AG-3142-S-10-0072 - SOLICITATION BODY.pdf

Project: USDA REPLACEMENT OF CHILLER 1 SYSTEM Solicitation No. AG-3142-S-10-0072

PART I—THE SCHEDULE

SECTION 00100 -- SOLICITATION/CONTRACT FORM

Refer to attached herein SF 1442 dated May 28, 2010.

SECTION 00110 -- SUPPLIES OR SERVICES AND PRICES/COSTS

Refer to attached herein Bid Set of Drawings and Specifications dated March 29, 2010

SECTION 00120 -- DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK

Project Name and Location:

USDA REPLACEMENT OF CHILLER 1 SYSTEM

U. S. Department of Agriculture (USDA) USDA HQ Complex / Sub Central Chiller Plant 14th & Independence Ave, SW Washington, DC 20250

Project Summary Description:

The project includes but is not limited to the following Work:

1. Replacement of Chiller No. 1, and associated mechanical, electrical and plumbing work.

2. Replacement of Cooling Tower No. 1 and associated mechanical, electrical and plumbing work.

3. Replacement of condenser water and chilled water pumps.

4. New heat exchanger.

5. Replace DDC controls with new web-based DDC controls.

6. Replacement of ceiling mounted light fixtures.

7. New motor control center.

8. Replace cooling tower enclosure and air intake louvers.

9. Associated architectural renovations including painting ceiling and walls and/or sealing concrete floor; cleaning and repair of terra cotta wall tiles; new or extended concrete housekeeping pads; new grates and cap flashing over cooling tower exhaust openings.

SECTION 00130 -- PACKAGING AND MARKING

Refer to attached herein Bid Set of Drawings and Specifications dated March 29, 2010

SECTION 00140 -- INSPECTION AND ACCEPTANCE

Refer to attached herein Bid Set of Drawings and Specifications dated March 29, 2010

SECTION 00150 -- DELIVERIES OR PERFORMANCE

Refer to attached herein Bid Set of Drawings and Specifications dated March 29, 2010

SECTION 00160 -- CONTRACT ADMINISTRATION DATA

Refer to attached herein Bid Set of Drawings and Specifications dated March 29, 2010

SECTION 00170 -- SPECIAL CONTRACT REQUIREMENTS

ALL OFFERORS MUST SUBMIT EVIDENCE OF THESE REQUIREMENTS WITH SUBMISSION OF THEIR BIDS IN ORDER TO BE

CONSIDERED RESPONSIVE:

1. Minimum two (2) past chiller plant projects that replace or install chillers that are larger than 350 ton.

2. Minimum two (2) past cooling tower replacement or installation projects that work with 350 chillers or larger.

3. Welders must be AWS certified and have a minimum of five (5) years of experience working with chiller plants.

Shown below, are the eleven (11) key elements that must be used when reporting your award in www.federalreporting.gov. This reporting is required for all ARRA funded projects upon award, an initial entry is made and at the end of each quarter thereafter.

1. Award Type: Federally award contract

2. Award Number: TBD

3. Order Number for Federally Awarded Contracts, if applicable: TBD

4. Funding Agency Code: TBD

5. Awarding Agency Code: TBD

6. Government Contracting Office Code, if a federally awarded contract: TBD

7. Award Date: TBD

8. Amount of Award: TBD

9. Catalogue of Federal Domestic Assistance (CFDA) Number: TBD

10. Activity Code: TBD

11. Program Source (TAS) Code: TBD

Payment & Performance Bonds are required for proposals exceeding $100,000.00

Insurance is required for proposals exceeding $100,000.00 http://www.federalreporting.gov/

PART II--CONTRACT CLAUSES

SECTION 00200 --CONTRACT CLAUSES

CLAUSES INCORPORATED BY REFERENCE

52.202-1 Definitions (Jul 2004)

52.203-3 Gratuities (Apr 1984)

52.203-5 Covenant Against Contingent Fees (Apr 1984)

52.203-6 Restrictions on Subcontractor Sales to the Government (Sep 2006)

52.203-7 Anti-Kickback Procedures (Jul 1995)

52.203-8 Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity (Jan 1997)

52.203-10 Price or Fee Adjustment for Illegal or Improper Activity (Jan 1997)

52.203-12 Limitation on Payments to Influence Certain Federal Transactions (Sep 2005)

52.204-4 Printed or Copied Double-Sided on Recycled Paper (Aug 2000)

52.204-6 Data Universal Numbering Systems (DUNS) Number (Oct 2003)

52.204-7 Central Contractor Registration (Jul 2006)

52.204-9 Personal Identity Verification of Contractor Personnel (Jan 2006)

52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors

Debarred, Suspended, or Proposed for Debarment. (Jan 2005)

52.211-10 Commencement, Prosecution, and Completion of Work (Alt III) (Apr 1984)

52.211-12 Liquidated Damages – Construction (Sep 2000)

52.211-13 Time Extensions (Sep 2000)

52.214-3 Amendments to Invitations for Bids.

