Solicitation 0020 text.pdf

8686Solicitation AG-82B1-S-09-0020 Page 3 of 86

PART - THE SCHEDULE

SECTION B - SUPPLIES OR SERVICES AND PRICES

SWAN LAKE DAY USE AND CAMPGROUND PAVING

SWAN LAKE RANGER DISTRICT

FLATHEAD NATIONAL FOREST

LAKE COUNTY, MONTANA

B- 1 Schedule of Items

METHOD * PAY EST. UNIT AMOUNT

ITEM NO. DESCRIPTION OF MEAS. UNIT QTY. PRICE OFFERED

151(01) Mobilization LSQ LS 1 XXXXXXX $___________

201(10) Individual Tree Removal AQ EA 10 $__________ $___________ (Includes Stumps)

203(04)A Removal of Existing CQ SY 11165 $__________ $___________ Bituminous Surfacing, (Roads & Parking Areas) --- Pavement Pulverization

203(04)B Removal of Existing CQ SY 1490 $__________ $___________ Bituminous Surfacing, (Walking Trails)

203(05) Removal of Structures LSQ LS 1 XXXXXXX $___________ and Obstructions

303(30) Road and Parking Area LSQ LS 1 XXXXXXX $___________ Scarification and Reconditioning

303(31) Walking Trail Scarification LSQ LS 1 XXXXXXX $___________ and Reconditioning

306(07) Magnesium Chloride Brine, CQ GAL 3520 $_________ $___________ (Prime Coat), Minimum 28% Concentration

METHOD * PAY EST. UNIT AMOUNT

ITEM NO. DESCRIPTION OF MEAS. UNIT QTY. PRICE OFFERED

308(02)A Base Aggregate, (Roads AQ TON 2800 $_________ $___________ & Parking Areas), Grading C or D, Method (2), Commercial Source

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308(02)B Base Aggregate, (Walking AQ TON 245 $_________ $___________ Trails), Grading D or E, Method (2), Commercial Source

404(01)A Minor Hot Asphalt AQ TON 2090 $_________ $___________ Concrete, (Roads & Parking Areas) --- Commercial Source

404(01)B Minor Hot Asphalt AQ TON 190 $_________ $___________ Concrete, (Walking Trails) --- Commercial Source

420(01) Seal for Light Traffic CQ SY 30300 $__________ $___________ Pavements, 1.0 Pounds Residue / S.Y.

602(53) 42-Inch Span x 29-Inch AQ LF 42 $_________ $___________ Rise Corrugated Steel Pipe Arch, 0.079-Inch Thickness, Compaction Method B

605(20) French Drain LSQ LS 1 XXXXXXX $___________

609(50) Portland Cement Concrete AQ EA 49 $_________ $___________ Wheel Stops (6 ft. Length)

625(28) Seeding, Fertilizing, and LSQ LS 1 XXXXXXX $___________ Mulching, Dry Method

METHOD * PAY EST. UNIT AMOUNT

ITEM NO. DESCRIPTION OF MEAS. UNIT QTY. PRICE OFFERED

630(01) Root Control System, AQ LF 590 $_________ $___________ --- 19.5-Inch Wide Geotextile Roll

633(20) Reflective, Recycled, AQ EA 3 $_________ $___________ Rubber Traffic Speed Bump, (18 Foot Length)

--- Commercial Source

634(06) Permanent Pavement LSQ LS 1 XXXXXXX $___________ Markings, Type A

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650(01) Furnish and Install Road AQ EA 1 $_________ $___________ Closure Device, Type Steel Gate, Size Double Lane

TOTAL PRICE (ALL ITEMS) $_______________________

* Designated Method of Measurement:

CQ - Contract Quantities, AQ - Actual Quantities, LSQ - Lump Sum Quantities

Note: Payment for bond premiums in accordance with FAR Clause 52.232-5, Payment Under Fixed- Price Construction Contracts, shall not be in addition to the contract price.

PART I – THE SCHEDULE

SECTION C - DESCRIPTION/SPECIFICATIONS

C- 1 Scope of Contract

The project consists of reconstructing the Swan Lake Day Use roads, parking areas and walking trails along with reconstructing a portion of the Swan Lake Campground main access road. The major items of work include: existing bituminous pavement pulverization (roads and parking areas) and bituminous pavement removal (trails); road, parking area and walking trail scarification and reconditioning;

furnishing and placing crushed aggregate base, hot asphalt concrete, and root control geotextile;

furnishing and installing a road closure gate and 42-inch span x 29-inch rise corrugated steel pipe arch;

applying seal coat and permanent pavement markings; and seeding, fertilizing and mulching the site.

