Master Solicitation for Commodity Procurements.pdf

USDA-FSA-KANSAS CITY COMMODITY OFFICE

MASTER SOLICITATION FOR COMMODITY PROCUREMENTS

EFFECTIVE DATE: April 1, 2011

TABLE OF CONTENTS

Part 1 Instructions to Bidders _____________________________________________________________ 1

Part 2 Solicitation Provisions _____________________________________________________________ 1

Section A KCCO Provisions ____________________________________________________________________ 1

1. Eligibility of Bidders ________________________________________________________________________________ 1

2. Submission of Bids _________________________________________________________________________________ 2

3. Period of Acceptance of Bids _________________________________________________________________________ 3

4. Evaluation of Bids __________________________________________________________________________________ 3

Section B FAR Provisions _____________________________________________________________________ 4

Section C AGAR Provisions ___________________________________________________________________ 13

Part 3 Contract Clauses ________________________________________________________________ 15

Section A KCCO Clauses _____________________________________________________________________ 15

1. Definitions_______________________________________________________________________________________ 15

2. Invoice Requirements _____________________________________________________________________________ 18

3. Regulatory Requirements for Commodities and Packaging _________________________________________________ 24

4. Order of Precedence _______________________________________________________________________________ 24

5. Time is of the Essence _____________________________________________________________________________ 24

6. Carrying Charges _________________________________________________________________________________ 25

7. U.S. Origin of Agricultural Commodities - Waiver for Certain Ingredients _____________________________________ 25

8. Shipping and Delivery Instructions ____________________________________________________________________ 26

9. Shipment and Delivery _____________________________________________________________________________ 26

10. Seals on Transportation Conveyances__________________________________________________________________ 27

11. Miscellaneous Contract Requirements for F.o.b. Vessel Delivery ____________________________________________ 27

12. Contractor Expenses _______________________________________________________________________________ 28

13. Checkloading ____________________________________________________________________________________ 28

14. Acceptance ______________________________________________________________________________________ 28

Section B FAR Clauses _______________________________________________________________________ 28

Section C AGAR Clauses _____________________________________________________________________ 40

Effective: April 1, 2011 Page 1 of 41

Part 1 Instructions to Bidders This solicitation, called the Master Solicitation for Commodity Procurements (MSCP), is used for the solicitation of bids and award of contracts for various commodities under domestic and foreign food assistance programs administered by the Kansas City Commodity Office (KCCO). KCCO will periodically issue invitations for bids (IFB), available on the WBSCM public procurement page and available through links on the Commodity Operations website.

Bidders are required to read the MSCP, IFB, and USDA Commodity Requirements to understand the invitation, evaluation, and award process for KCCO commodity acquisitions. The MSCP will be updated as necessary to incorporate changes in law, regulation, and acquisition policies and procedures. Each invitation will incorporate the MSCP, which will be applicable for that invitation. Bidders should not assume that a copy of the MSCP, once downloaded for a particular IFB will be applicable for subsequent IFBs. The effective date at the top of the MSCP document will govern which version of MSCP is applicable to a particular IFB. Changes to the MSCP will be bolded in each version. Prior versions of the MSCP will be archived and available on the Commodity Operations Archived MSCPs webpage.

Bidders are encouraged to utilize the Food and Drug Administration’s (FDA) newly established Food Defense Mitigation Strategies Database (MSD) available at: www.accessdata.fda.gov . The MSD provides a range of food security preventive measures that food companies can implement to prevent intentional acts of contamination or tampering. Each company is encouraged to select the appropriate measures that best fit its needs. The MSD is designed as a resource for companies that produce, manufacture, process, package, distribute, store, and/or transport food or food ingredients. Questions and answers, and a description of the MSD is available at: www.fda.gov/msd. While having a food defense plan is currently voluntary, USDA encourages all food facilities to conduct a vulnerability assessment and implement a food defense plan with appropriate mitigation strategies. Under the FDA Food Safety Modernization Act (FSMA), food facilities registered with FDA will soon be required to conduct a hazard analysis and implement a preventive controls plan that addresses all reasonably foreseeable hazards, including hazards that may be intentionally introduced. In addition, as required by the FSMA, FDA is currently developing regulations that will require new mitigation strategies for foods deemed to be a high risk of intentional adulteration.

The following web sites are being provided to potential bidders to obtain the full text of the applicable Federal Acquisition Regulation (FAR), and the Agriculture Acquisition Regulation (AGAR) provisions and clauses incorporated in the contract:

http://acquisition.gov/far/index.html http://www.fsa.usda.gov/FSA/webapp?area=home&subject=coop&topic=pas-vr

This version of the MSCP incorporates clauses and provisions in effect through FAC 2005-50.

