FENS SIR - Section H - Amendment 9.docx

DTFA01-02-D-03006

Modification P0045

PART I - SECTION H

Special Contract Requirements

693KA8-20-R-00022, Amendment 29

PART I - SECTION H

SPECIAL CONTRACT REQUIREMENTS

H.1 FAA Acquisition Management System (AMS) Clauses Incorporated in Full Text H.1.1 AMS 3.1.9-1 Electronic Commerce and Signature (July 2020)

(a) The Electronic Signatures in Global and National Commerce Act (E-SIGN) establishes a legal equivalence between:

(1) Contracts written on paper and contracts in electronic form;

(2) Pen-and-ink signatures and electronic signatures; and

(3) Other legally-required written records and the same information in electronic form.

(b) With the submission of an offer, the offeror acknowledges and accepts the utilization of electronic commerce as part of the requirements of this solicitation and the resultant contract.

(c) Certain documents may need to be provided or maintained in original form, such as large-scale drawings impractical to convert to electronic format or a document with a raised seal signifying authenticity. This clause does not change or affect any other requirements that a document must be in paper format to satisfy legal requirements such as for certain real estate transactions.

(d) The use of electronic signature technology is authorized under this solicitation and the resulting contract.

(e) Contractors must not digitally sign any documents with software that uses the Secure Hash Algorithm 1 (SHA-1). All digitally signed documents and contracts sent to the FAA must use a SHA-256 or higher hash algorithm. This is based on the National Institute of Standards and Technology (NIST) Policy Statement on Hash Functions dated August 5, 2015. Further guidance on the use of SHA-256 is in NIST Special Publication (SP) 800-57 Part 1, section 5.6.2 as amended and SP 800-131A, Revision 1 dated November 6, 2015. Additional guidance on the use of SHA-3 is in NIST SP 800-185 as amended.

(f) Contractors do not have to update documents previously digitally signed using SHA-1 hash algorithms unless the document requires updating. The FAA and contractors may continue to use SHA-1 for the following applications: Verifying old digital signatures and time stamps, generating and verifying hash-based message authentication codes (HMACs), key derivation functions (KDFs), and random bit/number generation.

(End of Clause)

H.1.2 AMS 3.13-15 Confidentiality of Data and Information (November 2016)

(a) In performance of this contract, the Contractor and any of its subcontractors, may need access to and use various data and information in the possession of the Government. This data and information may have been obtained under conditions which restrict the Government's right to use and disclose this data and information or which may be adverse to the interests of the Government or other parties if it is disseminated or used in a capacity other than in performance of this contract. Therefore, the Contractor and its subcontractors agree to abide by any restrictive use conditions on such data and not to: (1) knowingly disclose such data and information to others without written authorization from the Contracting Officer, unless it is already publicly available; or (2) use for any purpose other than the performance of this contract any data or information which bears a restrictive marking or legend which the Contractor has gained access to through the performance of this contract, or information that should be marked according to FAA Order 1600.75 "Protecting Sensitive Unclassified Information (SUI)". For the sole purpose of this clause, "information" means any communication or representation of knowledge such as facts, data, or opinions in any medium or form, including textual, numerical, graphic, cartographic, narrative or visual form.

(b) In the event the work required to be performed under this contract requires access to proprietary data and information of other companies, the Contractor must obtain agreement from such other companies for such use unless such data are provided or made available to the Contractor by the Government. Two copies of such company-to-company agreements must be furnished promptly to the Contracting Officer for information only. These agreements must prescribe the scope of authorized use and disclosure of the proprietary data and information as well as any other terms and conditions to be agreed upon between the parties thereto. It is agreed by the Contractor that any such data or information, whether obtained by the Contractor pursuant to the aforesaid agreement or from the Government, must be protected from unauthorized use by or unauthorized disclosure to any individual, corporation, or organization so long as it remains proprietary.

(c) The Contractor agrees to conduct formal training to make employees aware of the requirement to maintain confidentiality of data and information as required above., The Contractor must obtain from each employee in connection with this contract a signed Non-Disclosure Agreement. This agreement must provide that the employee will not, during employment or anytime thereafter, disclose or use for current or future benefit of any party any of the data (to include any form of Sensitive Unclassified Information (SUI) described in FAA Order 1600.75) or information not publicly available received in connection with the work under the contract.

(d) The Contractor agrees to hold the Government harmless and indemnify the Government as to any cost/loss resulting from the unauthorized use or disclosure of third party data or software by the Contractor, its employees, subcontractors, or agents.

