B-2086949

33.D Exhibit D

Dallas Area Rapid Transit Authority

EXHIBIT D

SPECIAL PROVISIONS

Table of Contents

1. Requirements (D-200.01C, Jun 13)

2. Ordering (D-200.05A, NOV 05)

3. Availability of Funds (Multi-Term) (D-200.24A, JAN 02)

4. Term of Contract (D-200.03A, JUN 06)

5. Contract Identification Number (D-200.21A, AUG 04)

6. Accelerated Delivery

7. Delivery (D-200.04, JAN 02)

8. Insurance Requirements

9. Invoicing and Payment (D-200.07A, JUN 01)

10. Five Star Customer Service (D-700.01, APR 15)

11. U.S. Department of Homeland Security’s E-Verify System (D-700.02, APR 15)

12. Disclosure of Interested Parties (D-700.03, FEB 16)………………………………………………………..8

13. Tariffs and Duties………………………………………………………………………………………………..8

14. Warranty of Supplies of a Noncomplex Nature (6-203, OCT 24)…………………………………………..9

1. Requirements (D-200.01C, Jun 13)

(a) This is a requirements contract for the supplies or services specified. The quantities of supplies or services specified are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the Authority's requirements do not result in orders in the quantities described as "estimated" or "maximum," that fact shall not constitute the basis for an equitable price adjustment.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. Subject to any limitations that may be specified elsewhere in this contract, the Contractor shall furnish to the Authority all supplies or services specified and called for by orders issued in accordance with the Ordering clause.

(c) Except as this contract otherwise provides, the Authority shall order from the Contractor all the supplies or services specified that are required to be purchased by the Authority.

(d) The Authority is not required to purchase from the Contractor requirements in excess of any limit on total orders under this contract.

(e) The Authority reserves the right to take bids separately if a particular quantity requirement arises which exceeds the Authority’s normal requirements or an amount specified in the contract.

(f) There are two exemptions from ordering under the contract when: (i) the Vice President of Contracts approves a finding that the property or service available under the contract will not meet a non-recurring, special need of the Authority; or (ii) property is produced or services are performed incidental to the Authority’s own programs.

(g) If the Authority urgently requires delivery of any quantity of an item before the earliest date that delivery may be specified under this contract, or performance completed before the earliest date for completion specified under this contract, and if the Contractor will not accept an order providing for the accelerated delivery or performance, the Authority may acquire the urgently required goods or services from another source.

(h) Orders issued during the effective period of this contract, but not completed within that period, shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Authority's rights and obligations with respect to that order, to the same extent as if the order were completed during the contract's effective period.

2. Ordering (D-200.05A, NOV 05)

(a) Any supplies and services to be furnished under this contract shall be obtained by the issuance of orders. The Contracting Officer and his designated representative(s) are the only individuals with the authority to place orders against this contract.

(b) All orders are subject to the terms and conditions of this contract. In the event of conflict between an order and this contract, the contract shall control.

(c) If mailed, an order is considered "issued" when the Authority deposits the order in the mail.

(d) Additionally, orders may be issued by telephone followed by a written order, by electronic mail with an attached order, or by facsimile.

3. Availability of Funds (Multi-Term) (D-200.24A, JAN 02)

Funds are not presently available for performance under this contract beyond the current fiscal year. The Authority's obligation for performance of this contract beyond the current fiscal year is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Authority for any payment may arise for performance under this contract beyond the current fiscal year, until the Contractor receives notice of availability of funds, in writing, from the Contracting Officer.

4. Term of Contract (D-200.03A, JUN 06)

The term of this contract shall be two (2) years from contract award date.

5. Contract Identification Number (D-200.21A, AUG 04)

The contract number shown on the Award/Contract Form, shall be clearly displayed on all correspondence, invoices and submittals.