452.211-73 STATEMENT OF WORK/SPECIFICATIONS (FEB 1988)

The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J.

(End of Clause)

C-1 Project Location

The project is located on the Swan Lake Ranger District of the Flathead National Forest, Lake County, Montana and is situated approximately 35 miles southeast of Kalispell, Montana, in the town of Swan Lake adjacent to State Highway No. 83.

C- 2 Price Range

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The Government cost estimate is between $250,000 and $500,000.

C-3 Site Visit

No site visit is planned for this project. For further information, please contact Brad Russell at the Flathead National Forest, Supervisor’s Office, telephone (406) 758-5323. (See Section L, FAR Clause 52.236-27).

C- 4 Start Work

It is estimated that the Notice to Proceed will be issued approximately September 15, 2009. (See Section F, FAR Clause 52.211-10).

C- 5 Government-Furnished Property

Construction staking for the project will be completed by the Government by September 8, 2009.

C- 6 Standard Specifications

"Standard Specifications for Construction of Roads & Bridges on Federal Highway Projects" (FP-03, U.S. Customary Units) are included in this solicitation by reference only. The requirements contained in these Specifications are hereby made a part of this solicitation and any resultant contract.

The “Forest Service Specifications for Construction of Roads and Bridges on Federal Highway Projects” (FP – 03, U.S. Customary Units) is available on the Internet at:

http://www.wfl.fhwa.dot.gov/design/specs/fp03.htm.

The following Standard Specifications are incorporated by reference:

Section 101 Terms, Format, and Definitions Section 103 Scope of Work Section 104 Control of Work Section 105 Control of Material Section 106 Acceptance of Work Section 107 Legal Relations and Responsibility to the Public Section 109 Measurement and Payment Section 151 Mobilization Section 201 Clearing And Grubbing Section 203 Removal of Structures and Obstructions Section 209 Structure Excavation and Backfill Section 306 Dust Palliative Section 404 Minor Hot Asphalt Concrete Section 602 Culverts and Drains Section 605 Underdrains, Sheet Drains, and Pavement Edge Drains Section 609 Curb and Gutter

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Section 625 Turf Establishment Section 633 Permanent Traffic Control Section 634 Permanent Pavement Markings Section 703 Aggregate

C- 7 Project Supplemental Specifications

The following Project Supplemental Specifications are applicable to this contract and are physically included as an attachment:

Preface 1 page FSSS 101 -- Terms, Format, and Definitions 3 pages FSSS 102 – Bid, Award, and Execution of Contract 1 page FSSS 103 -- Scope of Work 1 page FSSS 104 – Control of Work 1 page FSSS 106 – Acceptance of Work 3 pages FSSS 107 – Legal Relations and Responsibility to the Public 2 pages FSSS 108 – Prosecution and Progress 1 page FSSS 109 – Measurement and Payment 2 pages FSSS 155 – Schedules For Construction Contracts 1 page FSSS 201 – Clearing and Grubbing 1 page FSSS 203 – Removal of Structures and Obstructions 1 page FSSS 209 – Structure Excavation and Backfill 1 page FSSS 303 – Road Reconditioning 1 page FSSS 306 – Dust Palliative 1 page FSSS 308 – Minor Crushed Aggregate 2 pages FSSS 404 – Minor Hot Asphalt Concrete 2 pages FSSS 420 – Seal for Light Traffic Pavements 3 pages FSSS 601 – Minor Concrete 4 pages FSSS 602 – Culverts and Drains 1 page FSSS 605 – Underdrains, Sheet Drains, Pavement Edge Drains, and 1 page French Drains FSSS 625 – Turf Establishment 3 pages FSSS 630 – Root Control System 2 pages FSSS 633 – Permanent Traffic Control 1 page FSSS 634 – Permanent Pavement Markings 1 page FSSS 650 – Road Closure Devices 2 pages FSSS 703 – Aggregate 5 pages

C-8 Drawings

The following drawings are a part of this solicitation and any resulting contract:

* Title Sheet Sheet 1

* Summary of Quantities Sheet 2

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* General Notes Sheet 3

* Typical Sections & Details Sheets 4 - 5

* Swan Lake Day Use Layout Sheet 6

* Swan Lake Campground Layout Sheet 7

* Quantity Breakouts for Asphalt Removal, Aggregate Base, Sheet 8 Magnesium Chloride, Asphalt, & Seal Coat

* Swan Lake Day Use & Campground Painting Details Sheets 9 - 10

* Road Closure Gate Fabrication & Installation Details Sheets 11 - 12

Project drawings are available electronically. They may be viewed and printed with Autodesk Design Review, a free viewer available for download at: http://usa.autodesk.com.

