ATTACHEMNT 1 -STATEMENT OF WORK (SOW).pdf

SPE300-23-R-0039 BAG-IN-BOX BEVERAGE SOLICITATION FOR CONUS, NAVY SHIPS, ALASKA,

HAWAII, AND GUAM AREAS

SF1449 - CONTINUATION SHEET

CONTINUATION OF THE BLOCKS ON PAGE 1 (SF 1449)

BLOCK 8, Offer due Date/Local Time (continued) OFFER DUE DATE/LOCAL TIME: December 21, 2023, 3:00 P.M. LOCAL PHILADELPHIA TIME Submission via email to the Contracting Officer and Contract Specialists, Jacob.Slotnic@dla.mil, Alyssa.Marley@dla.mil, and Zoraya.Wilson@dla.mil.

BLOCK 9, Issued By DLA Troop Support Subsistence

Address Procuring Agency:

Defense Logistics Agency (DLA) Troop Support Post Office Box 56667 Philadelphia, PA 19111-6667

Solicitation Number: SPE300-23-R-0009 Solicitation Issue Date: November 16, 2023 Solicitation Closing Date: December 21, 2023, at 3:00 P.M., Eastern Time

ADDITIONAL NOTE: Please note that due to the current environment of mandatory telework, the Bid Room is not a viable option for proposal submission of large purchase procurements. Offers must be submitted via email to the Contract Specialists, Alyssa.Marley@dla.mil, Zoraya.Wilson@dla.mil and the Contracting Officer, Jacob.Slotnick@dla.mil (Be advised that email firewalls and capacity could come into play since only 10MB can be forwarded via email. If your proposal is larger than 10MB, please split your submission into smaller emails.)

Note: Submission of proposals through the upload capability in DIBBs is prohibited.

Note: For the subject acquisition, the Government intends to evaluate offers and award contract(s) without discussions. Therefore, the offeror's initial offer should contain the offeror’s best terms from a price and technical standpoint. The Government reserves the right to evaluate offers and make award(s) without discussions with offerors. Therefore, the offeror's initial offer should contain the offeror's best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary.

As directed by the Contracting Officer, e-mail may also be used during discussions/negotiations, if discussions/negotiations are held, and for proposal revision(s), including Final Proposal Revision(s). The Contract Specialists, Alyssa Marley (Alyssa.Marley@dla.mil), Zoraya Wilson (Zoraya.Wilson@dla.mil), and the Contracting Officer, Jacob Slotnick (Jacob.Slotnick@dla.mil) may receive the e-mailed proposal revisions. If and when a request for proposal revision is issued, the date and time for receipt of proposal revisions, will be designated in that request. Submission of proposals and any revisions are subject to the terms of FAR 52.215-1.

Block 10, This Acquisition is: NAICS: 312111 mailto:Jacob.Slotnic@dla.mil mailto:Alyssa.Marley@dla.mil mailto:Alyssa.Marley@dla.mil mailto:Jacob.Slotnick@dla.mil mailto:Alyssa.Marley@dla.mil mailto:Zoraya.Wilson@dla.mil mailto:Jacob.Slotnick@dla.mil

BLOCK 17A Contractor/Offeror (Continued):

Offeror’s assigned Data Universal Numbering System (DUNS) Number (If you do not have a DUNS number, contact the individual identified in Block 7a of the SF1449 or see 52.212-1, Instructions to Offerors-Commercial Items for information on contacting Dun and Bradstreet.)

Offeror’s assigned Contractor and Government Entity (CAGE) Code:

PRIMARY COMPANY POC/NEGOTIATOR

PHONE #:

E-MAIL ADDRESS:

FAX NUMBER:

BLOCK 17B (Continued):

REMITTANCE WILL BE MADE TO THE ADDRESS THAT THE CONTRACTOR HAS LISTED IN THE

SYSTEM FOR AWARD MANAGEMENT (SAM).

AUTHORIZED NEGOTIATORS:

The offeror represents that the following persons are authorized to negotiate on its behalf with the Government in connection with this request for proposal. Please list names, titles, e-mail addresses, and telephone numbers for each authorized negotiator.

