Area Wide Market Analysis for South Dakota.pdf

United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS)

Area Wide Market Analysis (AWMA)

FOR SOLICITATION INFORMATION:

OFFER DUE DATE/LOCAL TIME:

Phil Reimnitz philip.reimnitz@usda.gov Phone: 402-896-0121 Ext. 3502

Kristina J Baker Kristina.baker@usda.gov

September 1, 2022

1:00 PM CST

mailto:philip.reimnitz@usda.gov

A Solicitation/Contract Form

A.1 SF 1449 – to be provided upon award

A. 2 Department/Agency

A.2.1 United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS)

A.3 Contracting Office

A.3.1 Farm Production and Conservation - Business Center Acquisition and Procurement Division Section 1 - Operations Branch

A.4 Contracting Officer

A.4.1 Kristina Baker, email: kristina.baker@usda.gov Phone: 816-926-1435

A.4.2 Any USDA FPAC BC Contracting Officer can act on this contract should the need arise.

A.4.3 A Contracting Officer is the only individual who can legally commit or obligate the Government for the expenditure of public funds. Only the contracting officer has authority to: (1) increase or decrease the award amount; (2) direct or negotiate any changes; (3) modify or extend the period of performance; (4) change the schedule of completion; (5) authorize payment under this order;

(6) otherwise modify any terms or conditions of this Contract.

A.5 Program Office

A.5.1

A.5.2

A.5.3

Natural Resources Conservation Agency South Dakota State Office

Point of Contact: To Be Provided Upon Award

The program office point of contact will act as the liaison to coordinate activities between the Contractor and Contracting Officer, as required, in the performance of the work under this contract. They have the authority to provide technical clarification of the contract requirements but does not have the authority to modify any contract provisions, including, without limitation, changing the scope of work, the cost/price thereof, or the performance delivery schedule(s) therefore. Technical clarification will be issued in writing within 5 (five) calendar days after verbal issuance.

End of Section mailto:kristina.baker@usda.gov

B SF 1449 Services/Supplies and Prices/Costs

B.1 Contract Type

B.1.1 Purchase Order

B.1.2 Fixed Price

B.2 Pricing

B.2.1 The fixed price for this award is $____________. (To be provided upon award)

B.2.2 The fixed price for each period (to be provided upon award) is as follows:

Line Item

Category Unit Base Period Rate

Option Year 1 Rate

Option Year 2 Rate

Option Year 3 Rate

Option Year 4 Rate

001 Initial AWMA EA $26,260 N/A N/A N/A N/A

002 Annual Recertifications

EA N/A $10,450 $10,450 $10,450 $10,450

003 AWMA

Amendment

EA N/A $ $ $ $

B.2.3 Period of Performance dates are as follows (dates are approximate and will be determined upon award):

B.2.3.1 Base Period – 10/1/2022 – 09/30/2023

B.2.3.2 Option Year 1 – 10/01/2023 – 09/30/2024

B.2.3.3 Option Year 2 – 10/01/2024 – 09/30/2025

B.2.3.4 Option Year 3 – 10/01/2025 – 09/30/2026

B.2.3.5 Option Year 4 – 10/01/2026 – 09/30/2027

C Statement of Work

C.1 Background

C.1.1 The United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS) is committed to “helping people help the land”. Their mission is to deliver conservation solutions, so agricultural producers can protect natural resources and feed a growing world. For more information regarding the agency and its programs visit http://www.nrcs.usda.gov/.

C.1.2 The United States of America, acting through the United States Department of Agriculture’s Natural Resources Conservation Service (NRCS), is considering purchasing conservation easements to assist the landowners in restoring, protecting and enhancing wetlands. These lands may be placed under a conservation easement through the Agricultural Conservation Easement Program (ACEP) Wetland Reserve Easement Component (ACEP-WRE).

C.1.3 All Areawide Market Analyses (AWMA) completed for ACEP-WRE must comply with instructions provided by NRCS.

C.1.3.1 Proposed market areas are determined by the NRCS State Conservationist and identified in exhibit 1.

C.1.3.2 Proposed land use types are determined by the NRCS State Conservationist and identified in exhibit 2.

