Other_Applicable_Provisions_and_Clauses_R5.pdf

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 1

AB133M-13-RB-0009 ATTACHMENT 3

APPLICABLE CLAUSES AND PROVISIONS

A. APPLICABLE CLAUSES UNDER FAR CLAUSE 52.212-5

52.212-5, CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS—COMMERCIAL ITEMS (Aug 2013)

(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) 52.222-50, COMBATING TRAFFICKING IN PERSONS (Feb 2009) (22 U.S.C. 7104(g)).

(2) 52.233-3, PROTEST AFTER AWARD (Aug 1996) (31 U.S.C. 3553).

(3) 52.233-4, APPLICABLE LAW FOR BREACH OF CONTRACT CLAIM (Oct 2004)

(Pub. L. 108-77, 108-78).

(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. The following clauses under subparagraph (b) apply:

(1) 52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT

(SEP 2006), with Alternate I (Oct 1995) (41 U.S.C. 253g and 10 U.S.C. 2402).

(4) 52.204-10, REPORTING EXECUTIVE COMPENSATION AND FIRST-TIER

SUBCONTRACT AWARDS (UL 2013) (Pub. L. 109-282) (31 U.S.C. 6101 note) (Effective March 1, 2011).

(6 ) 52.209-6 PROTECTING THE GOVERNMENT'S INTEREST WHEN SUBCONTRACTING

WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT

(AUG 2013)

(7) 52.209-9 UPDATES OF PUBLICLY AVAILABLE INFORMATION REGARDING

RESPONSIBILITY MATTERS (JUL 2013)

(12)(i) 52.219-6, NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE (NOV 2011) (15 U.S.C. 644).

(14) 52.219-8, UTILIZATION OF SMALL BUSINESS CONCERNS (JUL 2013)

(17) 52.219-14, LIMITATIONS ON SUBCONTRACTING (NOV 2011)

(23) 52.219-28, POST-AWARD SMALL BUSINESS PROGRAM REPRESENTATION (JUL

2013) (15 U.S.C. 632(a)(2)).

(26) 52.222-3, CONVICT LABOR (JUN 2003) (E.O. 11755).

(27) 52.222-19, CHILD LABOR—COOPERATION WITH AUTHORITIES AND REMEDIES

(MAR 2012) (E.O. 13126).

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APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 2

(28) 52.222-21, PROHIBITION OF SEGREGATED FACILITIES (FEB 1999).

(29) 52.222-26, EQUAL OPPORTUNITY (MAR 2007) (E.O. 11246).

(30) 52.222-35 EQUAL OPPORTUNITY FOR VETERANS (SEP 2010)

(31) 52.222-36, AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (OCT 2010)

(29 U.S.C. 793).

(32) 52.222-37 EMPLOYMENT REPORTS ON VETERANS (SEP 2010)

(33) 52.222-40 NOTIFICATION OF EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR

RELATIONS ACT (DEC 2010)

(38) 52.223-18, ENCOURAGING CONTRACTOR POLICIES TO BAN TEXT MESSAGING

WHILE DRIVING (AUG 2011) (E.O. 13513).

(39)(I) 52.225-31, BUY AMERICAN ACT—SUPPLIES FEB 2009)

(42) 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).

(48) 52.232-33, PAYMENT BY ELECTRONIC FUNDS TRANSFER—CENTRAL

CONTRACTOR REGISTRATION (JUL 2013) (31 U.S.C. 3332).

(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. The following clauses under subparagraph (c) apply:

None

B. OTHER APPLICABLE FAR PROVISIONS AND CLAUSES

The following FAR provisions and clauses, included in full text, are applicable to this acquisition:

(1) 52.214-15 PERIOD FOR ACCEPTANCE OF BIDS (APR 1984)

In compliance with the solicitation, the bidder agrees, if this bid is accepted within __________ calendar days (60 calendar days unless a different period is inserted by the bidder) from the date specified in the solicitation for receipt of bids, to furnish any or all items upon which prices are bid at the price set opposite each item, delivered at the designated point(s), within the time specified in the Schedule.

(2) 52.216-1 TYPE OF CONTRACT (APR 1984).

The Government contemplates award of a firm-fixed-price contract resulting from this solicitation.

(End of provision)

(3) 52.217-5 EVALUATION OF OPTIONS (JUL 1990). Except when it is determined in accordance with FAR 17.206(b) not to be in the Government’s best interests, the Government will evaluate offers for https://www.acquisition.gov/far/current/html/52_222.html#wp1147656 https://www.acquisition.gov/far/current/html/52_222.html#wp1147711 https://www.acquisition.gov/far/current/html/52_222.html#wp1148097 http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t29t32+2+78++%2829%29%20%20AND%20%28%2829%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20 https://www.acquisition.gov/far/current/html/52_223_226.html#wp1188603 https://www.acquisition.gov/far/current/html/52_223_226.html#wp1169608 https://www.acquisition.gov/far/current/html/52_232.html#wp1153351 http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t29t32+1665+30++%2831%29%20%20AND%20%28%2831%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20 http://www.acquisition.gov/far/current/html/Subpart%2017_2.html#wp1078150

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 3 award purposes by adding the total price for all options to the total price for the basic requirement.