(e) The Contractor agrees to include the substance of this clause in all subcontracts awarded under this contract. The Contracting Officer will consider case-by-case exceptions to this requirement for individual subcontracts in the event that: (1) the Contractor considers this clause to be inappropriate and unnecessary in the case of a particular subcontract; (2) the Contractor provides a written statement affirming absolute unwillingness of a subcontractor to perform, absent some relief from the substance of this prohibition and the reason why; (3) use of an alternate subcontract source would unreasonably detract from the quality of effort; and (4) the Contractor provides the Contracting Officer timely written advance notice of these and any other extenuating circumstances.

(f) Except as the Contracting Officer specifically authorizes in writing, upon completion of all work under this contract, the Contractor must return all such data and information described above obtained from the Government, including all copies, modifications, adaptations, or combinations thereof, to the Contracting Officer. Data obtained from another company must be disposed of in accordance with the Contractor's agreement with that company, or if the agreement makes no provision for disposition, must be returned to that company. The Contractor must further certify in writing to the CO that all copies, modifications, adaptations, or combinations of such data or information which cannot reasonably be returned to the Contracting Officer (or to the appropriate company), have been deleted from the Contractor's (and any subcontractor's) records and destroyed. The FAA reserves the right to audit the deletion. The FAA must provide notice of the audit 10 calendar days prior to the audit.

(g) These restrictions do not limit the Contractor's (or subcontractor's) right to use and disclose any data and information obtained from another source without restriction.

H.2 Key Personnel and Facilities

(a) The personnel and/or facilities as specified below are considered essential to the work being performed hereunder and may, with the consent of the contracting parties, be changed from time to time during the course of the contract.

(b) Prior to removing, replacing, or diverting any of the specified personnel and/or facilities, the Contractor must notify in writing, and receive consent from, the Contracting Officer reasonably in advance of the action and must submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on this contract.

(c) In addition to the experience listed under each position below, the entire set of Key Personnel must have a combined experience of a minimum of ten years with National Airspace System (NAS) programs or other Air Traffic Control Systems and 30 years in telecommunications network services. A single Key Person cannot account for more than five years of the required minimum combined experience of ten years relative to NAS programs or other Air Traffic Control Systems. In addition, a single Key Person cannot account for more than ten years of the required minimum combined experience of 30 years relative to telecommunications network services. For example, if an individual has 20 years of telecommunications network services experience, only ten years would count to toward the combined minimum of 30 years.

(d) The key personnel and/or facilities under this contract are:

· Program Manager – Has overall responsibility for all work efforts performed under the FENS contract. Serves as the Contractor’s primary focal point to the Government’s FENS Program Office. The Program Manager must be an employee of the Prime Contractor, be assigned to FENS on a full-time basis, and possess at least 10 years of experience in program management.

· Transition & Implementation Lead – Has overall responsibility for the Contractor transition and implementation activities. Must be a full-time employee of a team member (inclusive of the Prime Contractor) or a subcontractor. Must possess at least 10 years of experience with transition and implementation activities in Safety--critical Environments as defined in FFPS Section 1.2.

· Operations Manager – Has overall responsibility for the performance, operation, and maintenance of all services and Enterprise-Level functions provided under the FENS contract. Must be a full-time employee of a team member (inclusive of the Prime Contractor) or a subcontractor. Must possess at least 10 years of experience in the operations management of services in Safety-critical Environments as defined in FFPS Section 1.2.

· Security Lead – Has overall responsibility for the security management of the FENS enterprise. Must be a full-time employee of a team member (inclusive of the Prime Contractor) or a subcontractor. Must possess at least 10 years of experience in the security management of a Government enterprise network, with at least five (5) of the 10 years of experience associated with the security management of: (1) NIST Federal Information Processing Standards (FIPS)-199 Moderate or High systems; or (2) National Security Systems as defined in NIST Special Publication (SP) 800-59, Guideline for Identifying an Information System as a National Security System.

· Test Director – Has overall responsibility for the development and execution of the Contractor’s master test plan. Must be a full-time employee of a team member (inclusive of the Prime Contractor) or a subcontractor. Must possess at least 10 years of experience in test and evaluation.

· Chief Engineer – Has overall responsibility for the FENS technical architecture including customer-specific service designs, optimization, and near- and longer-term optimization of the FENS network. Must be a full-time employee of a team member (inclusive of the Prime Contractor) or a subcontractor. Must possess at least 15 years of experience in network design and the engineering and planning of communications services for Safety-critical Environments as defined in FFPS 1.2.