52.214-4 False Statements in Bids.

52.214-5 Submission of Bids.

52.214-6 Explanation to Prospective Bidders.

52.214-7 Late Submissions, Modifications, and Withdrawals of Bids.

52.214-18 Preparation of Bids—Construction.

52.214-19 Contract Award—Sealed Bidding—Construction.

52.214-26 Audit and Records—Sealed Bidding.

52.214-27 Price Reduction for Defective Cost or Pricing Data—Modifications—Sealed Bidding.

52.214-28 Subcontractor Cost or Pricing Data—Modifications—Sealed Bidding.

52.214-29 Order of Precedence—Sealed Bidding.

52.214-34 Submission of Offers in the English Language.

52.214-35 Submission of Offers in U.S. Currency.

52.217-8 Option to Extend Services (Nov 1999)

52.219-8 Utilization of Small Business Concerns (May 2004)

52.219-14 Limitations on Subcontracting (Dec 1996)

52.222-1 Notice to the Government of Labor Disputes (Feb 1997)

52.222-3 Convict Labor (Jun 2003)

52.222-4 Contract Work Hours and Safety Standards Act – Overtime Compensation (Jul 2005)

52.222-5 Davis-Bacon Act – Secondary Site of the Work (Jul 2005)

52.222-6 Davis-Bacon Act (Jul 2005)

52.222-7 Withholding of Funds (Feb 1988)

52.222-8 Payrolls and Basic Records (Feb 1988)

52.222-9 Apprentices and Trainees (Jul 2005)

52.222-10 Compliance with Copeland Act Requirements (Feb 1988)

52.222-11 Subcontracts (Labor Standards) (Jul 2005)

52.222-12 Contract Termination – Debarment (Feb 1988)

52.222-13 Compliance with Davis-Bacon and Related Act Regulations (Feb 1988)

52.222-14 Disputes Concerning Labor Standards (Feb 1988)

52.222-15 Certification of Eligibility (Feb 1988) https://www.acquisition.gov/far/current/html/52_214.html#wp1129306 https://www.acquisition.gov/far/current/html/52_214.html#wp1129312 https://www.acquisition.gov/far/current/html/52_214.html#wp1129317 https://www.acquisition.gov/far/current/html/52_214.html#wp1129328 https://www.acquisition.gov/far/current/html/52_214.html#wp1129333 https://www.acquisition.gov/far/current/html/52_214.html#wp1129431 https://www.acquisition.gov/far/current/html/52_214.html#wp1129445 https://www.acquisition.gov/far/current/html/52_214.html#wp1129528 https://www.acquisition.gov/far/current/html/52_214.html#wp1129543 https://www.acquisition.gov/far/current/html/52_214.html#wp1129564 https://www.acquisition.gov/far/current/html/52_214.html#wp1129574 https://www.acquisition.gov/far/current/html/52_214.html#wp1129607 https://www.acquisition.gov/far/current/html/52_214.html#wp1129612

52.222-21 Prohibitions of Segregated Facilities (Feb 1999)

52.222-23 Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity for

Construction (Feb 1999)

52.222-26 Equal Opportunity (Apr 2002)

52.222-27 Affirmative Action Compliance Requirements for Construction (Feb 1999)

52.222-32 Davis-Bacon Act – Price Adjustment (Actual Method) (Dec 2001)

52.222.35 Equal Opportunity for Special Disable Veterans, Veterans of the Vietnam Era, and other Eligible

Veterans (Dec 2001)

52.222-36 Affirmative Action for Workers With Disabilities (Jun 1998)

52.222-37 Employment Reports on Special Disable Veterans, Veterans of the Vietnam Era, and Other Eligible

Veterans (Dec 2001)

52.222-39 Notification of Employee Rights Concerning Payment of Union Dues or Fees (Dec 2004)

52.222-50 Combating Trafficking in Persons (Aug 2007)

52.222-54 Employment Eligibility Verification (Jan 2009)

52.223-2 Affirmative Procurement of Bio-based Products Under Service and Construction Contracts (Jan 1997)

52.223-3 Hazardous Material Identification and Material Safety Data Alt I (Dec 1997)

52.223-5 Pollution Prevention and Right-to-Know Information (Aug 2003)

52.223-6 Drug-Free Workplace (May 2001)

52.223-14 Toxic Chemical Release Reporting (Aug 2003)

52-225-13 Restrictions on Certain Foreign Purchases (Jun 2008)

52.225-14 Inconsistency between English Version and Translation of Contract (Feb 2000)

52.227-1 Authorization and Consent (Dec 2007)

52.227-4 Patent Indemnity – Construction Contracts (Dec 2007)

52.228-2 Additional Bond Security (Oct 1997)

52.228-5 Insurance – Work On A Government Installation (Jan 1997)

52.228-11 Pledges of Assets (Feb 1992)