Part 2 Solicitation Provisions Section A KCCO Provisions

1. Eligibility of Bidders To be eligible to submit a bid, the bidder shall:

(a) Demonstrate its ability to meet the prescribed standards specified in the

Government’s qualification requirements located at http://www.fsa.usda.gov/FSA/webapp?area=home&subject=coop&topic=pas-vr. The https://portal.wbscm.usda.gov/publicprocurement� http://www.fsa.usda.gov/FSA/webapp?area=home&subject=coop&topic=pasH� http://www.fsa.usda.gov/FSA/webapp?area=home&subject=coop&topic=pas-ca-ms� http://www.accessdata.fda.gov/scripts/fooddefensemitigationstrategies/� http://www.fda.gov/Food/FoodDefense/ucm245544.htm� http://acquisition.gov/far/index.html� http://www.fsa.usda.gov/FSA/webapp?area=home&subject=coop&topic=pas-vr�

Effective: April 1, 2011 Page 2 of 41

Government reserves the right to adjust, limit, suspend or rescind any potential contractor who has been deemed qualified and placed on the Government’s Qualified Bidders List based on any subsequent information. The Government reserves the right to waive any minor irregularity and/or omission in the information contained in the qualification application that has been submitted.

(b) For dairy products, have a number of dairy plants approved by Agricultural

Marketing Service (AMS) sufficient to produce the quantity offered. The USDA AMS plant approval code must match the appropriate product or operation code for the commodity being offered.

(c) For f.o.b. vessel bulk grain shipments:

(i) Have a Uniform Grain and Rice Storage Agreement (UGRSA) with CCC and be on CCC’s List of Approved Warehouse, or have a put through agreement or other means to assure timely delivery through an export elevator having a UGRSA or on CCC’s List of Approved Warehouses, with the ability to load ocean-going vessels and barges from a spout that is physically attached to the storage location.

(ii) Have a UGRSA with CCC and be on CCC’s List of Approved Warehouses or have a put through agreement or other means to assure timely delivery through a dockside facility or a floating Mid-stream facility for exporting milled rice or soybean meal.

(iii) Have the ability to issue or cause to be issued export weight and grade certificates covering the exportation of the product at the location of the elevator. The certificates shall be acceptable to the FGIS.

(iv) Have approved loadout rates for tankers and tween-deckers.

(v) Trans-shipment will be allowed providing the origin of the loading is out of the Great Lakes at an approved UGRSA warehouse. The original laker vessel shall be loaded at the UGRSA and trans-shipped to a larger ocean-going vessel most commonly in the St. Lawrence Seaway.

(d) For Instore bids, have a UGRSA and be on CCC’s List of Approved Warehouse or be recognized members of the grain industry with either direct ownership of the UGRSA warehouse named in the bid or be otherwise able to furnish negotiable warehouse receipts or certified KC-228’s issued from the approved UGRSA warehouse named in the bid.

2. Submission of Bids

(a) Submit bids to the office specified in the IFB at or before the exact time specified in the IFB. Submission of bids by any means other than as specified in the IFB will be determined nonresponsive. Bids that fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration.

(b) All prospective bidders are required to submit offers electronically via the USDA Web Based Supply Chain Management (WBSCM) system. All offers are subject to all requirements of WBSCM and the invitation, including but not limited to— https://portal.wbscm.usda.gov/publicprocurement�

Effective: April 1, 2011 Page 3 of 41

(i) Obtaining a USDA eAuthentication logon ID and password to access the WBSCM system. (Contact the WBSCM Help Desk at (877) 927- 2648 or WBSCMhelp@ams.usda.gov for information regarding logon IDs, passwords, and WBSCM system questions or concerns.)

(ii) Choosing its own Internet Service Provider (ISP) to transmit, translate, or carry data between the bidder and the Government. The bidder is responsible for the cost of its third-party network. The Government will not be responsible for any failure attributed to the transmission of the bid data prior to being accepted and stored on the Government’s web server including, but not limited to, the following:

(1) Any failure of the bidder’s computer hardware or software;

(2) Availability of the ISP;

(3) Delay in transmission due to the speed of the modem;

(4) Delay in transmission due to excessive volume of Internet traffic.

(c) When authorized in an IFB, hard copy bids sent through regular mail or hand-delivered must be sealed in an envelope marked with the name and address of the bidder. Bids submitted by express mail shall be sealed inside a second envelope. All envelopes shall be plainly marked: “Do Not Open Until Prescribed Time Under Invitation for Bid Number (enter appropriate number).” For express mail bids, this statement shall be printed clearly on the outer express envelope, not the mailing label.