Evaluation of options will not obligate the Government to exercise the option(s).

(End of provision)

(4) 52.252-1 SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (FEB 1998).

This solicitation incorporates one or more solicitation provisions 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. The offeror is cautioned that the listed provisions may include blocks that must be completed by the offeror and submitted with its quotation or offer. In lieu of submitting the full text of those provisions, the offeror may identify the provision by paragraph identifier and provide the appropriate information with its quotation or offer. Also, the full text of a solicitation provision may be accessed electronically at these addresses: http://www.acquisition.gov/far/ and http://farsite.hill.af.mil/vfcara.htm.

(End of provision)

(5) 52.252-2 CLAUSES INCORPORATED BY REFERENCE (Feb 1998). This contract incorporates on 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 these addresses: http://www.acquisition.gov/far/ and http://farsite.hill.af.mil/vfcara.htm.

(End of clause)

The following FAR provisions and clauses, incorporated by reference, are applicable to this acquisition:

(6) 52.204-4 PRINTED OR COPIED DOUBLE-SIDED ON POSTCONSUMER FIBER CONTENT

PAPER (May 2011)

(7) 52.204-7 SYSTEM FOR AWARD MANAGEMENT (JUL 2013)

(8) 52.204-13 SYSTEM FOR AWARD MANAGEMENT MAINTENANCE (JUL 2013)

(9) 52.214-3 AMENDMENTS TO INVITATIONS FOR BIDS (DEC 1989)

(10) 52.214-4 FALSE STATEMENTS IN BIDS (APR 1984)

(11) 52.214-5 SUBMISSION OF BIDS (MAR 1997)

(12) 52.214-6 EXPLANATION TO PROSPECTIVE BIDDERS (APR 1984)

(13) 52.214-7 LATE SUBMISSIONS, MODIFICATIONS, AND WITHDRAWALS OF BIDS (NOV

1999)

(14) 52.214-10 CONTRACT AWARD--SEALED BIDDING (JUL 1990)

(15) 52.214-12 PREPARATION OF BIDS (APR 1984)

(16) 52.214-26 AUDIT AND RECORDS--SEALED BIDDING (OCT 2010)

(17) 52.214-27 PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA--

MODIFICATIONS-- SEALED BIDDING (AUG 2011)

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APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 4

(18) 52.214-28 SUBCONTRACTOR CERTIFIED COST OR PRICING DATA--

MODIFICATIONS--SEALED BIDDING (OCT 2010)

(19) 52.214-29 ORDER OF PRECEDENCE--SEALED BIDDING (JAN 1986)

(20) 52.214-34 SUBMISSION OF OFFERS IN THE ENGLISH LANGUAGE (APR 1991)

(21) 52.214-35 SUBMISSION OF OFFERS IN U.S. CURRENCY (APR 1991)

(22) 52.215-14 INTEGRITY OF UNIT PRICES (OCT 2010)

(23) 52.225-25 PROHIBITION ON CONTRACTING WITH ENTITIES ENGAGING IN

CERTAIN ACTIVITIES OR TRANSACTIONS RELATING TO IRAN—REPRESENTATION

AND CERTIFICATIONS (DEC 2012)

(24) 52.225-39 UNENFORCEABILITY OF UNAUTHORIZED OBLIGATIONS (JUN 2013)

(25) 52.242-15 STOP-WORK ORDER (AUG 1989)

(26) 52.228-2 ADDITIONAL BOND SECURITY (OCT 1997)

(27) 52.245-1 GOVERNMENT PROPERTY (APR 2012)

(28) 52.245-9 USE AND CHARGES (APR 2012)

(29) 52.228-1 BID GUARANTEE (SEP 1996)

(a) Failure to furnish a bid guarantee in the proper form and amount, by the time set for opening of bids, may be cause for rejection of the bid.

(b) The bidder shall furnish a bid guarantee in the form of a firm commitment, e.g., bid bond supported by good and sufficient surety or sureties acceptable to the Government, postal money order, certified check, cashier's check, irrevocable letter of credit, or, under Treasury Department regulations, certain bonds or notes of the United States. The Contracting Officer will return bid guarantees, other than bid bonds--

(1) To unsuccessful bidders as soon as practicable after the opening of bids; and

(2) To the successful bidder upon execution of contractual documents and bonds (including any necessary coinsurance or reinsurance agreements), as required by the bid as accepted.

(c) The amount of the bid guarantee shall be 20 percent of the bid price or $3,000,000.00 whichever is less.

