Amend 1 Solicitation AG43ZPS110009.docx

Solicitation No. AG-43ZP-S-11-0009 Amendment 1 Project: Architectural and Engineering Services

Table of Contents

Solicitation/Contract Form

A.1 Contract award will be made Standard Form 252, Architect-Engineer

A.2 All Delivery/Task Orders will be issued on Optional Form 347

A.3 Category C: Facility Engineering Services, Structural Engineering will not receive a separate award. Category C will be awarded in conjunction only with one or more of the other categories.

A.4 This is a Partial Small Business Set-aside procurement. Large businesses are not excluded from competition.

Section B Supplies or Services/Prices

B.1 Rates for the base year and option year periods will be negotiated only with contractors that are determined to receive award and be made a part of the awarded contract.

B.2 The Government may award up to three contracts per category of service

B.3 Task orders will be awarded to the best qualified firm with the capacity to perform the work within the allowed timeframe. See Ordering Procedures for additional information.

B. 4 See Section I Far clauses 52.216-18 Ordering and 52.216-19 Ordering Limitations for specifics on task order ordering and order dollar limitations.

Section C - Description/Specifications

I. ARCHITECTURAL AND ENGINEERING SERVICES, GENERAL

A. Scope of Services Covered: The architectural/engineering (A/E) services generally covered by the R8 Architectural and Engineering Services Guide are those required to support the mission of the Forest Service. Examples of architectural and engineering activities which might be encountered include the following:

1. Design of all or portions of Forest Service facilities such as: offices, warehouses, crew quarters, visitor centers, research laboratories, developed recreation areas, water and wastewater systems, etc.

2. Review and value engineering of designs provided by the Forest Service.

3. Technical assistance during construction.

4. Preparation or revision of master site plans.

5. Evaluation and documentation of existing facilities, including historic facilities

B. Contract Categories:

1. Category A: Comprehensive Building Design and Architectural Services.

2. Category B: Mechanical, Electrical, and Plumbing Engineering Services.

3. Category C: Structural Engineering Services for Buildings.

4. Category D: Site Planning and Design Services, Landscape Architecture and Civil Engineering.

C. Contract Limitations:

1. Work may be located anywhere within the United States, but most projects will be located within the boundaries of the Southern Region.

D. Government-Furnished Property: The Government will deliver to the A/E Contractor the following listed materials, supplies, property, or services (hereinafter referred to as "Government-furnished property") at the places and times specified below. The A/E Contractor shall be liable for all loss or damage of such delivered Government-furnished property until completion and final acceptance of work.

E. Travel: Travel shall be reimbursed in accordance with the Federal Travel Regulation.

F. Documentation Standards: See Southern Region Construction Document Standards in Part J.

II. DEFINITION OF DESIGN SERVICES

A. Design Services—Services subject to the Brooks Act Statutory fee limitation:

1. Schematic design based on the Scope of Work and other Government furnished criteria.

2. Design development based on the Schematic Design.

3. Construction documents based on the Design Development

4. Project Manuals and Specifications

5. Design Narratives, also called Design Analysis. This includes design criteria and assumptions, references to standards, calculations, and a short descriptive analysis.

6. Assembly of packets of cut sheets.

7. Construction Cost Estimate based on the design and updated at each design submittal.

8. Meetings for design review and presentation, but not public meetings.

9. Documentation for compliance with green building rating systems, such as the US Green Building Council’s LEED rating systems.

10. All time, including overhead and profit, for the items listed above

11. All internal expenses required to produce the design (copies to consultants, courier charges, phone calls, meetings, &c.).

B. Non Design Services

1. Travel shall be reimbursed in accordance with the Federal Travel Regulation.

2. Preparation of a Preliminary Project Analysis or Design Prospectus.

3. Surveys (topographic, property boundary, utilities, construction staking, &c.).

4. Geotechnical investigation.

5. Creation and revision of documents based on the design intended solely for NPDES and DOT permitting.

6. Materials testing.

7. Feasibility Studies and Master Plans.

8. Cost estimates not based on designs.

9. NEPA documentation and analysis.

10. Models, renderings, photographs.

11. Preparation of As-built drawings.

12. Preparation HABS/HAER/HALS drawings and documentation.

13. Bid preparation and construction contracting assistance.

14. Construction observation, inspection, and administration.

15. Submittal and shop drawing review.

16. Preparation of construction change orders.

17. Review of Government Furnished Designs.

18. Value Engineering/Value Analysis Services.

III. GENERAL TECHNICAL REQUIREMENTS FOR DESIGN SERVICES

A. Follow the general design guidance given in the latest edition of the Region 8 Facilities Design Guide. The current version will be transmitted upon contract award and each option year award.

