RFP 70B03C20R00000011.pdf

12. DISCOUNT TERMS

8. OFFER DUE DATE/

LOCAL TIME

9. ISSUED BY CODE 10. THIS ACQUISITION IS

6. SOLICITATION

ISSUE DATE

3. AWARD/EFF. DATE 5. SOLICITATION NUMBER2. CONTRACT NO. 4. ORDER NUMBER

a. NAME b. TELEPHONE NUMBER (No collect calls)7. FOR SOLICITATION

INFORMATION CALL:

SET ASIDE : % FOR:

SMALL BUSINESS

NAICS:

SIZE STANDARD:

HUBZONE SMALL

BUSINESS

11. DELIVERY FOR FOB

DESTINATION UNLESS

BLOCK IS MARKED

SEE SCHEDULE

13b. RATING

14. METHOD OF SOLICITATION

IFB RFPRFQ

15. DELIVER TO 16. ADMINISTERED BY CODE

18a. PAYMENT WILL BE MADE BY17a. CONTRACTOR/ CODE

OFFEROR

FACILITY

CODE

TELEPHONE NO.

18b. SUBMIT INVOICES TO ADDRESS SHOWN IN BLOCK 18a UNLESS

BLOCK BELOW IS CHECKED.

17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS

IN OFFER.

8(A)

70B03C20R00000011

Nathan Briggs nathan.p.briggs@cbp.dhs.gov 317-614-4929 02/10/2020 4:00PM ET

DHS - Customs & Border Protection CBP, Procurement Directorate Intech Two, Suite 100

6650 Telecom Drive

Indianapolis IN 46278

334517

0500 EMPLOYEES

See Attached Delivery Schedule DHS - Customs & Border Protection CBP, Procurement Directorate Intech Two, Suite 100 6650 Telecom Drive Indianapolis IN 46278

DHS - Customs & Border Protection Commercial Accounts Sect.

6650 Telecom Drive, Suite 100 Indianapolis IN 46278

PAGE OF PAGES1. REQUISITION NUMBERSOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS

OFFEROR TO COMPLETE BLOCKS 12,17,23,24, & 30 0020116578 1 56

ORDER UNDER DPAS (15 CFR 700)

SERVICE-DISABLED

VETERAN-OWNED

SMALL BUSINESS

UNRESTRICTED OR

13a. THIS CONTRACT IS A RATED

12/23/2019

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

24.

AMOUNT

22.

UNIT

23.

UNIT PRICE

SEE ADDENDUM

WOMEN-OWNED SMALL BUSINESS (WOSB) ELIGIBLE

UNDER THE WOMEN-OWNED SMALL BUSINESS PROGRAM

EDWOSB

CODE

CODE

AUTHORIZED FOR LOCAL REPRODUCTION

PREVIOUS EDITION IS NOT USABLE

31c. DATE SIGNED

25. ACCOUNTING AND APPROPRIATION DATA 26. TOTAL AWARD AMOUNT (For Govt Use Only)

27a. SOLICITATION INCORPORATES BY REFERENCE FAR 52.212-1, 52.212-4. FAR 52.212-3 AND 52.212-5 ARE ATTACHED.

ADDENDA

ADDENDA

ARE ARE NOT ATTACHED.

ARE ARE NOT ATTACHED.

27b. CONTRACT/PURCHASE ORDER INCORPORATES BY REFERENCE FAR 52.212-4. FAR 52.212-5 IS ATTACHED

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND

RETURN

AGREES TO FURNISH AND DELIVER ALL ITEMS SET FORTH OR

OTHERWISE IDENTIFIED ABOVE AND ON ANY ADDITIONAL SHEETS

SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED HEREIN.