The Contractor agrees that the key personnel must be assigned to the performance of this contract and must not be removed from the contract or otherwise replaced unless authorized in accordance with this clause. The following instructions address the procedures for substituting key personnel:

(a) No substitution must be made by the Contractor without the expressed prior written consent of the CO. Any substitutions or additions are subject to the terms and conditions of this contract. During the first 12 months of contract performance, no key personnel substitution is permitted except in the event of disabling illness, death, disciplinary action, demotion, bona-fide promotion, or termination of employment. The CO may consider substitutions on a case-by-case basis. At least 30 calendar days before the Contractor seeks to make a substitution or addition, it must notify the CO and provide the information required by Paragraph (b) below.

(b) All requests for substitutions or additions must provide the grounds for, and a detailed explanation of, the circumstances requiring the proposed substitution or addition. The Contractor must also provide a complete resume for each proposed substitute or addition. The CO may request other information necessary to make a determination on a request. The CO will allow substitutions if, at the CO’s discretion, the proposed substitute possesses qualifications equal or higher than those of the Key Personnel to be replaced. Additional Key Personnel positions will be authorized and approved if determined by the CO, in consultation with the FAA Program Office, that such personnel are essential for successful accomplishment of the work required under this contract.

H.3 Release of Information Except as required by law or regulations, the Contractor (including individual employees thereof) must not release or communicate information, including any news release, public announcement, or advertising material concerned with this contract, whether orally or in writing, unless authorized by the CO. News releases pertaining to this contract must not be made without prior approval of the CO. A minimum of one week notice is required for approval.

H.4 Representations, Certifications, and Notices to Offerors of Proposals Representations and Certifications executed by the Contractor under Section K, Representations and Instructions, herein and included in the response to the Screening Information Request (SIR) may be incorporated by reference and may be made a part of the contract.

H.5 Interpretation of Contract This written contract, executed modifications, and identified writings or documents incorporated by reference herein or physically attached hereto constitute the parties’ complete agreement. No other prior or contemporaneous agreements, written or oral, must be considered to change, modify, or contradict the agreement of the parties.

No oral statement of anyone, nor any written statement of anyone other than the CO or their designated authorized representative acting within the limits of the authority specified in such designation, may modify or otherwise affect any provision of this contract. All requests for interpretation or modification of this contract must be made in writing to the CO.

Any ambiguity in the contract will not be strictly construed against the drafter of the contract language, but must be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting.

If the Contractor believes the contract contains any ambiguity, discrepancy, inconsistency, or conflict in or between the specifications and the applicable drawings or other documents incorporated by reference herein, the Contractor must bring the matter to the attention of the CO when identified. Failure to raise such issues within a reasonable timeframe may be deemed a waiver and release.

H.6 Notification of Debarment, Suspension, or Ineligibility Status The Contractor and its subcontractors must provide immediate notice to the CO in the event of being suspended, debarred, or declared ineligible by any Federal Government Agency or Department or of receiving a notice of proposed suspension, debarment, or ineligibility from any Federal Government Agency or Department during the performance of this contract.

H.7 Notice to the Government of Delays The Contractor must immediately notify the CO and the Contracting Officer’s Representative (COR) and provide pertinent details in writing when:

· the Contractor encounters difficulty in meeting performance requirements;

· the Contractor anticipates difficulty complying with a contract or task order (TO) delivery schedule or date; or

· the Contractor has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this contract or a TO.

The production or acceptance of any writing required by this provision must not be construed as a waiver by the Government of any delivery schedule or date or of any rights or remedies provided by law or under this contract.

H.8 Access to Government Property and Facilities

(a) As part of this effort, the Contractor may be working and attending meetings at Government facilities, including field facilities. Therefore, to the extent specified in and pursuant to the procedures specified in AMS clause 3.14-2, Contractor Personnel Suitability Requirements (dated JanuaryApril 20192021), Contractor personnel may be granted ingress and egress to the facilities during normal working hours when necessary for performance of this contract.

(b) While Contractor personnel are at a Government site, they must comply with all rules and regulations in effect at that site. Contractor personnel must comply with rules and regulations governing FAA employee conduct with respect to health and safety as they relate not only to themselves, but also to other Government employees or agents of the Government. The Contractor must also exercise proper care of all property at the Government site regardless of whether title to such rests with the Government.

(c) The facilities to which Contractor personnel will have access will remain in the Government's custody and will not be considered property or facilities furnished to the Contractor.

H.9 Contractor Liability The Contractor must assume the risk of and be responsible for any and all costs, liabilities, and claims associated with personal injury, wrongful death, or the loss of or damage to any property (Government or otherwise) occurring in connection with or in any way incident to or arising out of performance of the Contract when caused by deliberate or negligent acts or acts of omission on the part of the Contractor or Contractor personnel. For purposes of this requirement, the term “Contractor” is defined in Section H.11.

