Combined Synopsis Solicitation 70DCR24Q00000015 (Updated 09.23.2024).docx

Combined Synopsis Solicitation

70CDCR24Q00000015

Sack Lunch Meals

OVERVIEW

This is a combined synopsis/solicitation for commercial products or commercial services prepared in accordance with the format in FAR subpart 12.6 and supplemented with additional information included in this notice. This announcement constitutes the only solicitation; proposals are being requested and a written solicitation will not be issued.

Solicitation 70CDCR24Q00000015 is being issued as a Request for Quote (RFQ).

The solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular 2024-06, August 29, 2024.

This solicitation is a competitive 100% small business set aside under the North American Industry Classification System (NAICS) Code 311991 for food, prepared, perishable, packaged for individual resale with a small business standard of 700 employees.

This requirement is for “sack lunch” meals that will be delivered on a daily basis with quantities and specifications described in the attached Statement of Work. The government anticipates issuance of a firm-fixed price purchase order with a twelve (12) month base period plus four (4), 12-month option periods. The estimated period of performance will begin on 10/16/2024.

Vendors responding to this request must:

· Be registered in the System for Award Management (SAM)

· Read the attached Statement of Work and provide timely questions to the point of contact

· Reference solicitation number 70CDCR24Q00000015 on all correspondences pertaining to this solicitation

· Submitted timely quotes by the due date to be considered

· Ensure the quote is good for 30 calendar days after the solicitation closes

EVALUATION CRITERIA

This requirement will be evaluated for technical sufficiency and award will be made to the vendor with the lowest priced technically acceptable quote. The Government intends to award a firm-fixed price (FFP) contract and reserves the right to award without discussions. If it is determined that none of the quotes received are technically acceptable to the Government, no award will be issued against this solicitation and the Government will not be liable for any bid or quote costs.

All quotes received in response to the RFQ will be ranked by the total proposed price from lowest to highest. The Government will first identify the lowest evaluated price quote and evaluate it for technical acceptability in accordance with the technical evaluation factor described below. If the lowest-priced quote is deemed technically acceptable and given a “Pass” technical rating, an award will be made to that vendor based on their quote. If the quote is deemed unacceptable based on the evaluation of the technical factor and given a “Fail” technical rating, the next lowest priced quote will be evaluated for technical acceptability.

Once the least expensive technically acceptable quote has been identified, the Government will cease evaluating quotes.

The Government intends to make an award based on the initial quotes. If further information is required, the Contracting Officer may contact the vendor for clarification. Furthermore, the Government may not issue a purchase order at all, depending on the quality of the quotes received and the continued existence of the requirement.

1. Price – Overall cost to provide all required items in the Statement of Work

2. Technical – Ability to provide all required items in the Statement of Work.

a. Partial Quotes shall not be considered.

b. The Government will evaluate the vendor’s quote to determine that it substantiates the vendor’s ability. This factor will be scored on a PASS/FAIL basis.

c. The technical factor assesses the ability of the vendor to effectively demonstrate the knowledge, understanding, and technical ability to meet the requirements in the Statement of Work as stated in the RFQ.

CONTRACTING ORGANIZATION POC’s Natasha Nguyen – Contracting Officer: Natasha.Nguyen@ice.dhs.gov Eric Peterson – Contract Specialist: Eric.Peterson@ice.dhs.gov

INSTRUCTION TO VENDORS

Quotes shall comply with the following instructions for preparing the quotes. Failure to do so may result in the vendor’s quote being considered non-compliant.

The first page of the technical response and the cost/price quote should indicate the assigned solicitation number 70CDCR24Q00000015.

Electronic copies shall be formatted using Microsoft Office with file names that are consistent with the structure of the quote. All Microsoft Excel cell formulas shall be viewable. Please do not use passwords to protect the submitted media. Please ensure that all electronic media submitted has been scanned for viruses prior to submittal.

At a minimum, quotation packages shall include the following elements:

· Price (Complete with Attachment 2 – Pricing Worksheet)

· Technical (Complete description of how the requirements of the Statement of Work will be met)

QUESTIONS

Questions for this requirement shall be submitted by email to Contract Specialist (CS) Eric Peterson, no later than 5:00 pm EST September 20, 2024.

All responses will be posted for review no later than 5:00 pm EST September 23, 2024.

QUOTE DUE DATE, TIME, AND LOCATION

Please submit quotes by e-mail to Eric.Peterson@ice.dhs.gov by 5:00 pm EST September 27, 2024.