B. Unless specifically stated in the Task Order Statement of Work, the Government is the Authority Having Jurisdiction for code requirements.

C. Follow the guidance in the latest version of the Region 8 Guidelines for Construction Documents. The current version will be transmitted upon contract award and each option year award.

D. Design Analysis and Documentation: Written documentation that the design complies with the SOW for the task order. Included as part of Design Analysis and Documentation are:

1. Design Narrative: A short, descriptive statement discussing design intent and compliance of the design with the SOW and OPRs, and updated with each submittal. See Southern Region Construction Document Standards for additional information.

2. Design Calculations: Signed and sealed by the licensed designer of record, updated with each submittal.

3. A/E Response to Review Comments: Provide a separate narrative response to comments. For comments the A/E has reasons for not complying with, provide a written justification for not complying.

IV. DESIGN REVIEW AND CONSTRUCTION ASSISTANCE SERVICES

A. Review of Government-Furnished Designs.

1. Provide reviews of government furnished designs. Review designs for the following elements:

a) Compliance with applicable codes and standards,

b) Constructability

c) Practicality of the solution being offered

d) Cost effectiveness

e) Completeness of drawings, specifications and cost estimate

f) Aesthetic quality, compatibility with the environment, vandal resistance, and other elements as stated in the Scope of Work.

B. Construction Assistance.

1. Provide assistance during construction as requested by the Government on a per hour basis, with the estimated number of hours to be agreed upon in advance in writing. Such assistance may be in the form of contractor submittal review, preparation of change order documents, construction inspection assistance, etc.

2. Review all material submittals within 7 working days of receipt (unless otherwise negotiated) and return with comments and/or recommendations.

3. Provide advice, interpretation and discussion either in person or by telephone to the Forest Service as may be required to address any problems which may arise. When called, provide on-site inspection in a timely manner. The Forest Service will provide a minimum of 5 days (or shorter time as negotiated) notice when inspection is required. All inspections shall be made in the presence of the construction COR and the COR for the A/E services contract.

4. If requested by the Engineer, provide a written inspection report to the Forest Service within 5 working days of completing inspection for each separate inspection conducted. The report should include pertinent observations, and recommend acceptance or rejection of the inspected work.

5. Provide design, redesign, drawings, specifications and other engineering requested by the Forest Service as required to support construction contract change orders.

6. Travel shall be reimbursed in accordance with Federal Travel Regulations.

C. Value Engineering is the reappraisal of a design, from both a functional and a cost standpoint, made in order to maximize value and to minimize Life Cycle Cost.

SECTION D - PACKAGING AND MARKING

{For this Solicitation, there are NO clauses in this Section}

SECTION E - INSPECTION AND ACCEPTANCE

FAR 52.252-2 Clauses Incorporated by Reference (FEB 1998) This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es): www.arnet.gov/far/

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1) CLAUSES

52.246-1 Contractor Inspection Requirements (APR 1984) 52.246-4 Inspection of Services--Fixed-Price (AUG 1996)

E.1 Location

A. Main Contact The Contractor’s office or main point of contact shall be within a sixty mile radius of the USDA Forest Service’s Regional Office in Atlanta, GA.

B. Task Orders The description and location of individual projects will be stated in each Task Order.

Section F - Deliveries or Performance

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

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1) CLAUSES

52.242-14 Suspension of Work (APR 1984)

F.1 This contract will be in effect for a period of one year from the date of award and will have four, one year renewal option periods.

F.2 The Government may award up to three contracts per category of service:

1. Task orders will be awarded to the best qualified firm with the capacity to perform the work within the allowed timeframe. See Ordering Procedures for additional information.

2. The maximum dollar value for any one task order shall not exceed $1,000,000.00 total fee.

3. Work may be located anywhere within the United States, but most projects will be located within the boundaries of the Southern Region.

4. Release of Information by A/E: No information about a project may be shared with anyone other than the USFS Contracting Officer (CO) and the Contracting Officer’s Representative (COR). An A/E may not release any information about a project under design or construction for publication, public speeches, or in any other manner without first obtaining clearance and release from the appropriate Government Official (generally the Contacting Officer).