H.10 Information Technology Accessibility for Persons with Disabilities All services and Electronic Information Technology (EIT) delivered under this contract must comply with Federal Electronic and Information Technology Accessibility Standards, as required by 29 United States Code (U.S.C.) § 794d.

H.11 Definitions of Key Terms Contractor – Except when specifically defined or stated to the contrary, references to “Contractor” in this contract apply to the FENS Prime Contractor and all members of the FENS contract team including subcontractors.

Days – Except when specifically defined or stated to the contrary, all references to “days” in this contract correspond to calendar days.

H.12 Enhancements or New Services, Functions, or Capabilities The FAA encourages the Contractor to introduce enhancements or new service offerings at any time after contract award. For the purposes of this clause, these offerings may fall into one of three different categories:

(1) New Networks, Services, or Enterprise-Level Functions: Includes networking capabilities, services, or Enterprise-Level functions within the FENS contract scope, but for which detailed specifications are not currently identified in the contract.

(2) Technology Upgrades: Includes technological improvements and evolution of the FENS network that are within the existing scope of the contract and that result in cost optimization and improved performance.

(3) Network Enhancements: Includes opportunities that are identified outside the existing FENS Service Delivery Point (SDP) boundaries that yield improvements to and savings for existing services.

These offerings may be solicited or proposed to reduce the Government’s risk, to meet new or changed Government needs, to improve performance, to reduce prices or for any other purpose which presents an overall benefit to the Government. All such actions must be undertaken in accordance with the applicable Changes clauses found in Section I, Contract Clauses, and must be added to the contract by modification. Decisions to add new services, service upgrades, and/or enhancements will be at the sole discretion of the Government.

The Contractor must submit a technical and cost proposal to the CO for evaluation. The following information must be submitted with each proposal:

(a) A description of the difference between the existing offering and the proposed change. The comparative advantages and disadvantages of each.

(b) A description of all work necessary to implement the change, including but not limited to verification activities, security updates, transition activities, documentation updates, test bed changes, and schedule, as well as any other info necessary for the Government to make complete technical assessment of the proposal.

(c) Proposed requirements language to be added to the contract or changes to existing requirements language if the proposal is adopted.

(d) A cost proposal detailing all costs associated with this change. The proposal must contain sufficient detailed cost and pricing information to enable proposal analysis and negotiation.

The Contractor may propose to receive a percentage of the savings accrued to the Government resulting from Network Enhancements proposed in accordance with this provision. In addition to the technical and cost proposal described above, the Contractor must provide a detailed Savings Sharing proposal that includes a cost benefit analysis, total savings projection, the Contractor and Government share ratio, the Contractor’s’ investment recovery process, savings measurement process, and a protection mechanism for the Government in the event that projected savings are not realized. Once negotiated and definitized, the Contractor must work with other stakeholders to perform the implementation and integration activities in accordance with the relevant terms and conditions of the FENS contract, and with all costs as an investment to the Contractor, unless otherwise agreed upon by the Government as part of the negotiations. Upon completion and acceptance, the Contractor must initiate the investment recovery process based on the actual savings realized, the share ratio, and the protection mechanism.

There must be no cost to the Government for proposal preparation or negotiation regarding those offerings initiated by the Contractor.

H.13 Continuation of Services at Contract Expiration or Termination

(a) The Contractor must recognize that the services under this contract are vital to the Government and must be continued without interruption, and that upon contract expiration or termination, a successor, either the Government or another contractor, may provide the same or similar services. The Contractor agrees to coordinate the orderly change to a new contractor or Government provided services such that the level and quality of service, including security, are not degraded, and to exercise its best efforts and cooperate to effect an orderly and efficient transition to a successor.

(b) Upon the CO’s written notice, the Contractor must:

(1) Furnish phase-in / phase-out services for up to 12 months after contract expiration or contract termination. The unit price of services provided during the phase-in / phase-out period must not exceed the prices in effect under the contract on the date of contract expiration, contract termination, contract discontinuance, or relocation of service.

(2) Negotiate in good faith a plan with a successor(s) for determining the nature and extent of phase-in / phase-out services required. This plan must specify interconnection and transition procedures enabling the services to be provided at the levels and quality called for by this contract.

(c) Upon the CO’s written notice at contract expiration, the Contractor must continue performance under the existing terms and conditions (including price) of the contract for a period of up to 12 months as specified by the CO.

(d) Should the CO, having elected (c) above, but not having elected initially to extend the contract the full 12 months, provide subsequent written notice, the Contractor, as directed, must continue to perform under the contract up to the full 12 month period.