52.228-12 Prospective Subcontractor Request for Bonds (Oct 1995)

52.228-14 Irrevocable Letter of Credit (Dec 1999)

52.228-15 Performance and Payment Bonds – Construction (Nov 2006)

52.229-3 Federal, State and Local Taxes (Apr 2003)

52.232-5 Payments Under Fixed-Price Construction Contracts (Sep 2002)

52.232-16 Progress Payments (Apr 2003)

52.232-17 Interest (Jun 1996)

52.232-23 Assignment of Claims (Jan 1986)

52.-232-27 Prompt Payment for Construction Contracts (Sep 2005)

52.-232-33 Payment by Electronic Funds Transfer – Central Contractor Registration (Oct 2003)

52.233-1 Disputes (Jul 2002)

52.233-3 Protest After Award (Aug 1996)

52.233-4 Applicable Law for Breach of Contract Claim (Oct 2004)

52.236-2 Differing Site Conditions (Apr 1984)

52.236-3 Site Investigation and Conditions Affecting the Work (Apr 1984)

52.236-5 Material and Workmanship (Apr 1984)

52.236-6 Superintendent by the Contractor (Apr 1984)

52.236-7 Permits and Responsibilities (Nov 1991)

52.236-8 Other Contracts (Apr 1984)

52.236-9 Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements (Apr 1984)

52.-236-10 Operations and Storage Areas (Apr 1984)

52.236-11 Use and Possession Prior to Completion (Apr 1984)

52.236-12 Cleaning Up (Apr 1984)

52.236-13 Accident Prevention ALT I (Nov 1991)

52.236-14 Availability and Use of Utility Services (Apr 1984)

52.236-15 Schedules for Construction Contracts (Apr 1984)

52.236-17 Layout of Work (Apr 1984)

52.236-21 Specifications and Drawings for Construction Alt I (Feb 1997)

52.236-26 Preconstruction Conference (Feb 1995)

52.242-13 Bankruptcy (Jul 1995)

52.242-14 Suspension of Work (Apr 1984)

52.243-4 Changes (Jun 2007)

52.243-7 Notification of Changes (Apr 1984)

52.244-6 Subcontracts for Commercial Items (Mar 2007)

52.245-1 Government Property (Jun 2007)

52.246-12 Inspection of Construction (Aug 1996)

52.246-21 Warranty of Construction (Mar 1994)

52.248-3 Value Engineering – Construction (Sept 2006)

52.249-2 Termination for Convenience of the Government (Fixed Price) Alt I (May 2004)

52.249-10 Default (Fixed-Price Construction) (Apr 1984)

52.252-2 Clauses Incorporated by Reference (Feb 1998)

52.252-4 Alterations in Contract (Apr 1984)

52.253-1 Computer Generated Forms (Jan 1991)

CLAUSES INCORPORATED BY FULL-TEXT

52.216-24 Limitation of Government Liability (Apr 1984)

(a) In performing this contract, the Contractor is not authorized to make expenditures or incur obligations exceeding

____________________ dollars.

(b) The maximum amount for which the Government shall be liable if this contract is terminated is ___________ dollars.

(End of clause)

52.232-27 Prompt Payment for Construction Contracts (Oct 2008)

Notwithstanding any other payment terms in this contract, the Government will make invoice payments under the terms and conditions specified in this clause. The Government considers payment as being made on the day a check is dated or the date of an electronic funds transfer. Definitions of pertinent terms are set forth in sections 2.101, 32.001, and 32.902 of the Federal Acquisition Regulation. All days referred to in this clause are calendar days, unless otherwise specified.

(However, see paragraph (a)(3) concerning payments due on Saturdays, Sundays, and legal holidays.)

(a) Invoice payments—

(1) Types of invoice payments. For purposes of this clause, there are several types of invoice payments that may occur under this contract, as follows:

(i) Progress payments, if provided for elsewhere in this contract, based on Contracting Officer approval of the estimated amount and value of work or services performed, including payments for reaching milestones in any project.

(A) The due date for making such payments is 14 days after the designated billing office receives a proper payment request. If the designated billing office fails to annotate the payment request with the actual date of receipt at the time of receipt, the payment due date is the 14th day after the date of the Contractor’s payment request, provided the designated billing office receives a proper payment request and there is no disagreement over quantity, quality, or

Contractor compliance with contract requirements.

(B) The due date for payment of any amounts retained by the Contracting Officer in accordance with the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, is as specified in the contract or, if not specified, 30 days after approval by the Contracting Officer for release to the Contractor.

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(ii) Final payments based on completion and acceptance of all work and presentation of release of all claims against the Government arising by virtue of the contract, and payments for partial deliveries that have been accepted by the Government (e.g., each separate building, public work, or other division of the contract for which the price is stated separately in the contract).

(A) The due date for making such payments is the later of the following two events:

(1) The 30th day after the designated billing office receives a proper invoice from the Contractor.