6. Accelerated Delivery

The Authority may require accelerated delivery from time to time. When this occurs, the Contracting Officer shall provide a written request for a quote. The Contractor shall provide a quote for the “added” freight cost within one business day of the Contracting Officer’s request. If the Authority finally determines that the added freight costs are acceptable, the Contracting Officer shall include the added freight costs to the invoice for applicable order.

7. Delivery (D-200.04, JAN 02)

Delivery Period (D-200.04A, AUG 90)

Supplier must supply the lead time for each item on listed on the bid schedule, Form 33.202A.

(a) Single Delivery Site (D-200.04C)

The delivery site is located at 2212 E. Pioneer, Irving, Texas 75061.

(b) Delivery Days/Hours (D-200.04G, APR 05)

Unless otherwise agreed to by the parties, delivery shall occur Monday through Friday from 7:00 AM until 3:30 PM local Dallas, Texas, time, except Authority-designated holidays.

(c) Loading Dock (D-200.04H, AUG 90)

A loading dock shall be available for the purpose of unloading of supplies.

(d) Delivery F.O.B. Destination (D-200.04K, AUG 90)

All deliveries shall be made F.O.B. destination, within the Authority's premises. The term "F.O.B. destination, within the Authority's premises," as used in this clause, means free of expense to the Authority delivered and laid down within the doors of the Authority's premises, including delivery to specific rooms within a building if so specified. The Contractor shall –

(1) pack and mark the shipment to comply with specifications; or if the specifications do not contain specific packing or marking instructions, pack and mark the shipment in accordance with prevailing commercial practices and in such a manner to as sure delivery in good condition and as required by this contract;

(2) prepare and distribute commercial bills of lading;

(3) deliver the shipment in good order and condition to the point of delivery specified in the contract;

(4) be responsible for any loss of and/or damage to the goods occurring before receipt of the shipment by the

Authority at the delivery point specified in the contract;

(5) furnish a delivery schedule and designate the mode of delivering carrier; and

(6) pay and bear all charges to the specified point of delivery.

8. Insurance Requirements

(a) Required Coverage. The Contractor shall, at all times during the term of this contract and extended terms thereof, provide and maintain the following types of insurance protecting the interests of the Authority and the Contractor with limits of liability not less than those specified below.

1) Commercial Automobile Liability insurance or its equivalent, listing DART as an additional insured, on primary and non-contributory basis, with waiver of subrogation, covering all owned, hired and non-owned vehicles used in connection with the work performed under this contract with a combined single limit for bodily injury and property damage liability of not less than $2,000,000 per accident. The policy shall be endorsed deleting all exclusions for work performed near a railroad. In the event the contractor will drive or take custody or control of a DART owned vehicle, the insurance policy shall provide physical damage coverage for non-owned autos with a deductible not to exceed $2,500.00.

2) Commercial General Liability insurance or its equivalent, listing DART as an additional insured, on primary and non-contributory basis, with waiver of subrogation, providing limits of not less than $5,000,000 for bodily injury and property damage per occurrence, with a general aggregate of $5,000,000, and products and completed operations aggregate of $5,000,000. The policy shall be endorsed with Additional Insured endorsements for ongoing operations and completed operations performed by or on behalf of the contractor.

The contractor shall maintain this coverage for a period of 3 years following project completion. There shall not be any policy exclusions or limitations for the following:

Contractual Liability covering Contractor's obligations herein

Personal Injury Advertising Liability

Medical Payments

Fire Damage Legal Liability

Broad Form Property Damage

Liability for Independent Contractors

3) Workers' Compensation Insurance, providing benefits comparable to those provided under the Workers'

Compensation Act of the State of Texas and/or any other State or Federal law or laws applicable to the

Contractor's employees performing work under this contract. Employer's Liability Insurance with limits of liability of not less than $1,000,000 each accident, $1,000,000 each employee for disease and $1,000,000 policy limit for disease. This insurance shall be endorsed with a Waiver of Subrogation Endorsement, waiving the carrier's right of recovery under subrogation or otherwise from DART and from any other entities as requested by DART.

