70T04018R9CAP1094_-_Addendum_G.pdf

OTHER TRANSACTION AGREEMENT

OTA NUMBER REQUISITION NUMBER

70T04018T9DAP1094

2118208AP1094

ISSUED TO ISSUED BY

Company Name: Evelyn S. Tyndell, Contracting Officer

Transportation Security Administration 701 S. 12th St Arlington, VA 20598-6025

Email: Evelyn.Tyndell@tsa.dhs.gov

Address:

City, State, Zip:

DUNS Number:

Cage Code

PROGRAM TITLE

Program Office: Acquisition Program Management Program: Reduced Size Explosives Detection Systems (RSEDS) Period of Performance: Fifteen Years from the Date of Award PSC: 6350, Miscellaneous Alarm, Signal, and Security Detection Systems

FISCAL DATA

PR Number: 2118208AP1094 Accounting Line: N/A Obligated Amount: $0.00

PURPOSE

See following pages.

AUTHORIZED SIGNATURES

IN WITNESS WHEREOF, the Parties have entered into this Agreement by their duly authorized officers.

Signature Date

PRINTED NAME AND TITLE

Contracting Officer’s Signature Date

Evelyn Tyndell, TSA Contracting Officer____________

PRINTED NAME AND TITLE

mailto:Evelyn.Tyndell@tsa.dhs.gov

AGREEMENT

BETWEEN

DEPARTMENT OF HOMELAND SECURITY

TRANSPORTATION SECURITY ADMINISTRATION (TSA)

AND

Relating to

Reduced Size Explosives Detection Systems (RSEDS)

Negotiated by the TSA pursuant to Aviation and Transportation Security Act, Pub. L. 107-71, 115 Stat. 597, 49 U.S.C. 114(m)(1), 49 U.S.C. 106(l)(6), and the Homeland Security Act of 2002

AGREEMENT NUMBER 70T04018T9DAP1094

ARTICLE I - PARTIES

This Other Transaction Agreement (hereinafter referred to as “Agreement” or “OTA”) is entered into between the U.S. Department of Homeland Security, Transportation Security Administration (hereinafter referred to as “TSA”) and (hereinafter referred to as the “CONTRACTOR”) relating to the Reduced Size Explosive Detection Systems (RSEDS) (hereinafter referred to as “System”). The TSA and the CONTRACTOR agree to cooperate in good faith and to perform their respective obligations using their cooperative good faith efforts in executing the purpose of this Agreement.

ARTICLE II – LEGAL AUTHORITY

TSA and the CONTRACTOR enter into this Agreement under the authority of the Aviation and Transportation Security Act, Pub. L. 107-71, 115 Stat. 597, specifically 49 U.S.C. 106(l)(6) and 114(m)(l), which authorizes agreements and other transactions on such terms and conditions as the Administrator determines necessary.

ARTICLE III – BACKGROUND

The Transportation Security Administration (“TSA”) is charged with countering threats to transportation systems. TSA uses people, processes and technology to detect, deter, and neutralize these threats to national security. Transportation Security Equipment (“TSE”) are the technological tools utilized by TSA’s front-line employees to assist threat detection.

TSA’s Acquisition Program Management office (“APM”), Deployment and Logistics Division (“DLD”), Integrated Logistics Support (“ILS”) Branch is responsible for the sustainment of all fielded Transportation Security Equipment (“TSE”) once outside of the applicable warranty period. Currently, TSA has approximately 14,000 pieces of TSE deployed at nearly 440 airports across United States and U.S. territories. Regular preventive maintenance and prompt corrective maintenance are critical to preserve TSE operational capability.

TSE is typically procured with a one to two year warranty period, during which the Original Equipment Manufacturer (“OEM”) is responsible for all required logistics support and maintenance activities. Following the expiration of this warranty period, the TSE requires continued logistics and sustainment support to ensure operational availability. TSA relies on a third-party to provide mission critical contract support for TSE maintenance services (as opposed to OEM supplied maintenance).

Over the years, TSA’s third-party maintenance contractors have employed various business models.