ATTACHMENTS

Attachment 1 – Statement of Work (SOW) Attachment 2 – Pricing Worksheet

TERMS AND CONDITIONS

In the case of a conflict between the terms and conditions of the contractor’s agreement and the terms and conditions of this purchase/task/delivery order/contract, all applicable federal statutes and regulations shall govern.

PROVISIONS AND CLAUSES

The following solicitation provisions apply to this acquisition

Incorporated by Reference:

FAR 52.204-7 System for Award Management (OCT 2018) This provision is incorporated by reference. The full text of the provision is available at: https://www.acquisition.gov/FAR/.

FAR 52.204-16 Commercial and Government Entity Code Maintenance (AUG 2020) This provision is incorporated by reference. The full text of the provision is available at: https://www.acquisition.gov/FAR/.

FAR 52.204-24 Representation regarding Certain Telecommunications and Video Surveillance Services or Equipment (NOV 2021) This provision is incorporated by reference. The full text of the provision is available at: https://www.acquisition.gov/FAR/.

FAR 52.209-11 Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law (FEB 2016) This provision is incorporated by reference. The full text of the provision is available at: https://www.acquisition.gov/FAR/.

FAR 52.212-1 Instructions to Vendors – Commercial Products and Commercial Services (SEPT 2023) This provision is incorporated by reference. The full text of the provision is available at: https://www.acquisition.gov/FAR/.

FAR 52.212-3 Vendor Representations and Certifications – Commercial Products and Commercial Services (MAY 2024) This provision is incorporated by reference. The full text of the provision is available at: https://www.acquisition.gov/FAR/.

FAR 52.217-5 Evaluation of Options (JUL 1990) This provision is incorporated by reference. The full text of the provision is available at: https://www.acquisition.gov/FAR/.

Full Text:

FAR 52.212-2 Evaluation – Commercial Products and Commercial Services

(a) The Government will award a contract resulting from this solicitation to the responsible vendor whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers:

Price Technical

(b) Options. The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are significantly unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).

(c) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful vendor within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer’s specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.

(End of provision)

The following solicitation clauses apply to this acquisition

Incorporated by Reference:

FAR 52.204-13 System for Award Management – Maintenance (OCT 2018) This clause is incorporated by reference. The full text of the clause is available at: https://www.acquisition.gov/FAR/.

FAR 52.204-18 Commercial and Government Entity Code Maintenance (AUG 2020) This clause is incorporated by reference. The full text of the clause is available at: https://www.acquisition.gov/FAR/.

FAR 52.204-19 Incorporation by Reference of Representations and Certifications (DEC 2014) This clause is incorporated by reference. The full text of the clause is available at: https://www.acquisition.gov/FAR/.

FAR 52.204-21 Basic Safeguarding of Covered Contractor Information Systems (NOV 2021) This clause is incorporated by reference. The full text of the clause is available at: https://www.acquisition.gov/FAR/.

FAR 52.212-4 Contract Terms and Conditions – Commercial Items (NOV 2023) This clause is incorporated by reference. The full text of the clause is available at: https://www.acquisition.gov/FAR/.

FAR 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Products and Commercial Services (MAY 2024)

(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 products and commercial services:

|X| (1) 52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017)

|X| (2) 52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered Entities (DEC 2023)**

|X| (3) 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (NOV 2021)**

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

|X| (5) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (MAR 2023)

|X| (6) 52.233-3 Protest After Award (AUG 1996)

|X| (7) 52.233-4 Applicable Law for Breach of Contract Claim (OCT 2004)

(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 of law or Executive orders applicable to acquisitions of commercial products and commercial services:

|_| (1) 52.203-6 Restrictions on Subcontractor Sales to the Government (JUN 2020)

|_| Alternate I (NOV 2021)

|_| (2) 52.203-13 Contractor Code of Business Ethics and Conduct (NOV 2021)

|_| (3) 52.203-15 Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (JUNE 2010)

|X| (4) 52.203-17 Contractor Employee Whistleblower Rights (NOV 2023)

|X| (5) 52.204-10 Reporting Executive Compensation and First-Tier Subcontract Awards (JUN 2020)

|_| (6) [Reserved]

|_| (7) 52.204-14 Service Contract Reporting Requirements (OCT 2016)

|_| (8) 52.204-15 Service Contract Reporting Requirements for Indefinite-Delivery Contracts (OCT 2016)

|X| (9) 52.204-27 Prohibition on a ByteDance Covered Application (JUN 2023)

