5) Rep-Cert Form M1 Flexure.docx

The following Representation & Certification provisions must be completed and this form must be signed and returned as part of the Offeror’s proposal. As used herein, the term “contract” shall mean the UC/LBNL award resulting from the Offeror’s proposal; “offer” includes “bid,” “proposal,” and “quotation;” and “Offeror” includes “bidder,” “proposer,” and “quoter”, as may be applicable.

INDEX

TAX LIABILITY OR A FELONY CONVICTION UNDER ANY FEDERAL LAW

COMPUTER SOFTWARE

AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT

University of California Lawrence Berkeley National Laboratory

REPRESENTATIONS AND CERTIFICATIONS

(For Procurements under LBNL Contract No. DE-AC02-05CH11231 with the Department of Energy)

University of California, Lawrence Berkeley National Laboratory Representations and Certifications for Procurements Under LBNL Contract No. DE-AC02-05CH11231 with the Department of Energy

1. OFFEROR INFORMATION

(Complete and check all that applies.)

Place of Performance (principal plant or place of business where the items will be produced, supplied from stock, or where the service will be performed): Zip+4 Country

Type of Domestic Organization

|_| Indian Organization (see FAR 52.226-1 for definition)

|_| Indian owned Economic Enterprise (see FAR 52.226-1 for definition)

Type of Foreign Organization

2. SMALL BUSINESS PROGRAM REPRESENTATIONS

(Per FAR 52.219-1) Do Not Complete Section 2 if Non-Profit or Not-For Profit (Applies if any performance will be in the U.S. or its outlying areas.)

The Offeror represents as part of its offer that:

(1) It |_| is, |_| is not, a small business concern.

[Complete the following sections only if the Offeror represents in paragraph (b)(1) that it is a small business concern.]

(4) It |_| is, |_| is not, an economically disadvantaged women-owned small business concern.

(ii) It |_| is, |_| is not, a joint venture that complies with the requirements of 13 CFR Part 126, and the representation in paragraph (b)(7)(i) of this provision is accurate for the HUBZone small business concern or concerns that are participating in the joint venture.

[The Offeror shall enter the name of the HUBZone small business concern or concerns participating in the joint venture:]

Date

Title

(c) Definitions. As used in this provision- "Small business concern" means a concern, including its affiliates that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualified as a small business under the criteria in 13 CFR Part 121 and the size standard in paragraph (a) of this provision.

"Women-owned small business concern" means a small business concern (1) that is at least 51 percent owned by one or more women; or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women; and (2) whose management and daily business operations are controlled by one or more women.

"Veteran-owned small business concern" means a small business concern (1) not less than 51 percent of which is owned by one or more veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and (2) the management and daily business operations of which are controlled by one or more veterans.

"Service-disabled veteran" means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16).

"Service-disabled veteran-owned small business concern" means a small business concern:

(1) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and

(2) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.

(d) Notice.

(1) If this solicitation is for supplies and has been set aside, in whole or in part, for small business concerns, then the clause in this solicitation providing notice of the set-aside contains restrictions on the source of the end items to be furnished.

(2) Under 15 U.S.C. 645(d), any person who misrepresents a firm's status as a small, HUBZone small, small disadvantaged, or women-owned small business concern in order to obtain a contract to be awarded under the preference programs established pursuant to section 8(a), 8(d), 9, or 15 of the Small Business Act or any other provision of Federal law that specifically references section 8(d) for a definition of program eligibility, shall-

(i) Be punished by imposition of fine, imprisonment, or both;

(ii) Be subject to administrative remedies, including suspension and debarment; and

(iii) Be ineligible for participation in programs conducted under the authority of the Act.

3. PREVIOUS CONTRACTS AND COMPLIANCE REPORTS

(Per FAR 52.222-22) (Not Applicable if performance will be on an Indian Reservation or outside the U.S. by employees not recruited in the U.S.)

The Offeror represents that:

4. AFFIRMATIVE ACTION COMPLIANCE

(Per FAR 52.222-25) (Not applicable if the offer is for construction work or work on an Indian Reservation or outside the U.S. by employees not recruited in the U.S.)

The Offeror represents that:

5. COMPLIANCE WITH VETERANS’ EMPLOYMENT REPORTING REQUIREMENTS

(Per FAR 52.222-38) (Applies to offers >$250,000) By submission of its offer, the offeror represents that, if it is subject to the reporting requirements of 38 U.S.C. 4212(d) (i.e., if it has any contract containing Federal Acquisition Regulation clause 52.222-37, Employment Reports on Veterans), it has submitted the most recent VETS-4212 Report required by that clause.

6. CERTIFICATION AND DISCLOSURE ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (Per FAR 52.203-11)

7. CERTIFICATION ON RESPONSIBILITY MATTERS

(Per FAR 52.209-5)

(1) Federal taxes are considered delinquent if both of the following criteria apply:

(i) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.