29. AWARD OF CONTRACT: REF.

YOUR OFFER ON SOLICITATION (BLOCK 5), INCLUDING

ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH HEREIN, IS ACCEPTED AS TO

ITEMS:

OFFER DATED

30A. SIGNATURE OF OFFEROR/CONTRACTOR 31a. UNITED STATES OF AMERICA (SIGNATURE OF CONTRACTING OFFICER)

30b. NAME AND TITLE OF SIGNER (TYPE OR PRINT) 30c. DATE

SIGNED

31b. NAME OF CONTRACTING OFFICER (TYPE OR PRINT)

STANDARD FORM 1449 (REV. 2/2012)

Prescribed by GSA - FAR (48 CFR) 53.212

$0.00

Nathan P. Briggs

COPIES TO ISSUING OFFICE. CONTRACTOR

10 See Schedule 1.000 AU

70B03C20R00000011

TABLE OF CONTENTS

SECTION I SCHEDULES

I.1 OVERVIEW

I.2 PERIOD OF PERFORMANCE

I.3 CONTRACT PRICING

I.4 INDEFINITE QUANTITY LIMITS

I.5 APPLICABILITY OF CLAUSES

I.6 ORDERS AND ORDERING PROCEDURES

I.7 SCHEDULE OF SUPPLIES/SERVICES

I.8 DELIVERY SCHEDULE

SECTION II CONTRACT CLAUSES

II.1 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

II.2 52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (OCT 2010) 9 II.3 52.203-17 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM

EMPLOYEES OF WHISTLEBLOWER RIGHTS (APR 2014)

II.4 52.204-4 PRINTED OR COPIED DOUBLE-SIDED ON POSTCONSUMER FIBER CONTENT PAPER (MAY 2011) 9

II.5 52.204-13 SYSTEM FOR AWARD MANAGEMENT MAINTENANCE (OCT 2018)

II.6 52.204-18 COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (JUL 2016)

II.7 52.222-6 CONSTRUCTION WAGE RATE REQUIREMENTS (AUG 2018)

II.8 52.222-7 WITHHOLDING OF FUNDS (MAY 2014)

II.9 52.222-8 PAYROLLS AND BASIC RECORDS (AUG 2018)

II.10 52.222-9 APPRENTICES AND TRAINEES (JUL 2005)

II.11 52.222-10 COMPLIANCE WITH COPELAND ACT REQUIREMENTS (FEB 1988)

II.12 52.222-11 SUBCONTRACTS (LABOR STANDARDS) (MAY 2014)

II.13 52.222-12 CONTRACT TERMINATION--DEBARMENT (MAY 2014)

II.14 52.222-13 COMPLIANCE WITH CONSTRUCTION WAGE RATE REQUIREMENTS AND RELATED

REGULATIONS (MAY 2014)

II.15 52.222-14 DISPUTES CONCERNING LABOR STANDARDS (FEB 1988)

II.16 52.222-15 CERTIFICATION OF ELIGIBILITY (MAY 2014)

II.17 52.222-16 APPROVAL OF WAGE RATES (MAY 2014)

II.18 52.223-17 AFFIRMATIVE PROCUREMENT OF EPA-DESIGNATED ITEMS IN SERVICE AND

CONSTRUCTION CONTRACTS (AUG 2018)

II.19 52.227-14 RIGHTS IN DATA--GENERAL (MAY 2014) ALTERNATE IV (DEC 2007)

II.20 52.223-5 POLLUTION PREVENTION AND RIGHT-TO-KNOW INFORMATION (MAY 2011)

II.21 52.232-39 UNENFORCEABILITY OF UNAUTHORIZED OBLIGATIONS (JUN 2013)

II.22 52.232-40 PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS (DEC 2013) 9 II.23 52.212-4 CONTRACT TERMS AND CONDITIONS--COMMERCIAL ITEMS (OCT 2018) ALTERNATE I (JAN 2017) 10 II.24 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE

ORDERS -- COMMERCIAL ITEMS (OCT 2019)

II.25 52.209-4 FIRST ARTICLE APPROVAL--GOVERNMENT TESTING (SEP 1989) ALTERNATE II (SEP 1989) .. 23

II.26 52.216-18 ORDERING (OCT 1995)