SECTION D – PACKAGING AND MARKING

This section is left blank intentionally.

SECTION E – INSPECTION AND ACCEPTANCE

E-1 Periodic field inspections will be made by the designated Contracting Officer Representative (COR) or the COR’s designated inspector. Work not completed to contract standards shall be rejected and reworked without additional compensation to the Contractor FAR 52.252-2.

52.246-12 Inspection of Construction.

INSPECTION OF CONSTRUCTION (AUG 1996)

(a) Definition. “Work” includes, but is not limited to, materials, workmanship, and manufacture and fabrication of components.

(b) The Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements. The Contractor shall maintain complete inspection records and make them available to the Government. All work shall be conducted under the general direction of the

Contracting Officer and is subject to Government inspection and test at all places and at all reasonable times before acceptance to ensure strict compliance with the terms of the contract.

(c) Government inspections and tests are for the sole benefit of the Government and do not—

(1) Relieve the Contractor of responsibility for providing adequate quality control measures;

(2) Relieve the Contractor of responsibility for damage to or loss of the material before acceptance;

(3) Constitute or imply acceptance; or

(4) Affect the continuing rights of the Government after acceptance of the completed work under paragraph (i) of this section.

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(d) The presence or absence of a Government inspector does not relieve the Contractor from any contract requirement, nor is the inspector authorized to change any term or condition of the specification without the

Contracting Officer’s written authorization.

(e) The Contractor shall promptly furnish, at no increase in contract price, all facilities, labor, and material reasonably needed for performing such safe and convenient inspections and tests as may be required by the

Contracting Officer. The Government may charge to the Contractor any additional cost of inspection or test when work is not ready at the time specified by the Contractor for inspection or test, or when prior rejection makes reinspection or retest necessary. The Government shall perform all inspections and tests in a manner that will not unnecessarily delay the work. Special, full size, and performance tests shall be performed as described in the contract.

(f) The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the work with an appropriate adjustment in contract price. The Contractor shall promptly segregate and remove rejected material from the premises.

(g) If the Contractor does not promptly replace or correct rejected work, the Government may—

(1) By contract or otherwise, replace or correct the work and charge the cost to the Contractor; or

(2) Terminate for default the Contractor’s right to proceed.

(h) If, before acceptance of the entire work, the Government decides to examine already completed work by removing it or tearing it out, the Contractor, on request, shall promptly furnish all necessary facilities, labor, and material. If the work is found to be defective or nonconforming in any material respect due to the fault of the

Contractor or its subcontractors, the Contractor shall defray the expenses of the examination and of satisfactory reconstruction. However, if the work is found to meet contract requirements, the Contracting Officer shall make an equitable adjustment for the additional services involved in the examination and reconstruction, including, if completion of the work was thereby delayed, an extension of time.

(i) Unless otherwise specified in the contract, the Government shall accept, as promptly as practicable after completion and inspection, all work required by the contract or that portion of the work the Contracting Officer determines can be accepted separately. Acceptance shall be final and conclusive except for latent defects, fraud, gross mistakes amounting to fraud, or the Government’s rights under any warranty or guarantee.

(End of clause)

SECTION F DELIVERIES OR PERFORMANCE

52.211-10 Commencement, Prosecution, and Completion of Work.

COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984)

The Contractor shall be required to (a) commence work under this contract within 285 calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and

(c) complete the entire work ready for use not later than June 30, 2010.* The time stated for completion shall include final cleanup of the premises.

*The completion date is based on the assumption that the successful offeror will receive the notice to proceed by September 15, 2009. The completion date will be extended by the number of calendar days after the above date that the Contractor receives the notice to

8686Solicitation AG-82B1-S-09-0020 Page 10 of 86 proceed, except to the extent that the delay in issuance of the notice to proceed results from the failure of the Contractor to execute the contract and give the required performance and payment bonds within the time specified in the offer.

(End of clause)

The following is added to the foregoing FAR Clause 52.211-10:

No on-site construction activities will be allowed until after Labor Day (September 7, 2009).

The Swan Lake Day Use Area and the Swan Lake Campground will be closed to the Public during periods of active construction activities.