C.1.4

C.1.5

C.1.6

C.1.7

NRCS national appraiser resolves questions that arise from these specifications. Contact information may be obtained through the NRCS State office.

Delivery of the AWMA will be approved by the State.

The national appraiser will review and provide final approval of the AWMA. Corrections and additions may be required for the final approval.

The AWMA must be completed by December 1, 2022.

C.2 Purpose

C.2.1 The purpose of the AWMA is to provide the fair market value (FMV) of the land for the land use types typically enrolled in ACEP-WRE in the market areas identified by NRCS.

C.2.2 FMVs are provided for each market area and land use on a per-acre basis.

C.2.3 FMVs are used to determine the FMV of an ACEP-WRE by multiplying the values by the acres of each land use in the ACEP-WRE project.

C.3 Vendor Qualifications

C.3.1 The vendor must be a State-certified general real property appraiser or obtain a temporary practice permit equal to State-certified general real property appraiser in compliance with title XI of the Financial Institution’s Reform, Recovery and Enforcement Act of 1989 (FIRREA) in the

State or States where the AWMA is conducted.

C.3.2 The vendor must be in good standing with the licensing authority where the credential was issued, and not the recipient of disciplinary action within the past 5 years from the licensing authority.

C.3.3 The vendor must have demonstrated competency in compliance with USPAP in conducting

AWMAs of rural and agricultural properties of the requested type.

C.4 Government Provided Data

C.4.1 State map showing the market areas to be analyzed to include:

C.4.1.1 Regions or counties with similar land uses.

C.4.1.2 Boundaries of each market area.

C.4.2 Land uses in each market area requiring opinion of typical market value to include:

C.4.2.1 Identify the land uses typically enrolled in ACEP-WRE.

C.4.2.2 Define what is included in each land use category be as descriptive as possible to adequately define the land uses to be analyzed.

C.4.3 The vendor must determine if the market areas and land uses are representative of the market areas found when analyzing the market sales data.

C.5 Quality of Work

C.5.1 The market analysis must be clear, accurate, and complete and must meet NRCS’s intent to determine the fair market value of land typically enrolled in ACEP-WRE. The market analysis must be conducted and reported in compliance with USPAP.

C.5.2 The appraiser must select comparable properties that represent the land use types that are typically enrolled in ACEP-WRE.

C.5.3 The appraiser must adjust value for property differences and conduct a current analysis of the competitive market.

C.6 Selection of Comparable Properties

C.6.1 Choose sufficient comparable sales from the entire market area being analyzed that include land uses typically enrolled in ACEP-WRE.

C.6.2 Do not include sales far above or far below the average, as any divergence likely has valid reasons.

C.6.3 Use comparable sales that are reasonably current, based on sales activity in the market area being analyzed. Use sales no older than 18 months unless the market activity is limited, and a longer time period is required. Concurrence by the contracting officer is required before using sales older than 24 months.

C.6.4 Use similar property types as much as possible.

C.6.5 Ensure comparable sales are in fact arm’s length transactions.

C.6.6 Provide sufficient data on the comparable sales to support the conclusions of value.

C.6.7 If the analysis of the comparable properties indicates the land use category is too broad or too narrow, contact the contracting officer and provide suggestions for changes to the land use category.

C.6.7.1 Example: Land Use – Cropland – Low-lying cropland and prime cropland indicate a wide range in value; suggest that the land use category of “Cropland” be changed to two categories – “Low-Lying Cropland” and “Prime Cropland.”

C.6.8 If sufficient sales are not available for a market region or land use to provide a supported, typical market value the vendor will not establish a value and will recommend changes. These changes can include combining similar regions or land uses to provide for the sales needed to arrive at a supported, typical market value. The national appraiser should be consulted.

C.6.9 If in the process of collecting and identifying comparable properties, sales of properties encumbered by conservation easements are found, provide the sales data on the encumbered properties in a separate section of the analysis. This data will assist NRCS in establishing the geographic area rate caps.

C.7 Adjust Value for Property Differences

C.7.1 When comparing similar properties to the typically enrolled ACEP-WRE property, there are always differences. Adjust comparable properties for differences:

C.7.1.1 Add or subtract value for differences in size.

C.7.1.2 Add or subtract value for feature differences, such as soil quality, water supply, etc.