BLOCKS 19-24 (CONTINUED): SEE STATEMENT OF WORK & SCHEDULE OF ITEMS

(See Attached Excel Spreadsheet)

Contents

CONTINUATION OF THE BLOCKS ON PAGE 1 (SF 1449)

BLOCK 8, Offer due Date/Local Time (continued)

BLOCK 9, Issued By

Block 10, This Acquisition is: NAICS: 312111

BLOCK 17A Contractor/Offeror (Continued):

BLOCK 17B (Continued):

AUTHORIZED NEGOTIATORS:

BLOCKS 19-24 (CONTINUED): SEE STATEMENT OF WORK & SCHEDULE OF ITEMS (See Attached Excel Spreadsheet)

CAUTION NOTICE

***ALL OFFERORS ARE REQUIRED TO SUBMIT A COPY OF THEIR CURRENT WHOLESALE

PRICE LIST OR OTHER DOCUMENTS CONTAINING COMMERCIAL PRICING INFORMATION

WITH THEIR OFFER. ***

***ALL OFFERORS ARE REQUIRED TO SUBMIT A COPY OF THEIR AGREEMENTS WITH ALL

THEIR INDEPENDENT BOTTLERS THAT WILL BE USED TO SUPPORT OUR CUSTOMERS WITH

THEIR OFFER. ***

INSTRUCTIONS FOR COMPLETING THE COMPANY INFORMATION ON ATTACHMENT 2-

SCHEDULE OF ITEMS EXCEL SPREADSHEET

Contract Specialist & Contracting Officer

Caution - Contractor Code of Business Ethics

CONTRACT CLAUSES

52.212-4 Contract Terms and Conditions - Commercial Products and Commercial Services

FAR 52.252-2 – CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

???? DID YOU REMEMBER TO: ????

I. SUPPLIES / SERVICES / PRICES

1. INTRODUCTION

2. CONTRACT MINIMUM/MAXIMUM

3. PRICING

4. SCHEDULE OF ITEMS

5. ADDITIONAL CUSTOMERS

6. CONTRACTING AUTHORITY

7. SWITCHING CONTRACTOR(S)

8. BEVERAGE DISPENSING EQUIPMENT

9. DUAL POUR CUSTOMERS

10. MINIMUM ORDER QUANTITY

II. PACKAGING AND LABELING

III. INSPECTION AND ACCEPTANCE

1. Point Of Inspection And Acceptance

2. PRODUCT QUALITY

3. CONTRACTOR QUALITY PROGRAM

4. WAREHOUSING AND SANITATION PROGRAM /STORED PRODUCT PEST MANAGEMENT . 25

5. CONTRACTOR QUALITY AUDITS

6. RECALL PROCEDURES REQUIREMENTS

7. FOOD DEFENSE/FORCE PROTECTION

8. WARRANTIES

9. REJECTION PROCEDURES

10. ORDER AND DELIVERY CANCELLATIONS

IV. ORDERING AND DELIVERIES & PERFORMANCE

1. TERMS OF INDEFINITE QUANTITY CONTRACT

2. DELIVERY INSTRUCTIONS

3. DELIVERY VEHICLE REQUIREMENTS

4. NO SUBSTITUTIONS

5. HOLIDAYS

6. EMERGENCY ORDERS

7. AUTHORIZED RETURNS

8. SHORT SHIPMENTS/SHIPPING ERRORS

9. DELIVERY

10. SITE VISITS

11. ORDERING SYSTEM

12. ORDER PLACEMENT

13. PURCHASE ORDER

14. STORES (Subsistence Total Order and Receipt Electronic System)

15. INVOICING / PAYMENTS

16. PAYMENT

IV. CONTRACT ADMINISTRATION DATA

V. SPECIAL CONTRACT REQUIREMENTS

1. NON-COMPETE PROVISION

Financial Improvement Audit Readiness (FIAR) Policy

2. THIRD PARTY SUPPLIERS:

3. TAX CERTIFICATION

4. MANAGEMENT REPORTS

MILITARY CUSTOMER DELIVERY POINTS

CAUTION NOTICE

This procurement is being solicited under the Federal Acquisition Regulations FAR part 12 – Acquisition of Commercial Items, and FAR 13.5 as unrestricted using simplified acquisition procedures. Solicitation SPE300-23-R-0039 is for full-service Bag-In-Box Beverage products delivery to Land and Ships Customers in the Continental United States (CONUS) and Alaska, Hawaii, and Guam. The contract period will be for fifteen (15) months or Seven Million dollars ($7,000,000.00) whichever comes first.

