951700-20-R-0008 Shortwave Broadcast Services Amendment 05052020.docx

Solicitation No. 951700-R-20-00008 SHORTWAVE BROADCAST TRANSMISSION SERVICES

UNITED STATES AGENCY FOR GLOBAL MEDIA (USAGM)

UNITED STATES OF AMERICA

Title: SHORTWAVE BROADCAST TRANSMISSION SERVICES NAICS CODE – 515112, Radio Stations

SOLICITATION NUMBER – 951700-R-20-00008

Posted April 8, 20202 and Closes May 12, 2020.

Interested Offerors are reminded to submit via email two separate attachments – a Technical Proposal and a separate Price Proposal. Offerors must send one email with both attachments. ALL ATTACHMENTS MUST BE CLEARLY LABELED AND SENT IN “PDF FORMAT” AND INCLUDE THE SOLICITATION NUMBER IN THE SUBJECT LINE. PLEASE NOTE THAT THE TOTAL SIZE OF ALL ATTACHEMNTS MUST NOT EXCEED 23MB. See paragraph (xv), below.

NOTICE TYPE: Combined Synopsis/Solicitation

(i) THIS IS A COMBINED SYNOPSIS/SOLICITATION FOR COMMERCIAL ITEMS PREPARED IN ACCORDANCE WITH THE FORMAT IN FAR SUBPART 12.6, AS SUPPLEMENTED WITH ADDITIONAL INFORMATION INCLUDED IN THIS NOTICE. THIS ANNOUNCEMENT CONSTITUTES THE ONLY SOLICITATION; PROPOSALS ARE BEING REQUESTED AND A WRITTEN SOLICITATION WILL NOT BE ISSUED.

(ii) Solicitation No. 951700-R-20-00008 is issued as a Request for Proposals (RFP).

(iii) This solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular (FAC) 2020-05 effective March 30, 2020.

(iv) This is a full and open competition and the North American Industry Classification Systems (NAICS) code for this acquisition is (Radio Stations) 515112 with a small business size standard of $41.5 million.

(v) Interested Offeror(s) will be required to provide the following Contract Line Item (CLIN):

The Contractor shall lease to the United States Agency for Global Media (USAGM) shortwave broadcast transmission capacity, receive USAGM programming feed provided by satellite or terrestrial circuits, and transmit the programing by shortwave for the benefit of USAGM and its grantees in accordance with agreed upon schedules for the Area or Areas or regions within an Area or Areas awarded and receive payment for hours delivered based on a fully loaded flat hourly capacity lease rate (the transmitter rate per hour).

The successful Offeror or Offerors are required to provide all equipment and facilities required to perform the contract, including all equipment and facilities to accept the USAGM’s programming feed and to transmit it by shortwave to the Area or Areas identified with the requisite coverage. Each Offeror’s proposal must state that it will provide and maintain all equipment, (including, but not limited to, any real property/leasehold facilities) required to provide the shortwave transmitting services. The Government will not furnish property, i.e., there will be no Government Furnished Property (GFP).

The successful Offeror or Offerors will be required to also comply with the terms and conditions included in the “Lease Agreement,” with Annex I, Annex II, Transmission Schedule and Price Sheet, the FAR Clauses 52.212-4 to 52.212-5 and additional incorporated clauses as set forth therein and below to this Combined Synopsis/Solicitation or incorporated by reference.

(vi) USAGM’s Office of Contracts has a need for one or more contractor(s) to lease high quality transmission capacity for shortwave broadcasting to Africa, Asia and Eastern Europe (hereinafter “Areas”) as required by the USAGM and its grantees in accordance with agreed upon broadcasting schedules”. The successful Offeror(s) must be able to cover all, or part of one or more of the three aforementioned Areas during both the USAGM summer and winter broadcast seasons. It is a technical requirement that the USAGM obtains full coverage for these Areas in making one or more awards under this Combined Synopsis/Solicitation. For the USAGM to meet its needs, USAGM will select the combination of Offerors or the sole Offeror that provide or provides coverage of all three Areas and all regions within the Areas in the manner most advantageous to the Government based on the factors contained in this Combined Synopsis/Solicitation.

(vii) The Base Period of performance for this acquisition will be for seven (7) months June 1, 2020 to December 31, 2020. The requirement includes a base period and four (4) one-year Option Periods. The subsequent Options, if exercised by the Government, will follow sequentially for a total contract duration not to exceed fifty-five (55) months.

