agency (SMA). Rates established after the effective date of this contract will constitute a modification to the contract.

B.4.2. VA will use Medicaid rates for room, board, and routine nursing care.

B.4.3. For all levels of nursing care a percentage is added for routine ancillary services/supplies, such as drugs, nursing supplies, oxygen (occasional use), x-ray, laboratory, physician visits, mental health services, complex wound care, and rental equipment.

B.4.4. Special equipment, e.g. clinitron bed, isare not considered routine ancillary services (and may be provided by the VA).

B.4.5. Drug costs which comprise more than eight and one-half percent (8.5%) of the per diem rate are generally not considered routine ancillary supplies (and may be provided by the VA).

B.4.6. Rehabilitation therapies will be provided as a distinct level of care. Hospice Care and Dialysis are not included in the rate. VA or other payers may be used for Hospice and Dialysis, as determined by the veteran with VA approval.

B.3 ORAL MEDICATIONS

Oral medications, which comprise more than 8.5% of the per diem rate on a monthly basis, are excluded from that rate. High drug costs will be determined or priced using the Average Wholesale Price (AWP) of the drugs plus a transaction fee of 3% per month. All calculations will be made on a monthly basis. When a high cost drug patient is identified, VA staff must be advised promptly to establish an appropriate course of action, which may include the provision of the medications by VA.

B.4 ITEMIZED PRICE LIST FOR RUG IV SERVICES

RUG-IV CLASSIFICATION & HIERARCHY

Rehabilitation Plus Extensive Services 2

Rehabilitation Plus Extensive Services 1

RUX, RUL

RVX, RVL

RHX, RHL

RMX, RML

RLX

Residents receiving physical speech or occupational therapy AND receiving IV feeding or medications, suctioning, tracheostomy care, or ventilator/ respirator

RHA, RHB RHC, RMA RMB, RMC RLA, RLB

ES3

Residents receiving complex clinical care or with complex clinical needs such as IV feeding or medications, suctioning, tracheostomy care, ventilator/respirator and co-morbidities that the resident eligible for other RUG categories

HD1, HD2

HC1, HC2

HB1, HB2

LE1, LE2

LD1, LD2

LC1, LC2

LB1, LB2

CD1, CD2

CC1, CC2

CB1, CB2

CA1, CA2

BA1, BA2

PB1, PB2

PC1, PC2

PD1, PD2

PE1, PE2

B.5 PERFORMANCE WORK STATEMENT (PWS)

B.5.1. The nursing home shall ensure that care meets the health needs and promotes the maximum well-being of VA patients. Nursing home care will be furnished to ensure the total medical, nursing, and psycho-social needs of VA beneficiaries. Physician visits, mental health services, complex wound care, laboratory, x-ray, and other special services for VA patients will be at the same frequency as that provided to other patients at the nursing home receiving the same or comparable level of care. In addition, the care provided will include room, meals, nursing care, and other services or supplies commensurate with the VA authorized level of care, without extra charge. The per diem rate(s) established in this Basic Ordering Agreement (BOA) will include the cost of medical care, mental health services, complex wound care, drugs, laboratory, x ray, and other special services authorized by VA, unless otherwise specifically excepted.

B.5.2. Full attention shall be given to motivating and educating patients to achieve and maintain independence in the activities of daily living, to the maximum extent possible. Every effort shall be made to keep patients ambulatory and to achieve an optimal level of self-care.

B.5.3. Veterans receiving care under this BOA, who begin to require acute hospital care, will be readmitted to an appropriate VA facility, as determined and authorized by the VA. When such admission is not feasible because of the nature of the emergency, it is agreed that hospitalization in a non-Federal facility may be accomplished provided VA authorization is obtained. VA authorization must be obtained as soon as possible and not to exceed 72 hours of admission to the non-Federal facility. If hospitalization of a non-emergency nature is required, it is agreed that readmission to a VA facility will be accomplished as soon as the patient's condition is sufficiently stabilized to permit admission to VA. If a veteran is re-hospitalized from the nursing home, the nursing home and VA facility will arrange to hold a bed in reserve, when such a decision is in the best interest of the patient and the VA. The number of covered bed hold days will be determined by VA on a case-by-case basis, but will not exceed the number of bed hold days allowed by state Medicaid regulations. Payment will follow state Medicaid regulations. The VA facility will include payment for these "bed hold" days only when the conditions above are met.