(d) If the successful bidder, upon acceptance of its bid by the Government within the period specified for acceptance, fails to execute all contractual documents or furnish executed bond(s) within 10 days after receipt of the forms by the bidder, the Contracting Officer may terminate the contract for default.

(e) In the event the contract is terminated for default, the bidder is liable for any cost of acquiring the work that exceeds the amount of its bid, and the bid guarantee is available to offset the difference.

(End of Provision)

(30) 52.228-11 PLEDGES OF ASSETS (JAN 2012)

(a) Offerors shall obtain from each person acting as an individual surety on a bid guarantee, a performance bond, or a payment bond—

(1) Pledge of assets; and

(2) Standard Form 28, Affidavit of Individual Surety.

(b) Pledges of assets from each person acting as an individual surety shall be in the form of— https://www.acquisition.gov/far/current/html/FormsStandard8.html#wp1189346

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 5

(1) Evidence of an escrow account containing cash, certificates of deposit, commercial or Government securities, or other assets described in FAR 28.203-2 (except see 28.203-2(b)(2) with respect to Government securities held in book entry form); and/or

(2) A recorded lien on real estate. The offeror will be required to provide—

(i) A mortgagee title insurance policy, in an insurance amount equal to the amount of the lien, or other evidence of title that is consistent with the requirements of Section 2 of the United States Department of Justice Title Standards at http://www.justice.gov/enrd/ENRD_Assets/Title_Standards_2001.pdf. This title evidence must show fee simple title vested in the surety along with any concurrent owners; whether any real estate taxes are due and payable; and any recorded encumbrances against the property, including the lien filed in favor of the Government as required by FAR 28.203-3(d);

(ii) Evidence of the amount due under any encumbrance shown in the evidence of title;

(iii) A copy of the current real estate tax assessment of the property or a current appraisal dated no earlier than 6 months prior to the date of the bond, prepared by a professional appraiser who certifies that the appraisal has been conducted in accordance with the generally accepted appraisal standards as reflected in the Uniform Standards of Professional Appraisal Practice, as promulgated by the Appraisal Foundation.

(End of clause)

(31) 52.228-14 IRREVOCABLE LETTER OF CREDIT (DEC 1999)

(a) "Irrevocable letter of credit" (ILC), as used in this clause, means a written commitment by a federally insured financial institution to pay all or part of a stated amount of money, until the expiration date of the letter, upon presentation by the Government (the beneficiary) of a written demand therefor. Neither the financial institution nor the offeror/Contractor can revoke or condition the letter of credit.

(b) If the offeror intends to use an ILC in lieu of a bid bond, or to secure other types of bonds such as performance and payment bonds, the letter of credit and letter of confirmation formats in paragraphs (e) and (f) of this clause shall be used.

(c) The letter of credit shall be irrevocable, shall require presentation of no document other than a written demand and the ILC (including confirming letter, if any), shall be issued/confirmed by an acceptable federally insured financial institution as provided in paragraph (d) of this clause, and--

(1) If used as a bid guarantee, the ILC shall expire no earlier than 60 days after the close of the bid acceptance period;

(2) If used as an alternative to corporate or individual sureties as security for a performance or payment bond, the offeror/Contractor may submit an ILC with an initial expiration date estimated to cover the entire period for which financial security is required or may submit an ILC with an initial expiration date that is a minimum period of one year from the date of issuance. The ILC shall provide that, unless the issuer provides the beneficiary written notice of non-renewal at least 60 days in advance of the current expiration date, the ILC is automatically extended without amendment for one year from the expiration date, or any future expiration date, until the period of required coverage is completed and the Contracting Officer provides the financial institution with a written statement waiving the right to payment. The period of required coverage shall be:

(i) For contracts subject to the Miller Act, the later of--

(A) One year following the expected date of final payment;

(B) For performance bonds only, until completion of any warranty period; or

(C) For payment bonds only, until resolution of all claims filed against the payment bond during the one-year period following final payment.

(ii) For contracts not subject to the Miller Act, the later of--

(A) 90 days following final payment; or

(B) For performance bonds only, until completion of any warranty period.

https://www.acquisition.gov/far/current/html/Subpart%2028_2.html#wp1073352 https://www.acquisition.gov/far/current/html/Subpart%2028_2.html#wp1073352 http://www.justice.gov/enrd/ENRD_Assets/Title_Standards_2001.pdf https://www.acquisition.gov/far/current/html/Subpart%2028_2.html#wp1073377

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 6

(d) Only federally insured financial institutions rated investment grade or higher shall issue or confirm the ILC.

The offeror/Contractor shall provide the Contracting Officer a credit rating that indicates the financial institution has the required rating(s) as of the date of issuance of the ILC. Unless the financial institution issuing the ILC had letter of credit business of at least $25 million in the past year, ILCs over $5 million must be confirmed by another acceptable financial institution that had letter of credit business of at least $25 million in the past year.