(b) Certificates of Insurance. Before commencing execution of this contract, the Contractor shall respond to insurance related questions and attach a certificate of insurance satisfactory to the Authority (or, as and when the

Authority may direct, copies of the actual insurance policies) in the Questions section of the Supplier Portal, as follows:

• Go to https://suppliers.dart.org

• Login

• Click on “Update Account Information”

• Under Questions section, click Answer https://suppliers.dart.org/

The certificates of insurance shall evidence insurance required by paragraph (a), stating policy number, dates of expiration, and limits of liability thereunder. The certificates shall also attach all relevant endorsements required in subparagraphs to (a), and shall be acceptable to the Authority.

(c) Approval of Forms and Companies. All coverage described in this contract shall be in a form and content satisfactory to the Contracting Officer. All insurance should be provided by insurance companies with a Best's Rating of A-/ VIII, or better.

(d) Additional Insured Endorsement. The policy or policies providing Commercial Automobile Liability and

Commercial General Liability shall be endorsed to name DART, its directors, officers, representatives, agents and employees, as well as any other interests directed by DART, as Additional Insureds under this contract.

(e) All policies shall be endorsed to provide thirty (30) days advanced written notice of policy cancellation or modification.

(f) Multiple Policies. The limits of liability as required above may be provided by a single policy of insurance or a combination of primary, excess or umbrella liability policies. But in no event shall the total limit of liability of any one occurrence or accident be less that the amount shown above.

(g) Deductibles. Companies issuing the insurance policies and the Contractor shall have no recourse against the

Authority for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the Contractor.

(h) Subcontractors. If any part of the work is sublet, Contractor shall require any and all subcontractors performing work under this contract to carry Workers' Compensation Insurance, in accordance with paragraph (a) (3) above.

The Contractor shall determine any other types of insurance and the limits of liability that Contractor shall deem appropriate and adequate to protect the interests of the Authority. In the event a subcontractor is unable to furnish any insurance required under this Contract, the Contractor shall endorse the subcontractor as an Additional Insured or become an Alternate Employer. The Contractor shall obtain and furnish to the Authority certificates of Insurance evidencing subcontractors' workers' compensation insurance coverage. All other insurance certificates for subcontractors shall be furnished to the Authority upon request.

(i) No Release. The carrying of the above-described coverage shall in no way be interpreted as relieving the

Contractor of any other responsibility or liability under this agreement or any applicable law, statute, regulation or order.

9. Invoicing and Payment (D-200.07A, JUN 01)

(a) Invoices may be submitted once per month to:

DART

Accounts Payable apinvoices@dart.org and shall conform to policies or regulations adopted from time to time by the Authority. Invoices shall be legible and shall contain, as a minimum, the following information: (1) the contract and order number (if any); (2) a complete itemization of all costs including quantities ordered and delivery order numbers (if any); (3) any discounts offered to the Authority under the terms of the contract; (4) evidence of the acceptance of the supplies or services by the Authority; (5) unique traceable invoice number(s); and (6) any other information necessary to demonstrate entitlement to payment under the terms of the contract. Failure to provide the above critical information may result in the rejection and return of the invoice for resubmission with complete data.

(b) Subject to the withholding provisions of the contract, payment shall be made within 30 days after the Authority's receipt of a properly prepared invoice.

mailto:apinvoices@dart.org

10. Five Star Customer Service (D-700.01, APR 15)

As part of DART’s Five Star Customer Service initiative, we strive to create exemplary and distinctive interactions and experiences for our customers and the communities within which we provide mass transportation services. We aim to provide vehicles, facilities, security, technology, communications and services that are world class. As a Contractor with DART, we look to you via the supply of these specified services and/or materials helping us achieve our goal of extraordinary customer service.