F.3 FAR 36.209 Construction Contract with A/E Firms Limitation on Contracting for Construction Work

Award of a task order for A/E services for a particular project under this contract and the award of a contract for related construction work to the same firm, a parent firm, or its sub consultants is prohibited. The A/E shall decline to enter into negotiations for any contract, if the firm, its parent firm, or sub consultants intend to compete for the related construction contract.

F.4 Continuous Performance

Timely delivery of the required items on each individual task order within the time agreed upon is essential. Although the method of execution of the required work is at the discretion of the contractor, the work shall be conducted in such a way as to demonstrate the ability to produce all deliverable, in final form, within the established performance period.

F. 5 Release of Information/Organizational Conflicts of Interest

The A/E shall not disclose information pertaining to the services performed under this contract to anyone other than the Government or other personnel authorized by the Contracting Officer. The estimates of cost will be utilized in preparing Government estimates for evaluating offers and as such, are confidential material for official use only. In the event that the A/E intends to employ parties other than its own staff in preparing cost estimate, written approval of the Contracting Officer of such parties are required. The Government shall not grant approval of construction contractors or subcontractors, or any employee of the same, unless assurances are submitted that the contracting firm will keep the construction estimate confidential and will not submit later an offer or serve as a subcontractor to an offeror on the construction contract. The cost estimates shall remain the sole property of the Government and shall not be made available to others for any purpose. The sale of estimated quantities and costs of the work by the A/E is prohibited.

F.6 Issuance of Task Orders

The Contracting Officer or designated representative will issue Statement of Work and Request for Cost Proposals. This will describe the work to be performed, the deliverable items, and the required time period for completion. The Contracting Officer may authorize in writing other Contracting Officers to issue, negotiate and award task orders under this contract.

F.7 Completion of Task Orders

Each task orders will be considered to be complete when all documents and data have been delivered and the Contracting Officer’s determined that the documents and data conform to the requirements of the task order and the contract.

F.8 Period of Performance

AGAR 452.211-75 Effective Period of Contract (FEB 1988)

The effective period of performance of this contract is from date of award through 12 months, with four (4) one year option periods for a total of five (5) years, if all options are exercised.

F.9 Minimum/Maximum Order Quantities

The guaranteed minimum for the life of the contract will be $2,500.00. The maximum dollar amount for an individual task order shall not exceed $ 1,000,000.00. The maximum is not guaranteed.

F.10 Approval of Work by Subcontractors and Consultants

The prime contractor is responsible and accountable for all work performed under this contract. Subcontractors and consultants shall affix their professional registration seal on work performed under the direction of the prime contractor. The prime contractor shall provide a separate written approval and acknowledgement that any such documents have been prepared in accordance with sound engineering and/or architectural methods, procedures and practices.

F.11 Capacity

Individual task orders may be placed by various offices located in Region 8 (see attachment 1 of list of offices and corresponding Contracting Officer). The Contracting Officers (or any successors) will be authorized to place orders against the resultant award.

Should the contractor be over their capacity in regards to the volume of work, the contractor has the right to refuse a task order(s) by written notification (email or facsimile) within three (3) working days to that ordering office and also as a courtesy, notify the Regional office in Atlanta at the same time.

SECTION G--CONTRACT ADMINISTRATION DATA

G.1 Release of Information by A/E: No information about a project may be shared with anyone other than the USFS Contracting Officer (CO) and the Contracting Officer’s Representative (COR). An A/E may not release any information about a project under design or construction for publication, public speeches, or in any other manner without first obtaining clearance and release from the appropriate Government Official (generally the Contacting Officer).

G.2 Contract Administration Requirements:

1. The Contractor shall designate an individual from his or her staff who shall be the contact for all matters pertaining to the contract. The individual shall be a staff member in the A/E's Atlanta office.

2. The CO will designate member of the Southern Region Engineering Staff as COR for the Contract. This COR will be the day-to-day contact for matters pertaining to the overall contract and will provide assistance to Forest Service personnel in using the Contract.