(2) The 30th day after Government acceptance of the work or services completed by the Contractor. For a final invoice when the payment amount is subject to contract settlement actions (e.g., release of claims), acceptance is deemed to occur on the effective date of the contract settlement.

(B) If the designated billing office fails to annotate the invoice with the date of actual receipt at the time of receipt, the invoice payment due date is the 30th day after the date of the Contractor’s invoice, provided the designated billing office receives a proper invoice and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements.

(2) Contractor's invoice. The Contractor shall prepare and submit invoices to the designated billing office specified in the contract. A proper invoice must include the items listed in paragraphs (a)(2)(i) through (a)(2)(xi) of this clause. If the invoice does not comply with these requirements, the designated billing office must return it within 7 days after receipt, with the reasons why it is not a proper invoice. When computing any interest penalty owed the Contractor, the

Government will take into account if the Government notifies the Contractor of an improper invoice in an untimely manner.

(i) Name and address of the Contractor.

(ii) Invoice date and invoice number. (The Contractor should date invoices as close as possible to the date of mailing or transmission.)

(iii) Contract number or other authorization for work or services performed (including order number and contract line item number).

(iv) Description of work or services performed.

(v) Delivery and payment terms (e.g., discount for prompt payment terms).

(vi) Name and address of Contractor official to whom payment is to be sent (must be the same as that in the contract or in a proper notice of assignment).

(vii) Name (where practicable), title, phone number, and mailing address of person to notify in the event of a defective invoice.

(viii) For payments described in paragraph (a)(1)(i) of this clause, substantiation of the amounts requested and certification in accordance with the requirements of the clause at 52.232-5, Payments Under Fixed-Price Construction

Contracts.

(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 (e.g., 52.232-38, Submission of Electronic Funds Transfer Information with Offer), contract clause (e.g., 52.232-

33, Payment by Electronic Funds Transfer—Central Contractor Registration, or 52.232-34, Payment by Electronic Funds

Transfer—Other Than Central Contractor Registration), or applicable agency procedures.

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

(xi) Any other information or documentation required by the contract.

(3) Interest penalty. The designated payment office will pay an interest penalty automatically, without request from the Contractor, if payment is not made by the due date and the conditions listed in paragraphs (a)(3)(i) through (a)(3)(iii) of this clause are met, if applicable. However, when the due date falls on a Saturday, Sunday, or legal holiday, the https://www.acquisition.gov/far/current/html/52_232.html#wp1152507 https://www.acquisition.gov/far/current/html/52_232.html#wp1153462 https://www.acquisition.gov/far/current/html/52_232.html#wp1153351 https://www.acquisition.gov/far/current/html/52_232.html#wp1153351 https://www.acquisition.gov/far/current/html/52_232.html#wp1153375 designated payment office may make payment on the following working day without incurring a late payment interest penalty.

(i) The designated billing office received a proper invoice.

(ii) The Government processed a receiving report or other Government documentation authorizing payment and there was no disagreement over quantity, quality, Contractor compliance with any contract term or condition, or requested progress payment amount.

(iii) In the case of a final invoice for any balance of funds due the Contractor for work or services performed, the amount was not subject to further contract settlement actions between the Government and the Contractor.

(4) Computing penalty amount. The Government will compute the interest penalty in accordance with the Office of

Management and Budget prompt payment regulations at 5 CFR Part 1315.

(i) For the sole purpose of computing an interest penalty that might be due the Contractor for payments described in paragraph (a)(1)(ii) of this clause, Government acceptance or approval is deemed to occur constructively on the 7th day after the Contractor has completed the work or services in accordance with the terms and conditions of the contract. If actual acceptance or approval occurs within the constructive acceptance or approval period, the Government will base the determination of an interest penalty on the actual date of acceptance or approval. Constructive acceptance or constructive approval requirements do not apply if there is a disagreement over quantity, quality, or Contractor compliance with a contract provision. These requirements also do not compel Government officials to accept work or services, approve

Contractor estimates, perform contract administration functions, or make payment prior to fulfilling their responsibilities.

(ii) The prompt payment regulations at 5 CFR 1315.10(c) do not require the Government to pay interest penalties if payment delays are due to disagreement between the Government and the Contractor over the payment amount or other issues involving contract compliance, or on amounts temporarily withheld or retained in accordance with the terms of the contract. The Government and the Contractor shall resolve claims involving disputes, and any interest that may be payable in accordance with the clause at FAR 52.233-1, Disputes.

(5) Discounts for prompt payment. The designated payment office will pay an interest penalty automatically, without request from the Contractor, if the Government takes a discount for prompt payment improperly. The Government will calculate the interest penalty in accordance with the prompt payment regulations at 5 CFR Part 1315.

(6) Additional interest penalty.