|_| (10) 52.204-28 Federal Acquisition Supply Chain Security Act Orders – Federal Supply Schedules, Governmentwide Acquisition Contracts, and Multi-Agency Contracts. (DEC 2023)

|_| (11) 52.204-30 Federal Acquisition Supply Chain Security Act Orders – Prohibition (DEC 2023)

|_| Alternate I (DEC 2023) of 52.204-30

|X| (12) 52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (NOV 2021)

|_| (13) 52.209-9 Updates of Publicly Available Information Regarding Responsibility Matters (OCT 2018)

|_| (14) [Reserved]

|_| (15) 52.219-3 Notice of HubZone Set-Aside of Sole-Source Award (OCT 2022)

|_| (16) 52.219-4 Notice of Price Evaluation Preference for HUBZone Small Business Concerns (OCT 2022)

|_| (17) [Reserved]

|X| (18) 52.219-6 Notice of Total Small Business Set-Aside (NOV 2020)

|_| Alternate I (MAR 2020)

|_| (19) 52.219-7 Notice of Partial Small Business Set-Aside (NOV 2020)

|_| Alternate I (MAR 2020)

|_| (20) 52.219-8 Utilization of Small Business Concerns (FEB 2024)

|_| (21) 52.219-9 Small Business Subcontracting Plan (SEP 2023)

|_| Alternate I (NOV 2016)

|_| Alternate II (NOV 2016)

|_| Alternate III (JUN 2020)

|_| Alternate IV (SEP 2023)

|_| (22) 52.219-13 Notice of Set-Aside of Orders (MAR 2020)

|_| Alternate I (MAR 2020)

|_| (23) 52.219-14 Limitations on Subcontracting (OCT 2022)**

|_| (24) 52.219-16 Liquidated Damages – Subcontracting Plan (SEP 2021)

|_| (25) 52.219-27 Notice of Set-Aside for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns Eligible Under the SDVOSB Program Set-Aside (FEB 2024)

|X| (26) 52.219-28 Post Award Small Business Program Rerepresentation (FEB 2024)

|_| Alternate I (MAR 2020)

|_| (27) 52.219-29 Notice of Set-Aside for, or Sole-Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (OCT 2022)

|_| (28) 52.219-30 Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program (OCT 2022)

|_| (29) 52.219-32 Orders Issued Directly Under Small Business Reserves (MAR 2020)

|_| (30) 52.219-33 Nonmanufacturer Rule (SEP 2021)

|X| (31) 52.222-3 Convict Labor (JUN 2003)

|X| (32) 52.222-19 Child Labor – Cooperation with Authorities and Remedies (FEB 2024)

|X| (33) 52.222-21 Prohibition of Segregated Facilities (APR 2015)

|X| (34) 52.222-26 Equal Opportunity (SEPT 2016)

|_| Alternate I (FEB 1999)

|X| (35) 52.222-35 Equal Opportunity for Veterans (JUN 2020)

|_| Alternate I (JUL 2014)

|X| (36) 52.222-36 Equal Opportunity for Workers with Disabilities (JUN 2020)

|_| Alternate I (JUL 2014)

|X| (37) 52.222-37 Employment Reports on Veterans (JUN 2020)

|_| (38) 52.222-40 Notification of Employee Rights Under the National Labor Relations Act (DEC 2010)

|X| (39) 52.222-50 Combating Trafficking in Persons (NOV 2021)

|_| Alternate I (MAR 2015)

|_| (40) 52.222-54 Employment Eligibility Verification (MAY 2022) (Executive Order 12989)

|_| (41) 52.223-9 Estimate of Percentage of Recovered Material Content for EPA-Designated Products (MAY 2008)

|_| Alternate I (MAY 2008)

|_| (42) 52.223-11 Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (MAY 2024)

|_| (43) 52.223-12 Maintenance, Service, Repair or Disposal of Refrigeration Equipment and Air Conditioners (MAY 2024)

|_| (44) 52.223-20 Aerosols (MAY 2024)

|_| (45) 52.223-21 Foams (MAY 2024)

|X| (46) 52.223-23 Sustainable Products and Services (MAY 2024)

|_| (47) 52.224-3 Privacy Training (JAN 2017)*

|_| Alternate 1 (JAN 2017)

|_| (48) 52.225-1 Buy American – Supplies (OCT 2022)

|_| Alternate I (OCT 2022)