For example, some have used a model that relies almost exclusively on OEM subcontracted labor to provide maintenance services. This OEM-centric model has proven very successful and effective, but has tended to be costlier to the government. Another approach has been for the third party maintenance provider to train its own maintenance technician workforce, while subcontracting a lower percentage of labor to the OEMs. This “hybrid” model – that utilizes “universal” or “cross-trained” maintenance technicians – has also proven successful and effective, generally resulting in lower cost to the government.

TSE OEMs have a clear financial interest in providing post-warranty sustainment support and it is also clear that TSE OEMs have, in the past, resisted efforts that would reduce an OEMs role. TSA is not stating a preference for any particular post-warranty maintenance business model. Whatever model is proposed or adopted by TSA’s third-party maintenance provider, however, this much is clear: the cooperation of the TSE OEMs is critical for ensuring its success. The government’s interest is simple:

ensure the availability of tools utilized by TSA’s front line employees in securing aviation transportation. This requires that TSE OEMs act in good faith and fully cooperate with TSA’s then-existing third-party maintenance provider. Accordingly, TSA’s desire is to only purchase TSE from an OEM that understand TSA’s desire for a third-party maintenance model for out-of-warranty TSE maintenance and that agrees to cooperate in good faith by entering into agreements with TSA’s then-existing third-party maintenance provider to ensure continued sustainment of TSE throughout the equipment’s entire lifecycle.

Past efforts have impeded the government’s efforts to, and even jeopardized, sustainment support to ensure operational availability. That is unacceptable to TSA. The government has determined that it will no longer purchase TSE from an OEM that does not agree in advance to support its equipment throughout lifecycle sustainment or provides TSA’s then-existing third-party maintenance provider with inflated pricing, regardless of the identity of any post-warranty maintenance provider and its chosen business model. While TSA understands and appreciates the interests of its OEMs in any post-warranty environment, TSA must balance these interests against the government’s ability to provide cost-effective sustainment services to all out-of-warranty TSE.

Hence, the purpose of this Agreement is to ensure that all TSE OEMs agree in advance to provide post-warranty maintenance support on a basis that is agnostic to the particular business model proposed by TSA’s then-existing third-party maintenance provider.

ARTICLE IV – SCOPE AND RESPONSIBILITIES

TSA is proposing to purchase a certain quantity of TSE identified as RSEDS equipment pursuant to solicitation 70T04018R9CAP1094 dated July 18, 2018 (the “Solicitation”). However, as stated above, TSA’s strong desire is to only purchase TSE from those OEMs that acknowledge TSA’s intention for a third-party maintenance model for out-of-warranty TSE maintenance.

Additionally, it is the government’s intention to only buy TSE from OEMs that agree in advance to offer ongoing out-of-warranty logistics and sustainment support for their equipment to the TSA’s chosen third-party maintenance provider on reasonable terms. The purpose of this Agreement is to set forth the terms and conditions, as well as establish the respective responsibilities of the TSA and the Contractor.

The Contractor hereby agrees as follows:

• The Contractor acknowledges and agrees that TSA only intends to purchase TSE from those OEMs that understand TSA’s desire for a third-party maintenance model for all out-of-warranty TSE maintenance;

• The Contractor agrees that, prior to the cessation of any warranty period purchased by TSA, it will negotiate in good faith and enter into any necessary agreements with TSA’s then-existing third-party maintenance service provider to provide post-warranty sustainment support;

• The Contractor agrees to furnish any supplies or services necessary to then-existing third-party maintenance service provider including, but not limited to, OEM-certified repair parts, consumables, tools and test equipment, technical documentation, technician training and certification, and labor, as required;

• The Contractor agrees to furnish any supplies or services in a manner that is consistent with the chosen business model of TSA’s then-existing third-party service provider, whatever that may be;

• The Contractor agrees to support the bid and proposal process during any re-competition of TSA’s third-party maintenance contract and additionally agrees not to discriminate in any manner, against any third-party offeror or contractor based on its chosen maintenance business model;

• The Contractor further agrees to offer pricing for any supplies or services that is fair and reasonable and does not discriminate against any offeror or contractor based on its chosen maintenance business model. Therefore, the Contractor shall not increase the cost of spare parts to the Government or the third party maintenance provider by more than 3% per year unless supported by a price index change; and

• The Contractor further agrees to offer pricing for any required supplies or services that are separate and independent from each other, and not bundled with any other OEM offering.