II.27 52.216-19 ORDER LIMITATIONS (OCT 1995)

II.28 52.216-22 INDEFINITE QUANTITY (OCT 1995)

II.29 52.217-7 OPTION FOR INCREASED QUANTITY-SEPARATELY PRICED LINE ITEM (MAR 1989)

II.30 52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000)

II.31 52.216-32 TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (SEP 2019)

II.32 3052.212-70 CONTRACT TERMS AND CONDITIONS APPLICABLE TO DHS ACQUISITION OF

COMMERCIAL ITEMS (SEP 2012)

II.33 CONTRACT TYPE

II.34 SPECIFICATIONS, STATEMENT OF WORK, STATEMENT OF OBJECTIVES OR PERFORMANCE WORK

STATEMENT ATTACHED

II.35 PACKAGING, PACKING AND MARKING

II.36 CHANGES IN TECHNOLOGY

II.37 CONTRACTING OFFICER'S AUTHORITY

II.38 ELECTRONIC INVOICING AND PAYMENT REQUIREMENTS - INVOICE PROCESSING PLATFORM (IPP) . 28

II.39 GOVERNMENT CONSENT OF PUBLICATION/ENDORSEMENT

II.40 ORDERING OF AS NEEDED SERVICES

II.41 SECURITY PROCEDURES

II.42 DISCLOSURE OF INFORMATION

II.43 NON-PERSONAL SERVICE

II.44 POST AWARD EVALUATION OF CONTRACTOR PERFORMANCE

II.45 ADDITIONAL CONTRACTOR PERSONNEL REQUIREMENTS

II.46 SPECIAL SECURITY REQUIREMENT - CONTRACTOR PRE-SCREENING

SECTION III SOLICITATION PROVISIONS

III.1 52.203-11 CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN

FEDERAL TRANSACTIONS (SEP 2007)

III.2 52.203-18 PROHIBITION ON CONTRACTING WITH ENTITIES THAT REQUIRE CERTAIN INTERNAL

CONFIDENTIALITY AGREEMENTS OR STATEMENTS – REPRESENTATION (JAN 2017)

III.3 52.204-7 SYSTEM FOR AWARD MANAGEMENT (OCT 2018)

III.4 52.204-16 COMMERCIAL AND GOVERNMENT ENTITY CODE REPORTING (JUL 2016)

III.5 52.204-17 OWNERSHIP OR CONTROL OF OFFEROR (JUL 2016)

III.6 52.212-1 INSTRUCTIONS TO OFFERORS--COMMERCIAL ITEMS (OCT 2018)

III.7 52.214-34 SUBMISSION OF OFFERS IN THE ENGLISH LANGUAGE (APR 1991)

III.8 52.214-35 SUBMISSION OF OFFERS IN U.S. CURRENCY (APR 1991)

III.9 52.216-31 TIME-AND-MATERIALS/LABOR-HOUR PROPOSAL REQUIREMENTS--COMMERCIAL ITEM

ACQUISITION (FEB 2007)

III.10 52.217-5 EVALUATION OF OPTIONS (JUL 1990)

III.11 52.222–56 CERTIFICATION REGARDING TRAFFICKING IN PERSONS COMPLIANCE PLAN (MAR 2015) III.12 52.225-25 PROHIBITION ON CONTRACTING WITH ENTITIES ENGAGING IN CERTAIN ACTIVITIES OR

TRANSACTIONS RELATING TO IRAN--REPRESENTATION AND CERTIFICATIONS (AUG 2018)

III.13 52.237-1 SITE VISIT (APR 1984)

III.14 52.250-2 SAFETY ACT COVERAGE NOT APPLICABLE (FEB 2009)

III.15 52.209-7 INFORMATION REGARDING RESPONSIBILITY MATTERS (OCT 2018)

III.16 52.212-2 EVALUATION--COMMERCIAL ITEMS (OCT 2014)

