Attachment 003 - Barrack Maintenance - Terms and Conditions_Rev 1.pdf

RPP W91248-26-R-0040 Attachment 002

This agreement falls under Other Transaction Authority (OTA), not the Federal Acquisition Regulation (FAR). By incorporating the U.S. Government’s terms and conditions directly into Section I, the terms and conditions a core component of the agreement, eliminating the need for a separate attachment.

OTHER TRANSACTION FOR PRODUCTION AGREEMENT TABLE OF CONTENTS

ARTICLE 1: DEFINITIONS AND ACRONYMS

ARTICLE 2: SCOPE OF THE AGREEMENT

ARTICLE 3: TERM OF THE AGREEMENT AND TERMINATION

ARTICLE 4: MANAGEMENT, ADMINISTRATION, AND MODIFICATION

ARTICLE 5: OBLIGATION AND PAYMENT

ARTICLE 6: DISPUTES

ARTICLE 7: CONFIDENTIAL INFORMATION

ARTICLE 8: DATA RIGHTS

ARTICLE 9: OPERATIONAL SECURITY (OPSEC)

ARTICLE 10: GOVERNING LAW AND JURISDICTION

ARTICLE 11: TITLE AND DISPOSITION OF PROPERTY

ARTICLE 12: SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER

INCIDENT REPORTING

ARTICLE 13: STATUTORY AUTHORITY

ARTICLE 14: INDEMNITY

ARTICLE 15: ASSIGNMENT AND TRANSFER

ARTICLE 16: FORCE MAJEURE

ARTICLE 17: ORDER OF PRECEDENCE

ARTICLE 18: PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO

SURVEILLANCE SERVICES OR EQUIPMENT

ARTICLE 19: WARRANTY

ARTICLE 20: RESERVED

ARTICLE 21: BUY AMERICAN ACT

ARTICLE 22: CONTRACTOR CONDUCT AND INTEGRITY

ARTICLE 23: LABOR AND EMPLOYMENT PROVISIONS

ARTICLE 24: SUBCONTRACTING

ARTICLE 25: MISCELLANEOUS

ARTICLE 26: AGREEMENT ADMINISTRATION AND POINTS OF CONTACTS

ARTICLE 1: DEFINITIONS AND ACRONYMS

1.1 “Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated.

Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, Request for Prototype Proposal and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

1.2 “Acceptance” means the act of an authorized representative of the Government by which the Government assents to ownership of existing and identified supplies, or approves specific services rendered, as partial or complete performance of the contract.

1.3 “Adequate security” means protective measures that are commensurate with the consequences and probability of loss, misuse, or unauthorized access to, or modification of information.

1.4 “Administrative Agreements Officer (AAO)” is the Army Contracting Activity warranted Agreements Officer delegated and authorized to act in an administrative capacity in addition to the AO.

1.5 “Agreement” or "OTA" refers to the Other Transaction Agreement, as authorized under 10 U.S.C. 4022, between the Government and COMPANY this Agreement.

OTA also refers to Other Transaction Authority. The term 'other transaction authority' means the authority provided under sections 4021 and 4022 of title 10, United States Code and any other code that uses such similar authorities.

1.6 “Agreements Officer (AO)” is the U.S. Army Mission & Installation Contracting

Command (MICC) Activity warranted official authorized to sign the final agreement for the Government. Throughout the OTA, this individual may also be referred to as the Contracting Officer (KO).

1.7 “Agreements Officer’s Representative (AOR)” is the individual designated by the

Government on a per project basis to monitor all technical and administrative aspects. Throughout the OTA, this individual may also be referred to as the Contracting Officer Representative (COR).

1.8 “Claim” means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this Agreement.

1.9 “COMPANY” or “Company” means any commercial business that is the other signatory to this agreement beyond the U.S. Government. This term includes but is not limited any business formed under United States of America state laws, informal entities such as sole proprietorships, partnering firms, Joint Ventures.

1.10 “COMPANY attributional/proprietary information” means information that identifies the COMPANY(s), whether directly or indirectly, by the grouping of information that can be traced back to the COMPANY(s) (e.g., program description, facility locations), personally identifiable information, as well as trade secrets, commercial or financial information, or other commercially sensitive information that is not customarily shared outside of the company.

