4.01a2 Att 2 - RFQ PandCs.pdf

52.204-7 System for Award Management NOV 2024 52.204-9 Personal Identity Verification of Contractor Personnel JAN 2011 52.204-10 Reporting Executive Compensation and First-Tier Subcontract Awards JUN 2020 52.204-13 System for Award Management Maintenance OCT 2018 52.204-19 Incorporation by Reference of Representations and Certifications DEC 2014 52.204-90 Offeror Identification FEB 2026 52.204-91 Contractor Identification FEB 2026

52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment JAN 2025

52.209-10 Prohibition on Contracting with Inverted Domestic Corporations NOV 2015

52.209-11 Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law FEB 2016

52.212-1 Instructions to Offerors—Commercial Products and Commercial Services SEP 2023 52.219-6 Notice of Total Small Business Set-Aside NOV 2020 52.219-28 Post-Award Small Business Program Rerepresentation JAN 2025 52.222-3 Convict Labor JUN 2003 52.222-36 Equal Opportunity for Workers with Disabilities JUN 2020 52.222-41 Service Contract Labor Standards AUG 2018 52.222-42 Statement of Equivalent Rates for Federal Hires MAY 2014

52.222-44 Fair Labor Standards Act and Service Contract Labor Standards—Price Adjustment MAY 2014

52.222-48

Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment- Certification MAY 2014

52.222-50 Combating Trafficking in Persons OCT 2025 52.222-55 Minimum Wages for Contractor Workers Under Executive Order 14026 JAN 2022 52.222-62 Paid Sick Leave Under Executive Order 13706 JAN 2022 52.222-90 Addressing DEI Discrimination by Federal Contractors JAN 2022 52.226-8 Encouraging Contractor Policies to Ban Text Messaging While Driving MAY 2024 52.232-33 Payment by Electronic Funds Transfer—System for Award Management OCT 2018 52.232-39 Unenforceability of Unauthorized Obligations JUN 2013 52.232-40 Providing Accelerated Payments to Small Business Subcontractors MAR 2023 52.233-3 Protest after Award AUG 1996 52.233-4 Applicable Law for Breach of Contract Claim OCT 2004 52.240-91 Security Prohibitions and Exclusions DEC 2025 52.244-6 Subcontracts for Commercial Products and Commercial Services OCT 2025 52.252-2 Clauses Incorporated by Reference FEB 1998 52.252-4 Alterations in Contract APR 1984 52.252-6 Authorized Deviations in Clauses NOV 2020 252.201-7000 Contracting Officer's Representative DEC 1991 252.203-7000 Requirements Relating to Compensation of Former DoD Officials SEP 2011 252.203-7002 Requirement to Inform Employees of Whistleblower Rights DEC 2022 252.203-7005 Representation Relating to Compensation of Former DoD Officials SEP 2022 252.204-7003 Control Of Government Personnel Work Product APR 1992 252.204-7004 Antiterrorism Awareness Training for Contractors FEB 2026 252.204-7008 Compliance with Safeguarding Covered Defense Information Controls OCT 2016 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting MAY 2024 252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support FEB 2026

252.204-7017 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services--Representation MAY 2021

252.204-7018 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services JAN 2023

252.215-7013 Supplies and Services Provided by Nontraditional Defense Contractors JAN 2023 252.225-7048 Export-Controlled Items JUN 2013 252.225-7055 Representation Regarding Business Operations with the Maduro Regime MAY 2022 252.225-7056 Prohibition Regarding Business Operations with the Maduro Regime JAN 2023

252.225-7059 Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Region–Representation JUN 2023

252.225-7060 Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous Regio JUN 2023 252.232-7003 Electronic Submission of Payment Requests and Receiving Reports DEC 2018 252.232-7006 Wide Area WorkFlow Payment Instructions JAN 2023 252.232-7010 Levies on Contract Payments DEC 2006 252.237-7010 Prohibition on Interrogation of Detainees by Contractor Personnel JAN 2023 252.243-7001 Pricing of Contract Modifications DEC 1991 252.247-7025 Reflagging or Repair Work JUN 2005 252.247-7027 Riding Gang Member Requirements MAY 2018

APPLICABLE PROVISIONS AND CLAUSES

52.212-4 Terms and Conditions—Commercial Products and Commercial Services.