B.5.4. The VA facility will approve leave days (days away from the nursing home) for long-term placements. The leave must be part of a therapeutic plan and approved by VA. Leave days at VA expense are limited to 6 days per calendar year. Payment will follow state Medicaid regulations.

Exceptions may be approved by the VA facility director or designee.

B.5.5. Patients receiving care under this BOA, who begin to require more than the level of care authorized by VA, will be readmitted to an appropriate VA facility, as determined and authorized by VA. When such admission is not feasible because of the nature of the emergency, it is agreed that hospitalization in a non-Federal facility may be accomplished provided VA authorization is obtained. VA authorization must be obtained within 72 hours of admission of the patient to a non-Federal facility. If hospitalization of a non-emergency nature is required, it is agreed that readmission to a VA Medical Center will be accomplished as soon as the patient's condition is sufficiently stabilized to permit admission to VA. Notice of all reportable events on VA BOA veterans and all facility sentinel events shall be given within 24 hours or immediately on the first business day after a weekend or holiday.

B.5.6. In the event a VA beneficiary receiving nursing home care under this BOA dies, the nursing home will notify the VA office authorizing admission within 24 hours, or immediately on the first business day after a weekend or a holiday. The nursing home shall immediately assemble, inventory, and safeguard the patient's personal effects pending further guidance by VA.

B.5.7. It is agreed that VA will have the right to on-site reviews of the nursing home and all appurtenances by authorized VA representative(s) to ensure that acceptable standards are maintained and that the necessary care to maintain the well-being of the patient is rendered. The contractor shall adhere to the Acceptable Quality Levels as described in the Quality Assurance Surveillance Plan (QASP) in Section D.1 of this BOA.

B.5.8. The nursing home shall accept referral of and shall provide all services specified in this BOA for any person determined eligible by the VA Under Secretary for Health or his/her designee, regardless of the race, color, religion, sex, or national origin of the person for whom such services are ordered. In addition, the nursing home warrants that subcontracting will not be resorted to as a means of circumventing this provision.

B.5.9. It is agreed that duly authorized representatives of VA will provide follow up supervision visits to veterans placed to assure the continuity of care and to assist in the veteran's transition back to the community. It is understood that these visits do not substitute for nor relieve the nursing home in any way of the responsibility for the daily care and medical treatment of the veteran.

B.5.10. All medical records concerning the veteran's care in the nursing home will be readily accessible to the VA. If the nursing facility has an electronic charting system, remote access to VA patient records shall be granted to VA clinical staff. Upon discharge or death of the patient, medical records will be retained by the nursing home for a period of at least three years following termination of care. Patient records will be maintained in conformance with the Privacy Act of 1974 (5 U.S.C. 552a). A medical record shall be maintained for each patient that includes at least the following:

Admission identification record;

VA Form 10-7078, Referral for Community Nursing Home Care, or State-approved referral form;

Admitting evaluation (including diagnosis by nursing home physician);

Physician orders;

Progress notes. The physician orders/notes shall be charted immediately after patient is seen;

Special reports (laboratory, x ray, activity, etc.); and SMA Patient Assessment Form (only if SMA level of care is used).

Minimum Data Set (MDS) information, provided to VA upon admission and every six months thereafter.

B.5.11. The beneficiary will be provided nursing home care at the expense of VA for a period not in excess of that stated in the referral form, unless an \ extension of the authorization is provided in writing by the placing VA facility.

B.5.12. The authorization agreement, VA Form 10 7078, for the affected patient will terminate whenever a VA patient is re-hospitalized for 15 calendar days or more, whether in a VA or in a non-Federal facility.