11. U.S. Department of Homeland Security’s E-Verify System (D-700.02, APR 15)

As prescribed in 22.1803 , Insert the following clause:

Employment Eligibility Verification (Jan 2025)

(a) Definitions. As used in this clause-

Commercially available off-the-shelf (COTS) item—

(1) Means any item of supply that is—

(i) A commercial product (as defined in paragraph (1) of the definition of “commercial product” at

Federal Acquisition Regulation (FAR) 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. Per 46 CFR 525.1 (c)(2), "bulk cargo" means cargo that is loaded and carried in bulk onboard ship without mark or count, in a loose unpackaged form, having homogenous characteristics.

Bulk cargo loaded into intermodal equipment, except LASH or Seabee barges, is subject to mark and count and, therefore, ceases to be bulk cargo.

Employee assigned to the contract means an employee who was hired after November 6, 1986 (after

November 27, 2009 in the Commonwealth of the Northern Mariana Islands), who is directly performing work, in the United States, under a contract that is required to include the clause prescribed at 22.1803. An employee is not considered to be directly performing work under a contract if the employee-

(1) Normally performs support work, such as indirect or overhead functions; and

(2) Does not perform any substantial duties applicable to the contract.

Subcontract means any contract, as defined in 2.101, entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders.

Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime Contractor or another subcontractor.

United States, as defined in 8 U.S.C. 1101(a)(38), means the 50 States, the District of Columbia, Puerto

Rico, Guam, the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands.

(b) Enrollment and verification requirements.

(1) If the Contractor is not enrolled as a Federal Contractor in E-Verify at time of contract award, the https://www.acquisition.gov/far/22.1803#FAR_22_1803 https://www.acquisition.gov/far/2.101#FAR_2_101 http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title46-section40102(4)&num=0&edition=prelim https://www.acquisition.gov/far/22.1803#FAR_22_1803 https://www.acquisition.gov/far/2.101#FAR_2_101 http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1101(a)(38)&num=0&edition=prelim

Contractor shall-

(i) Enroll. Enroll as a Federal Contractor in the E-Verify program within 30 calendar days of contract award;

(ii) Verify all new employees. Within 90 calendar days of enrollment in the E-Verify program, begin to use E-Verify to initiate verification of employment eligibility of all new hires of the Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); and

(iii) Verify employees assigned to the contract. For each employee assigned to the contract, initiate verification within 90 calendar days after date of enrollment or within 30 calendar days of the employee’s assignment to the contract, whichever date is later (but see paragraph (b)(4) of this section).

(2) If the Contractor is enrolled as a Federal Contractor in E-Verify at time of contract award, the

Contractor shall use E-Verify to initiate verification of employment eligibility of-

(i) All new employees.

(A) Enrolled 90 calendar days or more. The Contractor shall initiate verification of all new hires of the

Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); or

(B) Enrolled less than 90 calendar days. Within 90 calendar days after enrollment as a Federal

Contractor in E-Verify, the Contractor shall initiate verification of all new hires of the Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); or

(ii) Employees assigned to the contract. For each employee assigned to the contract, the Contractor shall initiate verification within 90 calendar days after date of contract award or within 30 days after assignment to the contract, whichever date is later (but see paragraph (b)(4) of this section).

(3) If the Contractor is an institution of higher education (as defined at 20 U.S.C. 1001(a)); a State or local government or the government of a Federally recognized Indian tribe; or a surety performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond, the Contractor may choose to verify only employees assigned to the contract, whether existing employees or new hires.

The Contractor shall follow the applicable verification requirements at (b)(1) or (b)(2) respectively, except that any requirement for verification of new employees applies only to new employees assigned to the contract.