III.17 52.212--3 OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS (OCT 2018) . 37

III.18 52.216-1 TYPE OF CONTRACT (APR 1984)

III.19 52.216-27 SINGLE OR MULTIPLE AWARDS (OCT 1995)

III.20 52.222-5 CONSTRUCTION WAGE RATE REQUIREMENTS—SECONDARY SITE OF THE WORK (MAY 2014) 50

III.21 52.225-18 PLACE OF MANUFACTURE (AUG 2018)

III.22 EVALUATION FACTORS FOR AWARD

III.23 SUBMISSION REQUIREMENTS

SECTION I SCHEDULES

I.1 OVERVIEW

U.S. Customs & Border Protection (CBP) is soliciting proposals for supplies and services related to High Energy Rail (HE Rail) inspection systems for the Non-Intrusive Inspection (NII) Program.

CBP intends to award a multiple-award Indefinite Delivery, Indefinite Quantity (IDIQ) contract with a five-year ordering period. Orders issued against the IDIQ may include separately priced supply or service options if it is in the Government’s interest to do so.

Specifications for the supplies and services can be found in the attached Statement of Work.

The IDIQ will include a firm-fixed price schedule. Hourly rates for construction services will be bid at the order level, when wage determinations have been identified. Any order against this IDIQ may be firm-fixed priced, a time-and-material, or a hybrid of the two.

The first deployed HE Rail system order under this IDIQ will be subject to first article testing in accordance with the Statement of Work and Federal Acquisition Regulation (FAR) clause 52.209-4 Alternate II.

I.2 PERIOD OF PERFORMANCE

The contemplated contract has a five-year ordering period, with no option periods. The effective period of this IDIQ will begin on the date of award and will continue until completion of the final order on the contract. Orders issued from this contract could have performance periods that extend up to ten (10) years from the Government’s acceptance of the final unit under that order, if all possible options included on that order are exercised.

I.3 CONTRACT PRICING

Prices for the HE Rail inspection systems and other deliverables shall be FOB Destination for locations in the contiguous United States (CONUS). The contractor shall deliver and install units to locations specified at the order level. This price must include shipping charges, set-up costs and factory test representation. Additional shipping charges may be bid at the order level for any units outside of the contiguous United States (OCONUS). Warranty and maintenance prices in the schedule are likewise for CONUS units. A warranty or maintenance price differential may be quoted at the order level for any OCONUS destinations, if applicable.

The fixed price of HE Rail inspection systems does not include installation. The price of installation will be bid at the order level once sites have been identified. To the extent that labor rates apply (such as the Wage Rate Requirements (Construction) Act), the relevant wage determination will be included with the order-level Request for Quotes.

Prices for the below schedule shall be listed as a single, fixed price for each item during the entire ordering period.

I.4 INDEFINITE QUANTITY LIMITS

The Government has determined that the minimum buy for each awardee under this IDIQ will be four (4) HE Rail systems to be awarded concurrently with the IDIQ. Vendors are not obligated to fulfill requirements (singly or in the aggregate) that exceed $379 million under this IDIQ.

I.5 APPLICABILITY OF CLAUSES

This is an IDIQ for commercial items. However it includes construction activity incidental to the installation of those items.

This construction activity is expected to exceed the threshold of the Wage Rate Requirements (Construction) Act, 40 U.S.C. Chapter 31 (formerly known as the Davis-Bacon Act). Therefore, certain additional clauses apply to any line which exceeds the threshold for construction works as defined in the Federal Acquisition Regulation. The clauses that apply to construction lines are: 52.222-6 through 52.222-16. These clauses are incorporated by reference below. The FAR provision 52.222-5 will also apply to RFQs involving construction work.

I.6 ORDERS AND ORDERING PROCEDURES

Request for Quotes Certain orders against this IDIQ will require a vendor quote. For example, site specific installation or OCONUS shipping are not fixed at the IDIQ level. There is no required Request for Quotes format, except that any request conform to FAR 16.505(b) ordering procedures.