A new authorization agreement will be required at the time the patient returns.

B.5.13. Level of Care Classification Effective Records: The level of care classification and associated per diem rate will remain in effect for each placement until and unless one of the following events takes place:

B.5.14. The recipient is discharged and subsequently qualifies for a new admission assessment.

B.5.15. The nursing home submits an assessment requesting a change in the level of care classification and VA approves it. Classification changes may also occur based on a determination by VA. The VA will make the determination whether classification changes require readmission to VA.

B.5.16. The VA, at its sole option, will monitor the professional care and administrative management of services provided to VA beneficiaries under this BOA, through one or any combination of the following methods: reviews of state agencies reports, on-site review of the Nursing Home by VA staff, and/or on-site monitoring of VA patients. It is agreed that the Nursing Home shall provide VA with copies of all state agency reports when requested, and cooperate fully with VA's quality improvement-quality assurance program functions relating to this BOA, including VA's on-site review and monitoring. The VA contracting Officer shall make all final determinations as to the contractor's reasonable cooperation with VA and compliance with these requirements. It is understood that certain internal quality indicator/quality assurance information is not available for VA review. Current quality measure and current individual MDS information will be made available as follows:

Reviews of state agencies reports;

On-site review of the Nursing Home by VA staff; and On-site monitoring of VA patients.

B.5.17. The nursing home shall alert the VA within 24 hours in the event of any of the following situations:

The Veteran is discharged from the nursing home facility;

The Veteran goes to an emergency room or is otherwise hospitalized;

The Veteran dies in the nursing home facility; or The Veteran is involved in a mandated referral situation.

B.6 ACCEPTABLE SAFETY AND SANITATION PRACTICES

B.6.1. Acceptable safety and sanitation practices shall be observed throughout the facility. The building shall conform to the standards of the Life Safety Code (National Fire Protection Association Standard #101) in effect on the date of the signed BOA.

B.6.2. The State Fire Marshal Report will be reviewed annually prior to the anniversary of the effective date of the BOA and if necessary a modification may be issued.

B.7 MEDICARE/MEDICAID STANDARDS

The contractor is required to follow Medicare/Medicaid standards for all VA placements, except Life Safety. Medicare and Medicaid clinical and program standards are found in 42 CFR 483.

B.8 ECONOMIC PRICE ADJUSTMENT

B.8.1. The contractor shall comply with the language at VA Acquisition Clause 852.216- 73, Economic Price Adjustment – State Nursing Home Care for Veterans (MAR 2018), when requesting an adjustment of rates under this Basic Ordering Agreement.

B.8.2. Any Economic Price Adjustment requested by the contractor must be made effective by issuance of a bilateral modification signed by both the contractor and the contracting officer.

B.9 TERMINATION OF SERVICES

VA reserves the right to remove any or all VA patients from the nursing home at any time, when it is determined to be in the best interest of VA or the patients.

B.10 PAYMENTS

Payments made by VA under this BOA, constitute the total cost of nursing home care. No additional charges will be billed to Medicare Part B, the beneficiary or his/her family, either by the nursing home or any third party furnishing services or supplies required for such care, unless and until specific prior authorization in writing is obtained from the VA facility authorizing placement. The contractor will not solicit contributions, donations, or gifts from patients or family members. The contractor agrees to invoice in a timely and accurate manner in accordance with the instructions in Section B.1., paragraph 4 of this BOA.

B.11 MINIMUM QUANTITIES

It is impossible to determine the exact or estimated amount which will be expended under this BOA. No obligation will be incurred by VA under this BOA until authorizations are issued for nursing home care of specific beneficiaries. VA agrees to make payment on a timely basis for services rendered in accordance with such authorizations upon receipt of proper invoices submitted by the nursing home as outlined in Section B.1 of this BOA. VA will make payment for the day a recipient enters the facility but not the day the recipient leaves a facility unless entrance and departure are on the same day then payment will be made for one day.

