Brush Competition 09-0093 B-M.doc

Revisions in progress based on 2003 field use 11/26/2003

Brush Competition Removal, AG-82B1-S-09-0093

SECTION B - SUPPLIES OR SERVICES AND PRICES/COST

BRUSH COMPETITION REMOVAL

Kootenai National Forest Cabinet Ranger Districts

Sanders County, Montana

B. 1. SCHEDULE OF ITEMS

The Cabinet Ranger District is requesting proposals for Brush Competition Removal of an estimated 229 acres for 2009.

NOTE: The basic prices shall include the following requirements:

1. Brush Clearing – 5 foot radius around each tree species identified in individual

Silvicultural prescriptions.

2. All brush shall be cut, including all lower branches.

3. Slash will be pull back outside 5 foot radius and cut into lengths 3 feet or less.

4. Brush definition will also include non-desirable tree species to be cut, if within the 5 foot radius.

5. All work will be done by hand using hand pruners or loppers. No chainsaws will used with the following exceptions: Items 7.2.4 and 7.2.5, in which a Trail Saw may be used.

6. Walk-ins up to and including one half mile or more.

SCHEDULE OF ITEMS:

Bid Item # 1

Bid Item # 2

Bid Item #3

Walk-in Requirements: Additional walk-in, over and above those included in the base prices, may be required for some units. These requirements will be identified in the Detailed Unit Information Chart provided with the delivery order. The prices inserted below are for each crew member to get from the point of vehicle access to the closest edge of the brushing unit. The walk-in rate will be paid only once per day and not on the number of repeated walk-ins on that day. These prices will be added to the basic price when required.

One Half Mile to One Mile

One Mile to One and One Half Miles

B -2 INCIDENTAL PAYMENT ITEMS

The intent of the contract is to provide for the complete brush competition removal as described in the contract. Unless otherwise provided, the Contractor shall furnish all labor, materials, equipment tools, transportation, and supplies and perform all work required to complete the brush removal in accordance with the exhibits, specifications, and provisions of the contract. Payment for contract work will be made for and under those pay items included in the Schedule of Items. All other work and materials will be considered as incidental to and included in the payment for items shown.

SECTION C –DESCRIPTION/SPECIFICATIONS/WORK STATEMENT

C - 1 SCOPE OF CONTRACT

This contract requires brush competition removal around past planted seedlings to encourage growth without competition. It requires that all cut brush/trees be pulled away from the specified seedling. Brush will not be piled, just pulled back at the radius addressed in each Silvicultural prescription. All aspects of the work program shall be performed in an organized, systematic manner to assure services shall be performed over the entire unit.

C - 2 LOCATION AND DESCRIPTION

The work is located on the Cabinet Ranger District, Sanders County, the Kootenai National Forest, Montana..

(a) Accessibility.

The project areas may be reached by Forest roads that are accessible by standard two-wheel drive pickup trucks equipped for mountain driving during normal operating season, except for walk-ins behind earthen barriers where no motorized vehicles will be allowed. If any gate closures become restricted, access to the Contractor for unseen reasons as to date, walk-in work will be required. The Government assumes no obligation to plow snow or do special maintenance to keep roads open.

(b) Boundaries.

Brushing unit boundaries are obvious on-the-ground features (clearcut unit that has become fully stocked with sapling size or smaller trees or roads, etc) and will usually not be flagged. Boundaries on some units will be flagged where expected discrepancies may occur. Flagging or paint colors will usually be either blue and/or orange.

· Background information: Most units will still have visible timber sale boundary markings and/or planting markings on them.

· There are snags and burned trees present in these sites that create a potential for blow-down or falling debris that increases during windy conditions.

(c) Description.

See the Detailed Unit Information Chart or individual Silvicultural Prescriptions.

(d) Camping.

A permit is required for camping. It can be obtained at the Cabinet RD.

(e) Firearms and Hunting.

No firearms/hunting will be allowed. No firearms will be transported in vehicles behind gate closures or earthen barriers.

C – 3 DEFINITIONS OF TECHNICAL SPECIFICATIONS AND TERMS

(a) ACCEPTABLE TREE - An existing conifer, seedling and/or sapling size, that is of good form, color, free of damage, has 50% or greater crown ratio, and is the species and size specified in the Detailed Unit Information Chart.