Options This contract permits option lines at the order level. If options are included in Delivery Orders, FAR clauses 52.217-7 and/or 52.217-9 will be included on the order. Orders may contain option clauses for increased quantities, systems, training, and maintenance.

Time-and-Materials Competitive RFQs issued under this contract may include time-and-material lines, in accordance with FAR 12.207(b).

On-Demand Services On-Demand service are within-scope services (and incidental supplies) required to complete the contract but not knowable at the time of award. These service will be contracted via a fixed-price quote to an RFQ when the need is known.

An on-demand item or service with a fixed price that is expected to recur may be added to the fixed-price schedule below via bilateral IDIQ modification once the price has been approved by the contracting officer.

Pricing for on-demand services or any other supplies or services not set in the schedule below must undergo price analysis in accordance with FAR 16.505(b)(3). If no other method of determining price reasonableness is available, vendors may be required to provide other than cost and pricing data to assist in the reasonableness determination.

Authorized Activity The following authorized activities are authorized to use this IDIQ: U.S. Customs and Border Protection, DHS Office of Procurement Operations, and the DHS Countering Weapons of Mass Destruction office.

I.7 SCHEDULE OF SUPPLIES/SERVICES

High Energy Rail Inspection System

ITEM # DESCRIPTION QTY UNIT UNIT PRICE

10 High Energy Rail Inspection System

(includes all base subsystems)

1.000 EA

High Energy Rail Inspection System Quantity Discount

Quantity Range Item Price (per High Energy (HE) Rail System) ≥5

The quantity discounts listed above apply to each order individually.

Individual Subsystems (a la carte)

20 Base Radiographic Inspection (NII) (X-ray) Subsystem 1.000 EA 30 Base Railcar Identification System 1.000 EA 40 Base Conveyance Cameras Subsystem 1.000 EA 50 Base Display and Control Subsystem 1.000 EA The sum of the prices for Items 20-50 must be equal to the total system price provided for Item 10.

Training and Other Services

60 Site Preparation, Engineering Services and Support 1.000 EA 70 Training Development 1.000 EA 80 Train-the-Trainer Class 1.000 EA 90 Operator Training Class 1.000 EA 100 Analyst Training Class 1.000 EA

Maintenance Services (year two–Preventative and Corrective) 1.000 EA

120 Maintenance Services (year three–Preventative and Corrective) 1.000 EA 130 Maintenance Services (year four–Preventative and Corrective) 1.000 EA 140 Maintenance Services (year five–Preventative and Corrective) 1.000 EA 150 Maintenance Services (year six–Preventative and Corrective) 1.000 EA 160 Maintenance Services (year seven-–Preventative and Corrective) 1.000 EA 170 Maintenance Services (year eight–Preventative and Corrective) 1.000 EA 180 Maintenance Services (year nine-–Preventative and Corrective) 1.000 EA 190 Maintenance Services (year ten–Preventative and Corrective) 1.000 EA

The prices for Item 60, Site Preparation, Engineering Services and Support, includes all work performed under Section 1 of the Installation Statement of Work (i.e. Site Preparation, Engineering Services and Support, Site Surveys, Engineering Assessments and Construction Drawings including Approvals, and Site Preparation).

System Installation

200 Construction Project Manager 1.000 HR 210 Installation Services 1.000 AU Priced Separately

The prices for Installation Services will be provided by location via the Installation Quote, Plan, and Checklist submitted with the Final Engineering Assessment and Final Construction drawings in accordance with the Installation Statement of Work.