|_| (49) 52.225-3 Buy American – Free Trade Agreements – Israeli Trade Act (NOV 2023)

|_| Alternate I [Reserved]

|_| Alternate II (DEC 2022)

|_| Alternate III (FEB 2024)

|_| Alternate IV (OCT 2022)

|_| (50) 52.225-5 Trade Agreements (NOV 2023)

|X| (51) 52.225-13 Restrictions on Certain Foreign Purchases (FEB 2021)

|_| (52) 52.225-26 Contractors Performing Private Security Functions Outside the United States (OCT 2016)

|_| (53) 52.226-4 Notice of Disaster or Emergency Area Set-Aside (NOV 2007)

|_| (54) 52.226-5 Restrictions on Subcontracting Outside Disaster or Emergency Area (NOV 2007)

|X| (55) 52.226-8, Encouraging Contractor Policies to Ban Text Messaging While Driving (MAY 2024)

|_| (56) 52.229-12 Tax on Certain Foreign Procurements (FEB 2021)

|_| (57) 52.232-29 Terms for Financing of Purchases of Commercial Items (NOV 2021)

|_| (58) 52.232-30 Installment Payments for Commercial Items (NOV 2021)

|X| (59) 52.232-33 Payment by Electronic Funds Transfer—System for Award Management (OCT 2018)

|_| (60) 52.232-34 Payment by Electronic Funds Transfer—Other than System for Award Management (JUL 2013)

|_| (61) 52.232-36 Payment by Third Party (MAY 2014)

|_| (62) 52.239-1 Privacy or Security Safeguards (AUG 1996)

|_| (63) 52.242-5 Payments to Small Business Subcontractors (JAN 2017)

|_| (64) 52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels (NOV 2021)

|_| Alternate I (APR 2003)

|_| Alternate II (NOV 2021)

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial products and commercial services:

|X| (1) 52.222-41 Service Contract Labor Standards (AUG 2018)

|_| (2) 52.222-42 Statement of Equivalent Rates for Federal Hires (MAY 2014)

|_| (3) 52.222-43 Fair Labor Standards Act and Service Contract Labor Standards—Price Adjustment (Multiple Year and Option Contracts) (AUG 2018)

|_| (4) 52.222-44 Fair Labor Standards Act and Service Contract Act—Price Adjustment (MAY 2014)

|_| (5) 52.222-51 Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Requirements (MAY 2014)

|_| (6) 52.222-53 Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services—Requirements (MAY 2014)

|_| (7) 52.222-55 Minimum Wages for Contractor Workers Under Executive Order 14026 (JAN 2022)*

|_| (8) 52.222-62 Paid Sick Leave Under Executive Order 13706 (JAN 2022)

|X| (9) 52.226-6 Promoting Excess Food Donation to Nonprofit Organizations (JUN 2020)

(d) Comptroller General Examination of Record. The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, as defined in FAR 2.101, on the date of award of this contract, and does not contain the clause at 52.215-2, Audit and Records-Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e)(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1), in a subcontract for commercial products or commercial services. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause-

(i) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021) (41 U.S.C. 3509).

(ii) 52.203-17, Contractor Employee Whistleblower Rights (NOV 2023) (41 U.S.C. 4712).

(iii) 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)).

(iv) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered Entities (DEC 2023) (Section 1634 of Pub. L. 115-91).

(v) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (NOV 2021) (Section 889(a)(1)(A) of Pub. L. 115-232.) **

(vi) 52.204-27 Prohibition on a ByteDance Covered Application (JUN 2023)

(vii) (A) 52.204-30 Federal Acquisition Supply Chain Security Act Orders – Prohibition (DEC 2023) (Pub. L. 115-390, title II).

(B) Alternate I (DEC 2023) of 52.204-30.

(viii) 52.219-8, Utilization of Small Business Concerns (FEB 2024) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds the applicable threshold specified in FAR 19.702(a) on the date of the subcontract award, the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

(ix) 52.222-21, Prohibition of Segregated Facilities (APR 2015)

(x) 52.222-26, Equal Opportunity (SEPT 2015) (E.O. 11246)

(xi) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 U.S.C. 4212).

(xii) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29 U.S.C. 793).

(xiii) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212)

(xiv) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40.

(xv) 52.222-41, Service Contract Labor Standards (AUG 2018) (41 U.S.C. chapter 67).

(xvi)

(A) 52.222-50, Combating Trafficking in Persons (NOV 2021) (22 U.S.C. chapter 78 and E.O 13627).