THIS SOLICITATION IS ISSUED ON AN “UNRESTRICTED” BASIS.

The acquisition will be a negotiated procurement utilizing the Best Value, Low Price award methodology. Offerors must be determined technically acceptable, by providing proof of performing same /similar contracting in value and scope (providing service, equipment, and product). Pricing must be determined fair and reasonable. The Government intends to award multiple contracts based on offers received in each item category (Carbonated and/or Non-Carbonated). Each contract, regardless of offeror’s choice of Carbonated and/or Non-Carbonated category or both categories serviced must include all customer locations (Land and Ships Customers in the Continental United States (CONUS) and Alaska, Hawaii, and Guam. All contracts will be for a 15-month period or $7,000,000.00 total combined, whichever comes first. Failure to indicate acceptance by annotating offered unit prices (which will be evaluated on a gallon per gallon basis), as described in the Schedule of Items, may be deemed as non-acceptance of the terms and conditions, and may result in rejection of the offeror’s entire proposal. An exception to this would be not providing a unit price for the line item that includes Touch Screen Dispenser equipment.

All products must be produced and manufactured in the United States in accordance with DFARS 252.225-7012.

OFFERORS ARE CAUTIONED TO TAKE EXTREME CARE WHEN PREPARING PROPOSALS

IN RESPONSE TO THIS SOLICITATION. ALL TERMS AND CONDITIONS SHOULD BE

REVIEWED CAREFULLY. ITEM DESCRIPTION/SPECIFICATIONS AND SPECIFIC

DELIVERY LOCATIONS ARE LISTED IN THIS SOLICITATION. HOWEVER, THE

GOVERNMENT RESERVES THE RIGHT TO ADD OR DELETE CUSTOMERS OR ITEMS AS

MILITARY NEEDS CHANGE.

*** FIRMS CAN OFFER ON ONE OR MORE BEVERAGE CATEGORIES (CARBONATED

/ NON-CARBONATED), AND MUST BE ABLE TO DELIVER TO ALL CUSTOMERS IN EACH

SPECIFIC CUSTOMER GROUPING (E.G. LAND AND SHIPS CUSTOMERS IN THE

CONTINENTAL UNITED STATES (CONUS) AND ALASKA. CARBONATED BEVERAGES

INCLUDE ANY CARBONATED PRODUCTS SUCH AS

COLA, DIET COLA, LEMON-LIME SODA, ETC. NON-CARBONATED BEVERAGES INCLUDE ANY

NON-CARBONATED PRODUCTS SUCH AS ICED TEA, SPORTS DRINKS, FLAVORED WATERS,

JUICE BEVERAGES THAT CONTAIN LESS THAN 100% FRUIT JUICE, WITH THE EXCEPTION OF

CRANBERRY JUICE COCKTAIL OR CRANBERRY BLEND JUICE COCKTAILS WHICH CAN

CONTAIN A MAXIMUM OF 20% FRUIT JUICE AS PER 21 CFR PART 101.30. JUICES, DEFINED AS

CONTAINING100% JUICE EXCEPT FOR CRANBERRY (I.E., 21% OR HIGHER JUICE

CONCENTRATION), IS NOT COVERED UNDER THIS SOLICITATION NOR WILL IT BE PROVIDED

UNDER ANY CONTRACTS ISSUED UNDER THIS SOLICITATION. ***

The Government intends to award to the responsible offeror(s) that conform to the solicitation requirements, and that offer fair and reasonable prices as determined by the Contracting Officer. The Government expects to make multiple awards. After awards, DLA customers will have the flexibility to choose among the successful Contractor(s) for Carbonated and/or Non-Carbonated item categories or both. In choosing a Contractor(s) to supply its Bag-In-Box beverage needs, customers are expected to consider price, flavor selection, service, and other factors. Customers may also choose to switch suppliers among the successful offerors during contract performance. Further details on switching suppliers are available under Statement of Work, section I, paragraph 7.

