Combined_Synopsis_-_Outside_Legal.pdf

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This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in Subpart 12.6, as 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 number 70FA6019R00000001 is issued as a request for quote (RFP).

This solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular 2019-01.

This solicitation is un-restricted. NAICS: 541110

DESCRIPTION OF REQUIREMENTS FOR THE SERVICES TO BE ACQUIRED

The purpose of the acquisition is to procure legal counsel services for work related to reinsurance agreement terms and conditions, consulting on legal issues related to the management and operations of a Federal Insurance and Mitigation Administration (FIMA) -operated reinsurance program and providing advice on potential disputes arising from reinsurance & other related agreements in accordance with Attachment A, Statement of Work (SOW).

PERIOD AND PLACE OF PERFORMANCE

The period of performance will be a 12-month base period and four 12-month option periods.

The place of performance will be primarily remote and at FEMA Headquarters located in Washington, DC.

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Base Year (12 Months)

CLIN Description Quantity Unit Price

0001 Labor 1 T&M

ODC/

Travel

Cost

Option Year One (12 Months)

1001 Labor 1 T&M

Option Year Two (12 Months)

Labor

T&M

Option Year Three (12 Months)

3001 Labor 1 T&M

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Option Year Four (12 Months)

4001 Labor 1 T&M

PROVISION AT 52.212-1, INSTRUCTIONS TO OFFERORS -- COMMERCIAL, APPLIES TO

THIS ACQUISITION.

ADDENDUM TO 52.212-1 INSTRUCTIONS TO OFFERORS --COMMERCIAL ITEMS (Oct 2018)

In addition to the FAR 52.212-1 "Instructions to Offerors-Commercial Items," the following is requested:

Offerors are required to submit their proposals in two separate volumes as follows:

Volume I – Technical Proposal

Volume II – Business/Price Proposal

Title of the Requirement: Legal Counsel Services

Technical Proposal, Volume 1 The technical proposal submittal shall not exceed fifteen (15), single sided, 8.5 inch by 11 inch pages and shall use a type pitch that is no smaller than a standard 12-point font type, with the exception of charts, graphs, or tables, which shall use a pitch not smaller than 11-point font. Each page shall have not less than one-inch margins on each side of the page. Header/footer information (which does not include any information to be evaluated) may be included in the 1’ margin space. Each 8.5 inch by 11 inch “sheet” shall count as one page.

Foldouts for complete spreadsheets and/or organization charts are permissible up to 11 inch by 17 inch and shall count as two pages.

Front matter, resumes of key personnel, and letters of commitment do not count against the 15-page limitation.

Resumes of key personnel shall not exceed three (3) single sided pages each and shall use a type pitch that is no smaller than a standard 12-point font type.

Pages exceeding the Technical Volume 15-page limit will not be considered. All other material such as brochures or samples of work, attachments, or extra pages will not be considered.

In addition, please provide a Performance Work Statement (PWS) along with the technical proposal detailing how you intend to meet the objectives of the Statement of Objectives (SOO).

Business/Price Proposal, Volume 2 Proposed price will be evaluated to determine whether it is reasonable for the conduct of the proposal.

The proposed price shall cover all possible costs the government may incur in performance of the http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/52_000.htm#P1391_191748

4 | P a g e requested services and be appropriate to the administration of the project. The Government will evaluate the contractor’s proposed prices to make a determination that the price list is complete and that the costs are fair and reasonable in relation to the services provided. The contractor provides a complete price list breakdown to allow the Government to make an assessment of the various components of the cost.

Prices provided shall be unit prices that can be extrapolated for given projects to arrive at a total figure.

Volume 2 has no page limit.

All proposals shall be subject to evaluation by a technical team.

In addition to 52.212-1 Instructions to Offerors – Commercial Items (b), each proposal shall include the following:

Cover page - shall indicate the following:

• Proposal category (Technical or Business)

• Volume Number

Table of Contents - Sufficient details that will allow the important elements to be easily located. The Table of Contents does not count against the 15-page limitation.

EVALUATION PROCEDURES

Evaluation of all offers will be made in accordance with the criteria outlined in this section.

The following factors shall be used to evaluate offers:

1. Qualifications and Key Personnel

2. Technical Approach

3. Past Performance

4. Price

The non-price evaluation factors (factors 1 through 3) are listed in descending order of importance. The non-price factors when combined are more important than price. As technical difference narrows between offers, price will become more important.

The offerors initial quotation shall contain the offerors best terms from a price and technical standpoint.

The Government intends to evaluate offers and award a contract without discussions, but reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary.

FACTOR RATINGS FOR TECHNICAL APPROACH

Technical Approach (Factor 1) and Qualifications and Key Personnel (Factor 2)

Adjectival Rating Definition Excellent Offeror has demonstrated an excellent understanding of the requirements and an approach that will significantly benefit the Government and risk of unsuccessful performance is very low.