Pursuant to FAR 12.205(b)(ii)), parts of this clause have been tailored as follows:

(TAILORED) indicates the section has been modified.

* Indicates that the section cannot be tailored.

^Indicates that the clause has not been tailored.

As prescribed in 12.205(b)(1), insert the following clause:

TERMS AND CONDITIONS—COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (DEVIATION DATE)

(a) Definitions. (TAILORED) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. Additional definitions are listed herein.

(b) Inspection/Acceptance. (TAILORED)

(1) In General. The Tug and associated equipment shall be subject to the Government’s inspection as to suitability for the towage required under this contract prior to award of this contract and to subsequent inspections at any time during the currency of this contract to determine continuing suitability for the required services. The Owner shall instruct the Towing Vessel’s Master to give every assistance so as to enable Hirer’s inspector(s) to properly observe operations throughout the Tug.

(2) Hirer’s Rights. If in the opinion of the Hirer’s inspector any deficiency or condition exists which renders the Tug inadequate for the required service, the Charterer shall have the option to cancel this contract at no cost to the Government or to require any necessary corrective actions at the Tug’s expense and to the Hirer’s satisfaction.

(3) Limitation of Charterer's Liability. Except as otherwise specifically provided herein, the Charterer shall not be liable for any loss, damage, expense, cost, or liability whatsoever and howsoever incurred by the Owner or Tug or which are imposed upon Owner by operation of law.

(4) Cooperation of Master. The Hirer or designated representative(s) shall have the right at loading and/or discharging port(s) or place(s) to inspect the Tug and observe operations. The Owner shall instruct the Master to give every assistance so as to enable said representative(s) to observe operations throughout the Tug properly. Hirer’s representative(s) shall not interfere with the Tug’s operations. Any delay to the Tug resulting from the Hirer’s inspections shall count as laytime or, if the Tug is on demurrage, as time on demurrage.

(5) Surveyors and Consultants. Surveyors or consultants, as mutually agreed, may be retained under this Hirer in order to facilitate fact-finding in respect of actual or potential claim actions or for inspections or surveys generally; the costs therefore shall be as mutually agreed and, if for Hirer’s account, said costs shall be incurred only after prior written approval from the Contracting Officer.

(c) 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.

(d) Changes. (TAILORED) Changes within the general scope of any of the terms and conditions of this contract may be ordered by the Contracting Officer. If any such change causes an increase or decrease in the cost of performance, such change shall be the subject of a bilateral modification to the contract. However, nothing in this paragraph shall excuse the contractor from proceeding with the contract as changed. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(e) 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 FAR 52.233-1, Disputes, which is incorporated in this contract by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(f) Excusable delays. (TAILORED)

(1) Excepted Events. Neither the Tug, her Master, or Owner, nor the Charterer shall, unless otherwise in this contract expressly provided, be responsible for any loss or damage or delay or failure in performing hereunder arising or resulting from any act of God; act of war; act of public enemies, pirates or assailing thieves; arrest or restraint of princes, rulers, or people; seizure under legal process provided bond is promptly furnished to release the Tug; flood; fire; blockade; riot, insurrection, or civil commotion; earthquake; or explosion.

(2) Reservation. The exceptions identified in subparagraph (1) above shall not affect Owner's warranties respecting the condition of the Tug at the commencement of loading hereunder, or the Owner's obligations respecting the loading, handling, stowage, carriage, custody, care, and discharge of the cargo, or the rights or obligations of either Owner or Hirer respecting laytime or demurrage as elsewhere provided herein.