3. All Contracting Officers serving the Southern Region and the Southern Research Station may issue task orders against the contract. A COR for each task order will be appointed by the CO issuing the task order.

a. Minutes and Records: The A/E shall prepare minutes of all conferences, visits, and telephone conversations, and submit them electronically within five days after the conference, visit or telephone conversation.

b. Contact between the Government and the A/Es consultants: If a consultant to an A/E requires additional support or information, the consultant shall first clear all contact with the COR through the A/E. The A/E shall prepare and submit minutes of the contact within 5 days.

G.3 Ordering Procedures for Task Orders:

1. Request for Proposal (RFP): The CO will issue a Request for Proposal that will include:

a) The Scope of Work (SOW) for the task order, which will include:

(1) Detailed Project Description.

(2) Applicable Codes and Standards

(3) Schedule of Submittal.

(4) Performance period.

b) Conceptual Drawings, if the Conceptual Design is Government Furnished

c) Site Plan

d) Design Prospectus or Owner’s Project Requirements

e) Existing Record Documents, if available

f) The Government’s Estimated Cost of Construction (ECC) for design projects. The ECC shall be the funding limitation of the project.

2. Authorization to Proceed: A task order will act as an authorization to proceed. Begin work on any order within 10 days of the receipt of the Task Order. When a project is under development the A/E is advised not to proceed to the next phase before the first or previous submittals have been accepted and review comments have been provided.

G.5 Government-Furnished Property

The Government will provide the item(s) of Government property listed on each individual task order to the Contractor for use in the performance of this contract as deemed necessary. This property shall be used and maintained by the Contractor in accordance with the provisions of the "Government Property" FAR clause contained elsewhere in the contract.

AGAR 452.215-73 Post Award Conference (NOV 1996)

A post award conference with the successful offeror is required. It will be scheduled and held within 30 days after the date of contract award. The conference will be held at the USDA Forest Service, Southern Regional Office, 1720 Peachtree Road, Room 876, Atlanta, GA 30309.

SECTION H--SPECIAL CONTRACT REQUIREMENTS

H.1 Hardware and Software Requirements

1. All drawings and specifications must be prepared using equipment and software compatible with government-owned equipment and software.

2. The government uses the following software packages:

a) Building Design: Autodesk Revit Architecture and Revit MEP

b) Site Design: Autodesk Civil 3D

c) Building Specifications: BSD Speclink-E

3. Unless otherwise stated in an individual Task Order Scope of Work, submit electronic files of designs at the 100 percent stage in the following formats:

a) Architectural portions of building designs: Revit Architecture

b) Structural portions of building designs:

(1) Base year of contract: Revit Structure or Autocad DWG

(2) Option year 1 and later: Submit Revit Structure

c) Mechanical, Electrical, and Plumbing portions of building designs:

(1) Base year and Option year 1: Submit Revit MEP or Autodesk DWG

(2) Option year 2 and later: Submit Revit MEP

d) Landscape Architecture, Surveys, and Civil Engineering: Civil 3D DWG and LandXML files.

AGAR 452.237-74 Key Personnel (FEB 1988)

(a) The Contractor shall assign to this contract the following key personnel: Those people identified in the accepted technical proposal to work on this contract. No substitutions shall be made without specific written approval by the Contracting Officer.

(b) During the first ninety (90) days of performance, the Contractor shall make no substitutions of key personnel unless the substitution is necessitated by illness, death, or termination of employment. The Contractor shall notify the Contracting Officer within 15 calendar days after the occurrence of any of these events and provide the information required by paragraph (c) below. After the initial 90-day period, the Contractor shall submit the information required by paragraph (c) to the Contracting Officer at least 15 days prior to making any permanent substitutions.

(c) The Contractor shall provide a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes for the proposed substitutes, and any additional information requested by the Contracting Officer. Proposed substitutes should have comparable qualifications to those of the persons being replaced. The Contracting Officer will notify the Contractor within 15 calendar days after receipt of all required information of the decision on substitutions. The contract will be modified to reflect any approved changes of key personnel.