(e) The following format shall be used by the issuing financial institution to create an ILC:

| [Issuing Financial Institution's Letterhead or | | Name and Address] | | Issue Date __________ | | Irrevocable Letter of Credit No. ___________________ | | Account party's name __________________________ | | Account party's address ________________________ | | For Solicitation No. __________ | | To: __________ |

1. We hereby establish this irrevocable and transferable Letter of Credit in your favor for one or more drawings up to United States $______. This Letter of Credit is payable at __________ office at __________ and expires with our close of business on __________ or any automatically extended expiration date.

2. We hereby undertake to honor your or the transferee's sight draft(s) drawn on the issuing or, if any, the confirming financial institution, for all or any part of this credit if presented with this Letter of Credit and confirmation, if any, at the office specified in paragraph 1 of this Letter of Credit on or before the expiration date or any automatically extended expiration date.

3. [This paragraph is omitted if used as a bid guarantee, and subsequent paragraphs are renumbered.] It is a condition of this Letter of Credit that it is deemed to be automatically extended without amendment for one year from the expiration date hereof, or any future expiration date, unless at least 60 days prior to any expiration

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 7 date, we notify you or the transferee by registered mail, or other receipted means of delivery, that we elect not to consider this Letter of Credit renewed for any such additional period. At the time we notify you, we also agree to notify the account party (and confirming financial institution, if any) by the same means of delivery.

4. This Letter of Credit is transferable. Transfers and assignments of proceeds are to be effected without charge to either the beneficiary or the transferee/assignee of proceeds. Such transfer or assignment shall be only at the written direction of the Government (the beneficiary) in a form satisfactory to the issuing financial institution and the confirming financial institution, if any.

5. This Letter of Credit is subject to the Uniform Customs and Practice (UCP) for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500, and to the extent not inconsistent therewith, to the laws of _____________________ [state of confirming financial institution, if any, otherwise state of issuing financial institution].

6. If this credit expires during an interruption of business of this financial institution as described in Article 17 of the UCP, the financial institution specifically agrees to effect payment if this credit is drawn against within 30 days after the resumption of our business.

Sincerely, [Issuing financial institution]

(f) The following format shall be used by the financial institution to confirm an ILC:

| [Confirming Financial Institution's Letterhead or | | Name and Address] | | (Date)__________________ | | Our Letter of Credit Advice Number _________________ | | Beneficiary: ________________ [U.S. Government agency] | | Issuing Financial Institution: _______________________ | | Issuing Financial Institution's LC No.: ______________ |

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 8

Gentlemen:

1. We hereby confirm the above indicated Letter of Credit, the original of which is attached, issued by __________ [name of issuing financial institution] for drawings of up to United States dollars ___________/U.S. $_______ and expiring with our close of business on _____________ [the expiration date], or any automatically extended expiration date.

2. Draft(s) drawn under the Letter of Credit and this Confirmation are payable at our office located at

3. We hereby undertake to honor sight draft(s) drawn under and presented with the Letter of Credit and this Confirmation at our offices as specified herein.

4. [This paragraph is omitted if used as a bid guarantee, and subsequent paragraphs are renumbered.] It is a condition of this confirmation that it be deemed automatically extended without amendment for one year from the expiration date hereof, or any automatically extended expiration date, unless:

(a) At least 60 days prior to any such expiration date, we shall notify the Contracting Officer, or the transferee and the issuing financial institution, by registered mail or other receipted means of delivery, that we elect not to consider this confirmation extended for any such additional period; or

(b) The issuing financial institution shall have exercised its right to notify you or the transferee, the account party, and ourselves, of its election not to extend the expiration date of the Letter of Credit.

5. This confirmation is subject to the Uniform Customs and Practice (UCP) for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500, and to the extent not inconsistent therewith, to the laws of ________ [state of confirming financial institution].

6. If this confirmation expires during an interruption of business of this financial institution as described in Article 17 of the UCP, we specifically agree to effect payment if this credit is drawn against within 30 days after the resumption of our business.

Sincerely, [Confirming financial institution]

(g) The following format shall be used by the Contracting Officer for a sight draft to draw on the Letter of Credit:

Sight Draft [City, State] (Date)_________________________ [Name and addres s of financial institution] Pay to the order of ______________ [Beneficiary Agency] ___________ the sum of United States $____________. This draft is drawn under Irrevocable Letter of Credit No.

[Beneficiary Agency] [By]

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 9

(End of Clause)

(32) 52.228-16 PERFORMANCE AND PAYMENT BONDS--OTHER THAN CONSTRUCTION

(NOV 2006)

(a) "Definitions." As used in this clause-- "Original contract price" means the award price of the contract or, for requirements contracts, the price payable for the estimated quantity; or, for indefinite-quantity contracts, the price payable for the specified minimum quantity. Original contract price does not include the price of any options, except those options exercised at the time of contract award.