B.12 VHA HANDBOOK 1143.2 ELIGIBILITY REQUIREMENTS

VHA Handbook 1143.2 lists the basic requirements that a nursing home facility/organization must comply with in order to be considered for award of a BOA to provide community nursing home services for Veterans. It is emphasized that such BOAs will only be awarded if the facility/ organization demonstrates that they comply with all the requirements below, and it is determined by the Department of Veterans Affairs that a nursing home BOA is desired to be awarded to a particular facility/organization based upon actual or probable need.

B.12.1 INITIAL REVIEW OF CONTRACT NURSING HOMES:

B.12.1.1. CNHs are considered for VA CNH’s Program, when the VA Health Care Facility (VAHCF) has determined that a need exists for additional CNH options. In cases where this need has been confirmed, a nursing home requesting to participate in the CNH Program is mailed, a VA Form 10-1170, Contract Award for Furnishing Nursing Home Services to Beneficiaries of the Veterans Administration, and a descriptive cover letter by the Contracting Officer.

B.12.1.2. The Contracting Officer notifies the CNH Review Team of the nursing home’s intent. An evaluation must be planned by the CNH Review Team.

B.12.1.3. A contract can only be established between a CNH and one (1) VAHCF. Generally, the contract exists between the CNH and the VAHCF which has cognizance for that geographic location.

B.12.1.3. Nursing homes are reviewed prior to consummation of an initial contract with VA. The CNH provides evidence of State licensure and limited additional information listed in B.14.1.7., below.

B.12.1.4. All NHs under VA contract must be certified under Title XVIII (Medicare) or Title XIX (Medicaid) or have received special approval from the GEC SHG. For CNH document review purposes, the NH Compare system and the MDS-based Quality Indicator (QI) Profile provide nursing home-specific information on quality and management.

B.12.1.5. Community nursing homes are required to meet all state licensing requirements including the state requirements pertaining to level of medical liability insurance (MLI). When CNH’s with existing contracts have documented efforts to purchase MLI, but have been denied by reason of a moratorium on new policies, or by price prohibitions, VA contracts may be renewed if the CNH meets all other contract care provisions. However, VA will not establish new contracts with non-participating CNH’s that do not have the level of MLI required by the state.

B.12.1.6. The CNH Review Team must obtain and must analyze the Compare and MDS QI Profile data, and all other necessary state survey reports and information. This may include a copy of the most recent State Survey Agency (SSA) Form 2567, Statement of Deficiencies and Plan of Correction, and any complaints against a CNH that are reported to the State. NH Compare information is available on-line: http://www.medicare.gov/nhcompare/home.asp. A copy of SSA Form 2567 may be requested from the State or the nursing home being reviewed. A copy of the most recent MDS QI Profile will be requested from the nursing home being reviewed. This profile includes all quality indicators reported through MDS to CMS with facility, State, and national percentages.

B.12.1.7. When the CNH Review Team’s document examination indicates that the nursing home is in either substantial compliance or that deficiencies have been corrected, an informational visit is made to the home by a VA representative designated by the CNH Review Team. This visit is designed to meet the leadership of the nursing home, to learn about the nursing home’s special programs, and to determine how the nursing home can best meet veterans’ needs.

B.12.1.8. When the CNH Review Team’s document examination indicates deficiencies of scope, severity, or number that prevent the CNH from meeting the standards for initial and annual CNH reviews as detailed in VHA Handbook 1143.2, paragraph 11c, and the plan of correction does not adequately answer these deficiencies, the CNH Review Team either conducts an on-site survey, or recommends that the contract not be initiated. This action is taken after consultation with the SSA in order to ensure that a VA site visit is necessary. The team members must include a registered nurse, social worker, plus other disciplines, as appropriate, to evaluate the specific areas of non-compliance.

B.12.1.8. For all contracts, a Safety Officer must always conduct an initial site survey. The nursing home is required to be in compliance with the most recent edition of the Life Safety Code (LSC). All new homes entering the CNH Program must be fully sprinkled. This affects homes new to the CNH Program; not contract renewals.