Section I -Contract Clauses

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

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1) CLAUSES

52.202-1 Definitions (JUL 2004) 52.203-3 Gratuities (APR 1984) 52.203-5 Covenant Against Contingent Fees (APR 1984) 52.203-7 Anti-Kickback Procedures (OCT 2010) 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 (OCT 2010) 52.204-4 Printed or Copied Double-Sided on Recycled Paper (AUG 2000) 52.209-6 Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (DEC 2010) 52.215-2 Audit and Records - Negotiation (OCT 2010) 52.215-10 Price Reduction for Defective Certified Cost or Pricing Data. (OCT 2010) 52.215-12 Subcontractor Certified Cost or Pricing Data (OCT 2010) 52.215-15 Pension Adjustments and Asset Reversions (OCT 2010) 52.215-17 Waiver of Facilities Capital Cost of Money (OCT 1997) 52.215-18 Reversion or Adjustment of Plans for Postretirement Benefits (PRB) Other Than Pensions (JUL 2005) 52.219-7 Notice of Partial Small Business Set-Aside (JUN 2003) 52.219-8 Utilization of Small Business Concerns (DEC 2010) 52.219-9 Small Business Subcontracting Plan (OCT 2010) 52.219-14 Limitations on Subcontracting (DEC 1996) 52.219-16 Liquidated Damages - Subcontracting Plan (JAN 1999) 52.222-1 Notice to the Government of Labor Disputes (FEB 1997) 52.222-3 Convict Labor (JUN 2003) 52.222-21 Prohibition of Segregated Facilities (FEB 1999) 52.222-26 Equal Opportunity (MAR 2007) 52.222-35 Equal Opportunity for Veterans (SEP 2010) 52.222-36 Affirmative Action for Workers with Disabilities (OCT 2010) 52.222-37 Employment Reports on Veterans. (SEP 2010) 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) 52.227-1 Authorization and Consent (DEC 2007) 52.228-5 Insurance - Work on a Government Installation (JAN 1997) 52.229-3 Federal, State, and Local Taxes (APR 2003) 52.232-17 Interest (OCT 2010) 52.232-23 Assignment of Claims (JAN 1986) 52.232-26 Prompt Payment For Fixed-Price Architect-Engineer Contracts (OCT 2008) 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) 52.237-2 Protection of Government Buildings, Equipment, and Vegetation (APR 1984) 52.242-13 Bankruptcy (JUL 1995) 52.243-1 Changes - Fixed-Price (AUG 1987) - Alternate III (APR 1984) 52.244-6 Subcontracts for Commercial Items (DEC 2010) 52.253-1 Computer Generated Forms (JAN 1991)

52.215-19 Notification of Ownership Changes (OCT 1997)

(a) The Contractor shall make the following notifications in writing:

(1) When the Contractor becomes aware that a change in its ownership has occurred, or is certain to occur, that could result in changes in the valuation of its capitalized assets in the accounting records, the Contractor shall notify the Administrative Contracting Officer (ACO) within 30 days.

(2) The Contractor shall also notify the ACO within 30 days whenever changes to asset valuations or any other cost changes have occurred or are certain to occur as a result of a change in ownership.

(b) The Contractor shall -

(1) Maintain current, accurate, and complete inventory records of assets and their costs;

(2) Provide the ACO or designated representative ready access to the records upon request;

(3) Ensure that all individual and grouped assets, their capitalized values, accumulated depreciation or amortization, and remaining useful lives are identified accurately before and after each of the Contractor's ownership changes; and

(4) Retain and continue to maintain depreciation and amortization schedules based on the asset records maintained before each Contractor ownership change.

(c) The Contractor shall include the substance of this clause in all subcontracts under this contract that meet the applicability requirement of FAR 15.408(k).

52.216-18 Ordering (OCT 1995)

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from date of contract award through June 2, 2016

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

(c) If mailed, a delivery order or task order is considered "issued" when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.

52.216-19 Order Limitations (OCT 1995)

(a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than $ 1,000 the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to honor -

(1) Any order for a single item in excess of $ 1,000,000;

(2) Any order for a combination of items in excess of $ 1,000,000; or

(3) A series of orders from the same ordering office within ten (10) days that together call for quantities exceeding the limitation in subparagraph (b) (1) or (2) of this section.

(c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph (b) of this section.

(d) Notwithstanding paragraphs (b) and (c) of this section, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within twenty (20) calendar days after issuance, with written notice stating the Contractor's intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

52.216-22 Indefinite Quantity (OCT 1995)

(a) This is an indefinite-quantity contract for the supplies or services specified and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the "maximum." The Government shall order at least the quantity of supplies or services designated in the Schedule as the "minimum."

(c) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after June 2, 2016.

52.217-8 Option to Extend Services (NOV 1999)

The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within thirty (30) calendar days.