Additional Options

ITEM

DESCRIPTION QTY UNI

UNIT PRICE

220 Cold-Weather Enhancement Package 1.000 EA (as applicable) 230 Hot-Weather Enhancement Package 1.000 EA (as applicable) 240 Interface Control Documentation (DID A026) 1.000 EA 250 Additional Operator / Analyst Workstation 1.000 EA 260 Additional Software License 1.000 EA 270 8’ x 12’ Operator Booth 1.000 EA 280 8’ x 19’ Operator Booth 1.000 EA 290 Power Conditioner / Uninterruptable Power Source 1.000 EA 300 Replay Software Package and User’s Manual 1.000 EA (as applicable)

Offerors may list additional items, such as additional configuration or equipment not already provided. To be considered, these options must be sufficiently described in the technical volume of the proposal to allow for an assessment of technical merit.

1.000 EA (as applicable)

1.000 EA (as applicable)

1.000 EA (as applicable)

1.000 EA (as applicable)

1.000 EA (as applicable)

The prices for other Enhancement Packages (Items 230, 240 and those identified by the offeror) shall be priced as the additional cost above the base price for the applicable individual subsystem (Items 20 – 50), and exclusive of all other enhancement options.

I.8 DELIVERY SCHEDULE

DELIVER TO: ITEM # QTY DELIVERY DATE

TBD – Order Dependent TBD – Order

Dependent

SECTION II CONTRACT CLAUSES

II.1 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es):

www.acquisition.gov

I. FEDERAL ACQUISITION REGULATION (48 CHAPTER 1) CLAUSES

NUMBER TITLE

II.2 52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (OCT 2010)

II.3 52.203-17 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM

EMPLOYEES OF WHISTLEBLOWER RIGHTS (APR 2014)

II.4 52.204-4 PRINTED OR COPIED DOUBLE-SIDED ON POSTCONSUMER FIBER CONTENT PAPER (MAY 2011)

II.5 52.204-13 SYSTEM FOR AWARD MANAGEMENT MAINTENANCE (OCT 2018)

II.6 52.204-18 COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (JUL 2016)

II.7 52.222-6 CONSTRUCTION WAGE RATE REQUIREMENTS (AUG 2018)

II.8 52.222-7 WITHHOLDING OF FUNDS (MAY 2014)

II.9 52.222-8 PAYROLLS AND BASIC RECORDS (AUG 2018)

II.10 52.222-9 APPRENTICES AND TRAINEES (JUL 2005)

II.11 52.222-10 COMPLIANCE WITH COPELAND ACT REQUIREMENTS (FEB 1988)

II.12 52.222-11 SUBCONTRACTS (LABOR STANDARDS) (MAY 2014)

II.13 52.222-12 CONTRACT TERMINATION--DEBARMENT (MAY 2014)

II.14 52.222-13 COMPLIANCE WITH CONSTRUCTION WAGE RATE REQUIREMENTS AND RELATED

REGULATIONS (MAY 2014)

II.15 52.222-14 DISPUTES CONCERNING LABOR STANDARDS (FEB 1988)

II.16 52.222-15 CERTIFICATION OF ELIGIBILITY (MAY 2014)

II.17 52.222-16 APPROVAL OF WAGE RATES (MAY 2014)

II.18 52.223-17 AFFIRMATIVE PROCUREMENT OF EPA-DESIGNATED ITEMS IN SERVICE AND CONSTRUCTION

CONTRACTS (AUG 2018)

II.19 52.227-14 RIGHTS IN DATA--GENERAL (MAY 2014) ALTERNATE IV (DEC 2007)

II.20 52.223-5 POLLUTION PREVENTION AND RIGHT-TO-KNOW INFORMATION (MAY 2011)

II.21 52.232-39 UNENFORCEABILITY OF UNAUTHORIZED OBLIGATIONS (JUN 2013)

II.22 52.232-40 PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS (DEC 2013)

II.23 52.212-4 CONTRACT TERMS AND CONDITIONS--COMMERCIAL ITEMS (OCT 2018) ALTERNATE I (JAN 2017)

(a) Inspection/Acceptance. (1) The Government has the right to inspect and test all materials furnished and services performed under this contract, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the Contractor or any subcontractor engaged in contract performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

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

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

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

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

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

(B) Terminate this contract for cause.

