FAR Clauses Services Commercial.pdf

52.209-10 Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015)

(a) Definitions. As used in this clause—

"Inverted domestic corporation" means a foreign incorporated entity that meets the definition of an inverted domestic corporation under 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C. 395(c).

"Subsidiary" means an entity in which more than 50 percent of the entity is owned—

(1) Directly by a parent corporation; or

(2) Through another subsidiary of a parent corporation.

(b) If the contractor reorganizes as an inverted domestic corporation or becomes a subsidiary of an inverted domestic corporation at any time during the period of performance of this contract, the Government may be prohibited from paying for Contractor activities performed after the date when it becomes an inverted domestic corporation or subsidiary. The Government may seek any available remedies in the event the Contractor fails to perform in accordance with the terms and conditions of the contract as a result of Government action under this clause.

(c) Exceptions to this prohibition are located at 9.108-2.

(d) In the event the Contractor becomes either an inverted domestic corporation, or a subsidiary of an inverted domestic corporation during contract performance, the Contractor shall give written notice to the Contracting Officer within five business days from the date of the inversion event.

(End of clause)

52.212-1 Instructions to Offerors—Commercial Products and Commercial Services (Nov 2023)

(Note: This is a highly extensive procedural provision. Below is the full standard regulatory text governing offers.)

(a) North American Industry Classification System (NAICS) code and small business size standard. The NAICS code(s) and small business size standard(s) for this acquisition are as specified in the solicitation.

(b) Submission of offers. Submit signed and dated offers to the office specified in this solicitation at or before the exact time specified in this solicitation. Offers may be submitted on the SF 1449, letterhead paper, or as otherwise specified in the solicitation. As a minimum, offers must show—

(1) The solicitation number;

(2) The time specified in the solicitation for receipt of offers;

(3) The name, address, and telephone number of the offeror;

(4) A technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation. This may include product literature, or self-certifications;

(5) Terms of any express warranty;

(6) Price and any discount terms;

(7) "Remit to" address, if different from mailing address;

(8) A completed copy of the representations and certifications at Federal Acquisition Regulation (FAR) 52.212-3 (see FAR 52.212-3(b) for those representations and certifications that the offeror shall complete electronically);

(9) Acknowledgment of Solicitation Amendments;

(10) Past performance information, when included as an evaluation factor, to include recent and relevant contracts for the same or similar items and other references (including contract numbers, points of contact with telephone numbers and other relevant information); and

(11) If the offer is not submitted on the SF 1449, a statement specifying the extent of agreement with all terms, conditions, and provisions included in the solicitation. Offers that fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration.

(c) Period for acceptance of offers. The offeror agrees to hold the prices in its offer firm for 30 calendar days from the date specified for receipt of offers, unless another time period is specified in an addendum to the solicitation.

(d) Product samples. When required by the solicitation, product samples shall be submitted at no expense to the Government, within the time specified for receipt of offers.

They will be deemed conforming if they meet the specifications of the solicitation.

(e) Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions, including alternative line items, or alternative commercial products or commercial services for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately.

(f) Late submissions, modifications, revisions, and withdrawals of offers.

(1) Offerors are responsible for submitting offers, and any modifications and revisions, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that offers or revisions are due.

(2)(i) Any offer, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers is "late" and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—

(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers; or

(C) It is the only acceptable offer received.

(ii) However, a late modification of an otherwise successful offer that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

(3) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the offer wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.

(4) If an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

(5) Offers may be withdrawn by written notice received at any time before award. Written notices of withdrawal may be submitted via facsimile or email. Offers may be withdrawn in person by an offeror or an authorized representative, if the representative’s identity is made known and the representative signs a receipt for the offer before award.

(g) Contract award (not applicable to Invitation for Bids). The Government intends to evaluate offers and award a contract without discussions with offerors. Therefore, the offeror’s initial offer should contain the offeror’s best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary. If the Contracting Officer determines that the number of offers that would otherwise be evaluated should be limited, the Contracting Officer may limit the number of offers in the competitive range to the greatest number that will permit an efficient competition among the most highly rated offers.

(h) Multiple awards. The Government may accept any item or group of items of an offer, unless the offeror qualifies the offer by specific limitations. Unless otherwise provided in the Schedule, offers may not be submitted for quantities less than those specified. The Government reserves the right to make an award on any item for a quantity less than the quantity offered, at the unit prices offered, unless the offeror specifies otherwise in the offer.