(4) Option to verify employment eligibility of all employees. The Contractor may elect to verify all existing employees hired after November 6, 1986 (after November 27, 2009, in the Commonwealth of the

Northern Mariana Islands), rather than just those employees assigned to the contract. The Contractor shall initiate verification for each existing employee working in the United States who was hired after

November 6, 1986 (after November 27, 2009, in the Commonwealth of the Northern Mariana Islands), within

180 calendar days of-

(i) Enrollment in the E-Verify program; or

(ii) Notification to E-Verify Operations of the Contractor’s decision to exercise this option, using the contact information provided in the E-Verify program Memorandum of Understanding (MOU).

http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title20-section1001(a)&num=0&edition=prelim

(5) The Contractor shall comply, for the period of performance of this contract, with the requirements of the E-Verify program MOU.

(i) The Department of Homeland Security (DHS) or the Social Security Administration (SSA) may terminate the Contractor’s MOU and deny access to the E-Verify system in accordance with the terms of the MOU. In such case, the Contractor will be referred to a suspending and debarring official.

(ii) During the period between termination of the MOU and a decision by the suspending and debarring official whether to suspend or debar, the Contractor is excused from its obligations under paragraph (b) of this clause. If the Contractor is not suspended, debarred, or subject to a voluntary exclusion, then the Contractor must reenroll in E-Verify.

(c) Web site. Information on registration for and use of the E-Verify program can be obtained via the

Internet at the Department of Homeland Security Web site: https://www.e-Verify.gov.

(d) Individuals previously verified. The Contractor is not required by this clause to perform additional employment verification using E-Verify for any employee-

(1) Whose employment eligibility was previously verified by the Contractor through the E-Verify program;

(2) Who has been granted and holds an active U.S. Government security clearance for access to confidential, secret, or top secret information in accordance with the National

Industrial Security Program Operating Manual; or

(3) Who has undergone a completed background investigation and been issued credentials pursuant to Homeland Security Presidential Directive (HSPD)-12, Policy for a Common Identification

Standard for Federal Employees and Contractors.

(e) Subcontracts. The Contractor shall include the requirements of this clause, including this paragraph (e) (appropriately modified for identification of the parties), in each subcontract that-

(1) Is for—

(i) Services (except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for that COTS item); or

(ii) Construction;

(2) Has a value of more than $3,500; and

Includes work performed in the United States.

If this certification is falsely made, the Contract may be immediately terminated, at the discretion of the Authority and at no fault to the Authority, with no prior notification. The Contractor shall also be responsible for the costs of any re-solicitation that the Authority must undertake to replace the terminated Contract.

https://www.e-verify.gov/

12. Disclosure of Interested Parties (D-700.03, FEB 16)

As a condition for Contract award, the bidder or offeror selected for award in accordance with Texas Government Code, Section 2252.908, shall submit within 5 days of notification of Board approval a Disclosure of Interested Parties form electronically on the Texas Ethics Commission website and a signed notarized copy of the form to the Authority.

The Disclosure of Interested Parties form must be submitted as prescribed by the Texas Ethics Commission located at:

https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm

13. Tariffs and Duties

Unless otherwise provided in this contract, the contract price includes all applicable Federal, State, local taxes, tariffs, duties, and related import fees.

1. The Contractor represents that all unit prices for goods and materials furnished under this contract imported from outside of the United States include all applicable taxes, tariffs, duties, and related import fees in effect on the contract date.

2. At the time of each shipment for goods and materials required for the performance of this contract, the Contractor shall furnish the Authority with proof of customs entry documentation

(https://www.cbp.gov/sites/default/files/assets/documents/2023-

Nov/CBP%20Form%207501.pdf or equivalent), commercial invoices, and packing lists evidencing payment of all duties, tariffs, and fees imposed on imported goods and materials.

3. Unless the contract explicitly provides otherwise, the Contractor will not be reimbursed by the

Authority for applicable taxes, duties, tariffs or related import charges on goods and materials required for the performance of this contract that are in effect on the contract date. The

Contractor agrees all such charges are already included in the contract price.