3. Period of Acceptance of Bids

The bidder agrees to hold the prices in its bid firm through the contract award date and time specified in the IFB.

4. Evaluation of Bids

(a) The Government will award a contract(s) to the responsible bidder(s) whose bid(s) conforming to the solicitation will be most advantageous to the Government, price and price-related factors considered. The following factors shall be used to evaluate bids:

(i) For commodities purchased for domestic programs, the total cost to the

Government to deliver the product to the ultimate destination, or;

(ii) For commodities purchased for international programs, the lowest-landed cost to the Government to deliver the products to overseas destination, or;

(iii) For commodities purchased for instore delivery, the total cost to the

Government including location and storage rates.

With respect to factor number 2) above, as provided in AGAR 470.201 and 470.202, the contracting officer reserves the right to reject such offer if the acceptance of another offer for the commodity or related freight, when combined with offers for commodities or related freight, results in a lower landed cost to the Government. In addition, bids for which the Government has not received matching ocean freight offers/indications shall not be considered.

(b) HUBZone Program mailto:WBSCMhelp@ams.usda.gov�

Effective: April 1, 2011 Page 4 of 41

The Government will award contracts to eligible HUBZone bidders in accordance with FAR Subpart 19.13, except for price evaluation preference mandated by the provisions of 15 U.S.C. 657a, 15 U.S.C.

632(p)(5)(A)(i)(III)(cc). The HUBZone price evaluation preference shall be applied as follows.

For agricultural commodities procured for international food aid programs:

In accordance with 15 U.S.C. 657a, the price evaluation preference shall be 5% on the first portion of a contract to be awarded that is not greater than 20% of the total volume of each commodity being procured in a single invitation.

For agricultural commodities procured for domestic food distribution programs:

In accordance with 15 U.S.C. 657a, the price evaluation preference shall be:

(i) 10% for the portion of a contract to be awarded that is not greater than

25% of the total volume being procured for each commodity in a single invitation;

(ii) 5% for the portion of a contract to be awarded that is greater than 25%, but not greater than 40%, of the total volume being procured for each commodity in a single invitation; and

(iii) 0% for the portion of a contract to be awarded that is greater than 40% of the total volume being procured for each commodity in a single invitation.

Section B FAR Provisions

52.204-8

ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JAN 2011)

(a)(1) The North American Industry Classification System (NAICS) code for this acquisition is provided in AGAR Provision 452.219-70, Size Standard and NAICS Code Information (Sep 2001)

(2) The small business size standard is provided in AGAR Provision 452.219- 70, Size Standard and NAICS Code Information (Sep 2001).

(3) The small business size standard for a concern which submits an offer in its own name, other than on a construction or service contract, but which proposes to furnish a product which it did not itself manufacture, is 500 employees.

(b)(1) If the clause at 52.204-7, Central Contractor Registration, is included in this solicitation, paragraph (d) of this provision applies.

(2) If the clause at 52.204-7 is not included in this solicitation, and the offeror is currently registered in CCR, and has completed the ORCA electronically, the offeror may choose to use paragraph (d) of this provision instead of completing the corresponding individual representations and certifications in the solicitation.

The offeror shall indicate which option applies by checking one of the following boxes:

[ ] (i) Paragraph (d) applies.

[ ] (ii) Paragraph (d) does not apply and the offeror has completed the individual representations and certifications in the solicitation.

(c)(1) The following representations or certifications in ORCA are applicable to this solicitation as indicated:

(i) 52.203-2, Certificate of Independent Price Determination. This provision applies to solicitations when a firm-fixed-price contract or fixed-price contract with economic price adjustment is contemplated, unless—

(A) The acquisition is to be made under the simplified acquisition procedures in Part 13;

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Effective: April 1, 2011 Page 5 of 41 sealed bidding procedures; or

(C) The solicitation is for utility services for which rates are set by law or regulation.

(ii) 52.203-11, Certification and Disclosure Regarding Payments to

Influence Certain Federal Transactions. This provision applies to solicitations expected to exceed $150,000.

(iii) 52.204-3, Taxpayer Identification. This provision applies to solicitations that do not include the clause at 52.204-7, Central Contractor Registration.

(iv) 52.204-5, Women-Owned Business (Other Than Small Business). This provision applies to solicitations that—

(A) Are not set aside for small business concerns;

(B) Exceed the simplified acquisition threshold; and

(C) Are for contracts that will be performed in the United States or its outlying areas.

(v) 52.209-5, Certification Regarding Responsibility Matters. This provision applies to solicitations where the contract value is expected to exceed the simplified acquisition threshold.