In accordance with FAR 4.1103, it is mandatory that in order to do business or continue to do business with any DoD Agency, Contractors/offerors must be actively registered in the System for Award Management (SAM). For registration information or assistance, visit the SYSTEM FOR AWARD MANAGEMENT website https://www.sam.gov

See Also “Deliveries and Performance” section under STATEMENT OF WORK.

Taking exception to any of the terms and conditions of the solicitation may deem your proposal technically unacceptable and may preclude consideration for award. An exception to this would be providing a unit price to the line item for Touch Screen Dispensers.

The requirements for Clause 52.222-37 (see Addendum to FAR 52.212-5), Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era (38 U.S.C. 4212) mandate annual reporting of certain statistics on a form titled "Federal Contractor Veterans' Employment Report VETS-100."

***ALL OFFERORS ARE REQUIRED TO SUBMIT A COPY OF THEIR CURRENT

WHOLESALE PRICE LIST OR OTHER DOCUMENTS CONTAINING COMMERCIAL PRICING

INFORMATION WITH THEIR OFFER. ***

***ALL OFFERORS ARE REQUIRED TO SUBMIT A COPY OF THEIR AGREEMENTS WITH

ALL THEIR INDEPENDENT BOTTLERS THAT WILL BE USED TO SUPPORT OUR

CUSTOMERS WITH THEIR OFFER. ***

***PROPOSED PRICES SHALL BE FOB DESTINATION ONLY***

***In order to accommodate the Government’s ordering system (Subsistence Total Order and Receipt Electronic System -STORES), unit prices are limited to a maximum of 2 places after the decimal point (reference Clause DLAD 52.214-9008 “Rounding Off of Offer and Award Price”). *** https://www.sam.gov/

INSTRUCTIONS FOR COMPLETING THE COMPANY INFORMATION ON ATTACHMENT 2-

SCHEDULE OF ITEMS EXCEL SPREADSHEET

For instructions on completing the below information see attached Excel Spreadsheet tab titled “Instructions”

Please see attached Excel Spreadsheet tab titled “Company Information” and complete the required information.

• Company name and address, cage code, DUNS number, and Authorized Negotiator information

• Customer Service Points of Contact

• Ordering Capability and Points of Contact for Ordering and Invoicing/Payment

• Provide the Local Bottler Contact information to include Name and Region, address, and phone # with your offer.

• Provide a copy of your company's current Wholesale Price list or other documents containing

Commercial Pricing information. (NOT in the Excel spreadsheet BUT as an attachment to your offer).

*OFFERORS MUST SUBMIT PRICING ON AT LEAST ONE CATEGORIES AND ALL ITEMS

IN THAT CATEGORY MUST BE PRICED*

Please see attached Excel Spreadsheet tab titled “Bag-In-Box - Schedule of Items” and complete the required information.

• Schedule of Items - Unit Price, which is the price per gallon (TWO decimal places only)

Please see attached Excel Spreadsheet tab titled “Flavors –Category Description” and complete the required information.

Full Item Description for each item (BEV BASE, COLA, (Brand) name of the product, 5-GAL BIB) Product Code for each item

*FAILURE TO CORRECTLY AND COMPLETELY PROVIDE THE INFORMATION ABOVE

COULD LEAD TO YOUR COMPANY’S BID BEING CONSIDERED NON- RESPONSIVE AND IT

WILL NOT BE EVALUATED FOR AWARD. PROVIDING THIS INFORMATION IS NOT

OPTIONAL, IT IS REQUIRED.

An exception to this would be not providing a unit price for the line item that includes Touch Screen Dispenser equipment.

If you have any questions, please contact the Contracting Officer that is associated with this procurement.

Contact information is provided below for your convenience.