(b) AVERAGE SPACING - The distance in feet from one leave tree to the nearest leave trees measured from the center of the tree.

(c) CLEARING - Removal of surface debris around the seedling/sapling. This includes brush, downed woody materials or anything causing interference with the growth of said tree. Removal of any obstacle hampering growth of the seedling.

(d) BLISTER RUST INFECTION – This is a bole or stem infection that frequently – but not always – results in abundant resin flow. Subsequent cankers often have a discolored area surrounding the dead bark (usually dark grayish-brown to greenish- yellow color). Sometimes a bole or stem infection needs to be moistened to see it clearly. Also, in the aecia state, bright orange fruiting bodies may be present.

(e) BOLE – The trunk of a tree.

(f) BRUSHING – The severing of ALL limbs, live or dead, from any and all brush surrounding the identified seedlings in the Detailed Unit Information Chart.

(g) CULL TREES –

a. Diseased Trees – those showing signs of blister rust, root rot, etc.

b. Forked Trees – Trees with a secondary stem connected to the main bole.

c. Damaged Trees – Leaning trees; mechanically damaged trees, broken top trees, etc.

d. Undesirable Trees – Trees with less than 40% crown; trees with dead tops.

(h) SLASH – Slash is considered to be all cull logs, broken tops, limbs, branches, pruned branches, damaged and destroyed reproduction, saplings and poles which were created during logging, clearing, construction or thinning.

(i) CONTRACTING OFFICERS REPRESENTATIVE (COR) - The COR is the on-site contract administrator for the Contracting Officer (CO). The duties and responsibilities of a COR are defined in the letter of designation issued by the Contracting Officer.

(j) Period of Performance (also Performance Period or Contract Time) - All calendar days allowed for completion of contract work. Includes all days of the week including weekends and holidays.

(k) Quality Assurance - The actions taken by the Government to assess the Contractor’s results to determine that they meet contract requirements. The methods for quality assurance are described in the Quality Assurance Surveillance Plan (QASP).

(l) Quality Control - Those actions taken by a Contractor to control the production of outputs to ensure that they conform to the contract requirements. The methods for inspecting for quality control are described in the Contractor’s Quality Control Plan (QCP).

C - 4 CONTROL OF WORK

(a) The Government may specify a priority of work by items during the period of the contract.

(b) If necessary, the Government can substitute units for those shown in the Detailed Unit Information Chart (DUIC). Such occasion will happen if (1) for other resource reasons; (2) for inadequate information about the character of the unit in the DUIC, and or (3) logistics of doing the work (example: other contract concerns, safety, etc.) cause a need to change the attached DUIC.

(c) If any cultural or archeological sites are discovered by the contractor, or discovered by the Government during operations of this contract, work will be suspended in the immediate vicinity of the site until a reconnaissance survey is completed by the Forest Archeologist or their representative.

(d) Project work may be done at any time during the term of the contract except under the following conditions when specified by the Government:

· Weather predictions indicate a hazardous fire condition warranting curtailment of operations.

· No walk-in or drive-in permit is authorized into Grizzly Bear Habitat until after June 30th each year.

· No driving behind gated closures during the week prior to big game season and the first week of big game season. However, daily walk-in is acceptable.

· The Contractor shall notify the Contracting Officer (CO) or Contracting Officers Representative (COR) of changes in their work schedule. Failure to give 24 hours in advance notice of non-work days or portions thereof may be cause for suspension of work and assessment of damages.

(e) MOTORIZED EQUIPMENT. Use of motorized equipment will not be permitted off designated roads in the project area without the approval of the Contracting Officer.

(f) SALVAGEABLE MATERIAL Not applicable to this contract. No firewood gathering or salvaging shall occur.

C – 5 CONTRACTOR RESPONSIBILITIES

PERFORMANCE ASSESSMENT PLAN (PAP). In accordance with 52.246-4 Inspection of Services – Fixed Price (AUG 1996), paragraph (c), the COR will inspect the Contractor’s performance on a random basis under this contract to ensure that only proper brush removal equipment is being used, the proper amount of brush is being removed, the proper height is being obtained, limbs are properly severed, and resource protection is occurring.

Unacceptable performance occurs when the Contractor responsibilities fail to meet stated PERFORMANCE STANDARDS. The Government will not pay for unacceptable performance. When unacceptable performance is observed, the COR will document the unacceptable performance on a work order as well as meet with the Contractor at the job site to ensure that the Contractor is aware of the unacceptable service. The Government’s inspection of the work does not relieve the Contractor of its responsibility to provide an inspection system.