(vi) 52.214-14, Place of Performance—Sealed Bidding. This provision applies to invitations for bids except those in which the place of performance is specified by the Government.

(vii) 52.215-6, Place of Performance. This provision applies to solicitations unless the place of performance is specified by the Government.

(viii) 52.219-1, Small Business Program Representations (Basic & Alternate I). This provision applies to solicitations when the contract will be performed in the United States or its outlying areas.

(A) The basic provision applies when the solicitations are issued by other than DoD, NASA, and the Coast Guard.

(B) The provision with its Alternate I applies to solicitations issued by DoD, NASA, or the Coast Guard.

(ix) 52.219-2, Equal Low Bids. This provision applies to solicitations when contracting by sealed bidding and the contract will be performed in the United States or its outlying areas.

(x) 52.222-22, Previous Contracts and Compliance Reports. This provision applies to solicitations that include the clause at 52.222-26, Equal Opportunity.

(xi) 52.222-25, Affirmative Action Compliance. This provision applies to solicitations, other than those for construction, when the solicitation includes the clause at 52.222-26, Equal Opportunity.

(xii) 52.222-38, Compliance with Veterans’ Employment Reporting Requirements. This provision applies to solicitations when it is anticipated the contract award will exceed the simplified acquisition threshold and the contract is not for acquisition of commercial items.

(xiii) 52.223-1, Biobased Product Certification. This provision applies to solicitations that require the delivery or specify the use of USDA–designated items; or include the clause at 52.223-2, Affirmative Procurement of Biobased Products Under Service and Construction Contracts.

(xiv) 52.223-4, Recovered Material Certification. This provision applies to solicitations that are for, or specify the use of, EPA–designated items.

(xv) 52.225-2, Buy American Act Certificate. This provision applies to solicitations containing the clause at 52.225-1.

(xvi) 52.225-4, Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate. (Basic, Alternate I, and Alternate II) This provision applies to solicitations containing the clause at 52.225-3.

(A) If the acquisition value is less than $25,000, the basic provision applies.

(B) If the acquisition value is $25,000 or more but is less than $50,000, the provision with its Alternate I applies.

(C) If the acquisition value is $50,000 or more but is less than $67,826, the provision with its Alternate II applies.

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Effective: April 1, 2011 Page 6 of 41 solicitations containing the clause at 52.225-5.

(xviii) 52.225-20, Prohibition on Conducting Restricted Business

Operations in Sudan—Certification. This provision applies to all solicitations.

(xix) 52.225-25, Prohibition on Engaging in Sanctioned Activities Relating to Iran-Certification. This provision applies to all solicitations.

(xx) 52.226-2, Historically Black College or University and Minority

Institution Representation. This provision applies to—

(A) Solicitations for research, studies, supplies, or services of the type normally acquired from higher educational institutions; and

(B) For DoD, NASA, and Coast Guard acquisitions, solicitations that contain the clause at 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns.

(2) The following certifications are applicable as indicated by the Contracting Officer:

[Contracting Officer check as appropriate.] __ (i) 52.219-22, Small Disadvantaged Business Status.

__ (A) Basic.

__ (B) Alternate I.

__ (ii) 52.222-18, Certification Regarding Knowledge of Child Labor for Listed End Products.

__ (iii) 52.222-48, Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment Certification.

__ (iv) 52.222-52, Exemption from Application of the Service Contract Act to Contracts for Certain Services–Certification.

__ (v) 52.223-9, with its Alternate I, Estimate of Percentage of Recovered Material Content for EPA–Designated Products (Alternate I only).

(vi) 52.223-13, Certification of Toxic Chemical Release Reporting.

__ (vii) 52.227-6, Royalty Information.

__ (A) Basic.

__(B) Alternate I.

__ (viii) 52.227-15, Representation of Limited Rights Data and Restricted Computer Software.

(d) The offeror has completed the annual representations and certifications electronically via the Online Representations and Certifications Application (ORCA) website at http://orca.bpn.gov. After reviewing the ORCA database information, the offeror verifies by submission of the offer that the representations and certifications currently posted electronically that apply to this solicitation as indicated in paragraph (c) of this provision have been entered or updated within the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard applicable to the NAICS code referenced for this solicitation), as of the date of this offer and are incorporated in this offer by reference (see FAR 4.1201); except for the changes identified below [offeror to insert changes, identifying change by clause number, title, date]. These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer.

FAR CLAUSE # TITLE DATE CHANGE

Any changes provided by the offeror are applicable to this solicitation only, and do not result in an update to the representations and certifications posted on

ORCA.