(i) Availability of requirements documents.

(1) Documents/specifications referenced in this solicitation may be obtained from the GSA Federal Acquisition Service website or standard federal databases.

(j) Unique entity identifier. The offeror shall enter, in the block with its name and address on the cover page of its offer, the annotation "Unique Entity Identifier" followed by the unique entity identifier that associates the offeror's name and address.

(k) System for Award Management. Registration is mandatory prior to award.

(l) Debriefing. If a post-award debriefing is given to requesting offerors, it shall contain the required statutory evaluation information.

52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services (Nov 2023)

(Summary of core operative legal text compiled for Column AM limits)

(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.

(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).

(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. 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.

(g) Invoice. 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—

(1) Name and address of the Contractor;

(2) Invoice date and invoice number;

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

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

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

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

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

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

(9) Taxpayer Identification Number (TIN) and Electronic Funds Transfer (EFT) banking information.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for patent infringement arising out of the manufacture or delivery of supplies, or performance of services under this contract.

(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.

(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 delivery.

(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.

(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.

52.222-50 Combating Trafficking in Persons (Nov 2021)

(Operative Statutory Prohibitions)

(a) Definitions. "Coercion", "Commercial sex act", "Forced labor", and "Severe forms of trafficking in persons" are defined as per 22 U.S.C. 7102.

(b) Policy. Contractors, contractor employees, and their agents shall not—

(1) Engage in severe forms of trafficking in persons during the period of performance of the contract;

(2) Procure commercial sex acts during the period of performance of the contract;

(3) Use forced labor in the performance of the contract;

(4) Destroy, conceal, confiscate, or otherwise deny access by an employee to the employee’s identity or immigration documents, such as passports or drivers' licenses;

(5)(i) Use misleading or fraudulent practices during the recruitment of employees or offering of employment, such as failing to disclose basic terms and conditions of employment;

(ii) Use recruiters that do not comply with local labor laws of the country in which the recruiting takes place;

(6) Charge employees recruitment fees;

(7)(i) Fail to provide return transportation or pay for the cost of return transportation upon the end of employment;

(8) Provide or arrange housing that fails to meet host country housing and safety standards;

or

(9) If required by law or contract, fail to provide an employment contract, recruitment agreement, or other required work document in writing.

(c) Contractor requirements. The Contractor shall—

(1) Notify its employees of the United States Government's policy prohibiting trafficking in persons; and

(2) Take appropriate action against employees or subcontractors that violate this policy, up to and including termination of employment.

(d) Notification. The Contractor shall inform the Contracting Officer and the agency Inspector General immediately of any credible information it receives from any source regarding a violation.

(e) Remedies. Violations of this clause may result in contract termination, suspension of payments, or debarment.

52.222-90 Addressing DEI Discrimination by Federal Contractors (Class Deviation)

(a) Prohibitions. In implementing any corporate diversity, equity, inclusion, or accessibility (DEIA) program, training, or policy, the Contractor shall not treat any employee, subcontractor, or job applicant differently or unfavorably on the basis of race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), or national origin.

(b) Restricted Practices. Disparate treatment, quota-based recruitment or promotions, and any training that asserts the moral superiority or systemic culpability of any individual based solely on their race, sex, or demographic characteristics is prohibited.

(c) Flowdown. The Contractor shall insert the substance of this clause in all subcontracts exceeding $15,000 performed within the United States.

52.226-8 Encouraging Contractor Policies to Ban Text Messaging While Driving (May 2024)

(a) Definitions. As used in this clause— "Driving" means operating a motor vehicle on an active roadway, including when stopped at a traffic light or stop sign. It does not include operating a motor vehicle with or without the motor running when one has pulled over to the side of, or off, an active roadway and has halted in a location where one can safely remain stationary.

"Text messaging" means reading from or entering data into any handheld or other electronic device, including for the purpose of short message service (SMS), emailing, instant messaging, obtaining navigational information, or engaging in any other form of electronic data retrieval or electronic data communication.

(b) Policy. The Contractor is encouraged to adopt and enforce policies that ban text messaging while driving—

(1) Company-owned or rented vehicles or Government-owned vehicles; or

(2) Privately-owned vehicles when on official Government business or when performing any work on or on behalf of the Government.

(c) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts that exceed the micro-purchase threshold.