(3) Necessary Deviation or Slow Steaming. If the Tug during the course of the towage hereunder puts into a port or place or seeks shelter or is detained or deviates from the original route or slow steams because either the Owner or Tug Master reasonably consider that

(i) the Tow is not fit to be towed; or

(ii) the Tow is incapable of being towed at the original speed contemplated by the Owner; or

(iii) the towing connection requires rearrangement; or

(iv) repairs or alterations or additional equipment for the Tow are required to safeguard the venture and enable the Tow to be towed to destination; or

(v) it would not be prudent to do otherwise on account of weather conditions actual or forecast; or because of any other good or valid reason outside the control of the Tug Master or because of any delay caused by or at the request of the Hirer, this contract shall remain in full force and effect, and the Owner shall be entitled to receive from the Hirer additional compensation at the demurrage rate identified in Box 17 for all time spent at the port or place deviated and for all time spent by the Tug at sea in excess of the time which would have been spent had such slow steaming or deviation not taken place.

(g) Invoice.* The Government will handle invoices according to the Prompt Payment Act (31 U.S.C.

3903) and 5 CFR part 1315. The Contractor shall submit invoices to the address designated in the contract to receive invoices. An invoice must include the information required by 5 CFR part 1315.9(b).

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

(4) 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;

(D) Contractor point of contact; and

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

(5) 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 FAR part 33 if–

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

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(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 FAR part 32).

(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 termination for cause.

(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 for interest credits prescribed in FAR part 32 in effect on the date of this contract.

(j) Risk of loss.(TAILORED)

(1) Any and all associated costs with the following shall be for the sole account of the Owner without recourse to the Government, provided any of the following results during the performance of services under this contract or preparation therefor from any negligence, wrongful act, or omission of Owner or its agents, servants, employees, or subcontractors; or from any unseaworthiness, unfitness, or breakdown of any Tug, gear, or other equipment furnished by Owner under this contract: (a) injury or death of Master or crew of the Tug or captain, officers, or crew of the Tow; (b) injury or death of any person aboard the Tug or Tow; (c) loss or damage of whatsoever nature sustained by the Tug or Tow or any property aboard the Tug or Tow; (d) loss or damage of whatsoever nature caused to or suffered by third parties or their property by reason of contact with the Tug or Tow or by an obstruction created by the presence of the Tug or Tow; (e) any liability in respect of wreck removal for the Tug or Tow or in respect of the expense of moving or lightening or buoying the Tug or Tow or in respect of preventing or abating pollution originating from the Tug.

(2) Whenever the Master (or any crew) of any Tug furnished or engaged in furnishing Tug power or assistance to any vessel (which vessel utilizes or has readily available her own propulsion capacity) goes aboard said vessel, or when any licensed pilot goes aboard said vessel, said Master, crew member or licensed pilot becomes the servant of the Owner of said assisted vessel in respect of the giving of orders to any of the Tugs provided for or engaged in said services and in respect of the handling of the vessel. Further, neither those providing the Tug or pilot, nor the Tug, its Owners, charters, operators, manager, or agents shall same be liable for any damage resulting therefrom, unless said damage is caused or results from the negligence or wrongful act or omission of the Tug Owners, Hirers, operators, managers, employees, or agents of those furnishing the Tug or pilot.

(3) In all instances in which any vessel being handled by Owner’s Tug sustains damage or is involved in any incident resulting in damage to vessels or property or in bodily injury or death, Owner shall secure a report from the Master or officer acting as pilot or from any licensed pilot aboard the vessel being handled. Owner shall submit said report in triplicate to the Contracting Officer within 24 hours following said incident, reporting the facts, listing deaths, reporting the extent of damages or bodily injuries, and listing recommendations to prevent recurrence.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—

(k) Taxes. (TAILORED) Dues, taxes, and other charges upon the Tug shall be for the Owner’s account. Dues, taxes, and other charges on the Tow or the towage price shall be paid by the Owner at the Charterer’s option, but be for the Charterer’s account and reimbursed by the Hirer. Assist tugs shall be for the account of the party ordering same. Reimbursement of Owner for dues, taxes, and other charges under this paragraph shall be in accordance with Part II (g) and (i) herein.

(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 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. (TAILORED)

(1) 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 cause, such termination shall be deemed a termination for convenience.

(2) If this Contract is terminated while the Contractor has possession of Government goods, the Contractor shall, upon direction of the Contracting Officer, protect and preserve the goods until surrendered to the Government or its agent. The Contractor and Contracting Officer shall agree on payment for the preservation and protection of the goods. Failure to agree on an amount will be a dispute under the Disputes clause.