A. Required Brush Competition Removal Equipment – PERFORMANCE STANDARD.

(1) All brush removal shall be performed with hand pruners, lopping shears or pruning saws only. No brush removal by chainsaws will be allowed.

B. Selection of Brush to be Removed - PERFORMANCE STANDARD.

(1) Brush to be removed shall be ANY brush located near a preferred species seedling/sapling. These preferred species are listed in the DUIC and the Silvicultural Prescriptions. Brush need not be removed around any seedlings/saplings that are not listed in these two references.

(2) Brush could be considered any native plant species, i.e. Ninebark, Ceanothus, Ocean Spray, Snowberry, Alder, etc. Also included in this list are any tree species of seedling/sapling that show signs of disease or damage.

(3) If no brush needs to be pruned on or around a preferred species tree, but downed woody material has hampered growth of said tree, remove the obstacle.

(4) Brush will be removed to a radius of 5 feet around each preferred species.

(5) Brush will be pulled away from the preferred species seedling/sapling and placed outside the 5 foot radius and cut into 3 foot lengths or less. It will NOT be piled.

C. Methods – Removal of Live and Dead Limbs on Brush – PERFORMANCE STANDARD.

(1) All live and dead limbs on brush shall be completely severed. Ensure that brush is left with a flat cut surface.

(2) Branches originating in the duff layer shall be pruned.

(3) Brush Removal Height – Brush will be cut down to ground level whenever possible.

D. Resource Protection – PERFORMANCE STANDARD.

(1) The Contractor shall exercise extreme care to prevent damage to existing resources, developments and facilities.

(2) If existing facilities, such as roads, erosion dips, barriers, and drainage facilities are damaged, they shall be replace or repaired at no cost to the Government.

E. Contractor Quality Control Inspection System – PERFORMANCE STANDARD.

(1) In accordance with 52.246-4 Inspection of Services – Fixed Price (AUG 1996), paragraph (b), the Contractor shall propose and adopt a quality control inspection system to ensure that at least 90% brush removal quality is achieved and that the other required work meets specifications. The Contractor may use the Inspection and Acceptance requirements stated under the Government Responsibilities as an inspection system, if desired. Any proposed inspection system shall produce written inspection data which shall be provided in a timely manner as agreed to the Contracting Officer. The Contracting Officer may observe the Contractor’s inspection at any time and shall otherwise have unlimited access to the inspection data.

SECTION D – PACKAGING AND MARKING

This section is left blank intentionally.

SECTION E – INSPECTION AND ACCEPTANCE

E – 1 GOVERNMENT RESPONSIBILITES – (INCLUDING MEASUREMENT AND PAYMENT).

INSPECTION AND ACCEPTANCE – GOVERNMENT

The Contractor shall inform the Government when they are ready to be inspected. The immediacy of the inspection will depend on the Government’s Designated Inspector and/or COR’s ability to respond, however the response will be within five working days or less of notification by the Contractor.

A Government inspection will not be performed until a unit is completed. Prior to the Government inspecting the Contractor’s work, the Contractor shall furnish the Government with their signed and dated inspection plots. ALL work stated in the contract will be subject to Government inspection on-and-off the Contractor’s plots.

Upon inspection of Contractor’s plots or walk-through (verified by a plot), any areas not being effectively treated by the Contractor will be reworked.

In items where rework is required, the Contractor will be charged the cost of Government inspections and subsequent re-inspections. This will be reflected in a reduced payment.

(a) Measurement. The acreages were measured on the horizontal plane within the established boundaries.

(b) Re-measurement.

(2) The Contractor may at any time after award request re-measurement of any treatment area. This request must be made in writing within five days after the sub-item is completed. Re-measurement will be made with the established boundaries.

(3) If re-measurement indicates a variance of five percent (5%) or less, the Contractor shall pay for the actual cost of re-measurement and no adjustment will be made in the acreage.

(4) If re-measurement indicates a variance greater than five percent (5%), payment will be based on the re-measured acreage and the Government will pay for the re-measurement.

E – 2 GOVERNMENT INSPECTIONS.

(a) Brush Removal Inspection Procedure being used by the Government:

(1) Each unit, as designated on the DUIC, will be inspected separately and will not be averaged with any other for acceptance or payment.