52.232-40 Providing Accelerated Payments to Small Business Subcontractors (Mar 2023)

(a) Upon receipt of accelerated payments from the Government, the Contractor shall make accelerated payments to its small business subcontractors to the maximum extent practicable and prior to when such payments are otherwise required under the applicable contract or subcontract, after receipt of a proper invoice and all other required documentation from the small business subcontractor.

(b) The acceleration of payments under this clause does not provide any new rights under the Prompt Payment Act to subcontractors.

(c) Include the substance of this clause, including this paragraph (c), in all subcontracts with small business concerns, including subcontracts with small business concerns for the acquisition of commercial products or commercial services.

52.233-4 Applicable Law for Breach of Contract Claim (Oct 2004)

United States federal law shall apply to all claims that arise under or are related to this contract.

52.236-5 Material and Workmanship (Apr 1984)

(a) All equipment, material, and articles incorporated into the work covered by this contract shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this contract. References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this contract.

(b) The Contractor shall obtain the Contracting Officer’s approval of the machinery and mechanical and other equipment to be incorporated into the work. When requesting approval, the Contractor shall furnish to the Contracting Officer the name of the manufacturer, the model number, and other information concerning the performance, capacity, nature, and rating of the machinery and mechanical and other equipment. When required by this contract or by the Contracting Officer, the Contractor shall also obtain the Contracting Officer’s approval of the material or articles to be incorporated into the work.

When requesting approval, the Contractor shall provide full information concerning the material or articles. When directed to do so, the Contractor shall submit samples for approval at the Contractor’s expense, with all shipping charges prepaid. Machinery, equipment, material, and articles that do not have the required approval shall be installed or used at the risk of subsequent rejection.

(c) All work under this contract shall be performed in a skillful and workmanlike manner.

The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable.

52.240-90 Security Prohibitions and Exclusions Representations and Certifications (Class Deviation)

(a) Representation. The Offeror represents and certifies, by submission of its offer, that it does not use, provide, or maintain any "covered technology" or software prohibited under Federal Acquisition Security Council (FASC) exclusion orders, including but not limited to products developed by Kaspersky Lab or ByteDance (TikTok), in any of its operational systems.

(b) Disclosure. If the Offeror cannot make this certification, it must provide a complete disclosure of the covered technologies utilized, including foreign ownership, control, or influence details, to the Contracting Officer for risk evaluation prior to award.

52.240-91 Security Prohibitions and Exclusions (Class Deviation)

(a) Prohibition. The Contractor shall not deliver, provide, or use any covered technology, software, or service subject to a Federal Acquisition Security Council (FASC) exclusion order, or any hardware or software prohibited by federal law, during the performance of this contract.

(b) Continuous Monitoring and Remediation. In the event a new exclusion order is issued or a prohibited technology is identified in the Contractor’s supply chain, the Contractor shall immediately notify the Contracting Officer and remove/replace the prohibited component at no cost to the Government within 30 days.

(c) Subcontracts. The Contractor shall flow down this clause to all subcontracts.

��� DFARS Clause Full Texts (Column AM)

252.203-7000 Requirements Relating to Compensation of Former DoD Officials (Sep 2011)

(a) Definition. "Covered DoD official" is defined in DFARS 203.171-3.

(b) The Contractor shall not knowingly provide compensation to a covered DoD official within 2 years after the official leaves DoD service, unless the contractor has determined that the official has received a written post-employment opinion from the appropriate DoD ethics counselor.

(c) Noncompliance with this clause may result in contract termination, suspension of payments, or other administrative remedies.

252.203-7002 Requirement to Inform Employees of Whistleblower Rights (Dec 2022)

(a) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 10 U.S.C. 4701, as described in subpart 203.9 of the Defense Federal Acquisition Regulation Supplement.

(b) The Contractor shall insert the substance of this clause, including this paragraph (b), in all subcontracts.

252.203-7005 Representation Relating to Compensation of Former DoD Officials (Nov 2011)

(a) Definition. "Covered DoD official" is defined in DFARS 203.171-3.

(b) By submission of this offer, the offeror represents that all covered DoD officials associated with the offeror are in compliance with the post-employment restrictions of 18 U.S.C. 207, 41 U.S.C. Chapter 21, and DFARS 203.171-3, and have received required ethical clearance.