4. If, after the contract date, new or increased applicable federal, state, local tax, tariffs, or duties, which were previously excluded on the contract date, is imposed on goods or materials required for the performance of this contract that the Contractor is now required to pay or bear as the result of legislative, judicial, or administrative action taking effect after the contract date, the

Contractor may submit a request for an Equitable Adjustment, provided Contractor state in writing that:

a. The contract price does not include any contingency for such tax, tariffs, or duties; and

b. The liability for such was not incurred through the Contractor’s fault, negligence, or failure to follow instructions of the Contracting Officer.

The Contractor shall also submit adequate customs entry documentation or equivalent, itemizing the new applicable federal, state, local tax, tariffs, duties, or import fees the Contractor must pay. Any such equitable adjustment request shall be negotiated and, if agreed, incorporated via a contract modification under the Equitable Adjustments and/or Change Orders provisions of the contract. No adjustment shall be made in the contract price under this clause unless the amount of the adjustment exceeds $250.

5. The Contractor agrees the contract price shall be decreased by the amount of any federal, state, local taxes, tariffs, duties, or related import fees for which the Contractor obtains a refund or drawback, as the result of legislative, judicial, or administrative action taking effect after the contract date.

6. The Contractor agrees that the contract price shall be decreased by the amount of any federal, state, local taxes, tariffs, duties, or related import fees that the Contractor does not obtain a refund of, through the Contractor’s fault, negligence, or failure to follow instructions of the

Contracting Officer.

7. The Contractor shall promptly notify the Contracting Officer of all matters relating to any federal, state, local taxes, tariffs, duties, or related import fees that reasonably may be expected to result in either an increase or decrease in the contract price and shall take appropriate action as the

Contracting Officer directs.

https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cbp.gov%2Fsites%2Fdefault%2Ffiles%2Fassets%2Fdocuments%2F2023-Nov%2FCBP%2520Form%25207501.pdf&data=05%7C02%7COGarcia-Benavides%40dart.org%7C1f4297480938401d7cfa08ddae86b682%7C4bdf42008d79408b940dbdc4a1c9bfaa%7C0%7C0%7C638858615794047900%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=Pw6jiNyug2242%2FzLhNpTiD96Oz3QVwpGcZ1qbQ%2F6dx0%3D&reserved=0 https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cbp.gov%2Fsites%2Fdefault%2Ffiles%2Fassets%2Fdocuments%2F2023-Nov%2FCBP%2520Form%25207501.pdf&data=05%7C02%7COGarcia-Benavides%40dart.org%7C1f4297480938401d7cfa08ddae86b682%7C4bdf42008d79408b940dbdc4a1c9bfaa%7C0%7C0%7C638858615794047900%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=Pw6jiNyug2242%2FzLhNpTiD96Oz3QVwpGcZ1qbQ%2F6dx0%3D&reserved=0

8. The Authority shall, without liability, furnish evidence appropriate to establish exemption from any federal, state, or local tax, tariffs, duties, or related import fees when the Contractor requests such evidence and reasonable basis exists to sustain the exemption.

9. The Authority reserves the right to audit all customs and import records related to this contract under the Examination and Retention of Records provision of the contract to verify accuracy of all

Contractor declared tariffs/duties and compliance with this clause.

14. Warranty of Supplies of a Noncomplex Nature (6-203.15, Oct.24)

(a) Definitions. "Acceptance," as used in this clause, means the act of an authorized representative of the

Authority by which the Authority assumes for itself, or as an agent of another, ownership of existing supplies, or approves specific services as partial or complete performance of the contract.

"Correction," as used in this clause, means the elimination of a defect.

"Supplies," as used in this clause, means the end item furnished by the Contractor and related services required under the contract. The word does not include "data."

(b) Contractor's Obligations.

(1) Notwithstanding inspection and acceptance by the Authority of supplies furnished under this contract, or any condition of this contract concerning the conclusiveness thereof, the Contractor warrants that based on the manufactures warranty,

(i) all supplies furnished under this contract will be free from defects in material or workmanship and will conform with all requirements of this contract; and

(ii) the preservation, packaging, packing, and marking, and the preparation for and method of, shipment of such supplies will conform with the requirements of this contract.