(i) The designated payment office will pay a penalty amount, calculated in accordance with the prompt payment regulations at 5 CFR Part 1315 in addition to the interest penalty amount only if—

(A) The Government owes an interest penalty of $1 or more;

(B) The designated payment office does not pay the interest penalty within 10 days after the date the invoice amount is paid; and

(C) The Contractor makes a written demand to the designated payment office for additional penalty payment, in accordance with paragraph (a)(6)(ii) of this clause, postmarked not later than 40 days after the date the invoice amount is paid.

(ii)(A) The Contractor shall support written demands for additional penalty payments with the following data. The

Government will not request any additional data. The Contractor shall—

(1) Specifically assert that late payment interest is due under a specific invoice, and request payment of all overdue late payment interest penalty and such additional penalty as may be required;

(2) Attach a copy of the invoice on which the unpaid late payment interest was due; and

(3) State that payment of the principal has been received, including the date of receipt.

(B) If there is no postmark or the postmark is illegible—

(1) The designated payment office that receives the demand will annotate it with the date of receipt provided the demand is received on or before the 40th day after payment was made; or

(2) If the designated payment office fails to make the required annotation, the Government will determine the demand’s validity based on the date the Contractor has placed on the demand, provided such date is no later than the

40th day after payment was made.

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(b) Contract financing payments. If this contract provides for contract financing, the Government will make contract financing payments in accordance with the applicable contract financing clause.

(c) Subcontract clause requirements. The Contractor shall include in each subcontract for property or services

(including a material supplier) for the purpose of performing this contract the following:

(1) Prompt payment for subcontractors. A payment clause that obligates the Contractor to pay the subcontractor for satisfactory performance under its subcontract not later than 7 days from receipt of payment out of such amounts as are paid to the Contractor under this contract.

(2) Interest for subcontractors. An interest penalty clause that obligates the Contractor to pay to the subcontractor an interest penalty for each payment not made in accordance with the payment clause—

(i) For the period beginning on the day after the required payment date and ending on the date on which payment of the amount due is made; and

(ii) Computed at the rate of interest established by the Secretary of the Treasury, and published in the Federal

Register, for interest payments under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) in effect at the time the Contractor accrues the obligation to pay an interest penalty.

(3) Subcontractor clause flowdown. A clause requiring each subcontractor to—

(i) Include a payment clause and an interest penalty clause conforming to the standards set forth in paragraphs (c)(1) and (c)(2) of this clause in each of its subcontracts; and

(ii) Require each of its subcontractors to include such clauses in their subcontracts with each lower-tier subcontractor or supplier.

(d) Subcontract clause interpretation. The clauses required by paragraph (c) of this clause shall not be construed to impair the right of the Contractor or a subcontractor at any tier to negotiate, and to include in their subcontract, provisions that—

(1) Retainage permitted. Permit the Contractor or a subcontractor to retain (without cause) a specified percentage of each progress payment otherwise due to a subcontractor for satisfactory performance under the subcontract without incurring any obligation to pay a late payment interest penalty, in accordance with terms and conditions agreed to by the parties to the subcontract, giving such recognition as the parties deem appropriate to the ability of a subcontractor to furnish a performance bond and a payment bond;

(2) Withholding permitted. Permit the Contractor or subcontractor to make a determination that part or all of the subcontractor’s request for payment may be withheld in accordance with the subcontract agreement; and

(3) Withholding requirements. Permit such withholding without incurring any obligation to pay a late payment penalty if—

(i) A notice conforming to the standards of paragraph (g) of this clause previously has been furnished to the subcontractor; and

(ii) The Contractor furnishes to the Contracting Officer a copy of any notice issued by a Contractor pursuant to paragraph (d)(3)(i) of this clause.

(e) Subcontractor withholding procedures. If a Contractor, after making a request for payment to the Government but before making a payment to a subcontractor for the subcontractor’s performance covered by the payment request, discovers that all or a portion of the payment otherwise due such subcontractor is subject to withholding from the subcontractor in accordance with the subcontract agreement, then the Contractor shall—

(1) Subcontractor notice. Furnish to the subcontractor a notice conforming to the standards of paragraph (g) of this clause as soon as practicable upon ascertaining the cause giving rise to a withholding, but prior to the due date for subcontractor payment;

(2) Contracting Officer notice. Furnish to the Contracting Officer, as soon as practicable, a copy of the notice furnished to the subcontractor pursuant to paragraph (e)(1) of this clause;

(3) Subcontractor progress payment reduction. Reduce the subcontractor’s progress payment by an amount not to exceed the amount specified in the notice of withholding furnished under paragraph (e)(1) of this clause;

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(4) Subsequent subcontractor payment. Pay the subcontractor as soon as practicable after the correction of the identified subcontract performance deficiency, and—

(i) Make such payment within—

(A) Seven days after correction of the identified subcontract performance deficiency (unless the funds therefor must be recovered from the Government because of a reduction under paragraph (e)(5)(i)) of this clause; or

(B) Seven days after the Contractor recovers such funds from the Government; or

(ii) Incur an obligation to pay a late payment interest penalty computed at the rate of interest established by the