52.217-9 Option to Extend the Term of the Contract (MAR 2000)

(a) The Government may extend the term of this contract by written notice to the Contractor within thirty (30) calendar days; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least sixty (60) days before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed five (5) years.

452.216-73 Minimum and Maximum Contract Amounts (FEB 1988)

During the period specified in FAR clause 52.216-18, ORDERING, the Government shall place orders totaling a minimum of $ 2,500.00, but not in excess of $ 2,000,000.00.

52.227-14 RIGHTS IN DATA—GENERAL (DEC 2007)

(a) Definitions. As used in this clause— “Computer database” or “database means” a collection of recorded information in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software.

“Computer software”—

(1) Means

(i) Computer programs that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations; and

(ii) Recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, or compiled.

(2) Does not include computer databases or computer software documentation.

“Computer software documentation” means owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

“Data” means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

“Form, fit, and function data” means data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements. For computer software it means data identifying source, functional characteristics, and performance requirements but specifically excludes the source code, algorithms, processes, formulas, and flow charts of the software.

“Limited rights” means the rights of the Government in limited rights data as set forth in the Limited Rights Notice of paragraph (g)(3) if included in this clause.

“Limited rights data” means data, other than computer software, that embody trade secrets or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications.

“Restricted computer software” means computer software developed at private expense and that is a trade secret, is commercial or financial and confidential or privileged, or is copyrighted computer software, including minor modifications of the computer software.

“Restricted rights,” as used in this clause, means the rights of the Government in restricted computer software, as set forth in a Restricted Rights Notice of paragraph (g) if included in this clause, or as otherwise may be provided in a collateral agreement incorporated in and made part of this contract, including minor modifications of such computer software.

“Technical data” means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer databases and computer software documentation). This term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. The term includes recorded information of a scientific or technical nature that is included in computer databases (See 41 U.S.C. 403(8)).

“Unlimited rights” means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

(b) Allocation of rights.

(1) Except as provided in paragraph (c) of this clause, the Government shall have unlimited rights in—

(i) Data first produced in the performance of this contract;

(ii) Form, fit, and function data delivered under this contract;

(iii) Data delivered under this contract (except for restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under this contract; and

(iv) All other data delivered under this contract unless provided otherwise for limited rights data or restricted computer software in accordance with paragraph (g) of this clause.

(2) The Contractor shall have the right to—

(i) Assert copyright in data first produced in the performance of this contract to the extent provided in paragraph (c)(1) of this clause;

(ii) Use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Contractor in the performance of this contract, unless provided otherwise in paragraph (d) of this clause;

(iii) Substantiate the use of, add, or correct limited rights, restricted rights, or copyright notices and to take other appropriate action, in accordance with paragraphs (e) and (f) of this clause; and

(iv) Protect from unauthorized disclosure and use those data that are limited rights data or restricted computer software to the extent provided in paragraph (g) of this clause.

(c) Copyright—

(1) Data first produced in the performance of this contract.

(i) Unless provided otherwise in paragraph (d) of this clause, the Contractor may, without prior approval of the Contracting Officer, assert copyright in scientific and technical articles based on or containing data first produced in the performance of this contract and published in academic, technical or professional journals, symposia proceedings, or similar works. The prior, express written permission of the Contracting Officer is required to assert copyright in all other data first produced in the performance of this contract.

(ii) When authorized to assert copyright to the data, the Contractor shall affix the applicable copyright notices of 17 U.S.C. 401 or 402, and an acknowledgment of Government sponsorship (including contract number).

(iii) For data other than computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly by or on behalf of the Government. For computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted computer software to reproduce, prepare derivative works, and perform publicly and display publicly (but not to distribute copies to the public) by or on behalf of the Government.

(2) Data not first produced in the performance of this contract. The Contractor shall not, without the prior written permission of the Contracting Officer, incorporate in data delivered under this contract any data not first produced in the performance of this contract unless the Contractor—

(i) Identifies the data; and

(ii) Grants to the Government, or acquires on its behalf, a license of the same scope as set forth in paragraph (c)(1) of this clause or, if such data are restricted computer software, the Government shall acquire a copyright license as set forth in paragraph (g)(4) of this clause (if included in this contract) or as otherwise provided in a collateral agreement incorporated in or made part of this contract.