Contract Specialist & Contracting Officer

Contracting Specialists:

Alyssa Marley 215-737-4281 Alyssa.Marley@dla.mil mailto:Alyssa.Marley@dla.mil

Zoraya Wilson 215-737-9235

Zoraya.Wilson@dla.mil

Contracting Officer/Division Chief SMSG:

Jacob Slotnick 215-737-4514

Jacob.Slotnick@dla.mil

Caution - Contractor Code of Business Ethics

FAR Part 3.1002(a) requires all government Contractor(s) to conduct themselves with the highest degree of integrity and honesty. Contractor(s) should have a written code of business ethics and conduct within thirty days of award. To promote compliance with such code of business ethics and conduct, Contractor(s) should have an employee business ethics and compliance training program that facilitates timely discovery and disclosure of improper conduct in connection with government contracts and ensures corrective measures are promptly instituted and carried out. A Contractor(s) may be suspended and/or debarred for knowing failure by a principal to timely disclose to the government, in connection with the award, performance, or closeout of a government contract performed by the Contractor(s) or a subcontract awarded there under, credible evidence of a violation of federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in title 18 of the United States Code or a violation of the False Claims Act. (31 U.S.C. 3729- 3733)

If this solicitation or contract includes FAR clause 52.203-13 - CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT; the Contractor(s) shall comply with the terms of the clause and have a written code of business ethics and conduct; exercise due diligence to prevent and detect criminal conduct; promote ethical conduct and a commitment to compliance with the law within their organization; and timely report any violations of federal criminal law involving fraud, conflict of interest, bribery or gratuity violations found in title 18 of the United States Code or any violations of the False Claims Act. (31 U.S.C. 3729-3733). When FAR 52.203-13 is included in the contract, Contractor(s) must provide a copy of its written code of business ethics and conduct to the contracting officer upon request by the contracting officer.

CONTRACT CLAUSES

52.212-4 Contract Terms and Conditions - Commercial Products and Commercial Services

Contract Terms and Conditions—Commercial Products and Commercial Services (DEC 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 postacceptance 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 mailto:Zoraya.Wilson@dla.mil mailto:Jacob.Slotnick@dla.mil 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 Federal Acquisition Regulation (FAR) 52.233– 1, 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 person 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.

(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 https://www.govinfo.gov/link/uscode/31/3727 https://www.govinfo.gov/link/uscode/31/3903 https://www.ecfr.gov/current/title-5/part-1315 https://www.govinfo.gov/link/uscode/31/3903 https://www.ecfr.gov/current/title-5/part-1315 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) Contractor 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 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 FAR 32.608–2 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.

(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 any and all of 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 https://www.govinfo.gov/link/uscode/41/7109

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 any and 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. 4701 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; (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; and (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) Alternate I (NOV 2021). When a time-and-materials or labor-hour contract is contemplated, substitute the following paragraphs (a), (e), (i), (l), and (m) for those in the basic clause.

(a) Inspection/Acceptance. (1) The Government has the right to inspect and test all materials furnished and services performed under this contract, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the Contractor or any https://www.govinfo.gov/link/uscode/31/1352 https://www.govinfo.gov/link/uscode/18/431 https://www.govinfo.gov/link/uscode/41/4712 https://www.govinfo.gov/link/uscode/10/4701 https://www.govinfo.gov/link/uscode/49/40118 https://www.govinfo.gov/link/uscode/31/1341 subcontractor engaged in contract performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

(2) If the Government performs inspection or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish and shall require subcontractors to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

(3) Unless otherwise specified in the contract, the Government will accept or reject services and materials at the place of delivery as promptly as practicable after delivery, and they will be presumed accepted 60 days after the date of delivery, unless accepted earlier.

(4) At any time during contract performance, but not later than 6 months (or such other time as may be specified in the contract) after acceptance of the services or materials last delivered under this contract, the Government may require the Contractor to replace or correct services or materials that at time of delivery failed to meet contract requirements.