(2) ALL work will be inspected.

(3) A series of random plots distributed over the entire unit sufficient to yield a sample of each unit will be taken. Size of the plots taken are 1/10th acre. Plot centers will be marked and numbered by using flagging.

(4) Each plot will be examined and the findings on these items listed below recorded:

(a) Number of trees that should have been brushed.

(b) Number of satisfactory brushed trees.

(c) Number of deficient trees.

(c) Quality Calculation

(1) Brush removal within the unit will be inspected. The following deductions will be made using the preferred species seedling/sapling as the focus:

(a) Improper tree selection –

One (1) deficient tree

(b) Improper Removal (not outside radius) – One (1) deficient tree

(c) Improper Brush Removal Height –

(d) Missed Limbs –

(e) Stub length too long –

¼ deficient tree

(f) Operational damage –

¼ deficient tree

No deduction or combination of deductions shall exceed one full deduction per tree.

(2) Upon inspection of all plots for an item, the quality of brush removal shall be calculated as follows:

[1.0 – (N0. of deficient trees / No. of trees that should have been brushed)] X 100

= Quality %

(3) Payment will be made for completed units as follows:

(i) After inspection of completed acreage, the Contracting Officer will calculate the pay rate by multiplying the inspection percentage times the contract unit price per acre.

(ii) When the inspection quality is 90 percent or greater, payment will be made at the contract unit price.

(iii) When inspection quality is between 85 and 90 percent, payment will be made with actual percentage earned multiplied by the contract unit price.

(iv) Where quality for a subitem falls below the minimum acceptable level of 85 percent, the Contractor may be allowed to rework the area if the quality could in fact be improved. If the Contractor is not able to improve this quality above 85 percent, termination for default may occur.

(4) Calculation of payment for slash treatment. – Slash treatment is considered incidental to the brush removal required in this contract.

E – 3 PAYMENT PER GOVERNMENT INSPECTIONS:

Rework and Re-Inspection After Rework. When inspection results are below 90 % and deficient brush removal contribute to the deficiency, payment will not be made until the brush removal deficiency has been corrected. Re-Inspections after rework will be made in the same manner as the first inspection but on a different plot line. The Contractor shall pay for inspections necessitated by the rework.

Until deficiencies are corrected, an items payment will be withheld, AND, no additional payment items shall be started. A reduced payment will occur when rework is required due to inadequate inspection by the Contractor (see Government Inspections above).

In general, unless granted written permission by the Contracting Officer, new items cannot be started until the previous item has been accepted by the Government for payment.

E -4 FINAL PAYMENT

The amount of the final payment will be calculated as described above and approved for payment after:

(a) Completion and acceptance of all work;

(b) Presentation of a properly executed invoice; and,

(c) Presentation of release of all claims against the Government arising by virtue of this contract, other than claims, in stated amounts that the Contractor has specifically excepted from the operation of the release. A release may also be required of the assignee if the Contractor’s claim to amounts payable under this contract has been assigned under the Assignment of Claims Act of 1940 (31 U.S.C. 3727 and 41 U.S.C 15).

SECTION F – DELIVERIES OR PERFORMANCE

F. Performance Period (determined by the notice to proceed) Item

Estimated Start Work Date

Complete within

October 20, 2009

4 Calendar Days

October 20, 2009 10 Calendar Days

3 October 20, 2009 6 Calendar Days Note: If one contract is awarded for all items, the total performance period will be 20 calendar days.

The Contractor shall maintain progress at a rate which will assure completion of work within the contract time specified above.

The Government will issue a Notice to Proceed as soon as weather and ground conditions become favorable for work. The count of contract time will start on the date specified on the Notice to Proceed.

SECTION G – CONTRACT ADMINISTRATION DATA

G-1 MEASUREMENT AND PAYMENT

Measurement. The acreage of each unit was determined using Global Positioning System measurements. If the contractor’s measurements differ from these data, the contractor shall notify the COR immediately to reach a definitive, mutual understanding of the scope of the work.

Noxious Weeds Control Requirements are incidental to, and are included in the machine mastication portion of this scope of work.

Basis Of Payment. Payment will be made at the contract unit price for work completed and accepted in accordance with the above required specifications, and the Payments clause, FAR 52.231-1, Payments, incorporated by reference herein.