Prior to project winter shutdown in the fall of 2009, the Day Use boat ramp, the boat ramp loop road and the loop road parking areas along with the Campground access road and gravel parking area shall be left open to the Public in a safe and useable condition, as agreed to with the Forest Service, for the winter and early spring period when no active construction activities are occurring. The areas will be closed again to public use when construction activities resume in the spring of 2010.

52.242-14 Suspension of Work. (APR 1984)

(a) The Contracting Officer may order the Contractor, in writing, to suspend, delay, or interrupt all or any part of the work of this contract for the period of time that the Contracting Officer determines appropriate for the convenience of the Government.

(b) If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of this contract, or (2) by the Contracting Officer's failure to act within the time specified in this contract (or within a reasonable time if not specified), an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly.

However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract.

(c) A claim under this clause shall not be allowed -

(1) For any costs incurred more than 20 days before the Contractor shall have notified the Contracting Officer in writing of the act or failure to act involved (but this requirement shall not apply as to a claim resulting from a suspension order); and

(2) Unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of the suspension, delay, or interruption, but not later than the date of final payment under the contract.

SECTION G – CONTRACT ADMINISTRATION DATA

AGAR 452.215-73 Post-award Conference. (NOV 1996)

A post award conference with the successful bidder is required. It will be scheduled within 10 days after

8686Solicitation AG-82B1-S-09-0020 Page 11 of 86 the date of contract award. The conference will be held at: location will be determined upon scheduling of the conference at the time of contract award.

SECTION H - SPECIAL CONTRACT REQUIREMENTS

RECOVERY ACT CLAUSES:

The following clauses, mandated by the American Recovery and Reinvestment Act, are hereby incorporated in full text. The immediate following clause requires reports to be filed the 10th day after the close of each quarter to www.FederalReporting.gov, pursuant to paragraph (d) therein. That website will not be operational until October 2, 2009;

accordingly, the contractor shall submit the required reports directly to the following address until such time as the website becomes operational:

U.S. Forest Service, 740 Simms Street Attention: EROC Golden, Colorado 80401

H-1 52.204-11 American Recovery and Reinvestment Act—Reporting Requirements.

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.

“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)):

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(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

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(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.

H-2 52.225-21 Required Use of American Iron, Steel, and Other Manufactured Goods—Buy American Act—

Construction Materials.

REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS-BUY AMERICAN ACT-CONSTRUCTION

MATERIALS (MAR 2009)

(a) Definitions. As used in this clause—

“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

8686Solicitation AG-82B1-S-09-0020 Page 14 of 86 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.

“Domestic construction material” means—

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

(2) A construction material manufactured in the United States.

“Foreign construction material” means a construction material other than a domestic construction material.

“Manufactured construction material” means any construction material that is not unmanufactured construction material.

“Steel” means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements.

“United States” means the 50 States, the District of Columbia, and outlying areas.

“Unmanufactured construction material” means raw material brought to the construction site for incorporation into the building or work that has not been—

(1) Processed into a specific form and shape; or

(2) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials.

(b) Domestic preference.

(1) This clause implements—

(i) Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring, unless an exception applies, that all iron, steel, and other manufactured goods used as construction material in the project are produced in the United States; and

(ii) The Buy American Act (41 U.S.C. 10a - 10d) by providing a preference for unmanufactured domestic construction material.

(2) The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraph (b) (3) and (b) (4) of this clause.

(3) This requirement does not apply to the construction material or components listed by the Government as follows:

None

(4) The Contracting Officer may add other foreign construction material to the list in paragraph (b) (3) of this clause if the Government determines that—

(i) The cost of domestic construction material would be unreasonable.

(A) The cost of domestic iron, steel, or other manufactured goods used as construction material is unreasonable when the cumulative cost of such material will increase the cost of the contract by more than 25 percent;

(B) The cost of unmanufactured construction material is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent;

(ii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or

(iii) The application of the restriction of section 1605 of the Recovery Act or the Buy American Act to a particular construction material would be inconsistent with the public interest.

(c) Request for determination of inapplicability of Section 1605 of the Recovery Act or the Buy American Act

(1)(i) Any Contractor request to use foreign construction material in accordance with paragraph (b) (4) of this clause shall include adequate information for Government evaluation of the request, including—

(A) A description of the foreign and domestic construction materials;

(B) Unit of measure;

(C) Quantity;

(D) Cost;

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(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b) (4) of this clause.

(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this clause.