(3) Removal of copyright notices. The Government will not remove any authorized copyright notices placed on data pursuant to this paragraph (c), and will include such notices on all reproductions of the data.

(d) Release, publication, and use of data. The Contractor shall have the right to use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Contractor in the performance of this contract, except—

(1) As prohibited by Federal law or regulation (e.g., export control or national security laws or regulations);

(2) As expressly set forth in this contract; or

(3) If the Contractor receives or is given access to data necessary for the performance of this contract that contain restrictive markings, the Contractor shall treat the data in accordance with such markings unless specifically authorized otherwise in writing by the Contracting Officer.

(e) Unauthorized marking of data.

(1) Notwithstanding any other provisions of this contract concerning inspection or acceptance, if any data delivered under this contract are marked with the notices specified in paragraph (g)(3) or (g) (4) if included in this clause, and use of the notices is not authorized by this clause, or if the data bears any other restrictive or limiting markings not authorized by this contract, the Contracting Officer may at any time either return the data to the Contractor, or cancel or ignore the markings. However, pursuant to 41 U.S.C. 253d, the following procedures shall apply prior to canceling or ignoring the markings.

(i) The Contracting Officer will make written inquiry to the Contractor affording the Contractor 60 days from receipt of the inquiry to provide written justification to substantiate the propriety of the markings;

(ii) If the Contractor fails to respond or fails to provide written justification to substantiate the propriety of the markings within the 60-day period (or a longer time approved in writing by the Contracting Officer for good cause shown), the Government shall have the right to cancel or ignore the markings at any time after said period and the data will no longer be made subject to any disclosure prohibitions.

(iii) If the Contractor provides written justification to substantiate the propriety of the markings within the period set in paragraph (e)(1)(i) of this clause, the Contracting Officer will consider such written justification and determine whether or not the markings are to be cancelled or ignored. If the Contracting Officer determines that the markings are authorized, the Contractor will be so notified in writing. If the Contracting Officer determines, with concurrence of the head of the contracting activity, that the markings are not authorized, the Contracting Officer will furnish the Contractor a written determination, which determination will become the final agency decision regarding the appropriateness of the markings unless the Contractor files suit in a court of competent jurisdiction within 90 days of receipt of the Contracting Officer’s decision. The Government will continue to abide by the markings under this paragraph (e)(1)(iii) until final resolution of the matter either by the Contracting Officer’s determination becoming final (in which instance the Government will thereafter have the right to cancel or ignore the markings at any time and the data will no longer be made subject to any disclosure prohibitions), or by final disposition of the matter by court decision if suit is filed.

(2) The time limits in the procedures set forth in paragraph (e)(1) of this clause may be modified in accordance with agency regulations implementing the Freedom of Information Act (5 U.S.C. 552) if necessary to respond to a request thereunder.

(3) Except to the extent the Government’s action occurs as the result of final disposition of the matter by a court of competent jurisdiction, the Contractor is not precluded by paragraph (e) of the clause from bringing a claim, in accordance with the Disputes clause of this contract, that may arise as the result of the Government removing or ignoring authorized markings on data delivered under this contract.

(f) Omitted or incorrect markings.

(1) Data delivered to the Government without any restrictive markings shall be deemed to have been furnished with unlimited rights. The Government is not liable for the disclosure, use, or reproduction of such data.

(2) If the unmarked data has not been disclosed without restriction outside the Government, the Contractor may request, within 6 months (or a longer time approved by the Contracting Officer in writing for good cause shown) after delivery of the data, permission to have authorized notices placed on the data at the Contractor’s expense. The Contracting Officer may agree to do so if the Contractor—

(i) Identifies the data to which the omitted notice is to be applied;

(ii) Demonstrates that the omission of the notice was inadvertent;

(iii) Establishes that the proposed notice is authorized; and

(iv) Acknowledges that the Government has no liability for the disclosure, use, or reproduction of any data made prior to the addition of the notice or resulting from the omission of the notice.

(3) If data has been marked with an incorrect notice, the Contracting Officer may—

(i) Permit correction of the notice at the Contractor’s expense if the Contractor identifies the data and demonstrates that the correct notice is authorized; or

(ii) Correct any incorrect notices.

(g) Protection of limited rights data and restricted computer software.