1.11 “Compromise” means disclosure of information to unauthorized persons, or a violation of the security policy of a system, in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object, or the copying of information to unauthorized media may have occurred.

1.12 “Computer program” as used in this Agreement means a set of instructions, rules, or routines in a form that is capable of causing a computer to perform a specific operation or series of operations.

1.13 “Computer software” as used in this Agreement means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated or recompiled. Computer software does not include computer databases or computer software documentation.

1.14 “Confidential Information” means information and materials of a Disclosing Party which are designated as confidential or as a Trade Secret in writing by such Disclosing Party, whether by letter or by use of an appropriate stamp or legend, prior to or at the same time any such information or materials are disclosed by such Disclosing Party to the Receiving Party. Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Confidential Information or a Trade Secret if such Disclosing Party, within thirty calendar days after such disclosure, delivers to the Receiving Party a written document or documents describing the material or information and indicating that it is confidential or a Trade Secret, provided that any disclosure of information by the Receiving Party prior to receipt of such notice shall not constitute a breach by the Receiving Party of its obligations. “Confidential Information” includes any information and materials considered a Trade Secret by the COMPANY on its own behalf or on behalf of their subcontractors or suppliers.

1.15 “Contracting Activity” means an element of an agency designated by the agency head and delegated broad authority regarding acquisition functions. It also means elements or another agency designated by the director of a defense agency which has been delegated contracting authority through its agency charter.

1.16 “Covered COMPANY information system” means an unclassified information system that is owned, or operated by or for, a COMPANY and that processes, stores, or transmits covered defense information.

1.17 “Controlled Unclassified Information (CUI)” means unclassified information that requires safeguarding or dissemination controls, pursuant to and consistent with applicable law, regulations, and Government-wide policies. Instructions for the use, marking, dissemination, and storage of CUI can be found in DoD Instruction 5200.48, “Controlled Unclassified Information (CUI).”

1.18 “Cyber incident” means actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein.

1.19 “Data” means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to agreement administration, such as financial, administrative, cost or pricing, or management information.

1.20 “Date of Completion” is the date on which all work is completed as identified in

Design and Construction Schedule.

1.21 “Days” means calendar days unless otherwise stated.

1.22 “Developed” means that an item, component, or process exists and is workable.

Thus, the item or component must have been constructed or the process practiced. Workability is generally established when the item, component, or process has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. To be considered “developed,” the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component, or process be actually reduced to practice within the meaning of Title 35 of the United States Code.

1.23 “Development” means the systematic use of scientific and technical knowledge in the design, development, testing, or evaluation of a potential new product or service (or of an improvement in an existing product or service) to meet specific performance requirements or objectives. It includes the functions of design engineering, prototyping, and engineering testing.

1.24 “Disclosing Party” means COMPANY, or their subcontractors or suppliers, or the

Government who discloses Confidential Information.

1.25 “Domestic End Product” means an end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 65 percent of the cost of all its components, for items delivered in calendar years 2024 through 2028 and 75 percent for items delivered starting in calendar year 2029.

1.26 “End Product” means those articles, materials, and supplies to be acquired under this Agreement for public use.

1.27 “F.O.B.” means free on board. This term is used in conjunction with a physical point to determine-

a. The responsibility and basis for payment of freight charges; and

b. Unless otherwise agreed, the point where title for goods passes to the buyer or consignee.

1.28 “F.O.B. destination” means free on board at destination; i.e., the seller or consignor delivers the goods on seller’s or consignor’s conveyance at destination. Unless the contract provides otherwise, the seller or consignor is responsible for the cost of shipping and risk of loss.

1.29 “F.O.B. origin” means free on board at origin; i.e., the seller or consignor places the goods on the conveyance. Unless the contract provides otherwise, the buyer or consignee is responsible for the cost of shipping and risk of loss.

1.30 “Form, fit and function data” means technical data that describes the required overall physical, functional and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

1.31 “Foreign Firm or Institution” means a firm or institution organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes, for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

1.32 “Government” means the U.S. Government.

1.33 “Government Fiscal Year” means the period commencing on October 1 and ending September 30 of the following calendar year.

1.34 “Government purpose” means any activity in which the United States Government is a party, including cooperative agreements with international or multinational defense organizations, or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so.