Secretary of the Treasury, and published in the Federal Register, for interest payments under section 12 of the Contracts

Disputes Act of 1978 (41 U.S.C. 611) in effect at the time the Contractor accrues the obligation to pay an interest penalty;

(5) Notice to Contracting Officer. Notify the Contracting Officer upon—

(i) Reduction of the amount of any subsequent certified application for payment; or

(ii) Payment to the subcontractor of any withheld amounts of a progress payment, specifying—

(A) The amounts withheld under paragraph (e)(1) of this clause; and

(B) The dates that such withholding began and ended; and

(6) Interest to Government. Be obligated to pay to the Government an amount equal to interest on the withheld payments (computed in the manner provided in 31 U.S.C. 3903(c)(1)), from the 8th day after receipt of the withheld amounts from the Government until—

(i) The day the identified subcontractor performance deficiency is corrected; or

(ii) The date that any subsequent payment is reduced under paragraph (e)(5)(i) of this clause.

(f) Third-party deficiency reports—

(1) Withholding from subcontractor. If a Contractor, after making payment to a first-tier subcontractor, receives from a supplier or subcontractor of the first-tier subcontractor (hereafter referred to as a ―second-tier subcontractor‖) a written notice in accordance with the Miller Act (40 U.S.C. 3133), asserting a deficiency in such first-tier subcontractor’s performance under the contract for which the Contractor may be ultimately liable, and the Contractor determines that all or a portion of future payments otherwise due such first-tier subcontractor is subject to withholding in accordance with the subcontract agreement, the Contractor may, without incurring an obligation to pay an interest penalty under paragraph (e)(6) of this clause—

(i) Furnish to the first-tier subcontractor a notice conforming to the standards of paragraph (g) of this clause as soon as practicable upon making such determination; and

(ii) Withhold from the first-tier subcontractor’s next available progress payment or payments an amount not to exceed the amount specified in the notice of withholding furnished under paragraph (f)(1)(i) of this clause.

(2) Subsequent payment or interest charge. As soon as practicable, but not later than 7 days after receipt of satisfactory written notification that the identified subcontract performance deficiency has been corrected, the Contractor shall—

(i) Pay the amount withheld under paragraph (f)(1)(ii) of this clause to such first-tier subcontractor; or

(ii) Incur an obligation to pay a late payment interest penalty to such first-tier subcontractor computed at the rate of interest established by the Secretary of the Treasury, and published in the Federal Register, for interest payments under section 12 of the Contracts Disputes Act of 1978 (41 U.S.C. 611) in effect at the time the Contractor accrues the obligation to pay an interest penalty.

(g) Written notice of subcontractor withholding. The Contractor shall issue a written notice of any withholding to a subcontractor (with a copy furnished to the Contracting Officer), specifying—

(1) The amount to be withheld;

(2) The specific causes for the withholding under the terms of the subcontract; and

(3) The remedial actions to be taken by the subcontractor in order to receive payment of the amounts withheld.

(h) Subcontractor payment entitlement. The Contractor may not request payment from the Government of any amount withheld or retained in accordance with paragraph (d) of this clause until such time as the Contractor has determined and certified to the Contracting Officer that the subcontractor is entitled to the payment of such amount.

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(i) Prime-subcontractor disputes. A dispute between the Contractor and subcontractor relating to the amount or entitlement of a subcontractor to a payment or a late payment interest penalty under a clause included in the subcontract pursuant to paragraph (c) of this clause does not constitute a dispute to which the Government is a party. The

Government may not be interpleaded in any judicial or administrative proceeding involving such a dispute.

(j) Preservation of prime-subcontractor rights. Except as provided in paragraph (i) of this clause, this clause shall not limit or impair any contractual, administrative, or judicial remedies otherwise available to the Contractor or a subcontractor in the event of a dispute involving late payment or nonpayment by the Contractor or deficient subcontract performance or nonperformance by a subcontractor.

(k) Non-recourse for prime contractor interest penalty. The Contractor’s obligation to pay an interest penalty to a subcontractor pursuant to the clauses included in a subcontract under paragraph (c) of this clause shall not be construed to be an obligation of the Government for such interest penalty. A cost-reimbursement claim may not include any amount for reimbursement of such interest penalty.

(l) 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—

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

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

(ii) Affected contract number and delivery order number if applicable;

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

(iv) Contractor point of contact.

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

(End of clause)

52.203-15 Whistleblower Protections Under The American Recovery And Reinvestment Act of

2009 (Mar 2009)

(a) The Contractor shall post notice of employees rights and remedies for whistleblower protections provided under section 1553 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).

(b) The Contractor shall include the substance of this clause including this paragraph (b) in all subcontracts.

(End of clause)

52.204-11 American Recovery and Reinvestment Act—Reporting Requirements (Mar 2009)

(a) Definitions. As used in this clause— ―Contract‖, as defined in FAR 2.101, means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing.