(viii) The Federal Acquisition Regulation (FAR) provision FAR 52.212-1 Instructions to Offerors-Commercial Items (MARCH 2020) applies to this solicitation. FAR provisions and clauses may be obtained from the Internet Web address at: http://acquisition.gov/far/index.html. Interested Offeror(s) who have transmission capacity for shortwave transmitting to the identified three Areas and the capability to provide these high quality shortwave transmission services from USAGM programming feed provided by satellite or terrestrial circuits should submit a proposal identifying capabilities as instructed at paragraph (ix) below.

Each Offeror is required to submit: (a) a single Technical Proposal informing the Government how it has the available shortwave transmitting capacity to meet the portion of USAGM’s needs its proposal covers in all of the Areas, some of the Areas, or regions within the Areas identifying transmitting stations by location, equipment, coverage and any criteria only applicable to a specific Area and/or Areas, and (b) a Price Proposal setting forth a fully loaded flat hourly capacity lease rate (the transmitter rate per hour) for each transmitter required to satisfy the portion of USAGM’s needs the Offeror’s proposal covers in all the Areas, some of the Areas or regions within the Areas for which award is sought based on the total estimated hours as further described below.

(ix)The Federal Acquisition Regulation (FAR) provision FAR 52.212-2 Evaluation-Commercial Items (OCT 2014), applies to this solicitation for the evaluation of Offerors’ Technical and Price proposals as set forth below.

(a) Technical Approach:

Each Offeror is required to submit a Technical Proposal for the portion of USAGM’s needs its proposal covers and must specify whether the proposal covers all the Areas, some of the Areas, or regions within an Area or Areas. Each Offeror shall structure its Technical Proposal to convey to the Government how the Offeror’s capacity, management personnel, transmitting equipment/facilities, and experience (including past performance) satisfy the technical requirements in a straightforward and concise manner. In its Technical Proposal, each Offeror shall demonstrate its ability and experience in providing the shortwave broadcast transmission services in one or more (up to and including all) of the three aforementioned Areas or in regions within one or more of the three Areas. Each Offeror must include in its Technical Proposal a narrative about how it will provide the broadcast services it is offering including the capability to provide these high quality shortwave transmission services from USAGM programming feed provided by satellite or terrestrial circuits. Each Offeror’s Technical Proposal shall comply with all requirements to provide the required transmission capacity in the Areas, some of the Areas, or regions within the Areas the offer covers on an hourly basis in accordance with the estimated schedule. Each Offeror’s Technical Proposal shall also include a statement that it agrees to comply with all requirements including the terms, conditions, and clauses included and incorporated in the attached “Lease Agreement” and Annexes I and II.

(b) FAR 52.212-2(a) is deleted in its entirety and replaced with the following Basis for Award and Evaluation Factors:

Basis for Award: The Government reserves the right to make multiple awards (firm-fixed-price contract) from this solicitation to the Offerors that best meet USAGM’s operational requirements in Africa, Asia, and Eastern Europe as those Areas are identified in the Transmission Schedule and Price Sheet based on evaluation of the capability of each Offeror and/or evaluation of the collective capabilities of multiple Offerors in the identified Areas including past performance and price.

Technical qualifications should demonstrate a history and capability of providing “coverage” to the target Areas the Offeror is proposing to cover to the maximum extent possible as set forth below:

USAGM’s goal for shortwave “coverage” is to provide the Signal to Noise Ratio (SNR) required for standard broadcast quality levels for 90% of the listeners and for 90% short term fade protection. USAGM has determined that this requires a minimum SNR of 73 dB referenced to a noise power of -145 dBw in a 1 Hz bandwidth at 3 MHz, as calculated by the Voice of America Coverage Analysis Program (VOACAP). If there is any question as to what regions or what portions of a region in an Area are provided coverage by a proposed facility or whether one Offeror offers better coverage than another, the performance of the proposed facility(ies) will be evaluated against this goal for coverage using the proposed transmitter and antenna of the Offeror or Offerors in question and the expected solar indices.

The Technical Proposal must address the evaluation criteria described in this paragraph (ix) above and the Evaluation Factors 1) through 4) below. The Offeror(s) must state in their Technical Proposal any restrictions that will limit USAGM’s ability to have its programing broadcast in the Area and/or Areas mentioned above for the Area or Areas for which an Offeror or Offerors seek award or awards. “Restrictions” include, but are not limited to, language, coverage and power limitations, terms or conditions of pre-existing transmitting agreement(s), and laws of the country where the transmitters are located.

The Price Proposal must be in accordance with paragraph (ix), Evaluation Factor 5).