1.35 “Inspection” means examining and testing supplies or services to determine whether they conform to contract requirements.

1.36 “Invoice” means the Company’s bill or written request for payment under the Agreement for supplies delivered or services performed.

1.37 “Key Personnel” means those persons identified in this Agreement as being essential to the successful performance of the work.

1.38 “Know-How” means all information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, software, programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.

1.39 “Latent Defect” means a defect that exists at the time of acceptance but is not discoverable by a reasonable inspection.

1.40 “Limited use rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government.

The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party.

1.41 “Limited rights data” means data, other than computer software, that embody trade secretes or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications. (Agencies may, however, adopt the following alternate definition: Limited rights data means data (other than computer software) developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged.

1.42 “Malicious software” means computer software or firmware intended to perform an unauthorized process that will have adverse impact on the confidentiality, integrity, or availability of an information system. This definition includes a virus, worm, Trojan horse, or other code-based entity that infects a host, as well as spyware and some forms of adware.

1.43 “Media” means physical devices or writing surfaces including, but is not limited to, magnetic tapes, optical disks, magnetic disks, large-scale integration memory chips, and printouts onto which covered defense information is recorded, stored, or printed within a covered COMPANY information system.

1.44 “Modification” means any written change in the terms of this Agreement. A bilateral modification is signed by both Parties. A unilateral modification is signed only by the AO.

1.45 “Non-Personal Services” means a service contract under which the personnel rendering the services are not subject to the supervision and control usually prevailing in relationships between the Government and its employees.

1.46 “Operationally critical support’’ means supplies or services designated by the

Government as critical for airlift, sealift, intermodal transportation services, or logistical support that is essential to the mobilization, deployment, or sustainment of the Armed Forces in a contingency operation.

1.47 “Receiving Party” means COMPANY, or their subcontractors or suppliers, or the

Government who receives Confidential Information disclosed by a Disclosing Party.

1.48 “Service Employee” means any person engaged in the performance of this

Agreement other than any person employed in a bona fide executive, administrative, or professional capacity.

1.49 “Services” or “Service Contract” means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply.

1.50 “Signatory Authority” refers to the individual that has the authority to legally bind a party to an agreement.

1.51 “Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, facilities, ships, aircraft, and machine tools.

1.52 “Technical Data” means recorded information, regardless of form or method of recording, of a scientific or technical nature. It may include research data, drawings, manuals, and specifications.

1.53 “Termination for Cause” means the exercise of the Government’s right to completely or partially terminate a contract because of the contractor’s actual or anticipated failure to perform its contractual obligations.

1.54 “Termination for Convenience” means the exercise of the Government’s right to completely or partially terminate performance of work under a contract when it is in the Government’s interest.

1.55 “Unlimited use rights” means rights to use, modify, reproduce, perform, display, release, or disclose Data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

ACRONYMS

ADR Alternate Dispute Resolution AFARS Army Federal Acquisition Regulation Supplement AMC Army Material Command AO Agreement Officer AOR Agreement Officer Representative CAC Common Access Card CSAM Construction Scale Additive Manufacturing CSRP Central Shipping and Receiving Point CTC Combat Transaction Authority DFARS Defense Federal Acquisition Regulation Supplement DOD Department of Defense DOW Department of War DPAS Defense Priorities and Allocations System FAR Federal Acquisition Regulation FPR Follow-On Production Request JBSA Joint Base San Antonio MICC Mission and Installation Contracting Command NACI National Agency Check with Inquiries NAICS North American Industry Classification System NIPR Non-Classified Internet Protocol Router Network OTA Other Transaction Authority PDF Portable Document File

PIEE Procurement Integrated Enterprise Environment TR Technical Requirements TSC Theater Support Center USG United States Government U.S.C. United States Code VCC Visitor Control Center

ARTICLE 2: SCOPE OF THE AGREEMENT

2.1 Background

Other Transactions Agreement (OTA) is the term commonly used to refer to the 10 U.S.C. § 4022 authority to enter transactions other than contracts, grants or cooperative agreements. The Department of Defense (DoD) currently has authority to make awards that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or to improvement of platforms, systems, components, or materials in use by the armed forces. OTAs are acquisition instruments that are generally not subject to the Federal laws and regulations governing procurement (FAR based) contracts. As such, they are not required to comply with the Federal Acquisition Regulation (FAR), its supplements (e.g., Defense Acquisition Regulation (DFARS), Army Federal Acquisition Regulation (AFARS)) or laws that are limited in applicability to procurement contracts. Under the authority of 10 U.S.C. § 4022.