In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C. 6301, et seq. For discussion of various types of contracts, see FAR Part 16.

―First-tier subcontract‖ means a subcontract awarded directly by a Federal Government prime contractor whose contract is funded by the Recovery Act.

―Jobs created‖ means an estimate of those new positions created and filled, or previously existing unfilled positions that are filled, as a result of funding by the American Recovery and Reinvestment Act of 2009 (Recovery Act). This definition covers only prime contractor positions established in the United States and outlying areas (see definition in FAR 2.101).

The number shall be expressed as ―full-time equivalent‖ (FTE), calculated cumulatively as all hours worked divided by the total number of hours in a full-time schedule, as defined by the contractor. For instance, two full-time employees and one part-time employee working half days would be reported as 2.5 FTE in each calendar quarter.

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―Jobs retained‖ means an estimate of those previously existing filled positions that are retained as a result of funding by the American Recovery and Reinvestment Act of 2009 (Recovery Act). This definition covers only prime contractor positions established in the United States and outlying areas (see definition in FAR 2.101). The number shall be expressed as ―full-time equivalent‖ (FTE), calculated cumulatively as all hours worked divided by the total number of hours in a full-time schedule, as defined by the contractor. For instance, two full-time employees and one part-time employee working half days would be reported as 2.5 FTE in each calendar quarter.

―Total compensation‖ means the cash and noncash dollar value earned by the executive during the contractor’s past fiscal year of the following (for more information see 17 CFR 229.402(c)(2)):

(1) Salary and bonus.

(2) Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.

(3) Earnings for services under non-equity incentive plans. Does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees.

(4) Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.

(5) Above-market earnings on deferred compensation which is not tax-qualified.

(6) Other compensation. For example, severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property if the value for the executive exceeds $10,000.

(b) This contract requires the contractor to provide products and/or services that are funded under the American

Recovery and Reinvestment Act of 2009 (Recovery Act). Section 1512(c) of the Recovery Act requires each contractor to report on its use of Recovery Act funds under this contract. These reports will be made available to the public.

(c) Reports from contractors for all work funded, in whole or in part, by the Recovery Act, and for which an invoice is submitted prior to June 30, 2009, are due no later than July 10, 2009. Thereafter, reports shall be submitted no later than the 10th day after the end of each calendar quarter.

(d) The Contractor shall report the following information, using the online reporting tool available at www.FederalReporting.gov.

(1) The Government contract and order number, as applicable.

(2) The amount of Recovery Act funds invoiced by the contractor for the reporting period. A cumulative amount from all the reports submitted for this action will be maintained by the government’s on-line reporting tool.

(3) A list of all significant services performed or supplies delivered, including construction, for which the contractor invoiced in this calendar quarter.

(4) Program or project title, if any.

(5) A description of the overall purpose and expected outcomes or results of the contract, including significant deliverables and, if appropriate, associated units of measure.

(6) An assessment of the contractor’s progress towards the completion of the overall purpose and expected outcomes or results of the contract (i.e., not started, less than 50 percent completed, completed 50 percent or more, or fully completed). This covers the contract (or portion thereof) funded by the Recovery Act.

(7) A narrative description of the employment impact of work funded by the Recovery Act. This narrative should be cumulative for each calendar quarter and only address the impact on the contractor’s workforce. At a minimum, the contractor shall provide—

(i) A brief description of the types of jobs created and jobs retained in the United States and outlying areas (see definition in FAR 2.101). This description may rely on job titles, broader labor categories, or the contractor’s existing practice for describing jobs as long as the terms used are widely understood and describe the general nature of the work;

and

(ii) An estimate of the number of jobs created and jobs retained by the prime contractor, in the United States and outlying areas. A job cannot be reported as both created and retained.

(8) Names and total compensation of each of the five most highly compensated officers of the Contractor for the calendar year in which the contract is awarded if—

(i) In the Contractor’s preceding fiscal year, the Contractor received—

(A) 80 percent or more of its annual gross revenues from Federal contracts (and subcontracts), loans, grants

(and subgrants) and cooperative agreements; and

(B) $25,000,000 or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants

(and subgrants) and cooperative agreements; and

(ii) The public does not have access to information about the compensation of the senior executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.

(9) For subcontracts valued at less than $25,000 or any subcontracts awarded to an individual, or subcontracts awarded to a subcontractor that in the previous tax year had gross income under $300,000, the Contractor shall only report the aggregate number of such first tier subcontracts awarded in the quarter and their aggregate total dollar amount.

(10) For any first-tier subcontract funded in whole or in part under the Recovery Act, that is over $25,000 and not subject to reporting under paragraph 9, the contractor shall require the subcontractor to provide the information described in (i), (ix), (x), and (xi) below to the contractor for the purposes of the quarterly report. The contractor shall advise the subcontractor that the information will be made available to the public as required by section 1512 of the Recovery Act.