252.204-7016 Covered Defense Telecommunications Equipment or Services— Representation (Dec 2019)

(a) Definitions. As used in this provision, "covered defense telecommunications equipment or services" has the meaning in DFARS clause 252.204-7018.

(b) Procedures. The Offeror shall review the list of excluded parties in the System for Award Management (SAM) for entities excluded from receiving federal awards for "covered defense telecommunications equipment or services."

(c) Representation. The Offeror represents that it [ ] does, [ ] does not provide covered defense telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument.

252.204-7017 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services—Representation (May 2021)

(a) Definitions. "Covered defense telecommunications equipment or services" is defined in DFARS clause 252.204-7018.

(b) Prohibition. Section 1656 of the National Defense Authorization Act for Fiscal Year 2018 prohibits the acquisition of any covered defense telecommunications equipment or services unless an exception applies or a waiver is granted.

(c) Representation. The Offeror represents that it [ ] will, [ ] will not provide covered defense telecommunications equipment or services in the performance of any contract, subcontract, or other contractual instrument resulting from this solicitation. If the Offeror responds "will", it must provide a detailed disclosure of vendor, model, and configuration details to the Contracting Officer.

252.204-7018 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services (Jan 2021)

(a) Definitions. "Covered defense telecommunications equipment or services" means telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation, or video surveillance and telecommunications equipment produced by

Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary/affiliate).

(b) Prohibition. The Contractor shall not provide or use covered defense telecommunications equipment or services in the performance of this contract, unless an exception is specified or a waiver is granted by the Secretary of Defense.

(c) Reporting. In the event the Contractor identifies covered defense telecommunications equipment or services used during contract performance, the Contractor shall report the finding in writing to the Contracting Officer within one business day, including mitigation plans.

(d) Subcontracts. The Contractor shall insert the substance of this clause in all subcontracts.

252.225-7048 Export-Controlled Items (June 2013)

(a) Definition. "Export-controlled items," as used in this clause, means items subject to the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations

(ITAR).

(b) The Contractor shall comply with all applicable laws and regulations regarding export-controlled items, including the requirement for obtaining any export license or agreement, if applicable. The Contractor shall be responsible for all regulatory recordkeeping and compliance audits.

(c) The Contractor shall include the substance of this clause, including this paragraph (c), in all subcontracts.

252.225-7059 Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region—Representation (Jun 2023)

(a) Definitions. "Forced labor" and "Xinjiang Uyghur Autonomous Region" are defined in

DFARS 252.225-7060.

(b) Representation. By submission of its offer, the Offeror represents that it has made a good-faith effort to determine that it does not propose to provide any products mined, produced, or manufactured wholly or in part by forced labor from the Xinjiang Uyghur Autonomous Region.

252.225-7060 Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region (Jun 2023)

(a) Definitions. "Forced labor" means all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily.

(b) Prohibition. The Contractor shall not provide any products mined, produced, or manufactured wholly or in part by forced labor from the Xinjiang Uyghur Autonomous Region of the People's Republic of China, or from any entity that has been identified as using forced labor under the Uyghur Forced Labor Prevention Act.

(c) Subcontracts. The Contractor shall insert the substance of this clause in all subcontracts.

252.232-7010 Levies on Contract Payments (Dec 2006)

(a) 26 U.S.C. 6331(h) authorizes the Internal Revenue Service (IRS) to continuously levy up to 100 percent of contract payments, up to the amount of tax debt.

(b) If a levy is imposed, the Government will make payments directly to the IRS. Such payments shall constitute a full and valid satisfaction of the Government's payment obligations under this contract.

(c) The Contractor shall immediately notify the Procuring Contracting Officer (PCO) in writing if a tax levy is assessed that may disrupt or threaten the Contractor's financial capability to perform the contract.

���� DAFFARS Clause Full Text (Column AM)

5352.201-9101 Ombudsman (Jul 2023)

(a) An ombudsman has been appointed to hear and facilitate the resolution of concerns from offerors, potential offerors, and contractors during the acquisition phase and throughout the life of this contract. Concerned parties should first address their concerns to the Contracting Officer before contacting the Ombudsman.

(b) For Air Force Materiel Command (AFMC) or other major command procurements, the designated Ombudsman is:

[Insert name, address, telephone number, and email of the ombudsman].

(c) The ombudsman does not establish any new rights, nor does it affect or delay the timelines for filing agency or GAO protests.