H.14 Responsibility for Performance and Flow-Down of Requirements The Prime Contractor must be responsible for the performance of all services performed and provided under this contract. The Prime Contractor must be responsible for ensuring compliance with applicable FENS requirements by all elements of the FENS supply chain. The Prime Contractor must flow-down all applicable FENS-specific requirements to entities with which it enters into formal agreements to obtain services and products used to provide the services, functions, and capabilities ordered by the Government under the FENS contract.

(c) Price reductions are subject to the following conditions:

(1) The Contractor must submit proposed price reductions to the CO.

(2) Any price reductions offered must not alter the performance or other requirements of the contract.

(3) Price reduction proposals must include all contract pricing tables, and the effective date(s) of the price reduction. The Contractor must provide all revised pricing tables in electronic format(s) to be specified by the Government at the time of submission.

(4) The proposed price reduction must be effective upon incorporation into the contract.

(5) Should the Government execute a price reduction modification on a date after the proposed price reduction effective date, in accordance with Section H.15 subsection (c)(2), the price reduction must be deemed to have occurred on the first day of the next invoicing period for that service.

H.16 Federal, State, Local, and Foreign Taxes With respect to any “after-imposed tax” identified by the Contractor in accordance with the AMS clauses 3.4.2-6 and 3.4.2-8, incorporated by reference in Section I.1, the Government will pay all Federal, state, and local taxes directly related to the delivery of communications services, Enterprise-Level functions, and other associated capabilities provided under the FENS contract, with the following exceptions:

When notifying the CO about “after-imposed taxes,” the Contractor must cite the applicable statute or ordinance and, upon request, provide to the CO copies of all statutes or ordinances imposing the new taxes (“after-imposed taxes”).

The Contractor must provide to the Government, on a semi-annual basis, an itemized list of taxes, fees, and surcharges that are included in its monthly invoices, including the name of each tax, jurisdiction by name, reference to the statutory source for the tax, and applicable tax rates. The Contractor is prohibited from placing fee on separately invoiced taxes within the scope of this clause.

H.17 Fees and Surcharges

(a) Taxes, fees, and surcharges on telecommunications services are those taxes further listed in this clause that are assessed on the act of providing telecommunication services and the associated equipment, which are generally beyond the control of the Contractor and are required to provide such telecommunication services. The Government will pay, as a separate line item under the contract, any and all taxes and regulatory-based fees and surcharges described in H.17(d) imposed by any applicable foreign or domestic government on the provision of telecommunications services and on the equipment required to provide such telecommunications services. These items described in H.17(d) will not be treated as taxes for the purposes of the AMS clauses 3.4.2-6 and 3.4.2-8. Such charges will be enumerated as separate and additional items in accordance with H.16 or clause H.17, as applicable, and invoiced separately in accordance with Section G, Contract Administration Data. The Contractor is not permitted to add administrative fees (including, but not limited to administrative labor surcharges, general and administrative indirect expenses, and fee/profit) to these costs.

(b) The Contractor must provide information to allow the Government to validate that the taxes, fees, and surcharges to which this clause applies, both at award and throughout the life of the contract, are:

(1) Limited to the pass through of actual charges or imposed costs associated with the taxes, fees, and surcharges; and

(2) Imposed upon either assets owned by the Contractor that are exclusively dedicated to the provision of services under the FENS contract, or on the delivery of services in support of the FENS contract.

(c) In support of (b)(i) and (b)(ii) above, the Contractor must provide the following information, at a minimum:

(1) If relevant to such taxes, fees, and surcharges, a copy of the Contractor’s Federal Communications Commission (FCC) Form 499-A, Telecommunications Reporting Worksheet, or its successor, which will be considered proprietary information of the Contractor; and

(2) Documentation supporting the fact that the charges do not exceed the actual fees or surcharges being paid by the Contractor.

(d) The taxes, fees, and surcharges to which this clause apply are:

(1) Telecommunications taxes, fees, and surcharges, including but not limited to:

· Federal Universal Service Surcharge,

· Gross Receipts Surcharge,

· Municipal Line Fee,

· Universal Connectivity Charge,

· State Universal Service Surcharge,

· Regulatory Surcharge,

· Federal Telecom Relay,

· Public Utility Commission,

· Universal Lifeline Telephone Service Surcharge,

· High Cost Fund Surcharge,

· Franchise Fee,

· Cost Recovery Fee,

· Federal Universal Service Fee,

· E911 Taxes or Fees, and

· Teleconnect Surcharge; and

(2) The following other state, local and foreign taxes:

· State and Local Business and Occupation (B&O) Tax;

· Excise Taxes on Telecommunications Services;

· State, local, foreign, and ad valorem taxes imposed on property used exclusively for the FENS contract; and

· Sales and use taxes, value-add taxes, and other indirect taxes imposed: (i) on the acquisition of property used exclusively to support the FENS contract; or (ii) on the provision of services under the FENS contract.