(b) The Contractor shall furnish a performance bond (Standard Form 1418) for the protection of the Government in an amount equal to 20 percent of the original contract price and a payment bond (Standard Form 1416) in an amount equal to 20 percent of the original contract price.

(c) The Contractor shall furnish all executed bonds, including any necessary reinsurance agreements, to the Contracting Officer, within 5 days, but in any event, before starting work.

(d) The Government may require additional performance and payment bond protection if the contract price is increased. The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bonds or to obtain additional bonds.

(e) The bonds shall be in the form of firm commitment, supported by corporate sureties whose names appear on the list contained in Treasury Department Circular 570, individual sureties, or by other acceptable security such as postal money order, certified check, cashier's check, irrevocable letter of credit, or, in accordance with Treasury Department regulations, certain bonds or notes of the United States. Treasury Circular 570 is published in the Federal Register, or may be obtained from the:

U.S. Department of Treasury Financial Management Service Surety Bond Branch 3700 East West Highway, Room 6F01 Hyattsville, MD 20782.

Or via the internet at http://www.fms.treas.gov/c570/.

(End of Clause)

C. APPLICABLE DEPARTMENT OF COMMERCE CLAUSES

The following Department of Commerce clauses apply to this acquisition:

(1) 1352.201-70 CONTRACTING OFFICER’S AUTHORITY (APR 2010). The Contracting Officer is the only person authorized to make or approve any changes in any of the requirements of this contract, and, notwithstanding any provisions contained elsewhere in this contract, the said authority remains solely in the Contracting Officer. In the event the contractor makes any changes at the direction of any person other than the Contracting Officer, the change will be considered to have been made without authority and no adjustment will be made in the contract terms and conditions, including price.

(2) 1352.201-72 CONTRACTING OFFICER’S REPRESENTATIVE (COR) (APR 2010)

(a) ___________ is hereby designated as the Contracting Officer’s Representative (COR). The COR may be changed at any time by the Government without prior notice to the contractor by a unilateral modification to the contract. The COR is located at:

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 10

Phone Number: __________________ Email: _________________________

(b) The responsibilities and limitations of the COR are as follows:

(1) The COR is responsible for the technical aspects of the contract and serves as technical liaison with the contractor. The COR is also responsible for the final inspection and acceptance of all deliverables and such other responsibilities as may be specified in the contract.

(2) The COR is not authorized to make any commitments or otherwise obligate the Government or authorize any changes which affect the contract price, terms or conditions. Any contractor request for changes shall be referred to the Contracting Officer directly or through the COR. No such changes shall be made without the express written prior authorization of the Contracting Officer. The Contracting Officer may designate assistant or alternate COR(s) to act for the COR by naming such assistant/alternate(s) in writing and transmitting a copy of such designation to the contractor.

(3) 1352.209-73 COMPLIANCE WITH THE LAWS (APR 2010)

The contractor shall comply with all applicable laws, rules and regulations which deal with or relate to performance in accord with the terms of the contract.

(4) 1352.209-74 ORGANIZATIONAL CONFLICT OF INTEREST (APR 2010)

(a) Purpose. The purpose of this clause is to ensure that the contractor and its subcontractors:

(1) Are not biased because of their financial, contractual, organizational, or other interests which relate to the work under this contract, and

(2) Do not obtain any unfair competitive advantage over other parties by virtue of their performance of this contract.

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

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

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

(e) Subcontracts. The contractor shall include a clause substantially similar to this clause, including paragraphs (f) and (g), in any subcontract or consultant agreement at any tier expected to exceed the simplified

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 11 acquisition threshold. The terms “contract,” “contractor,” and “Contracting Officer” shall be appropriately modified to preserve the Government’s rights.

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

(g) Waiver. The parties recognize that this clause has potential effects which will survive the performance of this contract and that it is impossible to foresee each circumstance to which it might be applied in the future. Accordingly, the contractor may at any time seek a waiver from the Head of the Contracting Activity by submitting such waiver request to the Contracting Officer, including a full written description of the requested waiver and the reasons in support thereof.

(5) 1352.246-70 PLACE OF ACCEPTANCE (APR 2010)

(a) The Contracting Officer or the duly authorized representative will accept supplies and services to be provided under this contract. (b) The place of acceptance will be: NOAA Ship Oscar Dyson at the contractor's facility.

(6) 1352.215-72 INQUIRIES (Apr 2010)

Offerors must submit all questions concerning this solicitation in writing to Levis Knox, Contract Specialist via email at levis.d.knox@noaa.gov or via fax at (206) 526-6025. Questions should be received no later than 2:00 p.m. Pacific Daylight Time on September 09, 2013. Any responses to questions will be made in writing, without identification of the questioner, and will be included in an amendment to the solicitation via FedBizOpps (www.fbo.gov). Even if provided in other form, only the question responses included in the amendment to the solicitation will govern performance of the contract.