(End of provision)

(Note: Bidders shall complete paragraph (d) of this provision using applicable method for submission of bids as specified in the IFB.)

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Effective: April 1, 2011 Page 7 of 41

52.209-5

Certification Regarding Responsibility Matters (Apr 2010)

(a)(1) The Offeror certifies, to the best of its knowledge and belief, that—

(i) The Offeror and/or any of its Principals—

(A) Are o are not o presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;

(B) Have o have not o, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) contract or subcontract; violation of Federal or State antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property (if offeror checks “have”, the offeror shall also see 52.209-7, if included in this solicitation);

(C) Are o are not o presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in paragraph (a)(1)(i)(B) of this provision;

(D) Have o, have not o, within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied.

(1) Federal taxes are considered delinquent if both of the following criteria apply:

(i) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.

(ii) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded.

(2) Examples.

(i) The taxpayer has received a statutory notice of deficiency, under I.R.C. § 6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

(ii) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. § 6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

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Effective: April 1, 2011 Page 8 of 41

52.209-7 pursuant to I.R.C. § 6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment.

(iv) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C.

362 (the Bankruptcy Code).

(ii) The Offeror has o has not o, within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency.

(2) “Principal,” for the purposes of this certification, means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager;

head of a division or business segment; and similar positions).

This Certification Concerns a Matter Within the Jurisdiction of an Agency of the United States and the Making of a False, Fictitious, or Fraudulent Certification May Render the Maker Subject to Prosecution Under Section 1001, Title 18, United States Code.

(b) The Offeror shall provide immediate written notice to the Contracting

Officer if, at any time prior to contract award, the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

(c) A certification that any of the items in paragraph (a) of this provision exists will not necessarily result in withholding of an award under this solicitation.

However, the certification will be considered in connection with a determination of the Offeror’s responsibility. Failure of the Offeror to furnish a certification or provide such additional information as requested by the Contracting Officer may render the Offeror nonresponsible.

(d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision. The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

(e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous certification, in addition to other remedies available to the Government, the Contracting Officer may terminate the contract resulting from this solicitation for default.

(End of provision)

(Applicable to solicitations where the contract value is expected to exceed the simplified acquisition threshold.)

Information Regarding Responsibility Matters (Jan 2011)

(a) Definitions. As used in this provision— “Administrative proceeding” means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract Appeals Proceedings). This includes administrative proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It

Effective: April 1, 2011 Page 9 of 41 does not include agency actions such as contract audits, site visits, corrective plans, or inspection of deliverables.

“Federal contracts and grants with total value greater than $10,000,000” means—

(1) The total value of all current, active contracts and grants, including all priced options; and

(2) The total value of all current, active orders including all priced options under indefinite-delivery, indefinite-quantity, 8(a), or requirements contracts (including task and delivery and multiple-award Schedules).

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

(b) The offeror [ ] has [ ] does not have current active Federal contracts and grants with total value greater than $10,000,000.

(c) If the offeror checked “has” in paragraph (b) of this provision, the offeror represents, by submission of this offer, that the information it has entered in the Federal Awardee Performance and Integrity Information System (FAPIIS) is current, accurate, and complete as of the date of submission of this offer with regard to the following information:

(1) Whether the offeror, and/or any of its principals, has or has not, within the last five years, in connection with the award to or performance by the offeror of a Federal contract or grant, been the subject of a proceeding, at the Federal or State level that resulted in any of the following dispositions:

(i) In a criminal proceeding, a conviction.

(ii) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.

(iii) In an administrative proceeding, a finding of fault and liability that results in—

(A) The payment of a monetary fine or penalty of $5,000 or more; or

(B) The payment of a reimbursement, restitution, or damages in excess of $100,000.

(iv) In a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the Contractor if the proceeding could have led to any of the outcomes specified in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this provision.

(2) If the offeror has been involved in the last five years in any of the occurrences listed in (c)(1) of this provision, whether the offeror has provided the requested information with regard to each occurrence.

(d) The offeror shall post the information in paragraphs (c)(1)(i) through (c)(1)(iv) of this provision in FAPIIS as required through maintaining an active registration in the Central Contractor Registration database at http://www.ccr.gov (see 52.204- 7).

(Applicable to solicitations where resultant contract value is expected to exceed $500,000.)

52.211-1 Availability of Specifications Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29 (Aug 1998)

52.214-4 False Statements in Bids (Apr 1984) http://www.ccr.gov/� https://www.acquisition.gov/far/current/html/52_200_206.html#wp1137850� https://www.acquisition.gov/far/current/html/52_200_206.html#wp1137850�

Effective: April 1, 2011 Page 10 of 41

52.214-5 Submission of Bids (Mar 1997)

52.214-6 Explanation to Prospective Bidders (Apr 1984)

52.214-7 Late Submissions, Modifications, and Withdrawals of Bids (Nov 1999)

52.214-10 Contract Award-Sealed Bidding (Jul 1990)

52.214-12 Preparation of Bids (Apr 1984)

52.214-31

52.214-34

52.214-35

Facsimile Bids (Dec 1989) (Applicable when facsimile bids are authorized by the IFB.)

Submission of Offers in the English Language (Apr 1991)

Submission of Offers in U.S. Currency (Apr 1991)

52.216-1 Type of Contract (Apr 1984)

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

52.216-27

Single or Multiple Awards (Oct 1995) (Applicable for Indefinite Delivery contracts.)

52.225-4

Buy America Act- Free Trade Agreements-Israeli Trade Act Certificate (June 2009)

a) The offeror certifies that each end product, except those listed in paragraph (b) or (c) of this provision, is a domestic end product and that for other than COTS items, the offeror has considered components of unknown origin to have been mined, produced, or manufactured outside the United States. The terms “Bahrainian, Moroccan, Omani, or Peruvian end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “end product,” “foreign end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “Israeli end product,” and” “United States” are defined in the clause of this solicitation entitled “Buy American Act–Free Trade Agreements–Israeli Trade Act.”

b) The offer certifies that the following supplies are Free Trade

Agreement Country End Products (Other than Bahrainian, Moroccan, Omani, or Peruvian End Products) or Israeli End Products as defined in the clause of this solicitation entitled “Buy American Act-Free Trade Agreements-Isreali Trade Act.” : Free Trade Agreement Country End Products (Other than Bahrainian, Moroccan, Omani, or Peruvian End Products) or Israeli End Products:

Effective: April 1, 2011 Page 11 of 41

Line Item No. Country of Origin

[ List as necessary]

c) The offeror shall list those supplies that are foreign end products (other than those listed in paragraph (b) of this provision) as defined in the clause of this solicitation entitled “Buy American Act—Free Trade Agreements—Israeli Trade Act.” The offeror shall list as other foreign end products those end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a COTS item and does not meet the component test in paragraph (2) of the definition of “domestic end product.”

Other Foreign End Products:

Line Item No. Country of Origin

[ List as necessary]

d) The Government will evaluate offers in accordance with the policies and procedures of Part 25 of the Federal Acquisition Regulation

(End of Provision)

(Applicable for acquisitions valued at $25,000 or more, but less than $203,000 and only to the packaging and container components utilized by commodity vendors selling agricultural products to KCCO; not applicable to the acquisition of empty 50 kg polypropylene bags, needles, and twine.)

http://www.arnet.gov/far/current/html/FARTOCP25.html#wp225048�

Effective: April 1, 2011 Page 12 of 41

52.225-6

Trade Agreements Certificate (Mar 2009)

(a) The offeror certifies that each end product, except those listed in paragraph (b) of this provision, is a U.S. made or designated country end product, as defined in the clause of this solicitation entitled “Trade Agreements.”

(b) The offeror shall list as other end products those supplies that are not U.S.- made or designated country end products.

Other End Products:

End Products Country of Origin

[List as necessary]

(c) The Government will evaluate offers in accordance with the policies and procedures of Part 25 of the Federal Acquisition Regulation. For line items covered by the WTO GPA, the Government will evaluate offers of U.S.- made or designated country end products without regard to the restrictions of the Buy American Act. The Government will consider for award only offers of U.S.- made or designated country end products unless the Contracting Officer determines that there are no offers for such products or that the offers for those products are insufficient to fulfill the requirements of this solicitation.

(End of Provision)

(Applicable for acquisitions valued at $203,000 or more and only to the packaging and container components utilized by commodity vendors selling agricultural products to KCCO; not applicable to the acquisition of empty 50 kg polypropylene bags, needles, and twine.)

52.232-15 Progress Payments Not Included (Apr 1984)

52.233-2

Service of Protest (Sep 2006) Location where a protest may be served on the Contracting Officer:

The issuing office as indicated in the IFB.

(Applicable for all contracts expected to exceed the Simplified Acquisition Threshold of $150,000.)

52.252-1 Solicitation Provisions Incorporated by Reference (Feb 1998) This solicitation incorporates one or more solicitation provisions by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. The offeror is cautioned that the listed provisions may include blocks that must be completed by the offeror and submitted with its quotation or offer. In lieu of submitting the full text

Effective: April 1, 2011 Page 13 of 41 of those provisions, the offeror may identify the provision by paragraph identifier and provide the appropriate information with its quotation or offer. Also, the full text of a solicitation provision may be accessed electronically at these addresses:

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

52.252-3 Alterations in Solicitation (Apr 1984)

Portions of this solicitation are altered as follows:

52.214-3 Amendments to Invitations for Bids (Dec 1989)

(Amendments shall be acknowledged only by the method specified in the IFB.)

52.214-22 Evaluation of Bids for Multiple Awards (Mar 1990)

(Individual awards will be for the items or combination of items that result in the lowest aggregate cost to the Government, excluding the assumed administrative cost.)

52.222-24 Preaward On-Site Equal Opportunity Compliance Evaluation (Feb 1999) (Compliance evaluations will be conducted on a post-award basis.)

(Applicable only for contracts exceeding $10,000,000.)

(End of provision)

Section C AGAR Provisions 452.204-70

Inquiries (Feb 1988)

Inquiries and all correspondence concerning this solicitation should be submitted in writing to the Contracting Officer. Offerors should contact only the Contracting Officer issuing the solicitation about any aspect of this requirement prior to contract award.

452.216-72

Evaluation Quantities—Indefinite Delivery Contract (Feb 1988)

To evaluate offers for award purposes, the Government will apply the offeror's proposed fixed-prices/rates to the estimated quantities included in the solicitation, and will add other direct costs if applicable.

(Applicable for indefinite delivery contracts.)

452.219-70

Size Standard and NAICS Code Information (Sep 2001)

The North American Industrial Classification System Code(s) and business size standard(s) describing the products and/or services to be acquired under this solicitation are listed below:

https://www.acquisition.gov/far/� http://www.usda.gov/procurement/policy/agar.html�

Effective: April 1, 2011 Page 14 of 41

Commodity (USDA Commodity Requirement) NAICS

Code Small Business Size Standard

All Purpose Wheat Flour/Bread Flour Bakery Flour Products Barley Buckwheat Products Bulgur Wheat/Soy - Fortified Bulgur Corn Products Cornmeal Corn-Soy Blend Corn-Soy Milk Instant Corn-Soy Milk Inst. Corn-Soya Masa Flour Soy-Fortified Cornmeal Soy-Fortified Sorghum Grits Wheat Flour Wheat Soy Blend Wheat Soy Milk

(WFBF)

(BF)

(BAR)

(BWP)

(BWSF)

(CP)

(CM)

(CSB)

(CSM)

(ICSM)

(MF)

(SFCM)

(SFSG)

(WF)

(WSB)

(WSM)

311211 500

Milled Rice (bagged) Milled Rice (Bulk) Rice Products

(MR)

(KCPG)

(RP)

311212 500

Crude or Refined Corn Oil (BOT) 311221 750 Crude Degummed Soybean Oil Soybean Meal (Bulk) Value Added Soy Products Vegetable Oil Products

(BOT)

(KCPG)

(VASP)

(VP)

311222 500

Crude Sunflower Seed Oil Sunflower Seed Butter Sunflower Seed Oil

(BOT)

(SSB)

(SFSO)

311223 1,000

Corn Oil Bulk Refined Soybean Oil Vegetable Oil

(CO)

(BOT)

(VO)

311225 1,000

Fortified R-T-E Cereals Instant Rice Baby Cereal Processed Cereal Products

(FC)

(RC)

(PC)

311230 1,000

Dehydrated Potato Products Dehydrated Soup Mix

(DPP)

(DSM) 311423 500

Cheese (Bulk) Cheese (Processed) Mozzarella Cheese

(BCD)

(PCD)

(MCD)

311513

Evaporated Milk Infant Formula Instant Nonfat Dry Milk Nonfortified Nonfat Dry Milk Nonfortified Nonfat Dry Milk-Export Ultra High Temperature Milk

(EVD)

(IFD)

(IMD)

(DMD)

(DME)

(UHD)

311514 500

Tallow (BOT) 311613 500 Canned Salmon (CPS) 311711 500 Crackers (Saltine) (CR) 311821 750 Bakery Mix (BFM) 311822 500 Macaroni and Cheese (Dry) Pasta Products

(MC)

(PA) 311823 500

Peanut Products (PP) 311911 500 Vegetable Oil Products (VP) 311941 500 Bags (KCP BAGS) 314911 500

Effective: April 1, 2011 Page 15 of 41

Twine (KCP BAGS) 314991 500 Needles (KCP BAGS) 424310 500 Bagged Grain Dry Edible Beans Grain (Bulk)

(KCBG)

(DEB)

(KCPG)

424510 500

Peas & Lentils (PL) 424590 500

The small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.

452.228-70

Alternative Forms of Security (Nov 1996)

If furnished as security, money orders, drafts, cashiers checks, or certified checks shall be drawn payable to: USDA/CCC

(Applicable for contracts that require a performance bond.)

Part 3 Contract Clauses Section A KCCO Clauses

1. Definitions The following definitions are incorporated into the contract.

(a) “Agricultural commodity” means:

(i) For international feeding and development programs:

As provided by 7 U.SC. 1732(2), 1736o-1(a), and AGAR 470.103, commodities and the products of agricultural commodities shall be products of United States origin. A product shall not be considered to be a product of the United States if it contains any ingredient that is not produced in the United States, if that ingredient is:

1. Produced in the United States; and

2. Commercially available in the United States at fair and reasonable prices from domestic sources.

(ii) For domestic food assistance programs:

As provided by AGAR 470.103(b) commodities and the products of agricultural commodities acquired for use by the Food and Nutrition Service shall be a product of the United States, except as may otherwise be required by law, and shall be considered to be such a product if it is grown, processed, and otherwise prepared for sale or distribution exclusively in the United States except with respect to ingredients.

Ingredients from nondomestic sources will be allowed to be utilized as a United States product if such ingredients are not otherwise:

(1) Produced in the United States; and

(2) Commercially available in the United States at fair and reasonable prices from domestic sources.

(iii) Except as provided in paragraph (iv) of this section, a commingled product shall be considered to be a product of the United States if the offeror can

Effective: April 1, 2011 Page 16 of 41 establish that the offeror has in inventory at the time the contract for the commodity or product is awarded to the offeror, or obtains during the contract performance period specified in the solicitation, or combined thereof, a sufficient quantity of the commodity or product that was produced in the United States to fulfill the contract being awarded, and all unfulfilled contracts that the offeror entered into to provide such commingled product to the United States.

(iv) To the extent USDA has determined a commodity is one that is generally commingled, but is also one which can be readily stored on an identity preserved basis with respect to its country of origin, the USDA may require that the commodity procured by the Department shall be of 100 percent United States origin.

The Government has determined that the following commodities shall be 100 percent United States origin and provided on an identity preserved basis:

Dry beans, peas and lentils procured for use in international food aid programs

(b) “Commodity Credit Corporation (CCC)” means a wholly-owned government corporation within the U.S. Department of Agriculture (USDA).

(c) “CCC List of Approved Warehouses” means a list of grain warehouses approved under the Uniform Grain and Rice Storage Agreement (UGRSA).

(d) Free alongside ship (f.a.s.) (***named port of shipment) means a term of sale which means the seller fulfills its obligation to deliver when the goods have been placed alongside the vessel on the quay or in lighters at the named port of shipment. The buyer bears all costs and risks of loss of or damage to the goods from that moment.

(e) “FGIS” means Federal Grain Inspection Service of the USDA which, provides inspection, weighing, and related services on grains, pulses, oilseeds, and processed and graded commodities.

(f) “F.o.b. vessel” means:

(i) for dry bulk cargoes, delivered free of expense to the Government loaded, unstowed and untrimmed, on board the designated conveyance at the USDA-approved port facility specified in the contract.

(ii) for liquid bulk cargoes, delivered free of expense to the Government on board the ocean vessel provided by USDA at the named port of shipment specified in the contract.

(g) “Grain Acquisition Report and Invoice for Related Charges,” Form KC-228 means a form that is issued by a warehouse operator to CCC in lieu of or in addition to a warehouse receipt.

(h) “Intermodal plant” means delivered free of expense to the Government loaded on board the carrier-supplied conveyance at the origin point.

Effective: April 1, 2011 Page 17 of 41

(i) “Intermodal bridge” means delivered free of expense to the Government delivered in transportation conveyance obtained by the vendor to locations where steamship lines have established and published intermodal rates from a U.S. point to a U.S.

port and a foreign destination.

(j) “Intermodal bridge-port for the Great Lakes” means delivered free of expense to the

Government delivered in transportation conveyance obtained by the vendor to marine cargo-handling facilities capable of loading ocean-going vessels at a Great Lakes port, as well as loading ocean-going conveyances such as barges and container vans.

(k) “Instore” means within a USDA-approved warehouse.

(l) “Lowest-landed cost,” means the lowest combined cost of commodity and ocean freight to deliver a commodity to an overseas destination while adhering to cargo preference statutes and regulations.

(m) “Notice to Deliver,” Form KC-269, means the contracted shipping or delivery instructions issued by the Government to the contractor.

(n)…