(iii) The cost of construction material shall include all delivery costs to the construction site and any applicable duty.

(iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination.

(2) If the Government determines after contract award that an exception to section 1605 of the Recovery Act or the Buy

American Act applies and the Contracting Officer and the Contractor negotiate adequate consideration, the Contracting

Officer will modify the contract to allow use of the foreign construction material. However, when the basis for the exception is the unreasonable cost of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(4)(i) of this clause.

(3) Unless the Government determines that an exception to section 1605 of the Recovery Act or the Buy American Act applies, use of foreign construction material is noncompliant with section 1605 of the American Recovery and Reinvestment

Act or the Buy American Act.

(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers:

Construction Material Description Unit of Measure Quantity Cost (Dollars)*

Item 1:

Foreign construction material

Domestic construction material

Item 2:

[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.] [Include other applicable supporting information.] [* Include all delivery costs to the construction site.]

H-3 52.225-23 Required Use of American Iron, Steel, and Other Manufactured Goods—Buy American Act—

Construction Materials Under Trade Agreements.

REQUIRED USE OF AMERICAN IRON, STEEL, AND OTHER MANUFACTURED GOODS—BUY AMERICAN ACT—

CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (MAR 2009)

(a) Definitions. As used in this clause—

“Construction material” means an article, material, or supply brought to the construction site by the Contractor or 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

8686Solicitation AG-82B1-S-09-0020 Page 16 of 86 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.

“Domestic construction material” means—

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

(2) A construction material manufactured in the United States.

“Foreign construction material” means a construction material other than a domestic construction material.

“Free trade agreement (FTA) country construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of an FTA country; or

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in an FTA country into a new and different construction material distinct from the materials from which it was transformed.

“Least developed country construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of a least developed country; or

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different construction material distinct from the materials from which it was transformed.

“Manufactured construction material” means any construction material that is not unmanufactured construction material.

“Recovery Act designated country” means any of the following countries:

(1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, or United

Kingdom);

(2) A Free Trade Agreement country (FTA)(Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El

Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore); or

(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia).

“Recovery Act designated country construction material” means a construction material that is a WTO GPA country construction material, an FTA country construction material, or a least developed country construction material.

“Steel” means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements.

“United States” means the 50 States, the District of Columbia, and outlying areas.

“Unmanufactured construction material” means raw material brought to the construction site for incorporation into the building or work that has not been—

(1) Processed into a specific form and shape; or

(2) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials.

“WTO GPA country construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different construction material distinct from the materials from which it was transformed.

(b) Construction materials.

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(1) The restrictions of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)

(Recovery Act) and the Buy American Act (41 U.S.C. 10a–10d) do not apply to Recovery Act designated country construction material. Consistent with U.S. obligations under international agreements, this clause implements—

(i) Section 1605 of the Recovery Act by requiring, unless an exception applies, that all iron, steel, and other manufactured goods used as construction material in the project are produced in the United States; and

(ii) The Buy American Act by providing a preference for unmanufactured domestic construction material.

(2) The Contractor shall use only domestic or Recovery Act designated country construction material in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause.

(3) The requirement in paragraph (b)(2) of this clause does not apply to the construction materials or components listed by the Government as follows: None

[Contracting Officer to list applicable excepted materials or indicate “none”.]

(4) The Contracting Officer may add other construction material to the list in paragraph (b)(3) of this clause if the

Government determines that—

(i) The cost of domestic construction material would be unreasonable.

(A) The cost of domestic iron, steel, or other manufactured goods used as construction material is unreasonable when the cumulative cost of such material will increase the overall cost of the contract by more than 25 percent;

(B) The cost of unmanufactured construction material is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent;

(ii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; or

(iii) The application of the restriction of section 1605 of the Recovery Act or the Buy American Act to a particular construction material would be inconsistent with the public interest.

(c) Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American Act.

(1)(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(4) of this clause shall include adequate information for Government evaluation of the request, including—

(A) A description of the foreign and domestic construction materials;

(B) Unit of measure;

(C) Quantity;

(D) Cost;

(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(4) of this clause.

(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this clause.

(iii) The cost of construction material shall include all delivery costs to the construction site and any applicable duty.

(iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination.

(2) If the Government determines after contract award that an exception to section 1605 of the Recovery Act or the Buy

American Act applies and the Contracting Officer and the Contractor negotiate adequate consideration, the Contracting

Officer will modify the contract to allow use of the foreign construction material. However, when the basis for the exception is the unreasonable cost of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(4)(i) of this clause.