(1) The Contractor may withhold from delivery qualifying limited rights data or restricted computer software that are not data identified in paragraphs (b)(1)(i), (ii), and (iii) of this clause. As a condition to this withholding, the Contractor shall—

(i) Identify the data being withheld; and

(ii) Furnish form, fit, and function data instead.

(2) Limited rights data that are formatted as a computer database for delivery to the Government shall be treated as limited rights data and not restricted computer software.

(3) [Reserved]

(h) Subcontracting. The Contractor shall obtain from its subcontractors all data and rights therein necessary to fulfill the Contractor’s obligations to the Government under this contract. If a subcontractor refuses to accept terms affording the Government those rights, the Contractor shall promptly notify the Contracting Officer of the refusal and shall not proceed with the subcontract award without authorization in writing from the Contracting Officer.

(i) Relationship to patents or other rights. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government.

52.232-35 Designation of Office for Government Receipt of Electronic Funds Transfer Information (MAY 1999)

(a) As provided in paragraph (b) of the clause at 52.232-34, Payment by Electronic Funds Transfer--Other than Central Contractor Registration, the Government has designated the office cited in paragraph (c) of this clause as the office to receive the Contractor's electronic funds transfer (EFT) information, in lieu of the payment office of this contract.

(b) The Contractor shall send all EFT information, and any changes to EFT information to the office designated in paragraph (c) of this clause. The Contractor shall not send EFT information to the payment office, or any other office than that designated in paragraph (c). The Government need not use any EFT information sent to any office other than that designated in paragraph (c).

(c) Designated Office:

Name: USDA NATIONAL FINANCE CENTER

Telephone Number: (800) 421-0323

52.232-33 Payment by Electronic Funds Transfer - Central Contractor Registration. (OCT 2003)

(a) Method of payment.

(1) All payments by the Government under this contract shall be made by electronic funds transfer (EFT), except as provided in paragraph (a)(2) of this clause. As used in this clause, the term "EFT" refers to the funds transfer and may also include the payment information transfer.

(2) In the event the Government is unable to release one or more payments by EFT, the Contractor agrees to either -

(i) Accept payment by check or some other mutually agreeable method of payment; or

(ii) Request the Government to extend the payment due date until such time as the Government can make payment by EFT (but see paragraph (d) of this clause).

(b) Contractor's EFT information. The Government shall make payment to the Contractor using the EFT information contained in the Central Contractor Registration (CCR) database. In the event that the EFT information changes, the Contractor shall be responsible for providing the updated information to the CCR database.

(c) Mechanisms for EFT payment. The Government may make payment by EFT through either the Automated Clearing House (ACH) network, subject to the rules of the National Automated Clearing House Association, or the Fedwire Transfer System. The rules governing Federal payments through the ACH are contained in 31 CFR part 210.

(d) Suspension of payment. If the Contractor's EFT information in the CCR database is incorrect, then the Government need not make payment to the Contractor under this contract until correct EFT information is entered into the CCR database; and any invoice or contract financing request shall be deemed not to be a proper invoice for the purpose of prompt payment under this contract. The prompt payment terms of the contract regarding notice of an improper invoice and delays in accrual of interest penalties apply.

(e) Liability for uncompleted or erroneous transfers. (1) If an uncompleted or erroneous transfer occurs because the Government used the Contractor's EFT information incorrectly, the Government remains responsible for -

(i) Making a correct payment;

(ii) Paying any prompt payment penalty due; and

(iii) Recovering any erroneously directed funds.

(2) If an uncompleted or erroneous transfer occurs because the Contractor's EFT information was incorrect, or was revised within 30 days of Government release of the EFT payment transaction instruction to the Federal Reserve System, and -

(i) If the funds are no longer under the control of the payment office, the Government is deemed to have made payment and the Contractor is responsible for recovery of any erroneously directed funds; or

(ii) If the funds remain under the control of the payment office, the Government shall not make payment, and the provisions of paragraph (d) of this clause shall apply.

(f) EFT and prompt payment. A payment shall be deemed to have been made in a timely manner in accordance with the prompt payment terms of this contract if, in the EFT payment transaction instruction released to the Federal Reserve System, the date specified for settlement of the payment is on or before the prompt payment due date, provided the specified payment date is a valid date under the rules of the Federal Reserve System.

(g) EFT and assignment of claims. If the Contractor assigns the proceeds of this contract as provided for in the assignment of claims terms of this contract, the Contractor shall require as a condition of any such assignment, that the assignee shall register…