(3) The rights and remedies of the Government herein are in addition to any other rights and remedies provided by law or under this Contract.

(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. (TAILORED)

(1) Owner warrants that, from the time when the obligation to proceed to the loading port(s) or place(s) attaches, and thereafter during the currency of this contract, the Tug shall be in full compliance with the specifications herein in addition to all other requirements of this contract. The Tug’s capacity, position, and other particulars as set forth in this contract are warranties by the Owner. Should the Tug fail to satisfy one or more of such warranties or other warranties contained in this section not due to the fault of the Hirer, the freight may be equitably decreased so as to return the Hirer to a position equivalent to that had the warranty not been breached, this contract otherwise to remain unaffected; alternatively, this contract may in such case be terminated at Hirer’s option pursuant to paragraph (m) (Cause) above. The Contractor warrants and implies that the items delivered under this contract are merchantable and fit for use for the particular purpose described in this contract.

(2) Condition. The Owner warrants that, before and at the commencement of the voyage(s) hereunder, it shall exercise due diligence to ensure that the Tug and her hull, machinery, boilers, towing equipment, and other equipment are fully functional and in good working order and condition, and that the Tug is in every way seaworthy, tight, staunch, strong, and fit to perform the Tow identified in Box 2 and the voyage(s) required hereunder.

(3) Regulatory Compliance. The Owner warrants that the Tug shall be in full compliance with all applicable international conventions; and all applicable laws, regulations, and other requirements of the nation of registry and of the nation(s) to whose port(s) and/or place(s) the Tug may be ordered under this contract; and of any terminals or facilities in said port(s) and/or place(s); and of any classification society in which the Tug is entered. The Owner further warrants that the Tug shall have on board during the currency of this contract all certificates, records, or other documents required by the aforesaid conventions, laws, regulations, and requirements, including a Certificate of Financial Responsibility meeting the requirements of the U.S. Coast Guard promulgated pursuant to the Federal Water Pollution Control Act as amended and/or the Oil Pollution Act of 1990, and valid gear certificates as required. Upon delivery and throughout the currency of this contract, Tug shall be entered and maintained in the highest class of a recognized classification society.

(4) Complement. The Owner warrants that the Tug shall have an efficient and legally sufficient complement of Master and crew with adequate training and experience in towage operation of all of the Tug’s equipment and possess valid and current certificates/documents issued or approved by the country of the Tug’s registry. The Tug Master and entire crew of the Tug shall be appointed or hired by the Owner and shall be deemed to be servants and agents of the Owner at all times except as otherwise specified in this contract. The Tug Master shall be proficient with conversational English.

(5) Towing Gear. Towing bridle sufficient for the Tow identified in Box 2 shall be furnished by the Owner. Additionally, the Owner shall provide for Hirer’s use, at no additional cost, all towing hawsers, bridles, winches, and other towing gear actually aboard the Tug.

(6) Port Restrictions. If particular ports or places are identified in Boxes 3 and 5, the Owner warrants that a vessel of the type, tonnage, and configuration of the Tug identified in Box 8, laden as contemplated herein, shall be able to approach, lie at, and depart from said ports or places (if safe) always afloat. Any data supplied by the Owner in any RFP or this contract respecting any port conditions or restrictions are provided for informational purposes and are not warranted to be complete or accurate. Compliance with any additional and/or conflicting conditions or restrictions shall be the Owner's responsibility.

(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) Compliance with laws unique to Government contracts.* The Contractor agrees to comply with 31 U.S.C. 1352, LIMITATION ON USE OF APPROPRIATED FUNDS TO INFLUENCE CERTAIN FEDERAL CONTRACTING AND FINANCIAL TRANSACTIONS; 40 U.S.C. chapter 37, CONTRACT WORK HOURS AND SAFETY STANDARDS; 41 U.S.C. chapter 87, KICKBACKS; 49 U.S.C. 40118, GOVERNMENT-FINANCED AIR TRANSPORTATION; and 41 U.S.C. chapter 21, RESTRICTIONS ON OBTAINING AND DISCLOSING CERTAIN INFORMATION, relating to procurement integrity.