(7) 1352.245-70 GOVERNMENT FURNISHED PROPERTY (APR 2010)

The Government will provide the following item(s) of Government property to the contractor. The contractor shall be accountable for, and have stewardship of, the property in the performance of this contract.

This property shall be used and maintained by the contractor in accordance with provisions of the “Government Property” clause included in this contract.

Item No. 1 NOAA Ship Oscar Dyson

(8) 1352.270-70 PERIOD OF PERFORMANCE (APR 2010)

(a) The base period of performance of this contract is from date of award through January 15, 2014.

The ship will only be available for repairs between November 1, 2013 and January 15, 2014. If an option is exercised, the period of performance shall be extended through the end of that option period.

mailto:levis.d.knox@noaa.gov http://www.fbo.gov/

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 12

(b) The option periods that may be exercised are as follows:

The optional items may be awarded at any time during the contract period of performance.

(9) 1352.270-71 PRE-BID / PRE-PROPOSAL CONFERENCE AND SITE VISIT (APR 2010)

(a) The Government is planning a pre-proposal conference, during which potential contractors may obtain a better understanding of the work required.

(b) Offerors are encouraged to submit all questions in writing at least three (3) days prior to the conference.

Questions will be considered at any time prior to, or during, the conference; however, offerors will be asked to confirm verbal questions in writing. Subsequent to the conference, an amendment to the solicitation containing an abstract of the questions and the Government's answers, and a list of attendees, will be made publicly available.

(c) In order to facilitate conference preparations, contact the person identified below in this section, so arrangements for security processing for entry of attendees into the Government facility.

(d) In no event shall failure to attend the pre-proposal conference constitute grounds supporting a protest or contract claim.

(e) Offerors are cautioned that, notwithstanding any remarks, clarifications, or responses provided at the conference, all terms and conditions of the solicitation remain unchanged unless they are changed by written amendment. It is the responsibility of each offeror, prior to submitting a proposal, to seek clarification of any perceived ambiguity in the solicitation or created by an amendment of the solicitation.

(f) The vessel will be available for pre-bid inspection in Kodiak, Alaska on September 3, 2013. Pre-bid inspection can be arranged by contacting the Project Manager (PM) Jessica Long at e-mail address:

Jessica.e.long@noaa.gov.

(g) During the conference, an opportunity to visit the site of the work, and, if applicable, inspect equipment on which maintenance or repairs are to be performed will be offered to attendees.

(h) Offerors are expected to satisfy themselves regarding all conditions that may affect the work required or the cost of contract performance. In no event shall failure to inspect the site and/or equipment constitute grounds for any protest or contract claim. All questions resulting from the pre-bid inspection are required to be submitted in writing NO LATER THAN 2:00PM Pacific Time September 9, 2013 to Levis Knox at levis.d.knox@noaa.gov

(10) 1352.271-70 INSPECTION AND MANNER OF DOING WORK (APR 2010)

(a) All work and material shall be subject to the approval of the Contracting Officer or duly authorized representative. Work shall be performed in accordance with the plans and specifications of this contract as modified by any contract modification.

(b) Unless otherwise specifically provided for in the contract, all operational practices of the contractor and all workmanship and material, equipment and articles used in the performance of work shall be in accordance with American Bureau of Shipping “Rules for Building and Classing Steel Vessels”, U.S. Coast Guard Marine Engineering Regulations and Material Specifications (46 CFR Subchapter F), U.S. Coast Guard Electrical Engineering Regulations (46 CFR Subchapter J), and U.S. Public Health Service “Handbook on Sanitation of Vessel Construction”, in effect at the time of the contract award; and the best commercial maritime practices, except where military specifications are specified, in which case such standards of material and workmanship shall be followed.

(c) All material and workmanship shall be subject to inspection and test at all times during the contractor’s performance of the work to determine their quality and suitability for the purpose intended and compliance with the contract. In case any material or workmanship furnished by the contractor is found to be defective prior to redelivery of the vessel, or not in accordance with the requirements of the contract, the Government shall have the right prior to redelivery of the vessel to reject such material or workmanship, and to require its correction or replacement by the contractor at the contractor’s cost and expense. This Government right is in addition to its rights under any Guarantee clause in this contract. If the contractor fails to proceed mailto:levis.d.knox@noaa.gov

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 13 promptly with the replacement or correction of such material or workmanship, as required by the Contracting Officer , the Government may, by contract or otherwise, replace or correct such material or workmanship and charge to the contractor the excess cost to the Government. The contractor shall provide and maintain an inspection system acceptable to the Government covering the work specified in the contract. Records of all inspection work by the contractor shall be kept complete and available to the Government during the performance of the contract and for a period of two (2) years after delivery of the vessel to the Government.