(B) Alternate I (MAR 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O 13627).

(xvii) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (MAY 2014) (41 U.S.C. chapter 67).

(xviii) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-Requirements (MAY 2014) (41 U.S.C. chapter 67).

(xix) 52.222-54, Employment Eligibility Verification (MAY 2022) (E.O.12989).

(xx) 52.222-55, Minimum Wages for Contractor Workers Under Executive Order 14026 (JAN 2022). *

(xxi) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2022) (E.O. 13706).

(xxii)

(A) 52.224-3, Privacy Training (JAN 2017) (5U.S.C. 552a).

(B) Alternate I (JAN 2017) of 52.224-3.

(xxiii) 52.225-26, Contractors Performing Private Security Functions Outside the United States (OCT 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).

(xxiv) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (JUN 2020) (42 U.S.C. 1792). Flow down required in accordance with paragraph (e) of FAR clause 52.226-6.

(xxv) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (MAR 2023) (31 U.S.C. 3903 and 10 U.S.C 3801). Flow down required in accordance with paragraph (c) of 52.232-40

(xxvi) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (NOV 2021) 46 U.S.C. 55305 and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-64.

(2) While not required, the Contractor may include in its subcontracts for commercial products and commercial services a minimal number of additional clauses necessary to satisfy its contractual obligations.

**FAR DEVIATIONS**

FAR 52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kapersky Lab and Other Covered Entities (DEVIATION 20-05)

(a) Definitions. As used in this clause—

“Covered article” means any hardware, software, or service that–

(1) Is developed or provided by a covered entity;

(2) Includes any hardware, software, or service developed or provided in whole or in part by a covered entity; or

(3) Contains components using any hardware or software developed in whole or in part by a covered entity.

“Covered entity” means–

(1) Kaspersky Lab;

(2) Any successor entity to Kaspersky Lab;

(3) Any entity that controls, is controlled by, or is under common control with Kaspersky Lab; or

(4) Any entity of which Kaspersky Lab has a majority ownership.

(b) Prohibition. Section 1634 of Division A of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) prohibits Government use of any covered article. The Contractor is prohibited from—

(1) Providing any covered article that the Government will use on or after October 1, 2018; and

(2) Using any covered article on or after October 1, 2018, in the development of data or deliverables first produced in the performance of the contract.

(c) Reporting requirement.

(1) In the event the Contractor identifies a covered article provided to the Government during contract performance, or the Contractor is notified of such by a subcontractor at any tier or any other source, the Contractor shall report, in writing via email, to the Contracting Officer, Contracting Officer’s Representative, and the Enterprise Security Operations Center (SOC) at NDAA_Incidents@hq.dhs.gov, with required information contained in the body of the email. In the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Enterprise SOC, Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) and Contracting Officer’s Representative(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2) The Contractor shall report the following information pursuant to paragraph (c)(1) of this clause:

(i) Within 1 business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; brand; model number (Original Equipment Manufacturer (OEM) number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the report pursuant to paragraph (c)(1) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of a covered article, any reasons that led to the use or submission of the covered article, and any additional efforts that will be incorporated to prevent future use or submission of covered articles.

(d) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts, including subcontracts for the acquisition of commercial items.

(End of clause)

FAR 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (DEVIATION 2020-05) (NOV 2021)

(a) Definitions. As used in this clause—

“Backhaul” means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).

“Covered foreign country” means The People’s Republic of China.

“Covered telecommunications equipment or services” means–

(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);

(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);

(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or

(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

“Critical technology” means–

(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations;

(2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled-

(i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

(ii) For reasons relating to regional stability or surreptitious listening;

(3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities);

(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);

(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or

(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).

“Interconnection arrangements” means arrangements governing the physical connection of two or more networks to allow the use of another’s network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.

“Reasonable inquiry” means an inquiry designed to uncover any information in the entity’s possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.

“Roaming” means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.

“Substantial or essential component” means any component necessary for the proper function or performance of a piece of equipment, system, or service.

(b) Prohibition.

(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115–232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104.

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115–232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract.

(c) Exceptions. This clause does not prohibit contractors from providing—

(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

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

(d) Reporting requirement.

(1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause in writing via email to the Contracting Officer, Contracting Officer’s Representative, and the Network Operations Security Center (NOSC) at NDAA_Incidents@hq.dhs.gov, with required information in the body of the email. In the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the NOSC, Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) and Contracting Officer’s Representative(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause

(i) Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.

(e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.

(End of clause)