B02_Attachment 1_SBA Local Terms and Conditions_JAN2023.pdf

SBA Terms and Conditions

The following terms and conditions shall be incorporated into solicitations and contracts as prescribed in SOP 20 21, The Small Business Administration Acquisition Program.

Contents SBA Terms and Conditions

1. SBA201-70 Authorities and Delegations (OCT 2022)

2. SBA203-70 Restrictions on Endorsements (OCT 2022)

3. SBA204-70 Preservation of and Access to Contract Records (OCT 2022)

4. SBA204-71 Contractor Personal Identity Verification (PIV) Credentials and Background Investigations (OCT 2022)

5. SBA209-70 Organizational Conflict of Interest (OCT 2022)

6. SBA209-71 Access to Nonpublic Information (OCT 202)

7. SBA228-70 Liability, Accident Prevention, and Safety Requirements (OCT 2022)

8. SBA232-70 Invoice Submission (OCT 2022)

9. SBA237-70 Key Personnel (OCT 2022)

10. SBA237-71 Physical Security Safeguards (OCT 2022)

11. SBA242-70 Post-Award Evaluation of Contractor Performance (MAR 2022)

12. SBA227-70 Government Information

1. SBA201-70 Authorities and Delegations (OCT 2022)

(a) The Contracting Officer is the only individual authorized to enter into or terminate this contract, modify any term or condition of this contract, waive any requirement of this contract, or accept nonconforming work.

(b) The Contracting Officer may designate a Contracting Officer's Representative (COR) at the time of award. The COR will be responsible for technical monitoring of the contractor's performance and deliveries. The COR will be appointed in writing, and a copy of the appointment will be furnished to the Contractor. Changes to this delegation will be made by written changes to the existing appointment or by issuance of a new appointment.

(c) The COR is not authorized to perform, formally or informally, any of the following actions:

(1) Promise, award, agree to award, or execute any contract, contract modification, or notice of intent that changes or may change this contract;

(2) Waive or agree to modification of the delivery schedule;

(3) Make any final decision on any contract matter subject to the Disputes Clause;

(4) Terminate, for any reason, the contractor's right to proceed;

(5) Obligate in any way, the payment of money by the Government.

(d) The contractor shall comply with the written or oral direction of the Contracting Officer or authorized representative(s) acting within the scope and authority of the appointment memorandum. The contractor need not proceed with direction that it considers to have been issued without proper authority. The contractor shall notify the Contracting Officer in writing, within three days of occurrence and with as much detail as possible, when the COR has taken an action or has issued direction (written or oral) that the contractor considers to exceed the COR's appointment. Unless otherwise provided in this contract, the contractor assumes all costs, risks, liabilities, and consequences of performing any work it is directed to perform that falls within any of the categories defined in paragraph (c) prior to receipt of the Contracting Officer's response issued under paragraph (e) of this clause.

(e) The Contracting Officer shall respond in writing within 30 days to any notice made under paragraph (d) of this clause or as soon as practicable thereafter. A failure of the parties to agree upon the nature of a direction, or upon the contract action to be taken with respect thereto, shall be subject to the provisions of the Disputes clause of this contract.

(f) The Contractor shall provide copies of all correspondence to the Contracting Officer and the

COR.

(g) Any action(s) taken by the Contractor, in response to any direction given by any person acting on behalf of the Government or any Government official other than the Contracting Officer or the COR acting within his or her appointment, shall be at the Contractor's risk.

2. SBA203-70 Restrictions on Endorsements (OCT 2022)

The Contractor shall not refer to contracts/agreements/orders awarded by the SBA in commercial advertising, as defined in FAR 31.205-1, in a manner which states or implies that the product or service provided is approved or endorsed by the Government, or is considered by the Government to be superior to other products or services. This restriction is intended to avoid the appearance of preference by the Government toward any product or service. The Contractor may request that the Contracting Officer make a determination as to the propriety of promotional material.

3. SBA204-70 Preservation of and Access to Contract Records (OCT 2022)

“Contract records” means information created or maintained by the contractor in the performance of the contract. Contract records include documents required to be retained in accordance with FAR 4.703 and other information generated or maintained by the contractor that is pertinent to the contract and its performance including, but not limited to: email and attachments; formal and informal correspondence; calendars; notes; reports; memoranda; spreadsheets; tables; telephone logs; forms; surveys; books; papers; photographs; drawings; machine-readable materials; and data.

Contract records may be maintained as electronically stored information or as tangible materials.

Contract records may exist in either final or any interim version (e.g., drafts that have been circulated for official purposes and contain unique information, such as notes, edits, comments, or highlighting).

(a) “Electronically stored information (ESI)” means any contract records that are stored on, or generated by, an electronic device, or contained in electronically accessible media, either owned by the contractor, subcontractor(s), or employees of the contractor or subcontractor(s) regardless of the physical location of the device or media (e.g., offsite servers or data storage).

(b) “ESI devices and media” include, but shall not be limited to:

(1) Computers (mainframe, desktop, and laptop);

(2) Network servers, including shared and personal drives;

(3) Individual e-mail accounts of the contractor’s and any subcontractors’ principals, officers, and employees including all folders contained in each email account such as “Inbox,” “Outbox,” “Drafts,” “Sent,” “Trash,” “Archive,” and any other folders;

(4) Personal data assistants (PDAs);

(5) External data storage devices including portable devices (e.g., flash drive); and

(6) Data storage media (magnetic, e.g., tape; optical, e.g., compact disk; microfilm; etc.).

(c) “Tangible materials” means contract records that exist in a physical (i.e., non-electronic) state.

(d) If during the period of performance of this contract, SBA becomes or anticipates becoming a party to any litigation concerning matters related to records maintained or generated by the contractor in the performance of this contract, the contracting officer may provide the contractor with a written (either hardcopy or email) preservation hold and certification of compliance with preservation hold. Upon receipt of the hold, the contractor shall immediately take the following actions:

(1) Discontinue any alteration, overwriting, deletion, or destruction of all tangible materials and ESI;

(2) Preserve tangible materials and ESI. The contractor shall preserve ESI in its “native” form to preserve metadata (i.e., creation and modification history of a document);

(3) Identify all individuals who possess or may possess, tangible materials and ESI related to this matter, including contractor employees, subcontractors, and subcontractor employees.

The contractor shall provide the names of all such individuals via email to the SBA official indicated in the notice;

(4) Document in writing the contractor’s efforts to preserve tangible materials ESI. It may be useful to maintain a log documenting preservation efforts;

(5) Complete the certification of compliance with litigation hold upon receipt and return it to the identified contact person; and

(6) Upon the request of the contracting officer, provide to the contracting officer or other SBA official designated by the contracting officer with any of the information described in this requirement. The contractor shall immediately confirm receipt of such request. The contractor shall describe in detail any records that the contractor knows or believes to be unavailable and provide a detailed explanation of why they are unavailable, and if known, their location.

(e) Increases in cost or price. (1) If any request for records pursuant to paragraph (b)(6) of this requirement causes an increase in the estimated cost or price, or the time required for performance of any part of the work under this contract, or otherwise affects any other terms and conditions of this contract, the contracting officer may make an equitable adjustment in any one or more of the following and will modify the contract accordingly:

(i) Contract price.

(ii) Delivery schedule.

(iii) Other affected terms.

(2) The contractor must assert its right to an adjustment under this requirement within 30 days from the date of receipt of the contracting officer’s request made pursuant to paragraph (b)(6) of this requirement. However, if the contracting officer decides that the facts justify it, the contracting officer may receive and act upon a request submitted before final payment of the contract.

(3) Failure to agree to any adjustment shall be a dispute under the Disputes clause. However, nothing in this requirement shall excuse the contractor from providing the records requested by the contracting officer.

(f) The contractor shall include the terms of this requirement in all subcontracts awarded under this contract.

4. SBA204-71 Contractor Personal Identity Verification (PIV) Credentials and Background Investigations (OCT 2022)

(a) The Contractor shall ensure that all contract employees requiring access to SBA facilities or SBA information resources shall obtain a Government-issued PIV credential (PIV Card). The contractor shall coordinate with the Contracting Officer’s Representative (COR) to facilitate COR sponsorship of each employee requiring a PIV Card.

(1) All contractor (and subcontractor) contract employees shall undergo security processing before being eligible to work on the premises of any SBA owned, leased, or controlled facility; to access Government or other contractor data, reports, or other information; or to obtain access to a SBA IT system.

(i) The Contractor shall comply with the SBA Cybersecurity and Privacy Policy specified in Standard Operating Procedures (SOP) 90 47 5. The Contractor shall submit the information contained in paragraphs (A) through (H) below to the COR for each employee requiring access. All documentation must be completely filled out with accurate, true data. The contractor shall submit documentation or information on a recurring basis as directed by the COR or SBA security personnel.

(A) An email providing the following information for each contractor employee:

(1) Name.

(2) Position Title.

(3) Risk Level.

(4) Program Office.

(5) Duty Location.

(6) Selecting Official.

(7) COR Name.

(B) Standard Form 85P (SF-85P), Questionnaire for Public Trust Positions.

(C) Completed Contractor Electronic Questionnaire for Investigations Processing (E-

QIP).

(D) Job Description Worksheet or Statement of Work clearing showing the duties and access required.

(E) OPM Position Risk Designation Summary (signed by manager/supervisor). See link:

Position Designation Tool (opm.gov);

(F) SBA Form 2044, Credit Report Release for Employment, if the position is Moderate Risk or higher and the form was provided by the COR for completion.

(G) Resume.

(H) Digitally completed SBA form 1228, Network Access Request Form, (completed in its entirety – must annotate to include access and expiration dates, if the form was provided by the COR for completion.

(ii) Security processing will consist of personal background inquiries. The Agency has the option to repeat the security processing on any contract employee at its sole discretion.

(iii) Upon completion of security processing, the COR will notify the contractor of a contract employee’s eligibility to be provided access to an SBA facility or IT system.

(iv) Positions for these services are determined to be: (Contracting Officer to check appropriate position risk) https://www.opm.gov/suitability/suitability-executive-agent/position-designation-tool/

☐ Moderate Risk ☐ Low Risk

(v) If the SBA receives disqualifying information on a contract employee, the COR will be notified. The COR, in coordination with the Contracting Officer, will immediately remove the contract employee from duties requiring access to Agency facilities and/or IT systems.

Contract employees may be barred from working on the premises of a facility for any of the following:

(A) Failure to meet CFR 731 equivalent fitness standards;

(B) Conviction of a felony crime of violence or of a misdemeanor involving moral turpitude;

(C) Falsification of information entered on security screening forms or on other documents submitted to the Agency;

(D) Improper conduct once performing on the contract, including offensive, unlawful, criminal, infamous, dishonest, amoral, unethical, devious, or notoriously disgraceful conduct or other conduct prejudicial to the Government, regardless of whether the conduct was directly related to contract performance; or

(E) Any behavior judged to pose a potential threat to Agency information systems, personnel, property, or other assets.

(b) The Contactor shall ensure that all contract employees safeguard their PIV Card.

(c) The Contractor shall ensure that contract employees schedule an appointment with an enrollment/activation center via http://www.fedidcard.gov if a Personal Identification Number (PIN) reset is needed.

(d) In the event that a PIV Card is or may have been lost, damaged, compromised, or stolen, the Contactor shall immediately notify the COR and the SBA PIV Security Office at PIV@sba.gov. Instructions for obtaining a replacement will be provided.

(e) The Contractor shall ensure return of employee PIV Cards to the COR or the COR’s designee on the employee’s final day of contract performance. The contractor shall provide the actual separation date and reason its employee will no longer support the contract.

(f) The Contractor shall ensure return of PIV Cards in accordance with FAR clause 52.204-9, Personal Identity Verification of Contractor Personnel, which is incorporated herein by reference, on the contract employee’s last day of contract performance. In the event that a contract employee fails to turn the PIV Card over to the Government on the last day of work, the Contractor shall ensure return of the employee’s PIV Card within one working day.

(g) This requirement shall be incorporated into any subcontracts that require subcontractor personnel to have routine and regular unsupervised access to a federally controlled facility for more than 180 calendar days or unsupervised access to a federally controlled Level 3 or 4 information systems.

http://www.fedidcard.gov/ mailto:PIV@sba.gov

5. SBA209-70 Organizational Conflict of Interest (OCT 2022)

The contractor shall ensure that neither the contractor nor any subcontractor is biased because of financial, contractual, organizational, or other interests which relate to the work under this contract. The contractor shall also ensure that neither the contractor nor any subcontractor obtains any unfair competitive advantage over other parties based on performance of this contract.

(a) The restrictions described herein shall apply to performance or participation by the Contractor and any of its affiliates or their successors in interest (hereinafter collectively referred to as “contractor”) in the activities covered by this clause as a prime contractor, subcontractor, cosponsor, joint venture, consultant, or in any similar capacity. For the purpose of this clause, affiliation occurs when a business concern is controlled by, or has the power to control another, or when a third party has the power to control both.

(b) The warrant and disclosure requirements of this paragraph apply with full force to both the contractor and all subcontractors. By signature on this contract or contract performance, the contractor warrants that, to the best of the contractor's knowledge and belief, there are no relevant facts or circumstances which would give rise to an organizational conflict of interest, as defined in FAR subpart 9.5, and that the contractor has disclosed all relevant information regarding any actual or potential conflict. The contractor agrees it shall make an immediate and full disclosure, in writing, to the Contracting Officer of any potential or actual organizational conflict of interest or the existence of any facts that may cause a reasonably prudent person to question the contractor's impartiality because of the appearance or existence of bias or an unfair competitive advantage. Such disclosure shall include a description of the actions the contractor has taken or proposes to take in order to avoid, neutralize, or mitigate any resulting conflict of interest.

(c) The contractor shall obtain from its subcontractors or consultants the disclosure required in FAR Part 9.507-1, and shall determine in writing whether the interests disclosed present an actual, or significant potential for, an organizational conflict of interest. The contractor shall identify and avoid, neutralize, or mitigate any subcontractor organizational conflict prior to award of the contract to the satisfaction of the Contracting Officer. If the subcontractor's organizational conflict cannot be avoided, neutralized, or mitigated, the contractor shall obtain the written approval of the Contracting Officer prior to entering into the subcontract. If the contractor becomes aware of a subcontractor's potential or actual organizational conflict of interest after contract award, the contractor agrees that the Contractor may be required to eliminate the subcontractor from its team, at the contractor's own risk.

(d) The Contracting Officer may terminate this contract for convenience, in whole or in part, if the Contracting Officer deems such termination necessary to avoid, neutralize or mitigate an actual or apparent organizational conflict of interest. If the contractor fails to disclose facts pertaining to the existence of a potential or actual organizational conflict of interest or misrepresents relevant information to the Contracting Officer, the Government may terminate the contract for default, suspend and/or debar the contractor from Government contracting, or pursue such other remedies as may be permitted by law or this contract.

6. SBA209-71 Access to Nonpublic Information (OCT 202)

(a) Definition. Nonpublic information, as used in this clause, means any Government or third-party information that—

(1) Is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552) or otherwise protected from disclosure by statute, Executive order, or regulation; or

(2) Has not been disseminated to the general public, and the Government has not yet determined whether the information can or will be made available to the public.

(b) Restrictions on the use and disclosure of nonpublic information.

(1) The restrictions provided herein are intended to protect both the Government and third-party owners of nonpublic information from unauthorized use or disclosure of such information.

(i) The Contractor shall indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys’ fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of any nonpublic information to which it is given access during performance of this contract.

(ii) Third-party owners of nonpublic information to which the Contractor may have access during performance of this contract are third-party beneficiaries with respect to the terms of this clause who, in addition to any other rights they may have, may have the right of direct action against the Contractor to seek damages from any violation of the terms of this clause or to otherwise enforce the terms of this clause.

(2) With regard to any nonpublic information to which the Contractor is given access in performance of this contract, whether the information comes from the Government or from third parties, the Contractor shall—

(i) Utilize the nonpublic information only for the purposes of performing the services specified in this contract, and not for any other purposes;

(ii) Safeguard the nonpublic information from unauthorized use and disclosure;

(iii) Limit access to the nonpublic information to only those persons who need it to perform services under this contract;

(iv) Inform persons who may have access to nonpublic information about their obligations to utilize it only to perform the services specified in this contract and to safeguard it from unauthorized use and disclosure;

(v) Obtain a signed nondisclosure agreement, which at a minimum includes language substantially the same as that found in paragraphs (b)(1) and (b)(2)(i) through

(vi) herein, from each person who may have access to the nonpublic information;

(vi) Provide a copy of any such nondisclosure agreement to the contracting officer upon request; and

(vii) Report to the contracting officer any violations of requirements (i) through (vi) of this paragraph as soon as the violation is identified. This report shall include a description of the violation and the proposed actions to be taken by the contractor in response to the violation, with follow-up reports of corrective actions taken as necessary.

(3) If the Contractor receives information that is marked in a way that indicates the Contractor should not receive this information, the Contractor shall—

(i) Notify the Contracting Officer;

(ii) Use the information only in accordance with the instructions of the Contracting Officer; and

(iii) Comply with any other notification provisions contained in this contract.

(c) Applicability.

(1) The obligations and prohibitions of paragraph (b) do not apply if the Contractor can demonstrate to the Contracting Officer that the information—

(i) Was in the public domain at the time the information was accessed by the Contractor;

(ii) Was published, after having been accessed by the Contractor, or otherwise becomes part of the public domain through no fault of the Contractor;

(iii) Was lawfully in the Contractor's possession at the time the Contractor accessed it and was not acquired directly or indirectly—

(A) From the Government; or

(B) Under another Government contract;

(iv) Was received by the Contractor from a party, other than the information owner, who has the authority to release the information and did not require the Contractor to hold it in confidence.

(v) Is or becomes available, on an unrestricted basis in a lawful manner, to a third party from the information owner or someone acting under the control of the information owner;

(vi) Is developed by or for the Contractor independently of the information received from the Government or the information owner and such independent development can be shown;

(vii) Becomes available to the Contractor by wholly lawful inspection or analysis of products offered for sale by the information owner or someone acting under the information owner's control, or an authorized third-party reseller or distributor; or

(viii) Is provided to a third party by the Contractor with the prior written approval of the information owner.

(2) The Contractor may release nonpublic information to which the Contractor is given access in performance of this contract to a third party pursuant to the lawful order or rules of a United States Court or Federal administrative tribunal or body of competent jurisdiction, provided that the Contractor gives to the information owner prior written notice of such obligation and the opportunity to oppose such disclosure. The Contractor shall provide a copy of the notice to the Contracting Officer at the same time as notice is given to the information owner.

(d) Other contractual restrictions on information. This clause is subordinate to all other contract clauses or requirements that specifically address the access, use, handling, or disclosure of information. If any restrictions or authorizations in this clause are inconsistent with a requirement of any other clause of this contract, the requirement of the other clause shall take precedence over the requirement of this clause.

(e) Remedies available to a third-party information owner. The Contractor's failure to comply with the requirements of this clause may provide grounds for independent legal action or other remedies available to a third-party information owner based on the protections of paragraph (b)(1) of this clause (third-party beneficiary).

(f) Subcontracts. The Contractor shall include this clause, including this paragraph (f), in subcontracts under which a subcontractor may have access to nonpublic information, The terms “contract,” “contractor,” and “contracting officer” shall be appropriately modified to preserve the Government's rights.

7. SBA228-70 Liability, Accident Prevention, and Safety Requirements (OCT 2022)

(a) The Contractor shall be liable for injuries or damages to persons or property resulting from the negligent acts or omissions of the Contractor, his agents, employees, and/or subcontractors.

(b) The contractor shall take proper health and safety precautions to protect workers, the public, and the property of others. The contractor shall, without additional expense to the Government, obtain any necessary licenses, insurance, certifications and permits required in the performance of the contract and shall comply with any federal, city, state, county and municipal laws, codes and regulations applicable to the performance under this contract. The Contractor shall comply with all pertinent provisions of the Occupational Safety and Health Act of 1970, Public Law 91-

596. The Contractor shall also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonable and necessary for the purpose.

The contractor shall ensure that these additional responsibilities apply to all subcontractors.

(c) The Contractor shall maintain an accurate record of, and shall report to, the Contracting Officer in the manner and on the forms prescribed by the Contracting Officer, exposure data and all accidents resulting in death, traumatic injury, occupational disease and damage to property, materials, supplies, and equipment incident to work performed under this contract.

(d) The Contracting Officer will notify the Contractor of any non-compliance with the forgoing provisions and the action to be taken. The Contractor shall, after receipt of such notice, immediately take corrective action. Such notice, when delivered to the Contractor or his representative at the site of the work, shall be deemed sufficient for this purpose. If the Contractor fails or refuses to comply promptly, the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action has been taken. No part of the time lost due to any such stop orders shall be made the subject of claim for extension of time or for excess costs or damages by the Contractor.

(e) Compliance with the provisions of this clause by subcontractors shall be the responsibility of the Contractor.

8. SBA232-70 Invoice Submission (OCT 2022)

(a) Invoices shall be submitted via the Invoice Processing Platform (IPP), a service provided by the U.S. Treasury’s Bureau of the Fiscal Service. Contractors are solely responsible for ensuring invoices are accepted by IPP and transmitted to the SBA. IPP will submit a status update to the vendor when the invoice is transmitted to the SBA.

(b) Contractors not enrolled in IPP will be notified to register upon award of a contract, agreement, or order. Unless already enrolled in IPP, and following SBA invitation to do so, contractors shall enroll at https://www.ipp.gov/. Contractors should contact the IPP Customer Support for system-related questions at 866-973-3131or IPPCustomerSupport@fiscal.treasury.gov.

(c) Contractors shall ensure that their System for Award Management (SAM) account remains active during contract or order performance. IPP will not allow a submission or payment of an invoice if the contractor’s SAM registration is expired.

(d) The contractor shall include or input the following information. Additional information may be required by the contract, agreement, or order. Items with asterisks typically automatically populate from the contract or order.

(1) * Vendor name and address.

(2) Invoice date: Future dates and dates greater than five years in the past cannot be entered into IPP; the start date must not be prior to the start of the contract period of performance.

(3) Invoice number. Duplicate invoice numbers cannot be used.

(4) * Contract and/or order number.

(5) Quantity per Contract Line Item Number (CLIN).

(6) * Description, unit of measure, unit price, and extended price of delivered items or provided services.

https://www.ipp.gov/ mailto:IPPCustomerSupport@fiscal.treasury.gov

(i) Unless otherwise specified in the contract or order, a billing period for services is a month. The “Service Date” is a required field and must reflect the period of performance billed.

(ii) For time-and-materials contracts or orders, the contractor shall invoice no less often than monthly, and shall include the following on the invoice or an attachment to the invoice:

(A) Total amount funded by CLIN.

(B) Total amount invoiced to date by CLIN.

(C) Funding balance by CLIN.

(D) Estimated completion cost by CLIN.

(7) Discount terms for prompt payment if offered.

(8) Name and phone number of the contractor’s Point of Contact (POC).

(9) Attachments as applicable including the Contractor’s internally generated invoice or supporting documentation.

(e) IPP allows contractors to view the status of invoices in IPP. IPP invoice status codes are:

(1) Pending Approval – Invoice has been submitted via IPP and received by SBA.

(2) Rejected – Invoice has been rejected (overnight batch process system interface) and the invoice must be resubmitted with new invoice number.

(3) Paid – Payment has been made to the Contractor’s financial institution.

(4) Saved in Exception – Invoice has not been created in IPP because of a rule set error.

9. SBA237-70 Key Personnel (OCT 2022)

Key personnel are those personnel considered essential to successful contractor performance. The contractor shall obtain the consent of the Contracting Officer prior to making key personnel substitutions. All requests for approval of substitutions of key personnel under this contract shall be in writing and provide a detailed explanation of the circumstances necessitating the proposed substitutions. They shall contain a complete resume for the proposed substitute or addition, and any other information requested by the Contracting Officer. Replacements for key personnel shall possess qualifications equal to or exceeding the qualifications of the personnel being replaced, unless an exception is approved by the CO. Exceptions requested by the contractor shall be submitted in writing.

10. SBA237-71 Physical Security Safeguards (OCT 2022)

(a) The Contractor shall establish and comply with appropriate administrative, technical, and physical safeguards to protect all Government data, property, facilities, and personnel.

(1) Data. All electronic data and documentation provided or made accessible by the Government, and all electronic data and documentation produced during performance of the services associated with this award are the property of, and are owned by, the Government.

(i) The Contractor shall not disclose and must safeguard all data and personnel work products that are obtained or generated in the performance of this contract. The Contractor shall not access data or documentation that is not required in the performance of services awarded via this contract/task order, even if the data or documentation is available to contractor personnel. The Contractor shall immediately report any instance of non-compliance with this requirement to the Contracting Officer.

(ii) The government may authorize contractor access to controlled, sensitive, classified, or other government information for use in performance of this contract. The term “government information” includes information furnished by the government and information acquired or developed by the contractor in performance of the contract. The contractor shall provide immediate written notification the Contracting Officer if a breach of any of the requirements in this section occurs.

(iii) The contractor shall not publish or otherwise divulge government information, in whole or in part, in any manner or form, or authorize or permit others to do so, taking such measures as are necessary to restrict access to such information to only those employees needing the information to perform work required by the contract, i.e., on a “need to know” basis. The contractor is cautioned that its employees and subcontractors have no blanket authorization for access to government information based on their employment status.

(A) Government data, including electronic data, shall not be removed from the Government facility without the express permission of the Contracting Officer or the Contracting Officer’s Representative. Government data including documentation shall be surrendered to the Government upon contract completion and upon request.

Government personnel, including government security personnel, have the express right to inspect documentation for any reason and at any time during the term of this award.

The contractor shall ensure that direct and subcontract employees:

(1) Only access information required to perform their tasks as specified in this contract, and do not access information that is not required to perform these tasks;

(2) Ensure continuous government access to their work product in support of this contract;

(3) Do not email government information to non-government email accounts;

(4) Do not discuss government information with non-government personnel (including the contractor employee’s management);

(5) Do not remove, or conspire to remove, government information out of a government facility or system, either physical and electronic, without written Contracting Officer or Contracting Officer Representative authorization;

(6) Comply with non-disclosure agreements; and

(7) Protect the confidentiality of government information, and do not disclose government information to any unauthorized person.

(2) Facilities. The contractor and all associated subcontractors’ employees shall comply with all facility access and use policies and procedures, including security policies and procedures.

Questions shall be referred to the Contracting Officer’s Representative. The contractor shall provide all information required for background checks to meet facility access requirements.

The contractor shall comply with all personal identity verification requirements associated with facility access. Should the security procedures at any individual facility change, the Government may require changes in contractor security matters or processes.

(3) Property and Personnel. The Contractor shall report threats to government property and personnel employed by or supporting the Government.

(i) To help ensure the protection of the life and health of all persons, and to help prevent damage to property, the Contractor shall comply with all Federal, State, and local laws and regulations applicable to the work being performed under this contract. These laws are implemented or enforced by the Environmental Protection Agency, Occupational Safety and Health Administration (OSHA) and other regulatory/enforcement agencies at the Federal, State, and local levels.

(ii) The Contractor agrees to use only qualified, responsible, ethical, and capable people to perform the work. Contractor employees shall perform services at all times in a professional, ethical manner. Unprofessional, unethical or threatening conduct will not be tolerated. Contractor employees with knowledge of unprofessional, unethical or threatening behavior or conduct by any person shall immediately report such behavior or conduct to the Contractor. The Contractor shall immediately report receipt of a report concerning such behavior or conduct to the Contracting Officer.

(iii) The contractor and its employees shall only conduct business covered by this contract during periods paid for by the government and shall not conduct any other business on government premises or government time. The contractor shall not use government time, equipment, materials except for the express purpose of providing government support.

(iv) Contract personnel attending meetings, answering Government telephones, and working in other situations where their contractor status is not obvious to third parties shall identify themselves as Contractors to avoid creating an impression that they are Government officials. The Contractor shall also ensure that all documents or reports produced by the Contractor are suitably marked as Contractor products or that Contractor participation is appropriately disclosed.

(v) The Contractor shall, at its own expense, immediately remove employees who have displayed or are displaying or engaging in unprofessional, unethical, or threatening behavior or conduct. The Contracting Officer may require that the Contractor remove from the job at its own expense, employees who jeopardize or interfere with mission accomplishment, or endanger or threaten to endanger persons or property, or whose continued employment under this contract is inconsistent with the interest of agency security.

11. SBA242-70 Post-Award Evaluation of Contractor Performance (MAR 2022)

(a) The Federal Acquisition Regulation (FAR) 42.15, Contractor Performance Information, directs all Federal agencies to collect past performance information on contracts and orders. The Small Business Administration (SBA) has implemented the Contractor Performance Assessment Reporting System (CPARS) to comply with this regulation. Past performance evaluations will be prepared within CPARS at least annually and at the time work under a contract or order is completed. The evaluation will be conducted to record contractor’s performance during each period of assessment, as required by FAR 42.15.

(b) CPARS is a web-based system that allows for electronic processing of the performance evaluation report(s). Information in the report is considered “Source Selection Information” as defined in FAR 2.101 and is therefore not releasable to the public. The following areas will be assessed:

(1) Technical (quality of product or service);

(2) Cost control (as applicable);

(3) Schedule or timeliness;

(4) Management or business relations; and

(5) Small business subcontracting (as applicable).

(c) Once the Contractor concurs on a report, it is finalized by the Government. Finalized reports are available in CPARS for Government use in evaluating past performance as part of source selection.

(d) To facilitate the use of CPARS, the Contractor is required to provide a CPARS “Contractor Representative”. The Contractor Representative is the contractor employee designated to provide comments on the evaluation. It is recommended the Contractor Representative be someone familiar with contract performance on a day-to-day basis. The Contractor Representative may provide comments on the evaluation and may indicate if they concur or non-concur with the ratings and narratives assigned by the Government evaluators.

(e) Within 1 week after contract/order award, the Contractor must submit an email to the SBA CPARS Focal Point at cpars@sba.gov containing the following information:

(1) SBA contract and/or order number;

(2) SBA contracting officer name;

(3) Contractor Representative first and last name;

(4) Contractor Representative Job Title; and mailto:cpars@sba.gov

(5) Contractor Representative email address

(f) Once a Contractor Representative(s) is registered in CPARS, they will receive an automatically generated email with detailed login instructions. Further details, systems requirements, and training information for CPARS is available at the CPARS website. If contract/order Contractor Representative point(s) of contact change throughout performance, the Contractor must notify the SBA CPARS Focal Point by submitting an email notification to cpars@sba.gov.

12. SBA227-70 Government Information

(a) Definitions. As used in this clause, “Government information” includes - Contractor-acquired information, which means information acquired or otherwise collected by the Contractor on behalf of the Government in the context of the Contractor's duties under the contract.

Government-furnished information (GFI), which means information in the possession of, or directly acquired by, the Government and subsequently furnished to the Contractor for performance of a contract. GFI also includes contractor-acquired information if the contractor-acquired information is a deliverable under the contract and is for continued use under the contract. Otherwise, GFI does not include information that is created by the Contractor and delivered to the Government in accordance with the requirements of the work statement or specifications of the contract. The type, quantity, quality, and delivery requirements of such deliverable information are set forth elsewhere in the contract schedule.

(b) Information Management and Information Security.

(1) The Contractor shall manage, account for, and secure all Government information provided or acquired by the contractor. The Contractor shall be responsible for all Government information provided to its subcontractors. The Contractor agrees to include a requirement in each subcontract under this contract that flows down to the subcontractor the protection from disclosure requirements.

(2) The Contractor's responsibility for Government information extends from the initial provision or acquisition and receipt of information, through stewardship, custody, and use until returned to, or otherwise disposed of, as directed by the Contracting Officer. This requirement applies to all Government information under the Contractor's accountability, stewardship, possession or control, including its subcontractors.

(3) In addition to the requirements of this clause, the Contractor shall ensure the requirements of the SBA’s Cybersecurity Language for IT Acquisitions and Contractor Confidentiality and Non-Disclosure Agreement are met through their management of government information. All Contractor or subcontractor personnel supporting this contract must sign the Contractor Confidentiality and Non-Disclosure Agreement prior to receipt of government information.

(c) Use of Government information.

(1) The Contractor shall not use any information provided or acquired under this contract for any purpose other than in the performance of this contract.

(2) Except as otherwise provided for in this contract, the Contractor shall not modify, alter, destroy, or otherwise dispose of the Government information, unless authorized in writing, in advance, by the Contracting Officer. Return or disposal of Government information is addressed in paragraph h of this clause.

(d) Government-furnished information.

https://www.cpars.gov/

(1) The Government shall deliver to the Contractor the information as described in the government’s work statement.

(2) The delivery and/or performance dates specified in this contract are based upon the expectation that the Government-furnished information will be suitable for contract performance and will be delivered to the Contractor by the dates specified in the government’s work statement.

(i) The Government does not warrant the validity or accuracy of the Government-furnished information unless otherwise noted.

(ii) In the event that information received by the Contractor is not in a condition suitable for its intended use, the Contractor shall immediately notify the Contracting Officer in writing. Upon receipt of the Contractor's notification, the Contracting Officer shall advise the Contractor on a course of action to remedy the problem.

(iii) If either the failure of the Government to provide information to the Contractor by the dates shown in this clause or the remedial action taken under this clause to correct defective information causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this contract, the Contracting Officer may consider an equitable adjustment to the contract upon receipt of the contractor’s timely written request (see paragraph i of this clause).

(3)

(i) The Contracting Officer may, by written notice, at any time -

(A) Increase or decrease the amount of Government-furnished information under this contract;

(B) Substitute other Government-furnished information for the information previously furnished, to be furnished, or to be acquired by the Contractor for the Government under this contract; or

(C) Withdraw authority to use the information.

(ii) Upon completion of any action(s) under paragraph (d)(3)(i) of this clause, and the Contractor's timely written request, the Contracting Officer may consider an equitable adjustment to the contract (see paragraph i of this clause).

(e) Rights in information. Government information is the property of the U.S. Government unless otherwise specifically identified. The specific rights in any other information acquired or created by the Contractor under this contract shall be as expressed in the “Rights in Data” clause contained in this contract.

(f) Government access to information. The Government shall have the right to access any Government information maintained by the contractor and any subcontractors. The Contractor shall provide the Contracting Officer, and other duly authorized Government representatives, with access to all Government information, including access to the Contractor's facilities, as necessary, promptly upon written notification by the Contracting Officer. Such notification may be by electronic mail.

(g) Contractor liability for Government information.

(1) Unless otherwise provided for in the contract, the Contractor shall not be liable for loss, theft, damage, or destruction to the Government information furnished or acquired under this contract, except when the loss, theft, damage, or destruction is the result of the Contractor's failure to properly manage, account for, and safeguard the information in accordance with this clause.

(2) In the event of any loss, theft, damage, or destruction of Government information, the Contractor shall immediately take all reasonable actions necessary to protect the Government information from further loss, theft, damage, or destruction.

(3) The Contractor shall do nothing to prejudice the Government's rights to recover against third parties for any loss, theft, damage, or destruction of Government information.

(h) Return or Disposal of Government information to the Government.

(1) The Government may require the Contractor to return to the Government or dispose of Government Information at any time. Upon demand by the Contracting Officer or their representative, the Contractor shall return all Government information to the Government as directed by the Contracting Officer or their representative.

(2) The Contractor's failure to return all information as directed, including directions regarding the time frames for delivery back to the Government and directions prescribing the form in which the data must be returned, shall be considered a breach of contract, and the Government shall have the right to physically remove the Government information from the Contractor, including removal of such information from the Contractor's physical premises and from any electronic media (e.g., Contractor's computer systems).

(3) When required to return Government information to the Government, the Contractor shall do so at no cost to the Government. The Government shall not be responsible for the cost of data format conversion and the cost of delivery, if any.

(4) The Contractor shall ensure that all Government information provided to subcontractors is returned to the Government.

(i) Equitable adjustment. Equitable adjustments under this clause shall be made in accordance with the procedures of the applicable Changes clause. However, the Government shall not be liable for breach of contract for the following:

(1) Any delay in delivery of Government-furnished information.

(2) Delivery of Government-furnished information in a condition not suitable for its intended use.

(3) An increase, decrease, or substitution of Government-furnished information.

(4) Failure to correct or replace Government information for which the Government is responsible.

(j) Subcontracts. The Contractor shall ensure that all subcontracts under which Government information is provided to a subcontractor include the terms and conditions set forth in this clause.

Subcontracts shall clearly describe the Government information provided to the subcontractor. The Contractor shall be responsible for all Government information provided to subcontractors.

(End of clause)