Good Offeror has demonstrated a good understanding of the requirements. Proposal has one or more strengths that will benefit the Government and risk of unsuccessful performance is low.

Satisfactory Offeror has demonstrated an understanding of the

5 | P a g e requirements and an approach that meets performance or capability standards. Proposal presents an acceptable solution with few or no strengths. Risk of unsuccessful performance is moderate.

Unacceptable

The response contains deficiencies and/or gross omissions; failure to understand much of the scope of work necessary to perform the required tasks;

failure to provide a reasonable, logical approach to fulfilling much of the government's requirements;

failure to meet many personnel requirements in the solicitation; and/or introduces excessive risk.

An unacceptable rating for any factor will result in an unacceptable rating for the quote overall.

The adjectival rating scheme shown below will be used for Factor 3, Past Performance:

Past Performance Ratings (Factor 3)

Rating Definition High Confidence The Government has a high confidence the offeror will successfully perform the required effort.

Some Confidence The Government has some confidence the offeror will successfully perform the required effort.

Low Confidence The Government has a low confidence the offeror will successfully perform the required effort.

Neutral (Only applies to past performance) No relevant performance record is identifiable upon which to base a meaningful performance rating. A search was unable to identify any relevant past performance information for the offeror and proposed subcontractors. This is neither a negative or positive assessment.

Factor 1: Qualifications and Key Personnel

The Government will evaluate the positions that the offeror has proposed individuals for the Key Personnel position and Associate labor category meet the requirements dictated in the Statement of Objectives (SOO).

Additionally, the documentation provided must adequately communicate the specific qualifications and skills of the offeror’s legal staff and their familiarity and experience with the topic and areas relevant to this requirement. Evidence of related assignments shall be detailed and work in this specialized field should be included. Key Personnel must be an employee or a contingent hire of the Offeror. Other positions may be designated as Key Personnel at the Offeror’s discretion. Resumes (limited to three single-side pages) are required for all proposed key personnel. The resume(s) must include at least one point of contact familiar with

6 | P a g e the proposed Key Personnel (include name, telephone number, physical address, and email address). The POC information provided must be current. Letters of commitment are required for any proposed Key Personnel who are a contingent hire of the Offeror. Offerors shall describe the benefits of their proposed Key Personnel.

Consideration will be given to the following:

• The personnel performing work under this contract shall have completed a four (4)-year under graduate degree from an accredited college or university and have a Juris Doctor from a law school accredited by the American Bar Association (ABA). Additionally, all legal personnel shall be an active member of the bar in any U.S. jurisdiction.

• The Of-Counsel or Partner (Key Personnel) must be a licensed attorney and a partner or of-counsel with a minimum of 20 years of experience as an attorney in a private law firm, in-house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least eight (8) years of specialized experience in reinsurance law. Specifically, the attorney must have experience working with a cedent to draft, review, and revise the terms and conditions of a traditional reinsurance agreement. The attorney must also have experience drafting, reviewing, and revising other types of agreements, such as trust agreements, side car agreements, catastrophe bond agreements, and other agreements to secure reinsurance from the capital markets. The attorney must have experience advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.) and governance (i.e., roles and responsibilities). The attorney should have experience working with a governmental entity cedent, such as a Federal, State or local government agency insurer or a quasi-governmental insurer. Previous experience working with the Federal government, and specifically with the National Flood Insurance Program is also highly desirable.

• The Associate must be a licensed attorney with a minimum of six (6) years of experience with a private law firm, in-house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least three (3) years of specialized experience in reinsurance law.

Specifically, the attorney must have experience working with a cedent to draft agreements to secure reinsurance from the private and capital markets. The attorney should have experience researching and writing memorandum of law on issues related to reinsurance. The attorney should also have experience related to advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.) and governance (i.e., roles and responsibilities). Experience working with a governmental entity cedent, such as a Federal, State or local government agency insurer or a quasi-governmental insurer, and experience working with the Federal government, specifically with the National Flood Insurance Program, are also highly desirable.

• Demonstration of availability of Key Personnel (letters of commitment for any contingent hires).

• The benefits of the proposed Key Personnel.

Factor 2: Technical Approach inclusive of the proposed Performance Work Statement (PWS) Offeror’s Understanding of Required Services – Proposal and Performance Work Statement, PWS present a clear understanding of the legal services/support work being sought. The proposal and PWS are consistent with the goals and objectives within the statement of Objectives, SOO, and are practical in terms of producing the necessary information, legal knowledge and support, recommendations and other required legal actions that may be necessitated by the mission of the program. Demonstrate that the organization has the capabilities to assure performance in all aspects as described herein. The offeror shall be able to demonstrate that the organization has a sufficient collective level of expertise in the practice areas being sought.