G - 2 FINAL PAYMENT

The amount of the final payment will be calculated as described above and approved for payment after--

(a) Completion and acceptance of all work in each Item;

(b) Presentation of a properly executed invoice; and

Presentation of release of all claims against the Government arising by virtue of this contract, other than claims, in stated amounts, that the Contractor has specifically accepted from the operation of the release. A release may also be required of the assignee if the Contractor's claim to amounts payable under this contract has been assigned under the Assignment of Claims Act of 1940 (31 U.S.C. 3727 and 41 U.S.C. 15).

AGAR 452.215-73 Post Award Conference (NOV 1996) A post award conference with the successful offeror is required. It will be scheduled within 10 days after the date of contract award. The conference will be held at (to be determined).

AGAR 452.237-74 Key Personnel (FEB 1988)

(a) The Contractor shall assign to this contract the following key personnel: _________________

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 H – SPECIAL CONTRACT REQUIREMENTS

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.

As prescribed in 4.1502, insert the following clause:

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)):

(1) Salary and bonus.

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

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

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

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

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

(b) This contract requires the contractor to provide products and/or services that are funded under the American Recovery and Reinvestment Act of 2009 (Recovery Act). Section 1512(c) of the Recovery Act requires each contractor to report on its use of Recovery Act funds under this contract. These reports will be made available to the public.

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

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

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

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

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

(4) Program or project title, if any.

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii) Name of the subcontractor.

(iii) Amount of the subcontract award.

(iv) Date of the subcontract award.

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

(vi) Funding agency.

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

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

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

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

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

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

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

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

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

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).

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

(End of Clause)

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.

(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 would impede a continuing investigation, provided that such information is disclosed once such disclosure would no longer impede such investigation, unless the inspector general determines that disclosure of law enforcement techniques, procedures, or information could reasonably be expected to risk circumvention of the law or disclose the identity of a confidential source.

(5) PRIVACY OF INFORMATION.—An inspector general investigating an alleged reprisal under this section may not respond to any inquiry or disclose any information from or about any person alleging such reprisal, except in accordance with the provisions of section 552a of title 5, United States Code, or as required by any other applicable Federal law.

(c) REMEDY AND ENFORCEMENT AUTHORITY.—

(1) BURDEN OF PROOF.—

(A) DISCLOSURE AS CONTRIBUTING FACTOR IN

REPRISAL.—

(i) IN GENERAL.—A person alleging a reprisal under this section shall be deemed to have affirmatively established the occurrence of the reprisal if the person demonstrates that a disclosure described in subsection

(a) was a contributing factor in the reprisal.

(ii) USE OF CIRCUMSTANTIAL EVIDENCE.—A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence, including—

(I) evidence that the official undertaking the reprisal knew of the disclosure; or

(II) evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal.

(B) OPPORTUNITY FOR REBUTTAL.—The head of an agency may not find the occurrence of a reprisal with respect to a reprisal that is affirmatively established under subparagraph (A) if the non-Federal employer demonstrates by clear and convincing evidence that the non-

Federal employer would have taken the action constituting the reprisal in the absence of the disclosure.

H. R. 1—186

(2) AGENCY ACTION.—Not later than 30 days after receiving an inspector general report under subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection

(a) and shall either issue an order denying relief in whole or in part or shall take 1 or more of the following actions:

(A) Order the employer to take affirmative action to abate the reprisal.

(B) Order the employer to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.

(C) Order the employer to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency or a court of competent jurisdiction.

(3) CIVIL ACTION.—If the head of an agency issues an order denying relief in whole or in part under paragraph (1), has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under subsection (b)(2)(B)(i), within 30 days after the expiration of the extension of time, or decides under subsection

(b)(3) not to investigate or to discontinue an investigation, and there is no showing that such delay or decision is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the employer to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury.

(4) JUDICIAL ENFORCEMENT OF ORDER.—Whenever a person fails to comply with an order issued under paragraph (2), the head of the agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorneys fees and costs.

(5) JUDICIAL REVIEW.—Any person adversely affected or aggrieved by an order issued under paragraph (2) may obtain review of the order’s conformance with this subsection, and any regulations issued to carry out this section, in the United

States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review shall conform to chapter 7 of title 5, United States Code.