The contractor shall provide detailed information on these first-tier subcontracts as follows:

(i) Unique identifier (DUNS Number) for the subcontractor receiving the award and for the subcontractor’s parent company, if the subcontractor has a parent company.

(ii) Name of the subcontractor.

(iii) Amount of the subcontract award.

(iv) Date of the subcontract award.

(v) The applicable North American Industry Classification System (NAICS) code.

(vi) Funding agency.

(vii) A description of the products or services (including construction) being provided under the subcontract, including the overall purpose and expected outcomes or results of the subcontract.

(viii) Subcontract number (the contract number assigned by the prime contractor).

(ix) Subcontractor’s physical address including street address, city, state, and country. Also include the nine-digit zip code and congressional district if applicable.

(x) Subcontract primary performance location including street address, city, state, and country. Also include the nine-digit zip code and congressional district if applicable.

(xi) Names and total compensation of each of the subcontractor’s five most highly compensated officers, for the calendar year in which the subcontract is awarded if—

(A) In the subcontractor’s preceding fiscal year, the subcontractor received—

(1) 80 percent or more of its annual gross revenues in Federal contracts (and subcontracts), loans, grants (and subgrants), and cooperative agreements; and

(2) $25,000,000 or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants), and cooperative agreements; and

(B) The public does not have access to information about the compensation of the senior executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.

52.214-26 Audit and Records—Sealed Bidding (Mar 2009)

(a) As used in this clause, ―records‖ includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form.

(b) Cost or pricing data. If the Contractor has been required to submit cost or pricing data in connection with the pricing of any modification to this contract, the Contracting Officer, or an authorized representative of the Contracting Officer, in order to evaluate the accuracy, completeness, and currency of the cost or pricing data, shall have the right to examine and audit all of the Contractor’s records, including computations and projections, related to—

(1) The proposal for the modification;

(2) The discussions conducted on the proposal(s), including those related to negotiating;

(3) Pricing of the modification; or

(4) Performance of the modification.

(c) Comptroller General. In the case of pricing any modification, the Comptroller General of the United States, or an authorized representative, shall have the same rights as specified in paragraph (b) of this clause and also the right to interview any current employee regarding such transactions.

(d) Availability. The Contractor shall make available at its office at all reasonable times the materials described in paragraph (b) of this clause, for examination, audit, or reproduction, until 3 years after final payment under this contract, or for any other period specified in Subpart 4.7 of the Federal Acquisition Regulation (FAR). FAR Subpart 4.7, Contractor http://uscode.house.gov/lawrevisioncounsel.shtml http://uscode.house.gov/lawrevisioncounsel.shtml https://www.acquisition.gov/far/current/html/Subpart%204_7.html#wp1082800 https://www.acquisition.gov/far/current/html/Subpart%204_7.html#wp1082800

Records Retention, in effect on the date of this contract, is incorporated by reference in its entirety and made a part of this contract.

(1) If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement.

(2) Records pertaining to appeals under the Disputes clause or to litigation or the settlement of claims arising under or relating to the performance of this contract shall be made available until disposition of such appeals, litigation, or claims.

(e) The Contractor shall insert a clause containing all the provisions of this clause, including this paragraph (e), in all subcontracts expected to exceed the threshold in FAR 15.403-4(a)(1) for submission of cost or pricing data.

(End of clause) Alternate I (Mar 2009). As prescribed in 14.201-7(a)(2) substitute the following paragraphs (c) and (e) for paragraphs

(c) and (e) of the basic clause:

(c) The Comptroller General of the United States, an appropriate Inspector General appointed under section 3 or 8G of the Inspector General Act of

1978 (5 U.S.C. App.), or an authorized representative of either of the foregoing officials, shall have access to and the right to—

(1) Examine any of the Contractor’s or any subcontractors' records that pertain to, and involve transactions relating to, this contract or a subcontract hereunder; and

(2) Interview any officer or employee regarding such transactions.

(e)(1) Except as provided in paragraph (e)(2), the Contractor shall insert a clause containing the provisions of this clause, including this paragraph

(e), in all subcontracts.

(2) The authority of the Inspector General under paragraph (c)(2) of this clause does not flow down to subcontracts.

52.225-9 BUY AMERICAN ACT—CONSTRUCTION MATERIALS (FEB 2009)

(a) Definitions. As used in this clause— ―Commercially available off-the-shelf (COTS) item‖—

(1) Means any item of supply (including construction material) that is—

(i) A commercial item (as defined in paragraph (1) of the definition at FAR 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 ( 46 U.S.C. App. 1702), such as agricultural products and petroleum products.

―Component‖ means an article, material, or supply incorporated directly into a construction material.

―Construction material‖ means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

―Cost of components‖ means—

(3) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(4) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material.

―Domestic construction material‖ means—

(1) An unmanufactured construction material mined or produced in the United States;

(2) A construction material manufactured in the United States, if—

(i) The cost of its components mined, produced, or…