C.7.1.3 Add or subtract value for location differences, including access.

C.7.2 Look at financing differences that could have influenced sale price. Seller financing can sometimes result in a higher price paid for a property than its true value.

C.8 Conduct a Current Analysis of the Competitive Market

C.8.1 Sold Properties

C.8.1.1 Sold properties represent actual comparable sales.

C.8.1.2 Sales data should be within the last 18 months.

C.8.2 Active Listings

C.8.2.1 Active listings are properties currently for sale.

C.8.2.2 These listings matter only to the extent that they indicate the competition for buyers.

C.8.2.3 They are not indicative of market value. Sellers can ask any price they want for their property; it does not mean the prices are realistic. The vendor may use these to support values higher or lower than the value the sold properties indicates.

C.9 Market Area

C.9.1 The market area to be considered will be specified by NRCS and provided to the qualified, independent real estate professional.

C.9.2 The market area must contain properties that represent the land use types that are typically enrolled in ACEP-WRE.

C.9.3 If the market analysis indicates the market areas provided are inconsistent with the data, contact the contracting officer and suggest modifications to the market areas.

C.9.4 If insufficient data is available to conclude typical values for the market area or land uses, contact the contracting officer and suggest modifications to the market area or land uses. The national appraiser may be consulted for guidance in changes to land use or market areas.

C.9.5 A minimum of 10 sales representing each land use in each market area are needed to effectively establish a typical market value.

C.9.6 Values for a market area and land uses cannot be determined using data from other market areas.

This indicates that changes are needed for the market area or land use. Contact the contracting officer to recommend changes or request assistance in arriving at acceptable changes to the market areas or land uses. Ratio analysis is not sufficient for determining a typical market value.

C.10 Other Considerations

C.10.1 Land Use, Land Quality, Soils, and Topography

C.10.1.1 The land uses and soil types to be considered must be comparable to land typically enrolled in NRCS easement programs, such as the Wetland Reserve Easement (ACEP- WRE) and the Emergency Watershed Protection Program (EWPP).

C.10.1.2 These are predominately level, low-lying areas of cropland but may also include areas of pastureland, wet meadows, and woodland.

C.10.1.3 A map of potentially eligible ACEP-WRE areas (based upon soil drainage class, flooding, or both) is provided.

C.10.2 Improvements

C.10.2.1 Do not include the value of improvements, such as homes, sheds, fences, barns, etc.

C.10.3 Levee Protection

C.10.3.1 Where significant, separate values must be developed for land behind protection levees.

C.10.4 Existing Easements

C.10.4.1 Do not use sales data from lands under existing easements as comparable sales.

C.10.4.2 If any are identified, the data should be provided in a separate part of the report.

C.10.5 Development Pressure

C.10.6 Highest and Best Use

C.11 Presentation of Analysis

C.11.1 The report must be presented in a neat, easy-to-read format, free of grammatical and clerical mistakes.

C.11.2 The supporting documentation must be presented with sufficient narrative so that the analysis can be reviewed and critiqued.

C.11.3 Provide a description of the social, physical, and economic characteristics of the specified market areas.

C.11.4 Provide a thorough description of each land use category that a representative value is provided.

C.11.5 Describe the land uses included in the land use category. For example, if land use category is

“noncrop pasture and pasture like,” describe the typical market area land use categories the vendor used or associated with this land use category.

C.11.6 The report must comply with USPAP.

C.11.7 All market analysis reports submitted to NRCS become the property of the United States and may be used for any legal and proper purpose. Therefore, a condition that limits the distribution of the report is not permitted.

C.11.8 All sales data used to support conclusions of typical value must be provided in a table or spreadsheet addendum to the report. The minimum information for the sales data will include identifying name or number for the sale, county and market area, sale date, land use, sale price per acre.

C.11.9 Additional information may also be provided. The identifying name or number may be generated by the vendor if there is concern of confidentiality agreements with the suppliers of the sales data.

C.11.10 The spreadsheet or table must also be a separate file which can be used by the national appraiser to analyze the sales data.

C.11.11 The per acre conclusions for each market region and land use are used by NRCS to calculate the fair market value of various size ACEP-WRE projects.