H. R. 1—187

(d) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING

RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.—

(1) WAIVER OF RIGHTS AND REMEDIES.—Except as provided under paragraph (3), the rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment, including by any predispute arbitration agreement.

(2) PREDISPUTE ARBITRATION AGREEMENTS.—Except as provided under paragraph (3), no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising under this section.

(3) EXCEPTION FOR COLLECTIVE BARGAINING AGREEMENTS.—

Notwithstanding paragraphs (1) and (2), an arbitration provision in a collective bargaining agreement shall be enforceable as to disputes arising under the collective bargaining agreement.

(e) REQUIREMENT TO POST NOTICE OF RIGHTS AND REMEDIES.—

Any employer receiving covered funds shall post notice of the rights and remedies provided under this section.

(f) RULES OF CONSTRUCTION.—

(1) NO IMPLIED AUTHORITY TO RETALIATE FOR NON-PROTECTED

DISCLOSURES.—Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee.

(2) RELATIONSHIP TO STATE LAWS.—Nothing in this section may be construed to preempt, preclude, or limit the protections provided for public or private employees under State whistleblower laws.

(g) DEFINITIONS.—In this section:

(1) ABUSE OF AUTHORITY.—The term ‘‘abuse of authority’’ means an arbitrary and capricious exercise of authority by a contracting official or employee that adversely affects the rights of any person, or that results in personal gain or advantage to the official or employee or to preferred other persons.

(2) COVERED FUNDS.—The term ‘‘covered funds’’ means any contract, grant, or other payment received by any non-Federal employer if—

(A) the Federal Government provides any portion of the money or property that is provided, requested, or demanded; and

(B) at least some of the funds are appropriated or otherwise made available by this Act.

(3) EMPLOYEE.—The term ‘‘employee’’—

(A) except as provided under subparagraph (B), means an individual performing services on behalf of an employer;

and

(B) does not include any Federal employee or member of the uniformed services (as that term is defined in section

101(a)(5) of title 10, United States Code).

(4) NON-FEDERAL EMPLOYER.—The term ‘‘non-Federal employer’’—

(A) means any employer—

(i) with respect to covered funds—

(I) the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor, H. R. 1—188 subcontractor, grantee, or recipient is an employer;

and

(II) any professional membership organization, certification or other professional body, any agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an employer receiving covered funds; or

(ii) with respect to covered funds received by a

State or local government, the State or local government receiving the funds and any contractor or subcontractor of the State or local government; and

(B) does not mean any department, agency, or other entity of the Federal Government.

(5) STATE OR LOCAL GOVERNMENT.—The term ‘‘State or local government’’ means—

(A) the government of each of the several States, the

District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, or any other territory or possession of the United States; or

(B) the government of any political subdivision of a government listed in subparagraph (A).

//Section End//

SECTION - I – CONTRACT CLAUSES

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. The full text of 52.219-4, is included with the list of clauses by reference in order to maintain continuity with the related clause Also, the full text of a clause may be accessed electronically at these addresses:

http://www.arnet.gov/far www.usda.gov/procurement/policy/agar.html

52.202-1 Definitions. (JUL 2004)

52.203-3 Gratuities. (APR 1984)

52.203-5 Covenant Against Contingent Fees. (APR 1984)

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

52.203-7 Anti-Kickback Procedures. (JUL 1995)

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

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

52.203-12 Limitation on Payments to Influence Certain Federal Transactions. (SEP 2007)

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. (SEP 2006)

52.215-2 Audit and Records - Negotiation. (MAR 2009)

52.215-8 Order of Precedence - Uniform Contract Format. (OCT 1997)

52.216-4 Economic Price Adjustment - Labor and Material. (JAN 1997)

52.219-6 Notice of Small Business Set Aside (June 2003) 52.219-8 Utilization of Small Business Concerns. (MAY 2004)

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

52.222-3 Convict Labor. (JUN 2003)

52.222-26 Equal Opportunity. (MAR 2007)

52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans. (SEP 2006)

52.222-36 Affirmative Action for Workers with Disabilities. (JUN 1998)

52.223-14 Toxic Chemical Release Reporting. (AUG 2003)

52.224-1 Privacy Act Notification. (APR 1984)

52.224-2 Privacy Act. (APR 1984)

52.225-13 Restrictions on Certain Foreign Purchases. (JUN 2008)

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

52.227-1 Authorization and Consent. (DEC 2007)

52.227-2 Notice and…