(d) No welding, including tack welding and brazing, shall be permitted in connection with repairs, completions, alterations, or addition to hulls, machinery or components of vessels unless the welder is, at the time, qualified to the standards established by the U.S. Coast Guard, the American Bureau of Shipping, or the Department of the Navy. The welder’s qualifications shall be appropriate for the particular service application, filler material type, position of welding, and welding process involved in the work being undertaken. A welder may be required to re-qualify if the Contracting Officer believes there is a reasonable doubt concerning the welder's ability. Welders’ qualifications for this purpose shall be governed by the U.S. Coast Guard Marine Engineering Regulations and Material Specifications (46 CFR Subchapter F). When a welding process other than manual shielded arc is proposed or required, the contractor or fabricator shall submit procedure qualification tests for approval prior to production welding. Procedure qualification tests shall be conducted in accordance with the United States Coast Guard Marine Engineering Regulations and Material Specifications (46 CFR Subchapter F).

(e) The contractor shall exercise reasonable care to protect the vessel from fire, and the contractor shall maintain a reasonable system of inspection over the activities of welders, burners, riveters, painters, plumbers and similar workers, particularly where such activities are undertaken in the vicinity of the vessel’s fuel oil tanks, magazines or storerooms containing flammable material. A reasonable number of hose lines shall be maintained by the contractor ready for immediate use on the vessel at all times while the vessel is berthed alongside the contractor’s pier or in dry dock or on a marine railway. All tanks or bilge areas under alteration or repair shall be cleaned, washed, and steamed out or otherwise made safe by the contractor if and to the extent necessary as required by good marine practice or by current Occupational Safety and Health Administration regulations. The Contracting Officer’s Representative (COR) shall be furnished with a "gas free" or "safe for hot work" or "safe for workers" certificate before any hot work or entry is done. Unless otherwise provided in this contract, the contractor shall at all times maintain a reasonable fire watch about the vessel, including a fire watch on the vessel while work is being performed thereon.

(f) The contractor shall place proper safeguards and/or effect such safety precautions as necessary, including suitable and sufficient lighting, for the prevention of accidents or injury to persons or property during the prosecution of work under this contract and/or from time of receipt of the vessel until acceptance by the Government of the work performed.

(g) Except as otherwise provided in this contract, when the vessel is in the custody of the contractor or in dry dock or on a marine railway and the temperature becomes as low as 35 degrees Fahrenheit, the contractor shall keep all pipelines, fixtures, traps, tanks, and other receptacles on the vessel drained to avoid damage from freezing, or if this is not practicable, the vessel shall be kept heated to prevent such damage. The vessel's stern tube and propeller hubs shall be protected from frost damage by applied heat through the use of a salamander or other proper means, as approved by the COR.

(h) Whenever practicable, the work shall be performed in a manner which does not interfere with the berthing and messing of personnel attached to the vessel. The contractor shall ensure that assigned personnel have access to the vessel at all times. It is understood that such personnel will not interfere with the work or the contractor’s workers.

(i) The Government does not guarantee the correctness of the dimensions, sizes, and shapes shown in any sketches, drawings, plans or specifications prepared or furnished by the Government. Prior to submitting an offer, it is the responsibility of the bidder/offeror to verify the dimensions, sizes, and shapes in materials provided by the Government. Where practical, the Government will make the vessel available for inspection prior to bid opening or the date for receipt of proposals. If the contractor, as a result of inspection or otherwise, discovers any error in the sketches, drawings, plans or specifications, it shall immediately inform the Contracting Officer of the error and proceed in accord with instructions received from the Contracting Officer.

The Government is not liable for any claims or charges resulting from additional work performed by the contractor as a result of a patent ambiguity in the sketches, drawings, plans or specifications that was not

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 14 brought to the attention of the Contracting Officer. The contractor shall be responsible for the correctness of the shape, sizes and dimensions of parts furnished by the contractor under the contract.

(j) The contractor shall at all times keep the site of the work on the vessel free from accumulation of waste material or rubbish caused by contractor employees or the work, and at the completion of the work shall remove all rubbish from and about the site of the work and shall leave the work and its immediate vicinity "broom-clean" unless more exactly specified in this contract.

(k) While in drydock or on a marine railway, the contractor shall be responsible for the closing, before the end of working hours, of all valves and openings upon which work is being done by its workers when such closing is practicable. The contractor shall establish a list and keep the COR cognizant of the closure status of all valves and openings upon which the contractor’s workers have been working.

(l) Without additional expense to the Government, the contractor shall employ specialty subcontractors where required by the specifications or when necessary for satisfactory performance of the work.

(m)(1) Unless otherwise stated in the contract, the contractor shall notify the COR at least 72 hours in advance:

(i) Prior to starting inspections or tests; and

(ii) When supplies will be ready for Government inspection.

(2) Such notification shall be provided either verbally or in writing at the discretion of the COR.