In other words, the Contractor agrees to offer pricing for its supplies and services to TSA, and its third-party maintenance provider (or any offeror proposing on TSA’s third-party maintenance contract) as an a’ la carte menu of products and services that can be purchased separately (if desired), and not solely as a managed service; and

• The Contractor shall provide documentation to TSA upon reasonable request, and no later than 30 days prior to the expiration of any TSA-purchased warranty, to confirm that the Contractor is in compliance with the terms of this Agreement.

This Agreement shall not be construed to obligate the TSA, in any manner, to provide funding or obligate the TSA to enter into an Agreement with the CONTRACTOR for reimbursement of maintenance costs beyond the warranty period, which is funded under a separate contract action.

ARTICLE V - EFFECTIVE DATE AND TERM

The term of this Agreement shall be fifteen years from the date of execution of the Agreement, unless earlier terminated bilaterally by the parties or extended by mutual agreement pursuant to Article IX “Changes and/or Modifications.”

ARTICLE VI – AUTHORIZED REPRESENTATIVES

The authorized representative for each party shall act on behalf of that party for all matters related to this Agreement. Each party’s authorized representative may appoint one or more personnel to act as an authorized representative for any administrative purpose related to this Agreement, provided written notice of such appointment is made to the other party to this Agreement. The authorized representatives for the parties are as follows:

A. TSA Points of Contact:

Contracting Officer’s Representative (COR):

Diane Reid Phone: (571) 227-2293 E-Mail: Diane.Reid@tsa.dhs.gov

Contracting Officer (CO):

Evelyn S. Tyndell Phone: (571) 227-5048 E-Mail: Evelyn.Tyndell@tsa.dhs.gov

Only the TSA CO shall have the authority to bind the Federal government with respect to scope of work, funding and liability. The TSA COR is responsible for the technical administration of this Agreement and is the technical liaison with the CONTRACTOR. The TSA COR is not authorized to change the scope of work, to make any commitment or otherwise obligate the TSA, or authorize any changes which affect the liability of the TSA.

The CONTRACTOR must notify the TSA CO and COR in the event that any TSA employee or TSA contracted agent takes any action that may be interpreted by the CONTRACTOR as direction which could cause the CONTRACTOR to seek reimbursement from TSA.

B. The CONTRACTOR Points of Contact:

The CONTRACTOR Point of Contact for all correspondence is:

Name:

Address:

Phone:

E-Mail:

ARTICLE VII - LIMITATIONS ON LIABILITY

A. Subject to the provisions of Federal law, including the Federal Torts Claims Act, each party expressly agrees without exception or reservation that it shall be solely and exclusively liable for the acts or omissions of its own agents and/or employees and that neither party looks to the other to save or hold it harmless for the consequences of any act or omission on the part of one or more of its own agents or employees, subject to the same conditions provided above.

B. In no event shall either party be liable to the other for consequential, punitive, special and incidental damages, claims for lost profits, or other indirect damages.

C. No third party shall assert any rights under this Agreement unless expressly provided herein.

mailto:Diane.Reid@tsa.dhs.gov mailto:Evelyn.Tyndell@tsa.dhs.gov

ARTICLE VIII - DISPUTES

Where possible, disputes shall be resolved by informal discussion between the Contracting Officer for TSA and an authorized representative of the CONTRACTOR. All disputes arising under or related to this Agreement shall be resolved under this Article. Disputes, as used in this Agreement, mean a written demand or written assertion by one of the parties seeking, as a matter of right, the adjustment or interpretation of Agreement terms, or other relief arising under this Agreement. The dispute shall be made in writing and signed by a duly authorized representative of the CONTRACTOR or the TSA CO.