(r) Order of precedence. (TAILORED)

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, and Compliance with Laws Unique to Government Contracts paragraphs of this clause;

(3) Addenda to this solicitation or Contract, including any license agreements for computer software;

(4) Solicitation provisions if this is a solicitation;

(5) Other paragraphs of this clause;

(6) The Standard Form 1449;

(7) Other documents, exhibits, and attachments; and

(5) The specification.

Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(s) Unauthorized obligations.*

(1) Except as stated in paragraph (s)(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 (s)(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.

(t) Comptroller General examination of record.* This paragraph applies if this contract was awarded using other than sealed bid procedures and is in excess of the simplified acquisition threshold on the date of award of this contract.

(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 part 4, longer period required by statute, or periods specified in 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 clause 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.

(u) Incorporation by reference.^ The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

(End of clause)

Alternate I (DEVIATION DATE). When contemplating a time-and-materials or labor-hour contract, substitute the following paragraphs (a), (b), (i), (l), and (m) for those in the basic clause.

(a) The clause at Federal Acquisition Regulation (FAR) 52.202-1, Definitions, is incorporated by reference. As used in this clause—

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

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

(1) Performed by the contractor;

(2) Performed by the subcontractors; or

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

Materials means—

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

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

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

(4) The following subcontracts for services which are specifically excluded from the hourly rate: [Insert any subcontracts for services to be excluded from the hourly rates prescribed in the schedule.]; and

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

Subcontract means any contract, as defined in FAR 2.101, entered into with a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.

(b) Inspection/Acceptance.

(1) The Government has the right to inspect and test all materials furnished and services performed under this contract at all places and times before acceptance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

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

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

(4) At any time during contract performance, but not later than 6 months (or such other time as may be specified in the contract) after acceptance of the services or materials last delivered under this contract, the Government may require the Contractor to replace or correct services or materials that at time of delivery failed to meet contract requirements. Except as otherwise specified in paragraph (b)(6) of this clause, the cost of replacement or correction shall be determined under paragraph (i) of this clause, but the “hourly rate” for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit. Unless otherwise specified below, the portion of the “hourly rate” attributable to profit shall be 10 percent. The Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for replacement or correction, and, when required, shall disclose the corrective action taken. [Insert portion of labor rate attributable to profit.]

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

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

(B) Terminate this contract for cause.

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

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

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

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

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

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

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

(i) Payments.

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

(i) Hourly rate.

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

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

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

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

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

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

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

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

(ii) Materials.

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

(1) Quantities being acquired; and

(2) Any modifications necessary because of contract requirements.

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

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

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

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

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

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

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

(1) Other direct costs. The Government will reimburse the Contractor on the basis of actual cost for the following, provided such costs comply with the requirements in paragraph (i)(1)(ii)(B) of this clause: [Insert each element of other direct costs (e.g., travel, computer usage charges, etc. Insert “None” if no reimbursement for other direct costs will be provided. If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the elements of other direct charge(s) for that order or, if no reimbursement for other direct costs will be provided, insert ‘None’”.]

(2) Indirect costs (material handling, subcontract administration, etc.). The Government will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price: [Insert a fixed amount for the indirect costs and payment schedule. Insert “$0” if no fixed price reimbursement for indirect costs will be provided. (If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the fixed amount for the indirect costs and payment schedule or, if no reimbursement for indirect costs, insert ‘None’).”]

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

(3) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the

Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price.

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

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

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

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

(B) The Contractor’s timekeeping procedures;

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

and

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

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

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

(B) Any documents supporting payment of those invoices.

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

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including 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, and then at the rate applicable for each six-month period as established by the Secretary until the amount is paid.

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

(iii) The Contracting Officer will issue a final decision if—

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

(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.

(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 FAR part 32 in effect on the date of this contract.

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

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

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

(ii) Claims, together with reasonable incidental expenses, based upon the liabilities of the Contractor to third parties arising out of performing this contract, that are not known to the Contractor on the date of the execution of the release, and of which the Contractor gives notice in writing to the Contracting Officer not more than 6 years after the date of the release or the date of any notice to the Contractor that the Government is prepared to make final payment, whichever is earlier.

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

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

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