(e) The taxes, surcharges, and fees identified in (d) above may not serve as the basis for any award fee amounts.

H.18 Invoice Reconciliation The FAA may award a competitive contract, separate from FENS, for the services of a contractor to assist the FAA with reconciliation of invoices submitted by the prime FENS contractor. The FENS Prime Contractor must cooperate in a full and complete manner with this contractor in the execution of their responsibilities. Any offeror or subcontractor bidding for the FENS contract is excluded from competing on this potential contract.

H.19 Permits The Contractor must, without additional expense to the Government, be responsible for obtaining any necessary licenses, certifications, authorizations, approvals, and permits, and for complying with any applicable Federal, state, and municipal laws, codes, and regulation, and any applicable foreign work permits, authorizations, etc., and/or visas in connection with the performance of the contract.

H.20 Customer of Record The Contractor must be designated as the “customer of record” for all access and transport services obtained from commercial suppliers (i.e., Local Exchange Carriers (LECs) and Interexchange Carriers (IXCs)). As directed by the Government, the Contractor must coordinate with its suppliers to change the “Customer of Record” designation to the Government. Designating the Government as the Customer of Record does not alter the Contractor's responsibilities as specified in any other provision of this contract.

H.21 Resource Ownership Unless otherwise specified, all equipment and material provided by the Contractor to implement and operate the services, functions, and capabilities required by this contract are the property of the Contractor or its suppliers.

Exception: Items provided by the Contractor in support of site preparation activities (e.g., cable trays and cabling, demarcations, etc.) must become the property of the Government.

H.22 Disconnect of Communications Services In the event the Government issues a disconnect request for any accepted communications service, feature, or function, there must be no cost to the Government associated with the disconnect action, irrespective of the amount of time the service has been installed.

H.23 Incorporation of Proposals into the Contract The Government reserves the right to incorporate any part of the selected offeror’s proposal into the FENS contract as determined by the Government at contract award. In addition, with respect to TO Requests for Proposal (TORFPs) issued after contract award, the Government reserves the right to incorporate any part of a TO proposal into the FENS contract upon acceptance of the TO proposal.

H.24 Price Redetermination

(a) This clause applies to Firm Fixed Price (FFP) Contract Line Item Numbers (CLINs) and any other FFP CLINs that determine the price of orderable services in the Contractor’s Service Catalog, as defined in FENS Functional and Performance Specification (Attachment J-1) Section 4.

(b) The unit prices and total prices stated in this contract will be redetermined in accordance with this clause, except that:

(1) The prices for supplies delivered and services performed before the end of the base period of the contract must remain fixed.

(2) The total amount paid under this contract will not exceed any ceiling price included in the contract.

(c) There will be a Price Redetermination period for Contract Years 11-15.

(d) Redetermination Proposal

(1) The Contractor must submit its Price Redetermination Proposal (PRP) not later than nine (9) months before the start of the Redetermination Period. The PRP must:

· Include detailed information on costs incurred under all CLINs within the scope defined in H.24(a). For CLINs with a labor component, information must include at least three full years of labor hours by labor category and non-labor cost provided by year for those CLINs relevant to future proposed work. The three-year time period is defined as 36 full months prior to submittal of the PRP. For efforts that have not been operating for 36 months, the cost information must be provided from the date the effort was initiated.

· Specifically identify the elements driving the cost information provided. This identification must include an itemization of the items purchased or leased and their associated costs that contributed to the build-up of the cost provided.

· Propose new prices for the CLINs and associated Sub-Line Item Numbers (SLINs), if applicable. If the Government chooses to employ a bid model for this redetermination effort, the contractor must provide a completed bid model in a similar format to the original proposal.

· Provide a Basis of Estimate (BOE) for each CLIN price proposed. CLIN prices may be grouped under a single BOE if they are based on the same pricing methodology and assumptions. The Government reserves the right to request additional information when needed, including a separate BOE for CLINs grouped by the Contractor. Each BOE must include factual data and a rationale supporting the price proposed. The BOE must include sufficient detail to demonstrate how the markets identified by the Contractor contribute to and influence the costs the Contractor expects to incur. In addition, for CLINs with a labor component, the BOE must include the actual labor hours by Labor Category (LCAT); as well as cost incurred for that labor for the previous three (3) years broken out by Labor, Subcontract, and Other Direct Costs (ODCs)/Travel.