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

Disputes clause of the contract.

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

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

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

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

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

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

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. As used in this clause-

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

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

(A) Performed by the contractor;

(B) Performed by the subcontractors; or

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

(iii) Materials means-

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

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

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

(D) The following subcontracts for services which are specifically excluded from the hourly rate: None; and

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

(iv) Subcontract means any contract, as defined in FAR Subpart 2.1, entered into with a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include--

(i) Name and address of the Contractor;

(ii) Invoice date and number;

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

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

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

Government bill of lading;

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

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

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

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer--System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer--Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payments.--

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

(i) Hourly rate.

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

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

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

Officer) to the Contracting Officer or the authorized representative.

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

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

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

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

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

(ii) Materials.

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

(1) Quantities being acquired; and

(2) Any modifications necessary because of contract requirements.

(B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of this clause, the Government will reimburse the

Contractor the actual cost of materials (less any rebates, refunds, or discounts received by the contractor that are identifiable to the contract) provided the Contractor-

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

(2) Makes these payments within 30 days of the submission of the Contractor’s payment request to the

Government and such payment is in accordance with the terms and conditions of the agreement or invoice.

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

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

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

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

(1) Other Direct Costs. The Government will reimburse the Contractor on the basis of actual cost for the following, provided such costs comply with the requirements in paragraph (i)(1)(ii)(B) of this clause: None.

(2) Indirect Costs (Material Handling, Subcontract Administration, etc.). The Government will reimburse the

Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price: None.

(2) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule and the Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within such ceiling price.

If at any time the Contractor has reason to believe that the hourly rate payments and material costs that will accrue in performing this contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling price in the Schedule, the Contractor shall notify the Contracting Officer giving a revised estimate of the total price to the Government for performing this contract with supporting reasons and documentation. If at any time during the performance of this contract, the Contractor has reason to believe that the total price to the Government for performing this contract will be substantially greater or less than the then stated ceiling price, the Contractor shall so notify the Contracting Officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documentation. If at any time during performance of this contract, the Government has reason to believe that the work to be required in performing this contract will be substantially greater or less than the stated ceiling price, the Contracting Officer will so advise the Contractor, giving the then revised estimate of the total amount of effort to be required under the contract.

(3) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price.

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

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

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

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

(B) The Contractor’s timekeeping procedures;

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

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

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

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

(B) Any documents supporting payment of those invoices.

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

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the-

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

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

(6)(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury, as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, and then at the rate applicable for each six month period as established by the Secretary until the amount is paid.

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

(iii) Final Decisions. The Contracting Officer will issue a final decision as required by 33.211 if-

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

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the

Contracting Officer (see FAR 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on-

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in

32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

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

(7) Release of claims. The Contractor, and each assignee under an assignment entered into under this contract and in effect at the time of final payment under this contract, shall execute and deliver, at the time of and as a condition precedent to final payment under this contract, a release discharging the

Government, its officers, agents, and employees of and from all liabilities, obligations, and claims arising out of or under this contract, subject only to the following exceptions.

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

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

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

(8) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31

U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315.

(9) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

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

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b.

destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid an amount for direct labor hours (as defined in the Schedule of the contract) determined by multiplying the number of direct labor hours expended before the effective date of termination by the hourly rate(s) in the contract, less any hourly rate payments already made to the Contractor plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system that have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred that reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the

Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the

Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C.

chapter 21 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government

Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) [Removed and Reserved]

(u) Unauthorized Obligations. (1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

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

(End of clause)

II.24 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE

ORDERS -- COMMERCIAL ITEMS (OCT 2019)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.203–19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017) (section

743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions))

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky

Lab and Other Covered Entities (JUL 2018) (Section 1634 of Pub. L. 115–91).

(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or

Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).

(4) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (NOV 2015)

(5) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(6) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108–77 and 108–78 (19 U.S.C.

3805 note)).

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions…