80KSC020R0034 RFP.pdf

VCLS Demo 2 80KSC020R0034

CONTENTS

SECTION 1 – CONTINUATION OF SF 1449

1.1. CONTRACT PRICING:

1.2. SERVICES TO BE PROVIDED

1.3. PERIOD OF PERFORMANCE

1.4. PLACE OF PERFORMANCE

SECTION 2 ADDENDUM TO FAR 52.212-4, CONTRACT TERMS AND CONDITIONS –

COMMERCIAL ITEMS (OCT 2018)

2.1 FAR 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

2.2 LISTING OF CLAUSES INCORPORATED BY REFERENCE

2.3 ADVANCE UNDERSTANDING REGARDING TERMINATION SETTLEMENT

UNDER FAR 52.212-4 CONTRACT TERMS AND CONDITIONS- COMMERCIAL

ITEMS (OCT 2018)

2.4 1852.223-70 SAFETY AND HEALTH MEASURES AND MISHAP REPORTING

(DEC 2015) – APPLICABLE WHEN WORK WILL BE CONDUCTED COMPLETELY

OR PARTLY ON A FEDERALLY-CONTROLLED FACILITY

2.5 NFS 1852.225-70 EXPORT LICENSES (FEB 2000)

2.6 NFS 1852.232-77 LIMITATION OF FUNDS (FIXED-PRICE CONTRACT)

2.7 SUBMISSION OF VOUCHERS/INVOICES FOR PAYMENT

2.8 CONTRACT DATA REQUIREMENTS LIST (CDRL)

2.9 MILESTONE PAYMENTS, EVENTS AND COMPLETION CRITERIA

2.10 DOMESTIC SOURCE CRITERIA

2.11 LICENSES, PERMITS, AND INSURANCE FOR A LAUNCH SERVICE OPERATOR

2.12 COMPLIANCE WITH SAFETY AND OCCUPATIONAL HEALTH STANDARDS . 16

2.13 USE OF GOVERNMENT PROPERTY, FACILITIES, AND ASSETS

2.14 ADJUSTMENTS TO LAUNCH SCHEDULE

SECTION 3 – ATTACHMENT - FAR 52.212-5

3.1 FAR 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO

IMPLEMENT STATUTES OR EXECUTIVE ORDERS – COMMERCIAL ITEMS

(JUL 2020)

SECTION 4 ‐ LIST OF DOCUMENTS, EXHIBITS, AND OTHER ATTACHMENTS LIST OF

DOCUMENTS, EXHIBITS, AND OTHER ATTACHMENTS

4.1 LIST OF ATTACHMENTS

SECTION 5 – REPRESENTATIONS, CERTIFICATIONS, AND OTHER STATEMENTS OF

BIDDERS

5.1 FAR 52.212-3 OFFEROR REPRESENTATIONS AND CERTIFICATIONS—

COMMERCIAL ITEMS (JUN 2020) ALTERNATE I (OCT 2014)

5.2 DOMESTIC SOURCE CERTIFICATION - PUBLIC LAW 105-303, TITLE II,

SECTION 201

SECTION 6 – INSTRUCTIONS, CONDITIONS, AND NOTICES TO OFFERORS OR

RESPONDENTS

6.1 LISTING OF PROVISIONS INCORPORATED BY REFERENCE

6.2 PROVISIONS INCORPORATED VIA ADDENDUM TO FAR 52.212-1

6.2.1 TAILORED PARAGRAPHS IN 52.212-1

6.2.2 FAR 52.216-1 TYPE OF CONTRACT (APR 1984)

6.2.3 FAR 52.233-2 SERVICE OF PROTEST (SEP 2006)

6.2.4 NFS 1852.215-81 PROPOSAL PAGE LIMITATIONS. (APR 2015)

6.3 PROPOSAL DUE DATE

6.4 SUBMISSION INSTRUCTIONS FOR PROPOSALS

6.5 SUMMARY OF EXCEPTIONS

6.6 COMMUNICATIONS REGARDING THIS SOLICITATION

6.7 PROPOSAL CONTENT

6.7.1 VOLUME I, TECHNICAL/MANAGEMENT CAPABILITY

6.7.2 VOLUME II, PRICE

6.7.3 VOLUME III, ADMINISTRATION/ MODEL CONTRACT

SECTION 7 - EVALUATION FACTORS FOR AWARD

7.1 GENERAL CRITERIA

7.2 ADDENDUM TO EVALUATION - COMMERCIAL ITEMS (OCT 2014)

7.2.1 VOLUME I, TECHNICAL/MANAGEMENT CAPABILITY

7.2.2 VOLUME II, PRICE

SECTION 1 – CONTINUATION OF SF 1449

1.1. CONTRACT PRICING:

Table 1‐1: Pricing

CLIN Payload Launch service Price

1 – Mission One 30 kg Dedicated TBP or N/A

2 – Mission Two 95 kg Primary payload TBP or N/A

(End of Clause)

1.2. SERVICES TO BE PROVIDED

This contract is a firm fixed price for the Venture Class Launch Service Demonstration 2 (VCLS Demo 2) contract. The Contractor shall provide all resources necessary to deliver and perform in accordance with the Statement of Work and documents attachments hereto.

1.3. PERIOD OF PERFORMANCE

Contract award plus 2 months after the final orbit insertion date.

Orbit insertion(s) date(s) is TBP.

1.4. PLACE OF PERFORMANCE

The contractor's facility and the appropriate launch sites, TBP.

SECTION 2 ADDENDUM TO FAR 52.212-4, CONTRACT TERMS AND CONDITIONS

– COMMERCIAL ITEMS (OCT 2018)

2.1 FAR 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

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

For Federal Acquisition Regulation (FAR) clauses, see https://www.acquisition.gov/browse/index/far

For NASA Far Supplement (NFS) clauses, see http://www.hq.nasa.gov/office/procurement/regs/nfs.pdf

2.2 LISTING OF CLAUSES INCORPORATED BY REFERENCE

In addition to the clauses marked as incorporated by reference on the SF 1449, the following contract clauses pertinent to this section are hereby incorporated by reference:

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1) CLAUSES:

FAR 52.202-1 Definitions (JUN 2020) FAR 52.203-12 Limitation on Payments to Influence Certain Federal Transactions

(JUN 2020)

FAR 52.204-4 Printed or Copied Double-Sided on Postconsumer Fiber Content Paper

(MAY 2011)

FAR 52.204-13 System for Award Management Maintenance (OCT 2018) FAR 52.204-18 Commercial and Government Entity Code Maintenance (JUL 2016) FAR 52.204-19 Incorporation by Reference of Representations and Certifications

(DEC 2014)

FAR 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video

Surveillance Services or Equipment (Aug 2019) FAR 52.227-14 Rights in Data—General (MAY 2014)

Alternate II (DEC 2007) Excerpt from paragraph (g)(3):

Limited Rights Notice (DEC 2007)

(a) These data are submitted with limited rights under Government Contract No. TBD (and subcontract, if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any; provided that the Government makes such disclosure subject to prohibition against further use and disclosure:

(i) Use (except for manufacture) by support service contractors.

(iii) Use (except for manufacture) by other contractors participating in the Government’s program of which the specific contract is a part.

FAR 52.232-39 Unenforceability of Unauthorized Obligations (JUN 2013) FAR 52.242-13 Bankruptcy (JUL 1995) FAR 52.246-25 Limitation of Liability—Services (FEB 1997)

NASA FAR SUPPLEMENT (48 CFR CHAPTER 18) CLAUSES:

NFS 1852.203-70 Display of Inspector General Hotline Posters (JUN 2001) NFS 1852.203-71 Requirement to Inform Employees of Whistleblower Rights (AUG 2014) NFS 1852.215-84 Ombudsman (NOV 2011), Alternate I (JUN 2000) NFS 1852.223-75 Major Breach of Safety or Security (FEB 2002); Alternate I (FEB 2006) NFS 1852.227-14 Rights in Data—General (APR 2015) NFS 1852.228-78 Cross-Waiver of Liability for Science or Space Exploration Activities

Unrelated to the International Space Station (OCT2012) NFS 1852.237-73 Release of Sensitive Information (JUN 2005)

2.3 ADVANCE UNDERSTANDING REGARDING TERMINATION SETTLEMENT

UNDER FAR 52.212-4 CONTRACT TERMS AND CONDITIONS- COMMERCIAL

ITEMS (OCT 2018)

(a) In the event the Government decides to exercise its right to terminate all or part of this contract under FAR 52.212-4 (l), “Termination for the Government’s convenience”, it is agreed in advance that the Contractor, after receipt of a written notice of termination, will have satisfied all obligations and discharged all duties required by FAR 52.212-4(l), “Termination for the Government’s convenience”, when the Contractor has refunded that portion of the milestone-based payment(s) for each launch service affected by the termination, in accordance with Table 2.9-1, Launch Service Milestone Schedule.

(b) The parties agree that by virtue of the refund specified in Table 2.9-1, Launch Service Milestone Schedule, any and all claims for equitable adjustment as a result of the termination are fully satisfied and discharged. The parties agree that this settlement represents fair compensation for Contractor effort accomplished for the terminated portions of the contract and that the terms as stated herein represent full and final settlement between the parties. The parties agree that the Contractor shall retain title to all hardware associated with the terminated launch service. The parties agree that the above settlement shall represent the total amount to be paid to the Contractor without agreeing on or segregating the particular elements of costs or profits comprising this amount. The refund amount shall be payable in full no later than thirty (30) days after receipt of the written notice of termination. Delinquent payment(s) shall be subject to interest at the applicable rate as determined by the Secretary of the Treasury.

(c) The provisions of this Contract clause shall only apply from Award until the point of intentional ignition of the launch vehicle. The provision of this Contract clause shall in no way be deemed to limit the rights of the Government under FAR 52.212-4(m), “Termination for Cause.” In the event the Government exercises its rights under FAR 52.212-4(m), “Termination for Cause,” the provisions of this contract clause will not apply.

2.4 1852.223-70 SAFETY AND HEALTH MEASURES AND MISHAP REPORTING

(DEC 2015) – Applicable when work will be conducted completely or partly on a federally-controlled facility

(a) Safety is the freedom from those conditions that can cause death, injury, occupational illness, damage to or loss of equipment or property, or damage to the environment. NASA’s safety priority is to protect: (1) the public, (2) astronauts and pilots, (3) the NASA workforce (including contractor employees working on NASA contracts), and (4) high-value equipment and property.

(b) The Contractor shall take all reasonable safety and occupational health measures in performing this contract. The Contractor shall maintain an effective worksite safety and health program with organized and systematic methods to—

(1) Comply with Federal, State, and local safety and occupational health laws and with the safety and occupational health requirements of this contract;

(2) Describe and assign the responsibilities of managers, supervisors, and employees;

(3) Inspect regularly for and identify, evaluate, prevent, and control hazards;

(4) Orient and train employees to eliminate or avoid hazards; and

(5) Periodically review the program’s effectiveness.

Authorized Government representatives shall have access to and the right to examine the work site and related records under this Contract in order to determine the adequacy of the Contractor’s safety and occupational health measures.

(c) The Contractor shall take, or cause to be taken, any other safety, and occupational health measures the Contracting Officer may reasonably direct. To the extent that the Contractor may be entitled to an equitable adjustment for those measures under the terms and conditions of this contract, the equitable adjustment shall be determined pursuant to the procedures of the changes clause of this contract; provided, that no adjustment shall be made under this Safety and Health clause for any change for which an equitable adjustment is expressly provided under any other clause of the contract.

(d) The Contractor shall immediately notify the Contracting Officer or a designee any Type A, B, C, or D Mishap, or close calls as defined in NASA Procedural Requirement (NPR) 8621.1, Mishap and Close Call Reporting, Investigating, and Recordkeeping. In addition, service contractors (excluding construction contracts) shall provide quarterly reports specifying lost-time frequency rate, number of lost-time injuries, exposure, and accident/incident dollar losses as specified in the contract Schedule.

(e) The Contractor shall cooperate with any Government-authorized investigation of Type A, B, C, or D Mishaps, or Close Calls reported pursuant to paragraph (d) of this clause by providing access to employees; and relevant information in the possession of the Contractor regarding the mishap or close call.

(f) (1) The Contracting Officer may notify the Contractor of any noncompliance with this clause and specify corrective actions to be taken. When the Contracting Officer becomes aware of noncompliance that may pose a serious or imminent danger to safety and health of the public, astronauts and pilots, the NASA workforce (including contractor employees working on NASA contracts), or high value mission critical equipment or property, the Contracting Officer will notify the Contractor orally, with written confirmation. The Contractor shall promptly take any necessary corrective action.

(2) If the Contractor fails or refuses to institute prompt corrective action in accordance with subparagraph (f)(1) of this clause, the Contracting Officer may—

(i) Invoke the stop-work order clause in this contract;

(ii) Require the Contractor to remove and replace Contractor or subcontractor personnel who fail to comply with or violate applicable requirements of this clause;

(iii)Record the Contractor’s failure to comply in the appropriate databases of past performance; and

(iv) Consider the Contractor’s failure to comply in any responsibility determination or evaluation of past performance.

(g) The Contractor shall insert the substance of this clause, including this paragraph (g) in all subcontracts above the simplified acquisition threshold when the work will be conducted completely or partly on federally-controlled facilities.

(End of clause)

2.5 NFS 1852.225-70 EXPORT LICENSES (FEB 2000)

(a) The Contractor shall comply with all U.S. export control laws and regulations, including the

International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799, in the performance of this contract. In the absence of available license exemptions/exceptions, the Contractor shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data, and software, or for the provision of technical assistance.

(b) The Contractor shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of this contract, including instances where the work is to be performed on-site at Kennedy Space Center, FL, where the foreign person will have access to export-controlled technical data or software.

(c) The Contractor shall be responsible for all regulatory record keeping requirements associated with the use of licenses and license exemptions/exceptions.

(d) The Contractor shall be responsible for ensuring that the provisions of this clause apply to its subcontractors.

2.6 NFS 1852.232-77 LIMITATION OF FUNDS (FIXED-PRICE CONTRACT)

(MAR 1989)

(a) Of the total price of items, the sum of $TBD is presently available for payment and allotted to this contract. It is anticipated that from time to time additional funds will be allocated to the contract as required by the schedule in contract Section 2.9, Milestone Payments, Events and Completion Criteria, until the total price of said CLINs is allotted.

(b) The Contractor agrees to perform or have performed work on the items specified in paragraph

(a) of this clause up to the point at which, if this contract is terminated pursuant to FAR 52.212- 4(l) “Termination for the Government’s Convenience” of this contract, the total amount payable by the Government would equal the amount retained by the Contractor pursuant to Section 2.9 and Table 2.9-1. The Contractor is not obligated to continue performance of the work beyond that point. The Government is not obligated in any event to pay or reimburse the Contractor more than the amount from time to time allotted to the contract, anything to the contrary in Contract Section 2.3, Advance Understanding Regarding Termination Settlement Under Far 52.212-4 Contract Terms and Conditions- Commercial Items (Oct 2018) notwithstanding.

(c)

(1) It is contemplated that funds presently allotted to this contract will cover the work to be performed until TBD.

(2) If funds allotted are considered by the Contractor to be inadequate to cover the work to be performed until that date, or an agreed date substituted for it, the Contractor shall notify the Contracting Officer in writing when within the next 60 days the work will reach a point at which, if the contract is terminated pursuant to contract Section 2.3, FAR 52.212-4(l) “Termination for the Government’s Convenience” of this contract, the total amount payable by the Government would equal the amount retained by the Contractor pursuant to contract Section 2.9 and Table 2.9-1.

(3)

(i) The notice shall state the estimate when the point referred to in paragraph (c)(2) of this clause will be reached and the estimated amount of additional funds required to continue performance to the date specified in paragraph (c)(1) of this clause, or an agreed date substituted for it.

(ii) The Contractor shall, 60 days in advance of the date specified in paragraph (c)(1) of this clause, or an agreed date substituted for it, advise the Contracting Officer in writing as to the estimated amount of additional funds required for the timely performance of the contract for a further period as may be specified in the contract or otherwise agreed to by the parties.

(4) If, after the notification referred to in paragraph (c)(3)(ii) of this clause, additional funds are not allotted by the date specified in paragraph (c)(1) of this clause, or an agreed date substituted for it, the Contracting Officer shall, upon the Contractor's written request, terminate this contract on that date or on the date set forth in the request, whichever is later, pursuant to the Section 2.3, Advance Understanding Regarding Termination Settlement Under Far 52.212-4 Contract Terms And Conditions- Commercial Items (Oct 2018).

(d) When additional funds are allotted from time to time for continued performance of the work under this contract, the parties shall agree on the applicable period of contract performance to be covered by these funds. The provisions of paragraphs (b) and (c) of this clause shall apply to these additional allotted funds and the substituted date pertaining to them, and the contract shall be modified accordingly.

(e) If, solely by reason of the Government's failure to allot additional funds in amounts sufficient for the timely performance of this contract, the Contractor incurs additional costs or is delayed in the performance of the work under this contract, and if additional funds are allotted, an equitable adjustment shall be made in the price or prices (including appropriate target, billing, and ceiling prices where applicable) of the items to be delivered, or in the time of delivery, or both.

(f) The Government may at any time before termination, and, with the consent of the Contractor, after notice of termination, allot additional funds for this contract.

(g) The provisions of this clause with respect to termination shall in no way be deemed to limit the rights of the Government under the default clause of this contract. The provisions of this Limitation of Funds clause are limited to the work on and allotment of funds for the items set forth in paragraph (a) of this clause. This clause shall become inoperative upon the allotment of funds for the total price of said work except for rights and obligations then existing under this clause.

(h) Nothing in this clause shall affect the right of the Government to terminate this contract pursuant to contract Section 2.3, Advance Understanding Regarding Termination Settlement Under Far 52.212-4 Contract Terms and Conditions- Commercial Items (Oct 2018).

2.7 SUBMISSION OF VOUCHERS/INVOICES FOR PAYMENT

(a) The Contractor shall submit all invoices using the steps described at NSSC’s Vendor

Payment information web site at: https://www.nssc.nasa.gov/vendorpayment. Please contact the NSSC Customer Contact Center at 1-877-NSSC123 (1-877-677-2123) with any additional questions or comments.

(b) Improper invoices. The NSSC Payment Office will notify the contractor of any apparent error, defect, or impropriety in an invoices within seven calendar days of receipt by the NSSC Payment Office. Inquiries regarding requests for payment should be directed to the NSSC as specified in paragraph (1) of this section.

(c) In the event that amounts are withheld from payment in accordance with provisions of this award, a separate payment request for the amount withheld will be required before payment for that amount may be made.

2.8 CONTRACT DATA REQUIREMENTS LIST (CDRL)

(a) The Contractor shall furnish all data identified and described in Attachment 02, Contract

Data Requirements List.

(b) The Government reserves the right to reasonably defer the date of delivery of any or all items of data specified in the CDRL. Such right may be exercised at no increase in the contract amount. The Government also reserves the right to terminate or add to the requirement for any or all items of data specified in the CDRL.

(c) To the extent that data required to be furnished by other provisions of this contract are also identified and described in the CDRL, compliance with the CDRL shall be accepted as compliance with such other provisions. In the event of conflict between the identity and description of data called for by specific provisions of this contract and the CDRL, the CDRL shall control the data to be furnished.

(d) Nothing contained in this Contract Data Requirements List provision shall relieve the

Contractor from furnishing data called for by, or under the authority of, other provisions of this contract which are not identified and described in the CDRL attached to this contract.

Whenever such data are identified, either by the Contractor or the Government, they will be listed in the CDRL.

(e) Except as otherwise provided in this contract, the cost of data to be furnished in response to the CDRL attached to this contract is included in the price of this contract.

2.9 MILESTONE PAYMENTS, EVENTS AND COMPLETION CRITERIA

(a) Upon successful completion of a milestone event and submission of a properly certified invoice, the Contractor may request commercial interim payments. The commercial interim payments will be paid in accordance with the payment schedule shown in Table 2.9-1, Launch Service Milestone Schedule and based on the milestone events identified in the Attachment

03, Milestone Deliverable Descriptions and Requirements.

(b) Commercial interim payments are contract financing payments that are not payment for accepted items. Commercial interim payments are fully recoverable, in the same manner as progress payments, in the event of default. Commercial interim payments are contract financing payments and, therefore, are not subject to the interest-penalty provisions of prompt payment. However, these payments shall be made in accordance with the Agency's policy for prompt payment of contract financing payments.

(c) Scheduled dates in Table 2.9-1 are tentative. Payments may be deferred or canceled by the

Government if the Contractor fails to make substantial progress in accomplishing the milestone events in Attachment 03, Milestone Deliverable Descriptions and Requirements.

Payments falling due in the first quarter of each fiscal year (October - December) shall be paid promptly to the maximum extent practicable but shall not be considered late until January 31st of the following calendar year. In the event the Contractor completes a milestone ahead of the milestone completion date, the Contractor may submit a proper invoice and the Government will consider on a case-by-case basis, the early payment of the milestone.

(d) The Contractor agrees in the event of a termination of this contract pursuant to contract Section

2.3, Advance Understanding Regarding Termination Settlement Under FAR Clause 52.212- 4(l), Contract Terms And Conditions- Commercial Items (Oct 2018) the Government shall not be obligated in any event to pay or reimburse the Contractor any amount in excess of the amount already obligated to the contract. The Contractor shall not be obligated to continue performance of the work beyond such point.

(e) The Contracting Officer will unilaterally determine the Contractor’s accomplishment and successful completion of each milestone event. The Contracting Officer’s determination of milestone event completion will include, but is not limited to, the accomplishment criteria set forth in the Attachment 01, Statement of Work and Attachment 03, Milestone Deliverables Descriptions and Requirements. In addition, the Contracting Officer will determine if the following are complete for each payment requested: all Contract Data Requirements List (CDRL) data item deliverables for which delivery is required prior to the requested payment and all previous events have been met. Approval of the final payment will be made in accordance with contract requirements.

(f) If modifications are issued against this contract, Table 2.9-1, Launch Service Milestone Schedule below will be adjusted as necessary to reflect the actions required by those contract modifications.

Table 2.9-1, Launch Service Milestone Schedule

Launch Service Milestone Payment #

Milestone Milestone Event

Amount (% of Launch

Service CLIN Price)

Individual Amount of

Launch Service

Payment ($) Amounts

Cumulative Amount of

Launch Service

Payments

Termination for Convenience of the Government Repayment Schedule

Percentage (%) of Cumulative Payments Made to Date to be Returned to Government (after the milestone)

1 Kick-off ATP + 1 week 5% TBP TBP 0%

2 Technical Interchange Meeting

ATP + 3

months 10% TBP TBP 5%

Core Stage Engine >90%

Thrust Test (Engine Tests 1)

L-12 months 5% TBP TBP 10%

Core Stage Engine Full Mission Profile and

Duration Test (Engine Tests 2)

L-10 months 10% TBP TBP 10%

Mission Critical Design Review (CDR)

Contractor Signed Baseline ICD and Verification

Matrix

TBP

NLT L-8

months

10% TBP TBP 10%

Core Stages Propulsion

Testing Complete (Stage Tests)

TBP

Not Earlier

Than L-5 Months

15% TBP TBP 20%

2.10 DOMESTIC SOURCE CRITERIA

(a) In addition to the certification regarding United States commercial provider of space transportation services (Public Law 105‐303, Title II, Section 201), the Contractor shall continue to comply with domestic source criteria established below and with United States National Space Transportation Policy, dated November 21, 2013. Failure to comply with the criteria may be grounds for “Termination for Cause” in accordance with FAR 52.212‐4(m).

(b) Participation in this procurement is restricted to prime Contractors from the United States launch vehicle/services industry. “United States industry” means any corporation, partnership, joint venture, association, or other entity which is organized or existing under the laws of the United States or any State, and whose controlling interest is held by United States citizens. “Launch services” means all services required in the performance of this contract, excluding those necessary to produce or manufacture launch vehicles, its components and other equipment and facilities required in the performance of the contract. “Controlling interest” means ownership of an amount of equity in such entity sufficient to direct management or to void transactions entered into by management. Ownership of at least fifty‐one (51) percent of the equity creates a rebuttable presumption that such interest is controlling; however, the ultimate determination as to whether the interest is controlling resides with

NASA.

(c) The Contractor shall provide in the performance of this contract launch vehicles that are domestic end products. The launch vehicle shall be a domestic end product only if the cost of its components, mined, produced or manufactured in the United States exceeds 50 percent of the cost of all its components.

The cost of each component includes transportation costs to the place of incorporation into the launch vehicle and any applicable duty (whether or not a duty‐free entry certificate is issued). “Components,” as used in this contract clause, means those materials and supplies directly incorporated into the end product.

(d) The Contractor shall provide, in the performance of this contract, domestic launch services. Launch services shall be considered to be domestic if the cost for launch services performed by United States industry sources exceeds 50 percent of the cost of the total required launch services.

2.11 LICENSES, PERMITS, AND INSURANCE FOR A LAUNCH SERVICE OPERATOR

(a) The Contractor shall obtain and maintain the necessary licenses, permits and clearances that may be required by the Department of Transportation, Department of Commerce, Department of Defense, NASA, or other Governmental agencies in order to provide launch services under this contract. A Federal Aviation Administration commercial launch license is required under this contract. All costs and fees associated with obtaining licenses, permits and clearances shall be included in the launch service price. Approvals required by the payload are the responsibility of NASA.

(b) In accordance with 51 U.S.C. § 50914, the Contractor shall obtain liability insurance or demonstrate financial responsibility in amounts to compensate for the maximum probable loss from claims by: (1) a third party for death, bodily injury, or property damage or loss arising in connection with the covered launch activities under this contract; and (2) the United States Government against a person for damage or loss to Government property arising in connection with the covered launch activities under this contract. The Contractor shall provide the NASA Contracting Officer a copy of the Maximum

Probable Loss (MPL) determination and certificate of such insurance once it has been obtained.

(c) The foregoing insurance requirement does not preclude the Contractor from acquiring or continuing in effect any additional insurance to protect the interests of the Contractor or its Related Parties, such as Commercial General Liability coverage.

2.12 COMPLIANCE WITH SAFETY AND OCCUPATIONAL HEALTH STANDARDS

The Contractor shall comply with all Federal, State, and local laws, and the Contractor’s commercial practices applicable to safety and occupational health and with the safety and occupational health standards, specifications, reporting requirements, and any other relevant requirements of this contract.

The Contractor shall comply with all applicable Department of Transportation and Federal Aviation Administration regulations and policies necessary to obtain a commercial launch license. The Contractor shall comply with the applicable launch site or launch range safety requirements.

2.13 USE OF GOVERNMENT PROPERTY, FACILITIES, AND ASSETS

This clause applies to any Government support, including property, facilities, assets, or services, not otherwise provided for under this contract whether obtained from NASA or another Government Agency.

(a) Support obtained from a Government Agency other than NASA.

(1) The Contractor shall obtain and maintain any necessary contracts or agreements between the Contractor and any Government Agency authorizing the use of Government property, facilities, assets or services in performance of this contract (except as may be expressly stated in this contract as furnished by the Government). The Contractor shall be responsible to arrange any contracts or agreements outside of this contract as it deems appropriate. The terms and conditions of such contracts or agreements will govern the use of those Government resources. Any costs associated with such contracts or agreements shall result in no increase in the price of this contract.

All remedies to disputes or performance issues shall be resolved in accordance with the terms and conditions of those contracts or agreements. The Contractor shall notify the Contracting Officer Representative (COR), or designee, of any contracts or agreements between the Contractor and any Government Agency under this paragraph (a).

(2) NASA makes no warranty whatsoever as to the availability or suitability for use of Government property, facilities, assets, or services made available by another Government Agency under the terms and conditions of other contracts or agreements. The Contractor assumes all responsibility for determining the suitability for use of all property, facilities, assets, or services acquired or made available to the Contractor by a Government Agency under other contracts or agreements.

The Contractor further acknowledges and agrees that any use of such Government property, facilities, assets, or services shall not relieve the Contractor of full performance responsibility under the contract.

(b) Support obtained from a NASA Center or Component Facility.

(1) Except as may be expressly stated in this contract as furnished by the Government, the Contractor shall obtain use of any Government property, facilities, assets or services available from a NASA Center or Component Facility (a “Performing Organization”) for performance of this contract through the use of an appropriate agreement. The Contractor shall be responsible for obtaining, negotiating and documenting all agreements with the Performing Organization. The Contractor shall be responsible for any costs associated with property, facilities, assets, or services provided by a Performing Organization under an agreement and such costs shall result in no increase in the price of this contract. The Contractor shall notify the Contracting Officer Representative (COR), or designee, of any agreements between the Contractor and a Performing Organization under this paragraph.

(2) NASA makes no warranty whatsoever as to the availability or suitability for use of property, facilities, assets, or services made available by a Performing Organization under an agreement.

The Contractor assumes all responsibility for determining the suitability for use of all such property, facilities, assets, or services, including technical suitability, schedule availability and cost. The Contractor further acknowledges and agrees that any use of Government property, facilities, assets, or services under an agreement shall not relieve the Contractor of full performance responsibility under the contract.

(3) Any implementation issues or disputes arising under an agreement shall be referred for resolution to the Points of Contact, or if necessary the signatories, identified in the agreement.

(c) The Contractor is responsible for determining the suitability for use of all materials, property, and facilities acquired or made available to the Contractor by NASA or other Government agencies under any contract or agreement. Any use of Government-Furnished Property (GFP), materials, or facilities and services shall not relieve the Contractor of full performance responsibility under the contract.

2.14 ADJUSTMENTS TO LAUNCH SCHEDULE

(a) Contractor will give written notice of any desired change in the launch date within the Launch

Period defined in Section 1.3, Period of Performance as soon as possible.

(b) If the delay results in a scheduled payload not being able to fly, and a replacement is not available, the Contractor shall provide the mass simulator(s).

(c) Contractor provided consideration for delay changes will be applied in accordance with the following Table 2.14: Consideration Payload Schedule and terms defined in paragraph (b).

Table 2.14: Consideration Payload(s) Schedule

Delays from initial contract launch date

Consideration Flight (includes dispenser)

1-270 days 3U

271-360 days 6U

361-450 days 9U

451-540 days 12U

(d) The terms of the consideration flight(s) are as follows:

i. Launch of all consideration payload(s) will take place no later than one year after VCLS

Demo 2 realized launch date. Five percent of the VCLS Demo 2 milestone payment 10 shall be retained for the consideration flight(s). If all consideration flights are not completed by the end of the year, that 5% will be retained by the Government.

ii. Launch date and payload integration milestones must be established no later than L-11 months. There are no contract milestones associated with this consideration flight other than Launch Readiness Review and Launch. Specific mission integration (excluding all necessary analytical and physical integration, safety package development and safety and technical requirement verifications) is Government responsibility (Mission Readiness Review, end customer management, etc.).

iii. The consideration flight(s) is subject to an orbit inclination between 45 and 98 degrees with an altitude that allows compliance with orbital debris policies up to 615 km. When the consideration flight(s) is identified, if NASA LSP does not have a payload requirement for the proposed orbit, NASA LSP may elect to move the consideration flight to another launch.

iv. The Contractor will identify all consideration flight opportunities and the availability to fly the VCLS Demo 2 consideration payloads for each flight in the manifest after the VCLS Demo 2 flight. Consideration may be launched on one or more mission(s).

v. NASA LSP will choose the consideration flight or flights out of the available choices. Once the consideration flight or flights are selected, if the Government de-manifest(s) one or more payloads, the Government forfeits that payload capacity from the consideration flight(s). If the de-manifest of one or more payload(s) requires a Mass simulator(s), the contractor is required to provide it. If all the payloads after L-9 months are de-manifested, the selected consideration flight will be forfeited and will be considered complete.

vi. For each consideration payload described in the Launch Delay Consideration Schedule above, NASA LSP will select the CubeSat configuration within the assessed consideration limit and mission compatibility.

(e) The Contractor will not be liable when the delay in delivery or performance arises solely out of causes beyond the control of the Contractor and not due to the fault or negligence of the Contractor as defined in FAR Clause 52.212-4 (f), Excusable Delays, and include, but are not limited to the following:

Delays resulting from payload or launch vehicle launch day mission rules/constraints documented in the Contractor’s countdown procedure/process, FAA launch day constraints, range launch constraints, range mandatory hold requirements, wars (declared or undeclared), riots, revolution, hijacking, freight embargoes, sabotage, pandemics, strikes and interruptions of essential services such as electricity, natural gases, fuels and water, or any condition which jeopardizes the safety of the employees of the Contractor, NASA, or its subcontractors.

SECTION 3 – ATTACHMENT - FAR 52.212-5

3.1 FAR 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT

STATUTES OR EXECUTIVE ORDERS – COMMERCIAL ITEMS (JUL 2020)

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

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (JUL 2018) (Section 1634 of Pub. L. 115- 91).

(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).

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

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

(6) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77 and

108-78 ( 19 U.S.C. 3805 note)).

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

(1) 52.203-6, Restrictions on Subcontractor Sales to the Government (JUNE 2020), with Alternate I (OCT 1995) ( 41U.S.C.4704 and 10 U.S.C. 2402).

(2) 52.203-13, Contractor Code of Business Ethics and Conduct (JUN 2020) (41 U.S.C. 3509)).

__ (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 (JUN

2020) (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).

(8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (JUN 2020) (31 U.S.C. 6101 note).

(9) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (OCT

2018) (41 U.S.C. 2313).

__ (10) [Reserved].

__ (11)

___(i) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (MAR 2020) (15 U.S.C. 657a).

__ (ii) Alternate I (MAR 2020) of 52.219-3.

__ (12) ___(i) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (MAR 2020) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

__ (ii) Alternate I (MAR 2020) of 52.219-4.

__ (13) [Reserved] (14)

(i) 52.219-6, Notice of Total Small Business Set-Aside (MAR 2020) of 52.219- 6 (15 U.S.C. 644).

___(ii) Alternate I (MAR 2020) of 52.219-6 .

__ (15)

___(i) 52.219-7, Notice of Partial Small Business Set-Aside (MAR 2020) (15 U.S.C. 644).

__ (ii) Alternate I (MAR 2020) of 52.219-7.

(16) 52.219-8, Utilization of Small Business Concerns (OCT 2018) (15 U.S.C. 637(d)(2) and (3)) __ (17)

___(i) 52.219-9, Small Business Subcontracting Plan (JUN 2020) (15 U.S.C. 637(d)(4)).

___ (ii) Alternate I (NOV 2016) of 52.219-9.

___ (iii) Alternate II (NOV 2016) of 52.219-9.

___ (iv) Alternate III (JUN 2020) of 52.219-9.

___ (v) Alternate IV (JUN 2020) of 52.219-9

__ (18) ___ (i) 52.219-13, Notice of Set-Aside of Orders (MAR 2020) (15 U.S.C. 644(r)).

___ (ii) Alternate I (MAR 2020) of 52.219-13.

(19) 52.219-14, Limitations on Subcontracting (MAR 2020) (15 U.S.C. 637(a)(14)).

__ (20) 52.219-16, Liquidated Damages-Subcontracting Plan (JAN 1999) (15 U.S.C. 637(d)(4)(F)(i)).

__ (21) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (MAR 2020) (15 U.S.C. 657f).

(22)

(i) 52.219-28, Post Award Small Business Program Rerepresentation (MAY 2020) (15 U.S.C. 632(a)(2)).

___(ii) Alternate I (MAR 2020) of 52.219-28.

__ (23) 52.219-29, Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (MAR 2020) (15 U.S.C. 637(m)).

__ (24) 52.219-30, Notice of Set-Aside for, or Sole Source Award to, Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program (Mar2020) (15 U.S.C. 637(m)).

__ (25) 52.219-32, Orders Issued Directly Under Small Business Reserves (MAR 2020) (15 U.S.C. 644(r)).

__ (26) 52.219-33, Nonmanufacturer Rule (MAR 2020) (15U.S.C. 637(a)(17)).

(27) 52.222-3, Convict Labor (JUN 2003) (E.O.11755).

(28) 52.222-19, Child Labor-Cooperation with Authorities and Remedies (JAN2020) (E.O.13126).

(29) 52.222-21, Prohibition of Segregated Facilities (APR 2015).

(30)

(i) 52.222-26, Equal Opportunity (SEP 2016) (E.O.11246).

___ (ii) Alternate I (FEB 1999) of 52.222-26.

(31)

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

___ (ii) Alternate I (JUL 2014) of 52.222-35.

(32)

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

___ (ii) Alternate I (JUL 2014) of 52.222-36.

(33) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212).

(34) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC

2010) (E.O. 13496).

(35)

(i) 52.222-50, Combating Trafficking in Persons (JAN 2019) (22 U.S.C. chapter 78 and E.O.

13627).

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

(36) 52.222-54, Employment Eligibility Verification (OCT 2015). (Executive Order 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

__ (37) ___ (i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA–Designated Items (May 2008) ( 42 U.S.C. 6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

___ (ii) Alternate I (MAY 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

__ (38) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (Jun 2016) (E.O. 13693).

__ (39) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (JUN 2016) (E.O. 13693).

__ (40)

___ (i) 52.223-13, Acquisition of EPEAT®-Registered Imaging Equipment (JUN 2014) (E.O.s 13423 and 13514).

___ (ii) Alternate I (OCT 2015) of 52.223-13.

__ (41) ___ (i) 52.223-14, Acquisition of EPEAT®-Registered Televisions (JUN 2014) (E.O.s 13423 and 13514).

___(ii) Alternate I (Jun2014) of 52.223-14.

__ (42) 52.223-15, Energy Efficiency in Energy-Consuming Products (MAY 2020) (42 U.S.C. 8259b).

__ (43)

___ (i) 52.223-16, Acquisition of EPEAT®-Registered Personal Computer Products (OCT 2015) (E.O.s 13423 and 13514).

___ (ii) Alternate I (JUN 2014) of 52.223-16.

(44) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging While Driving (JUN 2020) (E.O. 13513).

__ (45) 52.223-20, Aerosols (JUN 2016) (E.O. 13693).

__ (46) 52.223-21, Foams (Jun2016) (E.O. 13693).

__ (47)

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

___ (ii) Alternate I (JAN 2017) of 52.224-3.

__ (48) 52.225-1, Buy American-Supplies (May 2014) (41 U.S.C. chapter 83).

__ (49)

___ (i) 52.225-3, Buy American-Free Trade Agreements-Israeli Trade Act (MAY 2014) (41 U.S.C.chapter83, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109- 283, 110-138, 112-41, 112-42, and 112-43.

___ (ii) Alternate I (MAY 2014) of 52.225-3.

___ (iii) Alternate II (MAY 2014) of 52.225-3.

___ (iv) Alternate III (MAY 2014) of 52.225-3.

__ (50) 52.225-5, Trade Agreements (OCT 2019) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

(51) 52.225-13, Restrictions on Certain Foreign Purchases (JUN 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

__ (52) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302Note).

__ (53) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov2007) (42 U.S.C. 5150).

__ (54) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov2007) (42 U.S.C. 5150).

__ (55) 52.229-12, Tax on Certain Foreign Procurements (JUN 2020).

__ (56) 52.232-29, Terms for Financing of Purchases of Commercial Items (FEB 2002) (41 U.S.C. 4505, 10 U.S.C. 2307(f)).

__(57) 52.232-30, Installment Payments for Commercial Items (Jan2017) (41 U.S.C. 4505, 10 U.S.C. 2307(f)).

(58) 52.232-33, Payment by Electronic Funds Transfer-System for Award

Management (OCT2018) (31 U.S.C. 3332).

__ (59) 52.232-34, Payment by Electronic Funds Transfer-Other than System for Award Management (Jul 2013) (31 U.S.C. 3332).

__ (60) 52.232-36, Payment by Third Party (MAY 2014) (31 U.S.C. 3332).

__ (61) 52.239-1, Privacy or Security Safeguards (AUG 1996) (5 U.S.C. 552a).

__ (62) 52.242-5, Payments to Small Business Subcontractors (JAN 2017) (15 U.S.C. 637(d)(13)).

(63)

(i)52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).

___ (ii) Alternate I (APR 2003) of 52.247-64.

___ (iii) Alternate II (FEB 2006) of 52.247-64.

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

__ (1) 52.222-41, Service Contract Labor Standards (AUG 2018) (41 U.S.C. chapter67).

__ (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (MAY 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

(3) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (Multiple Year and Option Contracts) (AUG 2018) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

(4) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (May 2014) ( 29U.S.C.206 and 41 U.S.C. chapter 67).

__ (5) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (May 2014) (41 U.S.C. chapter 67).

(6) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-Requirements (MAY 2014) (41 U.S.C. chapter 67).

__ (7) 52.222-55, Minimum Wages Under Executive Order 13658 (DEC 2015).

__ (8) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706).

__ (9) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (Jun 2020) (42 U.S.C. 1792).

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

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have…