C.11.11.1 The vendor must determine the range of size in acres, that the values continue to provide a supported fair market value.

C.11.11.2 The vendor may recommend a separate value for projects outside the supported acre range if there is sufficient data to support the value.

C.11.11.3 If sufficient data is not available to support values outside the acre range, the vendor must indicate that appraisals are needed for projects that are outside the acre range.

C.12 Deliverables

C.12.1 The final report and supporting documentation are the deliverables for this assignment.

C.12.2 The final report will include a hardcopy and a digital copy.

C.12.3 The final report will include an electronic spreadsheet or table of all the sales data found in the addendum of the report, which will be used by the national appraiser in analyzing the AWMA.

This file must be unlocked to allow for various electronic analyses.

C.12.4 Additional supporting documentation determined necessary by the national appraiser or program manager.

C.13 Conflict of Interest, Non-Disclosure, Civil Rights and Program Delivery

C.13.1 Conflict of Interest

C.13.1.1 An independent, qualified professional will not analyze a property for a spouse, child, partner, or business associate or have a financial interest in the property to be covered by the proposed easement.

C.13.2 Non-Disclosure

C.13.2.1 Work performance required by this statement of work will involve access to potentially sensitive information about governmental and landowner issues.

C.13.2.2 All contractor personnel must comply with the terms of AGAR 452.224-70, “Confidentiality of Information,” as well as provisions of the Privacy Act of 1974 (5 U.S.C. Sec. 552a).

C.13.2.3 Additionally, the contractor’s employees must comply with privacy of personal information relating to NRCS programs in accordance with section 1244 of the Food Security Act of 1985, as amended (16 U.S.C. Sec. 3844), and information protected under section 1619 of the Food, Conservation, and Energy Act of 2008 (Public Law 110-246), 7 U.S.C. Section 8791.

C.13.3 Civil Rights and Program Delivery

C.13.3.1 The contractor must ensure that its personnel prohibit discrimination in all aspects of programs and activities related to the contract on the basis of race, color, national origin, sex, religion, age, disability, political beliefs, sexual orientation, or marital or family status.

D Reserved

E. Inspection and Acceptance

E.1 Acceptance of service will be done upon receipt of the Area Wide Market Analysis and all required documents.

E.1.1 Acceptance will be determined by the Technical Point of Contact.

E.1.2 Acceptance will be based on if the requirements under Section C are met.

E.1.3 The Technical Point of Contact or Contracting Officer reserves the right to review all work products required under the contract for acceptability as needed. The Government shall notify the Contractor whenever revisions to reports/deliverables are required for deliverables to be deemed acceptable.

F Performance

F.1 Period of Performance

F.1.1 The period of performance for this award is from date of award through September 30, 2023.

G Invoicing

G.1 Farm Production and Conservation (FPAC) Clauses

G.1.1 FPAC 4I-52.232-70 ELECTRONIC INVOICING AND PAYMENT

REQUIREMENTS – INVOICE PROCESSING PLATFORM (IPP)

(a) Invoices must be submitted electronically through the U.S. Department of the Treasury’s Invoice Processing Platform System (IPP). The Contractor must use the IPP website (https://www.ipp.gov) for submitting invoices. Invoices submitted by means other than IPP will not be accepted unless the Contracting Officer authorizes alternate procedures in writing.

(b) Under this contract, the following document(s) are required to be submitted as attachment(s) to the IPP invoice:

One (1) invoice should be submitted every month after the service is performed.

Invoices shall have supporting documents attached within in IPP. The supporting documents should include a breakdown of the total amount. Travel costs must be broken down by the individual traveler and documentation supporting the costs being invoiced must be attached and clearly indicate the traveler it is associated with. The remaining non-travel amount must be broken down into the individual labor category and rate identified in this contract and the quantity of hours expended. No other amounts shall be listed on an invoice.

Invoices and supporting documentation shall be attached within the Invoice Processing

Platform (IPP) and shall not be submitted directly to the Contracting Officer.

(End of clause)

G.2 Payment

G.2.1 USDA pays for services in arrears (after service is completed). No payments will be made prior to the completion of service.

G.2.2 Payment will be made after receipt of invoice or acceptance of service whichever is later.