· Comply with AMS 3.2.2.3-39, Requirements for Certified Cost or Pricing Data or Other Information - Modifications (JulyJanuary 20102022).

(2) The Contractor must supplement its proposal when additional cost or pricing information becomes available. The duty to supplement the proposal continues until agreement is reached on a redetermined price.

(3) If the Contractor fails to submit the proposal required by paragraphs (d) (1) and (2) of this section by the time specified, the CO may suspend payments under this contract until the updated price information is furnished.

(4) The Government’s request for a PRP does not constitute a commitment to exercise the options for the period covered by the PRP.

(e) Contract Modification. Each negotiated redetermination will result in a bilateral contract modification with a revised Section B, Supplies or Services and Prices/Costs, showing the new prices for the applicable CLINs for the next period.

(f) Adjusting Billing Prices. Pending execution of the contract modification (see paragraph e) of this section), the Contractor must submit invoices or vouchers in accordance with the current prices stated in this contract. If at any time, it appears that the then-current billing prices will be substantially higher than the redetermined price, the parties must negotiate an appropriate decrease in billing prices. Any billing price adjustment must be reflected in a contract modification and must not affect the redetermination of prices under this clause. After the contract modification for price redetermination is executed, the total amount paid or to be paid on all invoices or vouchers will be adjusted to reflect the agreed-upon prices. If it is determined that the Government has overpaid the Contractor, the Contractor must provide a credit on the next invoice.

(g) Disputes. If the Contractor and the Contracting Officer fail to agree upon Redetermined Prices for any CLIN, the Contracting Officer will issue a determination on the dispute. Pending final settlement of any dispute under this section the CO’s decision will be the prices charged by the Contractor. Disputes will be adjudicated in accordance with the “Contract Disputes” clause.

H.25 Exclusive Rights of Use of Network Access Solutions With respect to network access capabilities used to provide the services required under the FENS contract, the Contractor is prohibited from:

(i) Asserting Exclusive Rights of Use; or

(ii) Entering into agreements with Communications Service Providers that contain terms for the Exclusive Rights of Use.

This prohibition applies: (i) to the Contractor itself if it is a Communications Service Provider; and (ii) regardless of the Communications Service Provider’s business relationship with the FENS Prime Contractor (e.g., subsidiary, teaming partner, subcontractor, etc.).

For the purposes of this clause:

A Communications Service Provider is defined as a supplier of communications services or network infrastructure includes, without limitation: LECs, IXCs, satellite network service providers, and commercial wireless service providers.

Network Access Solutions include, without limitation: fiber optic cables, coaxial cables, microwave links, satellite links, and other wireless communications capabilities that provide access to the FENS Wide Area Network (WAN) as defined in Attachment J-1.

Exclusive Rights of Use is defined as denying others the right to use the same capability concurrently.

H.26 Limitations on Capabilities Being Phased-Out of Use in the Commercial Marketplace Unless otherwise approved by the Government, the Contractor is prohibited from proposing and implementing solutions that include:

(a) Telecommunications services for which the provider has issued a Grandfathering notice that the service will no longer being offered to new customers; or

(b) Products for which the producer has issued an End of Support notice indicating that it will no longer support the product in terms of upgrades, patches, maintenance, and/or repairs.

This limitation is based on the issuance of such notices regardless of when they take effect.

H.27 Use of Government-Furnished Communications Capabilities The Government may provide Government-furnished communications capabilities to the Contractor to support the implementation of Network Services (as defined in Attachment J-1, Section 4.1) as required under this contract. In some cases, use of the Government-furnished communications capabilities, such as fiber optic cables between the commercial telecommunications demarcation and the FENS SDP may be mandatory because the site cannot accommodate the deployment of a commercial access path or the Government prefers to leverage its investment in the existing cable plant. In other cases, use of the Government-furnished communications capabilities, such as Government-provided microwave systems, may be optional.

The list of existing items available as Government-furnished capabilities is provided in Clause H.28. The availability and use of Government-furnished communications capabilities will be determined on an individual case basis. The Government will inform the Contractor when additional Government-furnished communications capabilities are available beyond the items listed in Clause H.28. If the Contractor needs to supplement Government-furnished communications capabilities in order to provide the required FENS services, the Contractor will be able to recover those costs through existing CLINs, on a TO basis, or combination of both as necessary.

When a Government-furnished communications capability is provided as a service to the Contractor, the Government will retain responsibility for the operations and maintenance of underlying systems. The Contractor must immediately notify the designated Government points-of-contact when it detects a failure or degradation of Government-furnished communications services. Any time associated with Government restoration actions will count as Customer Time, as defined in FFPS Section 3.1.4, and it will not impact the Contractor’s Service Level Agreement (SLA), as defined in Attachment J-10.