Except as otherwise specified in paragraph (a)(6) of this clause, the cost of replacement or correction shall be determined under paragraph (i) of this clause, but the “hourly rate” for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit. Unless otherwise specified below, the portion of the “hourly rate” attributable to profit shall be 10 percent. The Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for replacement or correction, and, when required, shall disclose the corrective action taken. [Insert portion of labor rate attributable to profit.] (5)(i) If the Contractor fails to proceed with reasonable promptness to perform required replacement or correction, and if the replacement or correction can be performed within the ceiling price (or the ceiling price as increased by the Government), the Government may—

(A) By contract or otherwise, perform the replacement or correction, charge to the Contractor any increased cost, or deduct such increased cost from any amounts paid or due under this contract; or

(B) Terminate this contract for cause.

(ii) Failure to agree to the amount of increased cost to be charged to the Contractor shall be a dispute under the Disputes clause of the contract.

(6) Notwithstanding paragraphs (a)(4) and (5) above, the Government may at any time require the Contractor to remedy by correction or replacement, without cost to the Government, any failure by the Contractor to comply with the requirements of this contract, if the failure is due to—

(i) Fraud, lack of good faith, or willful misconduct on the part of the Contractor's managerial personnel; or

(ii) The conduct of one or more of the Contractor's employees selected or retained by the Contractor after any of the Contractor's managerial personnel has reasonable grounds to believe that the employee is habitually careless or unqualified.

(7) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under this contract.

(8) The Contractor has no obligation or liability under this contract to correct or replace materials and services that at time of delivery do not meet contract requirements, except as provided in this clause or as may be otherwise specified in the contract.

(9) Unless otherwise specified in the contract, the Contractor's obligation to correct or replace Government-furnished property shall be governed by the clause pertaining to Government property.

(e) Definitions. (1) The clause at FAR 52.202–1, Definitions, is incorporated herein by reference. As used in this clause—

(i) Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.

(ii) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are—

(A) Performed by the contractor;

(B) Performed by the subcontractors; or

(C) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.

(iii) Materials means—

(A) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control;

(B) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;

(C) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.);

(D) The following subcontracts for services which are specifically excluded from the hourly rate: [Insert any subcontracts for services to be excluded from the hourly rates prescribed in the schedule.]; and

(E) Indirect costs specifically provided for in this clause.

(iv) Subcontract means any contract, as defined in FAR Subpart 2.1, entered into with a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.

(i) Payments. (1) Work performed. The Government will pay the Contractor as follows upon the submission of commercial invoices approved by the Contracting Officer:

(i) Hourly rate.

(A) The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the contract by the number of direct labor hours performed. Fractional parts of an hour shall be payable on a prorated basis.

(B) The rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract. Labor hours incurred to perform tasks for which labor qualifications were specified in the contract will not be paid to the extent the work is performed by individuals that do not meet the qualifications specified in the contract, unless specifically authorized by the Contracting Officer.

(C) Invoices may be submitted once each month (or at more frequent intervals, if approved by the Contracting Officer) to the Contracting Officer or the authorized representative.

(D) When requested by the Contracting Officer or the authorized representative, the Contractor shall substantiate invoices (including any subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment, individual daily job timecards, records that verify the employees meet the qualifications for the labor categories specified in the contract, or other substantiation specified in the contract.

(E) Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis.

(1) If no overtime rates are provided in the Schedule and the Contracting Officer approves overtime work in advance, overtime rates shall be negotiated.

(2) Failure to agree upon these overtime rates shall be treated as a dispute under the Disputes clause of this contract.

(3) If the Schedule provides rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer.

(ii) Materials.

(A) If the Contractor furnishes materials that meet the definition of a commercial product at FAR 2.101, the price to be paid for such materials shall not exceed the Contractor's established catalog or market price, adjusted to reflect the—

(1) Quantities being acquired; and

(2) Any modifications necessary because of contract requirements.

(B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of this clause, the Government will reimburse the Contractor the actual cost of materials (less any rebates, refunds, or discounts received by the contractor that are identifiable to the contract) provided the Contractor—

(1) Has made payments for materials in accordance with the terms and conditions of the agreement or invoice; or

(2) Makes these payments within 30 days of the submission of the Contractor's payment request to the Government and such payment is in accordance with the terms and conditions of the agreement or invoice.