Payment will be made via Electronic Funds Transfer.

https://www.ipp.gov/

H Special Contract Requirements

H.1 Special Requirements

H.1.1 Limitation of Authority

The government assigned Project or Program Manager, Task POC, or COR are responsible for monitoring the Contractor’s performance. Any proposed modifications to the task order, such as changes to the scope of work, or to the terms and conditions of the task order must be authorized by the Contracting Officer.

H.1.2 Conflict of Interest

If for any reason the agency or the Contractor determines that the Contractor faces a potential, perceived, or real conflict of interest, the agency shall notify the Contractor or the Contractor shall notify the agency, and the Contractor shall cease all work on, reassign the task, or proceed at the discretion of the agency. At the agency's option, the Contractor may provide an acceptable replacement.

I Task Order Provisions and Clauses

I.1 Agriculture Acquisition Regulation (AGAR) Provisions

I.1.2 AGAR 452.204-70 – Inquires (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.

(End of provision)

I.2 Farm Production and Conservation (FPAC) Provisions

I.2.1 FPAC 4I-52.233-70 Protests to the Agency

(a) An agency protest filed with the contracting officer shall be sent to the contracting officer’s mailing address or email address listed in the solicitation. The contractor should contact the contracting officer to verify the mailing or email address prior to delivering a protest.

(b) The independent review of a contracting officer’s decision regarding a protest described at FAR 33.103(d)(4) is not available as an alternative to consideration of the protest by the contracting officer. An independent review is available only as an appeal of the contracting officer’s decision on a protest. An appeal must be filed within 10 calendar days of the protestor’s receipt of the contracting officer’s decision, otherwise the appeal will be deemed untimely and not considered. The appeal must be directed to the Head of the Contracting Activity but sent to the contracting officer.

(c) The protest must contain all the elements required by FAR 33.103(d)(2). Failure to substantially comply with any of the requirements of FAR 33.103(d)(2) may be grounds for dismissal of the protest.

(End of provision)

I.4 Agriculture Acquisition Regulation (AGAR) Clauses

I.4.1 AGAR 452.211-72 – Statement of Work/Specifications (Feb 1988)

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

(End of Clause)

I.4.2 AGAR 452.211-73 Attachments to Statement of Work/Specifications (Feb 1988)

The attachments to the Statement of Work/Specifications listed in Section J are hereby made part of this solicitation and any resultant contract.

(End of Clause)

I.4.3 AGAR 452.211-74 – Period of Performance (Feb 1988)

The period of performance for this award is from date of award through September 30, 2020.

I.4.4 AGAR 452.246-70 – Inspection Acceptance (Feb 1988)

(a) The Contracting Officer or Contracting Officer’s duly authorized representative will inspect and accept the supplies and/or services to be provided under this contract.

(b) Inspection and acceptance will be performed once a month.

I.4.5 AGAR 452.224-70 – Confidentiality of Information (Feb 1988)

(a) Confidential information, as used in this clause, means --

(1) information or data of a personal nature, proprietary about an individual, or (2) information or data submitted by or pertaining to an organization.

(b) In addition to the types of confidential information described in (a)(1) and (2) above, information which might require special consideration with regard to the timing of its disclosure may derive from studies or research, during which public disclosure of primarily invalidated findings could create an erroneous conclusion which might threaten public health or safety if acted upon.

(c) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential.

Similarly, the contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract. Failure to agree will be settled pursuant to the "Disputes" clause.

(d) If it is established that information to be utilized under this contract is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.

(e) Confidential information, as defined in (a)(1) and (2) above, shall not be disclosed without the prior written consent of the individual, institution or organization.

(f) Written advance notice of at least 45 days will be provided to the Contracting Officer of the Contractor's intent to release findings of studies or research, which have the possibility of adverse effects on the public or the Federal agency, as described in (b) above. If the Contracting Officer does not pose any objections in writing within the 45-day period, the contractor may proceed with disclosure. Disagreements not resolved by the Contractor and Contracting Officer will be settled pursuant to the "Disputes" clause.

(g) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor shall obtain a written determination from the Contracting Officer prior to any release, disclosure,

(h) The provisions of paragraph (e) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws.