The use of general or vague statements such as “standard procedures will be used” and “will comply with specification,” are not desired and may be construed as an indication of the offeror’s lack of understanding.

The proposal shall be internally consistent or the proposal will be considered unrealistic and may be considered unacceptable.

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Factor 3: Past Performance

Offerors shall submit up to three (3) past performance projects. The proposal shall address past performance in the requested legal specialty area. The past performance noted shall be specific, including but not limited to the body of work described in the SOO. The past performance noted shall be specific, including but not limited to, recent successful matters, experience working with government entity cedents, cedents new to the reinsurance and capital markets, and Federal agencies.

Consideration will be given to the following past performance information:

• Recent and relevant projects, completed within the past seven years, with either Government or commercial customers, which demonstrate work similar in type to the work described in this solicitation.

• Description of the work performed and why it is relevant to this effort considering the other factors of this evaluation factor.

• Input from Past Performance References (Completion of the Attached Past Performance Questionnaire.

• Dollar amount, period of performance, and role performed on each contract action, including whether the offeror acted as a prime or subcontractor.

Offerors shall ensure clients submit the Past Performance Questionnaire (provided as an Attachment) via email to the Contracting Officer at william.tillman@fema.dhs.gov by the due date of the RFP. The client/reference must complete and email the Past Performance Reference Form directly to the Contracting Officer. Past Performance Reference forms submitted by the Offeror will not be considered.

For the purpose of this evaluation, “past performance” is defined as the Offeror’s performance (how well they performed and the quality of the work) on active (to the extent completed) and completed contracts projects, jobs, and endeavors.

Consideration will be given to: (1) Quality of services provided, (2) Cost control, (3) Schedule/timeliness, (4) Management, and (5) Business relations/Customer Service of the offeror’s past performance. This includes the past performance of the Offeror and any proposed subcontractor. Past Performance will be evaluated based on the information provided in the proposal, client input via the Past Performance Reference Form(s), and information available in the Government database, Past Performance Information Retrieval System (PPIRS).

The Government will place greater value on verifiable experience that is similar to the objectives of the SOO. The Government reserves the right to consider any recent past performance information retrieved from Government databases (e.g. Past Performance Information Retrieval System (PPIRS) for past performance consideration. Greater credit will be given for work done as the prime rather as a subcontractor. Past Performance in which the project POC does not return a completed Past Performance Reference Form by the RFP date may not be considered.

An offeror will not be evaluated favorably or unfavorably if it lacks relevant past performance.

Factor 4 - VOLUME II: PRICE PROPOSAL

The Government will evaluate the contractor’s proposed prices to make a determination that the price list is complete and that the costs are fair and reasonable in relation to the services provided.

Offerors shall include a completed copy of the provision at 52.212-3, Offeror Representations and Certifications -- Commercial Items (Oct 2018), with its offer.

52.212-4 -- Contract Terms and Conditions -- Commercial Items.

As prescribed in 12.301(b)(3), insert the following clause:

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Contract Terms and Conditions -- Commercial Items – 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--

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(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.

(1) 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

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(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: N/A; 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

11 | P a g e 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

12 | P a g e 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 contract.

(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 contract.

(3) If the Schedule provided 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 FAR 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—

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(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: travel

(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: $0

(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):

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(i) Records that verify that the employees whose time has been included in any invoice met 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

15 | P a g e 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 32.60702).

(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

16 | P a g e 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.

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(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 written request, with adequate assurances of future performance. Subject to the terms of this contract, the Contractor shall be paid an amount computed under paragraph (i) Payments of this clause, but the “hourly rate” for labor hours expended in furnishing work not delivered to or accepted by the Government shall be reduced to exclude that portion of the rate attributable to profit. Unless otherwise specified in paragraph (a)(4) of this clause, the portion of the “hourly rate” attributable to profit shall be 10 percent. In the event of termination for cause, 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.

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(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) 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 Use 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)

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FAR Clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders -- Commercial Items (Jan 2019)

52.212-5 -- Contract Terms and Conditions Required to Implement Statutes or Executive Orders -- Commercial Items.

As prescribed in 12.301(b)(4), insert the following clause:

Contract Terms and Conditions Required to Implement Statutes or Executive Orders -- Commercial Items (Jan 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) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015)

(4) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(5) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77, 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 of law or Executive orders applicable to acquisitions of commercial items:

[Contracting Officer check as appropriate.]

___ (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402).

_X__ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509).

http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/52_000.htm#P1749_245556 http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/12.htm#P128_20650

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___ (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub L. 111-5) (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009).

___ (4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Oct 2018) (Pub. L. 109-282) (31 U.S.C. 6101 note).

___ (5) [Reserved]

___ (6) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

___ (7) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

_X__ (8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (Oct 2015) (31 U.S.C. 6101 note).

_X__ (9) 52.209-9,…