(C) To the extent able, the Contractor shall—

(1) Obtain materials at the most advantageous prices available with due regard to securing prompt delivery of satisfactory materials; and

(2) Give credit to the Government for cash and trade discounts, rebates, scrap, commissions, and other amounts that are identifiable to the contract.

(D) Other Costs. Unless listed below, other direct and indirect costs will not be reimbursed.

(1) Other Direct Costs. The Government will reimburse the Contractor on the basis of actual cost for the following, provided such costs comply with the requirements in paragraph (i)(1)(ii)(B) of this clause: [Insert each element of other direct costs (e.g., travel, computer usage charges, etc. Insert “None” if no reimbursement for other direct costs will be provided. If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the elements of other direct charge(s) for that order or, if no reimbursement for other direct costs will be provided, insert ‘None’”.]

(2) Indirect Costs (Material Handling, Subcontract Administration, etc.). The Government will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price:

[Insert a fixed amount for the indirect costs and payment schedule. Insert “$0” if no fixed price reimbursement for indirect costs will be provided. (If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the fixed amount for the indirect costs and payment schedule or, if no reimbursement for indirect costs, insert ‘None’).”]

(2) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule and the Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within such ceiling price. If at any time the Contractor has reason to believe that the hourly rate payments and material costs that will accrue in performing this contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling price in the Schedule, the Contractor shall notify the Contracting Officer giving a revised estimate of the total price to the Government for performing this contract with supporting reasons and documentation. If at any time during the performance of this contract, the Contractor has reason to believe that the total price to the Government for performing this contract will be substantially greater or less than the then stated ceiling price, the Contractor shall so notify the Contracting Officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documentation. If at any time during performance of this contract, the Government has reason to believe that the work to be required in performing this contract will be substantially greater or less than the stated ceiling price, the Contracting Officer will so advise the Contractor, giving the then revised estimate of the total amount of effort to be required under the contract.

(3) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price.

(4) Access to records. At any time before final payment under this contract, the Contracting Officer (or authorized representative) will have access to the following (access shall be limited to the listing below unless otherwise agreed to by the Contractor and the Contracting Officer):

(i) Records that verify that the employees whose time has been included in any invoice meet the qualifications for the labor categories specified in the contract;

(ii) For labor hours (including any subcontractor hours reimbursed at the hourly rate in the schedule), when timecards are required as substantiation for payment—

(A) The original timecards (paper-based or electronic);

(B) The Contractor's timekeeping procedures;

(C) Contractor records that show the distribution of labor between jobs or contracts; and

(D) Employees whose time has been included in any invoice for the purpose of verifying that these employees have worked the hours shown on the invoices.

(iii) For material and subcontract costs that are reimbursed on the basis of actual cost—

(A) Any invoices or subcontract agreements substantiating material costs; and

(B) Any documents supporting payment of those invoices.

(5) Overpayments/Underpayments. Each payment previously made shall be subject to reduction to the extent of amounts, on preceding invoices, that are found by the Contracting Officer not to have been properly payable and shall also be subject to reduction for overpayments or to increase for underpayments. The Contractor shall promptly pay any such reduction within 30 days unless the parties agree otherwise. The Government within 30 days will pay any such increases, unless the parties agree otherwise. The Contractor's payment will be made by check. If the Contractor becomes aware of a duplicate invoice payment or that the Government has otherwise overpaid on an 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) Contractor point of contact.

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

(6)(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 applicable to the period in which the amount becomes due, and then at the rate applicable for each six month period as established 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 in a timely manner;

(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

FAR 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 FAR 32.608–2 in effect on the date of this contract.

(viii) Upon receipt and approval of the invoice designated by the Contractor as the “completion invoice” and supporting documentation, and upon compliance by the Contractor with all terms of this contract, any outstanding balances will be paid within 30 days unless the parties agree otherwise. The completion invoice, and supporting documentation, shall be submitted by the Contractor as promptly as practicable following completion of the work under this contract, but in no event later than 1 year (or such longer period as the Contracting Officer may approve in writing) from the date of completion.

(7) Release of…