(2) When return, correction, or replacement is required, transportation charges and responsibility for the supplies while in transit shall be borne by the Contractor. However, the Contractor's liability for the transportation charges shall not exceed an amount equal to the cost of transportation by the usual commercial method of shipment between the place of delivery specified in this contract and the Contractor's plant, and return.

(3) Any supplies or parts thereof, corrected or furnished in replacement under this clause, shall also be subject to the terms of this clause to the same extent as supplies initially delivered. The warranty, with respect to supplies or parts thereof, shall be equal in duration to that in paragraph (b)(1) of this clause and shall run from the date of delivery of the corrected or replaced supplies.

(4) All implied warranties of merchantability and "fitness for a particular purpose" are excluded from any obligation contained in this contract.

(c) Remedies Available to the Authority.

(1) The Contracting Officer shall give written notice to the Contractor of any breach of warranties in paragraph (b)(1) of this clause within 45 days after discovery of the defect.

(2) Within a reasonable time after the notice, the Contracting Officer may either --

(i) require, by written notice, the prompt correction or replacement of any supplies or parts thereof

(including preservation, packaging, packing, and marking) that do not conform with the requirements of this contract within the meaning of paragraph (b)(1) of this clause; or

(ii) retain such supplies and reduce the contract price by an amount equitable under the circumstances.

(3) If the contract provides for inspection of supplies by sampling procedures, conforming of supplies or components subject to warranty action shall be determined by the applicable sampling procedures in the contract. The Contracting Officer --

(i) may, for sampling purposes, group any supplies delivered under this contract;

(ii) shall require the size of the sample to be that required by sampling procedures specified in the contract for the quantity of supplies on which warranty action is proposed;

(iii) may project warranty sampling results over supplies in the same shipment or other supplies contained in other shipments even though all of such supplies are not present at the point of reinspection; provided, that the supplies remaining are reasonably representative of the quantity on which warranty action is proposed; and

(iv) need not use the same lot size as on original inspection or reconstitute the original inspection lots.

(4) Within a reasonable time after notice of any breach of the warranties specified in paragraph (b)(1) of this clause, the Contracting Officer may exercise one or more of the following options:

(i) require an equitable adjustment in the contract price for any group of supplies;

(ii) screen the supplies grouped for warranty action under this clause at the Contractor's expense and return all nonconforming supplies to the Contractor for correction or replacement;

(iii) require the Contractor to screen the supplies at locations designated by the Authority within the continental United States and to correct or replace all nonconforming supplies; or

(iv) return the supplies grouped for warranty action under this clause to the Contractor (irrespective of the f.o.b. point or the point of acceptance) for screening and correction or replacement.

(5) The Contracting Officer may, by contract or otherwise, correct or replace the nonconforming supplies with similar supplies from another source and charge to the Contractor the cost occasioned to the Authority thereby if the Contractor --

(i) fails to make redelivery of the corrected or replaced supplies within the time established for their return; or

(ii) fails either to accept return of the nonconforming supplies or fails to make progress after their return to correct or replace them so as to endanger performance of the delivery schedule, and in either of these circumstances does not cure such failure within a period of 10 days (or such longer period as the Contracting Officer may authorize in writing) after receipt of notice from the Contracting Officer specifying such failure.

(6) Instead of correction or replacement by the Authority, the Contracting Officer may require an equitable adjustment of the contract price. In addition, if the Contractor fails to furnish timely disposition instructions, the Contracting Officer may dispose of the nonconforming supplies for the Contractor's account in a reasonable manner. The Authority is entitled to reimbursement from the Contractor, or from the proceeds of such disposal, for the reasonable expenses of the care and disposition of the nonconforming supplies, as well as for excess costs incurred or to be incurred.

(7) The rights and remedies of the Authority provided in this clause are in addition to and do not limit any rights afforded to the Authority by law, equity, or any other clause of this contract.