(11) 1352.271-71 METHOD OF PAYMENT AND INVOICING INSTRUCTIONS FOR SHIP

REPAIR (APR 2010)

(a) The Government will make payment under this contract based on a percentage of completion. The contractor may invoice for the percentage completed for each work item as work progresses. The amount invoiced shall be calculated based on prices stated in the Schedule, as follows: A work item may not be invoiced until the percentage complete reaches 25 percent. Future invoices for that work item have no limitation as to the percentage of completion required before invoicing, but in no event may invoices be submitted more frequently than every 2 weeks, or for amounts less than $10,000, unless it is the final payment. The minimum percentage of completion (25%) to be reached prior to billing each work item may be waived by the Contracting Officer for large dollar work items on a case-by-case basis.

(b) Invoices submitted by the contractor which are deemed not proper, in accordance with FAR 52.232- 25, will be returned. Invoices shall include:

(1) Name and Address of the contractor;

(2) DUNS Number;

(3) Invoice Date;

(4) Contract Number/Modification Number;

(5) CLIN/Work Item Number, to include: Description, Quantity, Unit of Measure, Unit Price and

Extended Price;

(6) Shipping and Payment Terms; and,

(7) Contractor Point of Contact, including: Name, Title, Phone Number, and Mailing Address;

(8) The percentage of completion for each CLIN/work item identified;

(9) Name of the Contracting Officer ;

(10) Ship name;

(11) The overall percentage and dollar amount previously billed, currently billed and unbilled.

(12) If the Contractor is a small business concern, the invoice shall be annotated with an “SB” in the upper right hand corner of the invoice document

(c) When invoicing for changed work, the contractor shall identify it as a contract change and shall identify the modification authorizing the change, and the CLIN/Work Item associated with the change.

(d) All items of work invoiced under this contract will be verified and confirmed by the Contracting

Officer’s Representative as accurate and complete and approved by the designated billing office before payment will be made.

APPLICABLE CLAUSES AND PROVISIONS for AB133M-13-RB-0009 Page | 15

(e) Mail the original invoice to: MARINE OPERATIONS CENTER - PACIFIC

ATTN: DONNA ASHENMACHER -RMD

2002 SE MARINE SCIENCE DR

NEWPORT, OR 97365 donna.m.ashenmacher@noaa.gov

(f) The contractor’s final invoice submitted under the contract must be marked as follows: ″THIS

INVOICE CONSTITUTES THE FINAL INVOICE – UPON PAYMENT OF THIS INVOICE NO OTHER

MONIES ARE DUE UNDER CONTRACT NUMBER _____________________.”

(To be assigned at contract award)

(12) 1352.271-72 ADDITIONAL ITEM REQUIREMENTS (AIR) – GROWTH WORK (APR 2010)

(a) This clause applies to Additional Item Requirements (AIR), also known as growth and emergent work ordered by the Contracting Officer pursuant to the Changes – Ship Repair clause or mutually agreed upon by the parties. The contractor shall perform AIR at the labor billing rates designated in the Schedule, as described in paragraph (c) of this clause. The AIR handling fee designated in the Schedule shall be the sole fee used for direct material purchases and subcontractor handling. The estimated quantity of labor hours and handling fees represent the Government’s best estimate for growth that may be required throughout the contract performance period. All growth work shall be paid at the prices stated in the Schedule.

(b) The contractor shall take into account the potential for ordering all estimated AIR quantities in developing the Production Schedule. The ordering of any portion of the AIR quantities does not in itself warrant an extension to the original contract completion date; however, for planning purposes, the Government anticipates ordering AIR in accordance with the following schedule:

(1) No more than 75% of the hours during the first half of the contract period of performance.

(2) No more than 50% of the hours during the third quarter of the contract period of performance.

(3) No more than 30% of the hours during the fourth quarter of the contract period of performance.

(c) The AIR labor rate shall be a flat, hourly rate to cover the entire effort and shall be burdened to include:

(1) Direct production labor hour functions only. Direct production labor hours are hours of skilled labor at the journeyman level expended in direct production. Direct production is defined as work performed by a qualified craftsman that is directly related to the alteration, modification, or repair of the item or system identified as needing alteration, modification, or repair. The following functions are identified as direct production: Abrasive Cleaning/Water Blasting, Tank Cleaning, Welding, Burning, Brazing, Blacksmithing, Machining (inside and outside), Carpentry, Electrical/Electronic Work, Crane Operation, Shipfitting, Lagging/Insulating, Painting, Boilermaking, Pipe Fitting, Engineering (Production), Sheetmetal Work, Staging/Scaffolding, and Rigging.

(2) Non-production labor hours (whether charged directly or indirectly by contractor's accounting system) shall be for labor in support of production functions. For purposes of this clause, support functions are defined as functions that do not directly contribute to the alteration, modification, or repair of the item or system identified as needing alteration, modification, or repair.