At a minimum, a dispute under this Agreement shall include an CONTRACTOR statement of facts, adequate supporting data, and a request for relief. In the event the parties are unable to resolve any disagreement through good faith negotiations, the CONTRACTOR may submit the dispute to the Deputy Administrator for Contracting and Procurement. If the decision of the Deputy Administrator for Contracting and Procurement is unsatisfactory, the decision may be appealed to the TSA Assistant Administrator for Contracting and Procurement. The parties agree that the TSA Assistant Administrator for Contracting and Procurement’s decision shall be final and not subject to further judicial or administrative review and shall be enforceable and binding upon the parties.

ARTICLE IX - CHANGES AND/OR MODIFICATIONS

Changes or modifications to this Agreement shall be in writing and signed by the TSA Contracting Officer and the authorized representative of the CONTRACTOR. The modification shall cite the subject provision to this Agreement and shall document the exact nature of the modification. No oral statement by any person shall be interpreted as modifying or otherwise affecting the terms of this Agreement. The properly signed written modification shall be attached to this Agreement and thereby becomes a part of this Agreement.

The TSA CO reserves the right to make unilateral modifications (signed only by the TSA CO) for administrative modifications, such as updates to TSA POCs in Article VI, and/or other administrative changes that do not affect the terms and conditions of this Agreement.

ARTICLE X - CONSTRUCTION OF THE AGREEMENT

This Agreement is issued under 49 U.S.C. §106 (l)(6) and §114(m) and is not a procurement contract, grant, cooperative agreement, or other financial assistance. It is not intended to be, nor shall it be construed as, a partnership, corporation, or other business organization. Both parties agree to provide their best efforts to achieve the objectives of this Agreement. Additionally, each party acknowledges that all parties hereto participated equally in the negotiation and drafting of this Agreement and any amendments thereto, and that, accordingly, this Agreement shall not be construed more stringently against one party than against the other. The Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior agreements, understanding, negotiations and discussions whether oral or written of the parties. Each party acknowledges that there are no exceptions taken or reserved under this Agreement.

In the event that any Article and/or parts of this Agreement are determined to be void or otherwise invalid or unenforceable, such Article or portions thereof shall lapse. No such lapse will affect the rights, responsibilities, and obligations of the parties under this Agreement, except as provided therein. If either party determines that such lapse has or may have a material effect on the performance of the Agreement, such party shall promptly notify the other party, and shall negotiate in good faith a mutually acceptable amendment to the Agreement if appropriate to address the effect of the lapse.

ARTICLE XI - PROTECTION OF INFORMATION

The parties agree that they shall take appropriate measures to protect proprietary, privileged, confidential, or otherwise Sensitive Security Information (SSI) that may come into their possession as a result of this Agreement.

A. RELEASE OF TECHNICAL DATA

No SSI or other information, oral or written, concerning the scope of this Agreement shall be published or released to the public without the prior written approval of the TSA Assistant Secretary or his or her designee.

B. RECORDS AND RELEASE OF INFORMATION

All SSI, as defined in 49 CFR Part 1520, shall be handled in accordance with TSA policies and regulations. All employees, contractors, and subcontractors assigned to work under this Agreement are subject to the provisions of 49 CFR Part 1520, Protection of Sensitive Security Information. SSI may not be disclosed except in accordance with the provisions of that rule.

C. MEDIA

All media releases and other contact with or by media related to this Agreement and in accordance with the terms of this Agreement shall be referred to the Contracting Officer. Neither the CONTRACTOR, nor its contractors, shall include in its publicity or public affairs activities related to the subject matter of this Agreement any SSI unless written approval has been received from the TSA Office of Security Capabilities or the TSA Office of Strategic Communication and Public Affairs.

ARTICLE XII - TERMINATION

Termination of this Agreement shall be in writing and signed by the TSA Contracting Officer and the authorized representative of the CONTRACTOR. Only a mutual bilateral termination in writing shall be considered effective. The properly signed written termination shall be attached to this Agreement and will become a part of this Agreement, and thereby effectively terminate the Agreement.

ARTICLE XIII – SURVIVAL OF PROVISIONS

The following provisions of this Agreement shall survive the termination of this Agreement: Article IV –Scope and Responsibilities; Article VII – Limitations on Liability; Article VIII – Disputes; Article XI

– Protection of Information; and Article XIII – Survival of Provisions.