B.12.1.5. Based on the preceding evaluation process, the CNH Review Team through the CNH Coordinator, makes recommendations to the Contracting Officer on the disposition of the application.

B.12.2. ANNUAL REVIEW OF CNHs:

B.12.2.1. Once a CNH has a VA BOA, the review process is completed and documented every 12 months, and no more than 90 days prior to expiration of the BOA. If a BOA is canceled and renegotiated during the year for the purpose of establishing a new per diem rate or for an ownership change, it is not necessary to conduct another review as long as the review has been conducted within the required 12-month time limit.

B.12.2.2. The CNH team repeats the process described in B.14.1 above for annual reviews. In addition, the team must review the findings of the ongoing monitoring visits to the nursing home. NOTE: Triennial site surveys for LSC compliance will be conducted, unless otherwise indicated by the review process.

B.12.2.3. The CNH Review Team must document the findings and recommendations on each review and follow-up review conducted.

B.12.2.4. Based on the preceding review processes, the CNH Review Team through the CNH Coordinator, makes recommendations to the Contracting Officer on the disposition of the contract renewal.

B.12.2.5. The CNH Review Team, through the CNH Oversight Committees, provides documentation on its findings and the CNH disposition or the Certification Report. Reports will be made on the CNH Website, when it becomes available and updated quarterly. This certification includes the dates each CNH was reviewed, how the reviews were conducted, if on-site surveys by the CNH Review Team were necessary, if consultation with the SSA was obtained, and other pertinent information and recommendations. A program monitor, examining the overall quality of CNHs under contract, will be drawn from the website data set.

Interested parties may view the entire text of VHA Handbook 1143.2, VHA Community Nursing Home Oversight Procedures, at the following link:

https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=5440

36C26018Q9746

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SECTION C - CONTRACT CLAUSES

C.1 52.203-17 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (APR 2014)

(a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies in the pilot program on Contractor employee whistleblower protections established at 41 U.S.C. 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112–239) and FAR 3.908.

(b) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. 4712, as described in section 3.908 of the Federal Acquisition Regulation.

(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts over the simplified acquisition threshold.

(End of Clause)

C.2 52.204-4 PRINTED OR COPIED DOUBLE-SIDED ON RECYCLED PAPER (MAY 2011)

(a) Definitions. As used in this clause— "Postconsumer fiber" means— (1) Paper, paperboard, and fibrous materials from retail stores, office buildings, homes, and so forth, after they have passed through their end-usage as a consumer item, including: used corrugated boxes; old newspapers; old magazines; mixed waste paper; tabulating cards; and used cordage; or

(2) All paper, paperboard, and fibrous materials that enter and are collected from municipal solid waste; but not

(3) Fiber derived from printers' over-runs, converters' scrap, and over-issue publications.

(b) The Contractor is required to submit paper documents, such as offers, letters, or reports that are printed or copied double-sided on paper containing at least 30 percent postconsumer fiber, whenever practicable, when not using electronic commerce methods to submit information or data to the Government.

(End of Clause)

C.3 52.212-4 CONTRACT TERMS AND CONDITIONS—COMMERCIAL ITEMS (JAN 2017)

(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) System for Award Management (SAM).

(1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government's reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the SAM database to ensure it is current, accurate and complete. Updating information in the SAM does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

(2)(i) If a Contractor has legally changed its business name, "doing business as" name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in FAR subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day's written notification of its intention to (A) change the name in the SAM database; (B) comply with the requirements of subpart 42.12; and (C) agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the SAM information that shows the Contractor to be other than the Contractor indicated in the contract will be considered to be incorrect information within the meaning of the "Suspension of Payment" paragraph of the electronic funds transfer (EFT) clause of this contract.

(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the SAM database. Information provided to the Contractor's SAM record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the "Suspension of payment" paragraph of the EFT clause of this contract.

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via SAM accessed through https://www.acquisition.gov.

(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 specifically authorized under applicable agency regulations and procedures.

(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management…