When a Government-furnished communications capability is provided as a system or individual equipment components (rather than as a service), the Contractor will be responsible for its operations and maintenance. When a failure or degradation of the Government-furnished communications capability occurs in this case, the Contractor is responsible for the restoration and the outage time must be factored into the availability of the affected FENS services unless otherwise adjusted based upon the Customer Time criteria defined in FFPS Section 3.1.4.

When the Contractor employs a Government-furnished communications capability to establish path diversity, the Contractor is responsible for the switching between the paths.

The Contractor must maintain configuration management of Government-furnished items in accordance with AMS clause 3.10.3-2, Government Property – Basic Clause (April 2019).

H.28 List of Government-Furnished Communications Capabilities This section identifies the existing Government-furnished communications capabilities that are available for use by the Contractor. The list of items is divided into the following categories:

(1) Capabilities owned and operated by the Government;

(2) Capabilities previously owned and operated by a Legacy Contractor (i.e., ownership has been transferred to the Government); and

(3) Commercial communications capabilities obtained by the Government.

The following subsections provide additional information regarding the items within each category. In addition, Attachment H-1 contains a detailed listing of the associated sites and equipment items when known for the specific capabilities within each category.

H.28.1 Government-Owned and -Operated Capabilities The set of Government-owned and -operated communications capabilities available to the Contractor as Government-furnished items may include, but is not limited to:

· Alaskan Satellite Telecommunications Infrastructure (ASTI) services;

· Fiber optic cable in government or military managed campus environment;

· Copper cable in government or military managed campus environment;

· Ethernet service in government or military managed campus environment;

· T1 service in government or military managed campus environment;

· Aeronautical Mobile Airport Communication System (AeroMACS);

· CONUS/Caribbean Satellite;

· Alaskan Satellite;

· Winstar wireless communications; and

· Miscellaneous equipment.

With respect to ASTI services, the list of sites where they may be available is identified in Attachment H-1. In general, ASTI supports bandwidth levels of 56 kbps, 64 kbps and all multiples of 64 kbps up to 1.536 Mbps. Availability of an ASTI service at a specific site will be dependent on existing capacity and will be determined on an individual case basis.

H.28.2 Capabilities Previously Legacy Contractor-Owned and -Operated The set of communications capabilities that were previously Legacy Contractor-owned and -operated and now available to the FENS Contractor as Government-furnished items may include, but is not limited to FAA Telecommunications Infrastructure (FTI) Microwave equipment (see Attachment H-1).

With respect to Time Division Multiplexing (TDM) Pseudowire equipment, the available Government-furnished items correspond to the equipment implemented at remote sites. If conversion from Internet Protocol (IP) back to TDM is needed for the receiving system to accept the information flow, the FENS Contractor must provide that function. The deployment of the TDM pseudowire solution with the legacy environment is ongoing so the Contractor will need to obtain an up-to-date site list from the Government when making FENS design decisions.

The individual tabs within Attachment H-1 containing information related to legacy microwave and satellite equipment consist of:

· List of sites where the Contractor will need to obtain an FCC operating license to use the Government-furnished communications equipment

· List of different types of equipment kits at each microwave site and the kit quantity

· The Consolidated Materials List (CML) for the following kit types:

· Satellite;

· Winstar;

· Low Density Radio Communications Link (LDRCL);

· Radio Communications Link (RCL); and

· Last Mile Microwave.

H.28.3 Commercial Communications Capabilities Obtained by the Government This category consists of commercial capabilities that may not be directly available to the Contractor or for which it is more cost-effective for the Government to obtain them. [Specific items in this category are to be determined (TBD), but they may include items like commercial Internet services.]

H.29 End of Life Program The Contractor must support the Government’s planning for transition of FENS to one or more successor networks. Such activities may begin in advance of the end of the FENS contract period of performance and prior to the Government formally notifying the Contractor of its intent to not exercise the next contract option period.

When requested by the Government, the Contractor must provide a proposal to transfer ownership of all equipment and other assets necessary to continue the operation of FENS services and facilitate their transition to one or more successor networks. The proposal must offer the equipment at equitable prices consistent with equipment currently available in comparable condition. There must be no charge to the Government for items previously provided as GFE unless they have been upgraded or improved by the Contractor with the Government’s approval.

In support of the transition from FENS to one or more successor networks, the Contractor must:

(a) Provide the Government with an accurate listing of the current FENS service inventory, associated Enterprise-Level Functions, and other related capabilities provided under the FENS contract;

(b) Work collaboratively and cooperatively with the Government and providers…