Evaluation Factors: As previously discussed, the Government will provide no Government Furnished Property (GFP), facilities or equipment. All the Government will provide is the programming to be transmitted and payment for performance. The Government is leasing the shortwave transmitting capacity and the services, facilities and equipment necessary to receive the programming feed provided by satellite or terrestrial circuits and transmit the programing by shortwave to the Area or Areas for which the Offeror seeks award. These services will be provided on a fully loaded flat hourly capacity lease rate (the transmitter rate per hour) which will be based on the Government’s estimated total required annual transmitting hours for the three Areas. It is therefore important that each Offeror’s Technical and Price Proposals provide the required information for evaluation of proposals.

A description of the Evaluation Factors follows:

1) Technical Approach –Each Offeror shall provide a detailed narrative of the service requirement, i.e., explain how well the Offeror’s broadcast transmission will cover for the Area, Areas, or regions of an Area or Areas its offer covers (in Africa, Asia, and/or Eastern Europe), at the broadcasting times in the “Transmission Schedule and Price Sheet”, strength of signal, and the performance measures that the contractor will take to meet all contract requirements. The Offeror shall also provide detailed information on any signal-processing of the USAGM-provided programming after its downlink. In other words, the Offeror shall provide information on the equipment they use in the signal path between the reception point of the programming and the short wave transmitter input. Each Offeror must also provide day-to-day operational contact information as well as escalation contact information in the event an extensive problem requires higher level managerial attention. Each Offeror shall provide a description of its organization and its demonstrated capabilities in performing the portion of the service requirements and schedule its offer covers. Each Offeror must state in its Technical Proposal any restrictions that will limit USAGM’s broadcasting;

2) Management Approach – Each Offeror shall provide a description of the management approach that it will use to meet the portion of the agency’s requirements its offer covers, including description of the responsibilities of key and backup personnel and a copy of their resumes;

3) Contractor Qualifications –Each Offeror shall provide its understanding of USAGM’s requirements and demonstrate its ability to meet the portion of USAGM’s requirements its offer covers. The Offeror must also include the following information in its Technical Proposal: (i) number and location of transmission stations; (ii) number of available transmitters per station (including available transmission power levels); and (iii) number of antennas per station (including antenna types, azimuth bore sites, and steerable increments). Each Offeror must provide detailed descriptions of how it will employ its facilities to reach shortwave audiences in Africa, Asia, and Eastern Europe or the Area or combination of Areas for which award is sought;

4) Past Performance – Each Offeror is required to provide three (3) Past Performance Questionnaires (PPQ) – see attachment from previous customers for same or similar services to the requirements set forth herein within the last five (5) years of the date of this Solicitation. Offerors shall also provide the names of three (3) customers/clients and the following information: (i) client's name, address, and name, email and telephone number of the contact person; (ii) dollar amount of the contract; (iii) term of the contract; and (iv) brief description of the work performed. Each Offeror shall use the form uploaded to the beta.sam.gov with this Combined Synopsis/Solicitation titled “Past Performance Questionnaire/References” to provide the information.

The USAGM shall evaluate an Offeror’s Past Performance information based on the information (PPQ) provided and any other information readily available to the Government. If an Offeror is unable to provide all or part of the Past Performance information requested, such inability should be explained in their proposal. Pursuant to the FAR in the case of an Offeror without a record of relevant past performance or for whom information on Past Performance is not available, the Offeror may not be evaluated favorably or unfavorably on Past Performance.

5) Price – The attached Transmission Schedules reflect the transmission hours USAGM anticipates experiencing for its requirements for the three Areas broken down by transmission times and CIRAF[footnoteRef:1] Zones. For purposes of evaluation, USAGM has extrapolated the current anticipated schedule out for the total hours that would be incurred to meet USAGM’s transmission requirement for one year for use as USAGM’s best estimate for price evaluation purposes. As stated earlier, USAGM will select the combination of Offerors or the sole Offeror that provide or provides coverage of all three Areas and all regions within the areas in the manner most advantageous to the Government. Note: This will be a firm-fixed-price type contract. [1: Conferencia Internacional de Radioifusion por Altas Frecuencias (CIRAF)––Spanish for the International Conference on High Frequency Broadcasting.]

First, during the period of performance of the contract USAGM’s operational broadcasting needs and the transmitting hours per day that USAGM will order and the Contractor must provide may vary throughout the contract’s period of performance. USAGM anticipates, at a minimum, issuing new transmission schedules every six months.

Second, during the period of performance of the contract (Fixed-rate type), regardless of the transmission schedule that USAGM issues, USAGM will only pay the Contractor for the actual hours that USAGM orders and the Contractor delivers. USAGM will pay by month and the amount it will pay will be the product of the actual hours it ordered that the Contractor delivered times the hourly rate (price per transmitter hour/fully loaded flat hourly capacity lease rate/transmitter rate per hour) applicable to those hours.