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(3) Unless the Government determines that an exception to the section 1605 of the Recovery Act or the Buy American

Act applies, use of foreign construction material other than that covered by trade agreements is noncompliant with the applicable Act.

(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers:

Construction Material Description Unit of Measure Quantity Cost (Dollars)*

Item 1:

Item 2:

[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.] [Include other applicable supporting information.] [* Include all delivery costs to the construction site.]

Foreign and Domestic Construction Materials Cost Comparison

H-4 52.203-15 Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009.

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).

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

H. R. 1—183

H- 5 SEC. 1553. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR

WHISTLEBLOWERS.

(a) PROHIBITION OF REPRISALS.—An employee of any non-Federal employer receiving covered funds may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee’s duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct), a court or grand jury, the head of a Federal agency, or their representatives, information that the employee reasonably believes is evidence of— (1) gross mismanagement of an agency contract or grant relating to covered funds; (2) a gross waste of covered funds; (3) a substantial and specific danger to public health or safety related to the implementation or use of covered funds; (4) an abuse of authority related to the implementation or use of covered funds; or (5) a violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds.

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(b) INVESTIGATION OF COMPLAINTS.—

(1) IN GENERAL.—A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint regarding the reprisal to the appropriate inspector general. Except as provided under paragraph (3), unless the inspector general determines that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint, the inspector general shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the person’s employer, the head of the appropriate agency, and the Board.

(2) TIME LIMITATIONS FOR ACTIONS.—

(A) IN GENERAL.—Except as provided under subparagraph (B), the inspector general shall, not later than 180 days after receiving a complaint under paragraph (1)— H. R. 1—184

(i) make a determination that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint; or

(ii) submit a report under paragraph (1).

(B) EXTENSIONS.—

(i) VOLUNTARY EXTENSION AGREED TO BETWEEN INSPECTOR GENERAL AND COMPLAINANT.—If the inspector general is unable to complete an investigation under this section in time to submit a report within the 180-day period specified under subparagraph (A) and the person submitting the complaint agrees to an extension of time, the inspector general shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the inspector general and the person submitting the complaint.

(ii) EXTENSION GRANTED BY INSPECTOR GENERAL.— If the inspector general is unable to complete an investigation under this section in time to submit a report within the 180-day period specified under subparagraph (A), the inspector general may extend the period for not more than 180 days without agreeing with the person submitting the complaint to such extension, provided that the inspector general provides a written explanation (subject to the authority to exclude information under paragraph (4)(C)) for the decision, which shall be provided to both the person submitting the complaint and the non-Federal employer.

(iii) SEMI-ANNUAL REPORT ON EXTENSIONS.—The inspector general shall include in semi-annual reports to Congress a list of those investigations for which the inspector general received an extension.

(3) DISCRETION NOT TO INVESTIGATE COMPLAINTS.—

(A) IN GENERAL.—The inspector general may decide not to conduct or continue an investigation under this section upon providing to the person submitting the complaint and the non-Federal employer a written explanation (subject to the authority to exclude information under paragraph (4)(C)) for such decision.

(B) ASSUMPTION OF RIGHTS TO CIVIL REMEDY.—Upon receipt of an explanation of a decision not to conduct or continue an investigation under subparagraph (A), the person submitting a complaint shall immediately assume the right to a civil remedy under subsection (c)(3) as if the 210-day period specified under such subsection has already passed.

(C) SEMI-ANNUAL REPORT.—The inspector general shall include in semi-annual reports to Congress a list of those investigations the inspector general decided not to conduct or continue under this paragraph.

(4) ACCESS TO INVESTIGATIVE FILE OF INSPECTOR GENERAL.—

(A) IN GENERAL.—The person alleging a reprisal under this section shall have access to the investigation file of H. R. 1— 185 the appropriate inspector general in accordance with section 552a of title 5, United States Code (commonly referred to as the ‘‘Privacy Act’’). The investigation of the inspector general shall be deemed closed for purposes of disclosure under such section when an employee files an appeal to an agency head or a court of competent jurisdiction.

(B) CIVIL ACTION.—In the event the person alleging the reprisal brings suit under subsection (c)(3), the person alleging the reprisal and the non-Federal employer shall have access to the investigative file of the inspector general in accordance with the Privacy Act.

(C) EXCEPTION.—The inspector general may exclude from disclosure—

(i) information protected from disclosure by a provision of law; and (ii) any additional information the inspector general determines disclosure of which…