I.5 Federal Acquisition Regulation Clauses (FAR)

I.5.1 52.212-4 - Contract Terms and Conditions—Commercial Items (MAY 2022)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights-

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1048610

Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include-

(i) Name and address of the Contractor.

(ii) Invoice date and number.

(iii) Contract number, line-item number and, if applicable, the order number.

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered.

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading.

(vi) Terms of any discount for prompt payment offered.

(vii) Name and address of official to whom payment is to be sent.

(viii) Name, title, and phone number of persons to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer- System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer-Other Than System for Award Management), or applicable agency procedures.

https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1063244 https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1050674 https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i1050705

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

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C.3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment. -

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C.3903) and prompt payment regulations at 5 CFR Part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall-

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

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

(B) Affected contract number and delivery order number, if applicable.

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

(D) Contractors point of contact.

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

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 https://www.acquisition.gov/content/part-52-solicitation-provisions-and-contract-clauses#i52_212_5 applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if–

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days.

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on-

(A) The date on which the designated office receives payment from the Contractor.

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

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(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause all its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance.

In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause.

(3) The clause at 52.212-5.

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(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) [Reserved]

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

(End of clause)

I.5.2 52.212-5 – Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items (MAY 2022)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

https://www.gsa.gov/forms-library/solicitationcontractorder-commercial-items

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (JUL 2018) (Section 1634 of Pub. L. 115-91).

(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).

(4) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (NOV 2015).

(5) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(6) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77 and 108- 78 ( 19 U.S.C. 3805 note)).

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

[Contracting Officer check as appropriate.]

__ (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (JUNE 2020), with Alternate I (OCT 1995) ( 41U.S.C.4704 and 10 U.S.C. 2402).

__ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (JUN 2020) (41 U.S.C. 3509)).

__ (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

__ (4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (JUN 2020) (Pub. L. 109-282) ( 31 U.S.C. 6101 note).

__ (5) [Reserved].

__ (6) 52.204-14, Service Contract Reporting Requirements (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).

__ (7) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).

X (8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (JUN 2020) (31 U.S.C. 6101 note).

__ (9) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (OCT 2018) (41 U.S.C. 2313).

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__ (10) [Reserved].

__ (11) (i) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (MAR 2020) (15 U.S.C. 657a).

__ (ii) Alternate I (MAR 2020) of 52.219-3.

__ (12) (i) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (MAR 2020) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

__ (ii) Alternate I (MAR 2020) of 52.219-4.

__ (13) [Reserved]

X (14) (i) 52.219-6, Notice of Total Small Business Set-Aside (MAR 2020) of 52.219- 6 (15 U.S.C. 644).

__ (ii) Alternate I (MAR 2020) of 52.219-6 .

__ (15) (i) 52.219-7, Notice of Partial Small Business Set-Aside (MAR 2020) (15 U.S.C. 644).

__ (ii) Alternate I (MAR 2020) of 52.219-7.

__ (16) 52.219-8, Utilization of Small Business Concerns (OCT 2018) (15 U.S.C. 637(d)(2) and (3)).

__ (17) (i) 52.219-9, Small Business Subcontracting Plan (JUN 2020) (15 U.S.C. 637(d)(4)).

__ (ii) Alternate I (NOV 2016) of 52.219-9.

__ (iii) Alternate II (NOV 2016) of 52.219-9.

__ (iv)Alternate III (JUN 2020) of 52.219-9.

__ (v)Alternate IV (JUN 2020) of 52.219-9

X (18) (i) 52.219-13, Notice of Set-Aside of Orders (MAR 2020) (15 U.S.C. 644(r)).

(ii) Alternate I (MAR 2020) of 52.219-13.

__ (19) 52.219-14, Limitations on Subcontracting (MAR 2020) (15 U.S.C. 637(a)(14)).

__ (20) 52.219-16, Liquidated Damages-Subcontracting Plan (JAN 1999) (15 U.S.C. 637(d)(4)(F)(i)).

__ (21) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (MAR 2020) (15 U.S.C. 657f).

X (22) (i) 52.219-28, Post Award Small Business Program Rerepresentation (MAY 2022) (15 U.S.C. 632(a)(2)).

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