(ii) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded.

(2) Examples.

(i) The taxpayer has received a statutory notice of deficiency, under I.R.C. § 6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

(ii) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. § 6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

(iii) The taxpayer has entered into an installment agreement pursuant to I.R.C. § 6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment.

(iv) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code).

(ii) The Offeror has |_| has not |_|, within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency.

(2) "Principal" for the purposes of this certification, means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division, or business segment, and similar positions).

THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER SECTION 1001, TITLE 18, OF THE UNITED STATES CODE.

8. REPRESENTATIONS BY CORPORATIONS REGARDING DELINQUENT TAX LIABILITY OR A FELONY CONVICTION UNDER ANY FEDERAL LAW (Applies to Corporations only)

NOTE: THESE REPRESENTATIONS ARE SIMILAR TO THOSE CONTAINED IN FAR 52.209-11 WITHOUT THE DISQUALIFICATION RESTRICTIONS.

9. INFORMATION REGARDING RESPONSIBILITY MATTERS

(Per FAR 52.209-7)

(a) Definitions. As used in this provision— “Administrative proceeding” means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract Appeals Proceedings). This includes administrative proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include agency actions such as contract audits, site visits, corrective plans, or inspection of deliverables.

“Federal contracts and grants with total value greater than $10,000,000” means—

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

10. CERTIFICATION REGARDING TAX MATTERS

(Per FAR 52.209-12)

11. BUY AMERICAN ACT CERTIFICATION

(Per FAR 52.225-2)

(3) The terms "domestic end product," "end product," and "foreign end product" are defined in FAR 52.225-1

NOTE: The University will consider applicable provisions of FAR Subpart 25.1 in evaluating offers for foreign end products or construction material.

12. REPRESENTATION OF LIMITED RIGHTS DATA AND RESTRICTED COMPUTER SOFTWARE

(Per FAR 52.227-15, and definitions in DEAR 927.409) (Applies if data will be produced, furnished, or acquired)

(a) This solicitation sets forth the known requirements for data. Any data delivered under the resulting contract will be subject to the Rights in Data-General clause at FAR 52.227-14. Under that clause, data that qualifies as limited rights data or restricted computer may be withheld from delivery, with form, fit, and function data delivered in lieu thereof, or delivered as limited rights data or restricted computer software per Alternates II or III of the clause, provided it is marked with the appropriate limited rights or restricted rights notice. Use of Alternate V with the clause provides the University and DOE the right to inspect such data at the Subcontractor's facility.

(b) By completing the remainder of this paragraph, the Offeror represents that it has reviewed the requirements for data, including technical data and computer software, and states:

(check appropriate box)

13. EXPORT CONTROLLED ITEM CLASSIFICATION

(1) The export classification(s) for the item(s) being purchased are identified below. Please include for each item: 1) Manufacturer’s Name; 2) Model Number; 3) Description of Item; 4) Export Authority (ITAR, EAR, or NRC); 5)(a) If an EAR classification, provide the applicable Export Control Classification Number (ECCN), 5(b) If an ITAR classification, provide USML category, 5(c) If an NRC classification, provide relevant NRC section. Attach an additional sheet if necessary:

(2) The Offeror represents that if an award is made for the quoted items, that the Offeror will |_| will not |_| be delivering export-controlled equipment user guides, installation/repair/maintenance documentation or software that is designated as proprietary and export controlled.

14. REPRESENTATION REGARDING CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT

(PER FAR 52.204-24)

(a) Definitions. As used in this provision – “Backhaul”, covered telecommunications equipment or services, critical technology, interconnection arrangements, reasonable inquiry, roaming, and substantial or essential component have the meanings provided in the clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.

“Covered telecommunications equipment or services”, “Critical technology”, and “Substantial or essential component” have meanings provided in clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.

(b) Prohibition.

(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. Nothing in the prohibition shall be construed to—

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract or extending or renewing a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. Nothing in the prohibition shall be construed to—

(i) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

(ii) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(c) 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 telecommunications equipment or services”,

(d) Representation. The Offeror represents that—

(1) It will |_| will not |_| provide covered telecommunications equipment or services to the Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation. The Offeror shall provide the additional disclosure information required at paragraph (e)(1) of this section if the Offeror responds "will" in paragraph (d)(1) of this section; and

(2) After conducting a reasonable inquiry, for purposes of this representation, the Offeror represents that— It |_| does, |_| does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. The Offeror shall provide the additional disclosure information required at paragraph (e)(2) of this section if the Offeror responds “does” in paragraph (d)(2) of this section.

(e) Disclosures.

(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or

(B) If not associated with maintenance, the Product Service Code (PSC) of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision.

(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or

(B) If not associated with maintenance, the PSC of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision. For services, the entity providing the covered telecommunications services (include entity name, unique entity identifier, and Commercial and Government Entity (CAGE) code, if known).

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