Third, in its Price Proposal each Offeror must submit the information requested in the instructions preceding the attached “Transmission Schedules,” “Price Summary and Totals Chart,” and “Price Sheet.” The instructions are very detailed. A summary of them follows.

There are a total of (5) five Transmission Schedules, (3) three for summer (one each for Africa, Asia, and Eastern Europe) and (2) two for winter (one each for Africa, Asia, and Eastern Europe). On each the Offeror must fill in its offered hourly rate for the Area, part of the Area, or regions within an Area for which the Offeror seeks award. On each the Offeror must also list at the bottom of the Schedule its total offered price for its total offered hours (which equals the sum of the products of offered hours times hourly rates).On the Price Summary and Totals Chart the Offeror must list its total transmitter hours proposed, which must equal the sum of the transmitter hours proposed on the six Transmission Schedules. The Offeror must also list its total price proposed, which must equal the sum of the total prices on the six Transmission Schedules. The total transmitter hours proposed and total price proposed represent total hours and total price for Summer and Winter.

Fourth, on the Price Sheet each Offeror must provide its price for the Base Period, along with its hourly rate for each transmitter to be used. Also on the Price Sheet, the Offeror must provide for each Option Period its price along with its hourly rate for each transmitter the Offeror plans to utilize.

Offerors are cautioned that failure to address each of the above factors may render their proposal unacceptable.

FAR 52.212-2(b) and (c) remain in effect.

(x) Offerors shall include a completed copy of the provision FAR 52.212-3 Offeror Representations and Certifications-Commercial Items (MAR 2020) with their Technical Proposals. These representations and certifications will be incorporated by reference in any resultant contract. Offerors may either submit a paper copy of FAR Clause 52.212-3 or submit this information through the Beta System of Award Management (SAM) www.beta.sam.gov. Proposals must also include the Offeror’s DUNS Number, prompt payment terms, and correct remittance address, if different from mailing address. THE OFFEROR MUST BE REGISTERED ONLINE IN THE SAM DATABASE AND LISTED AS “ACTIVE” PRIOR TO CONTRACT AWARD, AND PROSPECTIVE AWARDEES ACKNOWLEDGE THE REQUIREMENT TO MAINTAIN AN “ACTIVE” SAM REGISTRATION STATUS DURING PERFORMANCE AND THROUGH FINAL PAYMENT OF ANY RESULTING CONTRACT. Accordingly, the following FAR provisions and clauses are incorporated into the solicitation and any resulting contract by reference: 52.204-7—System for Award Management (OCT 2018); 52.204-13—System for Award Management Maintenance (OCT 2018); FAR 52.204-16 Commercial and Government Entity Code Reporting (JUL 2016); FAR 52.204-18 Commercial and Government Entity Code Maintenance (JUL 2016).

Pursuant to FAR 12.301(d), the FAR provisions 52.209-7 Information Regarding Responsibility Matters (OCT 2018) and 52.222-56 Certification Regarding Trafficking in Persons Compliance Plan (MAR 2015) also apply to this acquisition and are incorporated in full text to this synopsis/solicitation. Offerors must comply with the requirements of these two provisions.

(xi) 52.212-4 Contract Terms and Conditions-Commercial Items.

Contract Terms and Conditions-Commercial Items (Oct 2018)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights-

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include-

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer-System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer-Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C.3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.-

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C.3903) and prompt payment regulations at 5 CFR Part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall-

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the-

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if–

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on-

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) [Reserved]

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

(End of clause)

(xi) The FAR clause 52.212-4 Contract Terms and Conditions-Commercial Items (OCTOBER 2018), applies to this acquisition (See below). Any conflict between clause FAR 52.212-4 titled Contract Terms and Conditions-Commercial Items and the Lease Agreement and/or Annexes I and II shall be resolved by giving precedence to the 52.212-4 clause. Additional FAR clauses pertaining to this acquisition are set forth in this Combined Synopsis/Solicitation.

52.212-4 Contract Terms and Conditions -- Commercial Items (OCT 2018)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post acceptance rights --

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Government wide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233–1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202–1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice. (1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include--

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, contract line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232–33, Payment by Electronic Funds Transfer--System for Award Management, or 52.232–34, Payment by Electronic Funds Transfer--Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.—(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212–5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall—

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the—

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected contract line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest. (i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if—

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607–2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on—

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608–2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) the schedule of supplies/services;

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212–5;

(4) Addenda to this solicitation or contract, including any license agreements for computer software;

(5) Solicitation provisions if this is a solicitation;

(6) Other paragraphs of this clause;

(7) The Standard Form 1449;

(8) Other documents, exhibits, and attachments; and

(9) The specification.

(t) System for Award Management (SAM). (1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the SAM database to ensure it is current, accurate and complete.