2.2 Scope

The COMPANY shall provide all necessary personnel, materials, equipment, supplies, and services to design, fabricate, deliver, and support DPW and associated items as specified in the Statement of Objectives, Attachment 001.

The services to be performed under this Agreement constitute Non-Personal Services, meaning the Company’s personnel rendering the services are not subject to the supervision and control usually prevailing in relationships between the Government and its employees.

ARTICLE 3: TERM OF THE AGREEMENT AND TERMINATION

3.1 Term of this Agreement

The term of this Agreement shall commence upon the date of the last signature by the Parties and shall continue until the Date of Completion and final payment, unless terminated earlier in accordance with this Article. The period of performance is from [Start Date] to [End Date].

3.2 Termination Provisions

Subject to a reasonable determination that the program, or a project funded under the program, will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate performance of work under this Agreement for convenience, in whole or in part, if the AO determines that a termination is in the Government’s interest. The AO will terminate by delivering to the Company a Notice of Termination specifying the extent of termination and the effective date. After receipt of a Notice of Termination, and except as directed by the AO, the Company shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due:

(1) Stop work and direct its subcontractors/vendors/suppliers/partners to stop work as specified in the notice.

(2) Place no further orders for materials, services, or facilities, except as necessary to complete the continued portion of the Agreement.

(3) Terminate all orders to the extent they relate to the work terminated.

(4) Complete performance of any work not terminated, if applicable.

(5) Take any action that may be necessary, or that the AO may direct, for the protection and preservation of the property related to this project that is in the possession of the Company and in which the Government has or may acquire an interest.

If the Government terminates, then the Government will pay Company for all work and services rendered and performed up to date of the notice of termination plus reasonable demobilization costs actually incurred by the Company and Company’s reasonable cost(s) to break contractual obligations with subcontractors, subconsultants, suppliers, vendors and materialmen entered prior to Company’s receipt of the notice of termination.

Failure of the Parties to agree to terminate shall be resolved pursuant to Article 6, Disputes.

3.2.1 Extending the Term

The Parties may extend, by mutual written agreement, the term of this Agreement if opportunities within the scope set forth in the Agreement reasonably warrant. Any extension shall be formalized through modification of the Agreement by the AO and the Company and in accordance with procedures outlined in Article 4.2.

The Government shall exercise due diligence, reasonable promptness, and good-faith cooperation in performing all obligations under this Agreement. This includes, without limitation, the timely provision of all Government- furnished information, materials, approvals, access, decisions, and direction required for Company to perform the Work.

The Government shall not delay, hinder, or otherwise interfere with the Company’s performance. Any failure by the Government to timely perform its obligations, or any Government-caused delay or disruption, may entitle Company to an equitable adjustment in schedule or other terms as necessary to account for the impact of such delay, which shall be modified in accordance with the procedures set forth in Article 4.2.

The Government agrees to promptly address and resolve issues, dependencies, or approval requests submitted by Company to avoid material impacts to the Work.

Company shall not be held responsible for performance delays, nonperformance, or cost impacts arising from the Government’s failure that directly impact the Company’s ability to meet its obligations under this Agreement.

3.3 Termination for Cause:

The Government may, by written notice of default to the COMPANY, terminate this Agreement in whole or in part if the COMPANY:

(1) Fails to deliver the supplies or to perform the services within the time specified in this Agreement or any extension;

(2) Fails to make progress, so as to endanger performance of this Agreement;

or

(3) Fails to perform any of the other provisions of this Agreement.

The Government’s right to terminate this Agreement under subdivisions (a)(2) and (a)(3) above, may be exercised if the COMPANY does not cure such failure within 10 days (or longer if authorized in writing by the AO) after receipt of the notice from the AO specifying the failure.

If the Government terminates this Agreement in whole or in part, it may acquire, under the terms and in the manner the AO considers appropriate, supplies or services similar to those terminated, and the COMPANY shall be liable to the Government for any excess costs for those supplies and services. However, the COMPANY shall continue the work not terminated.

If, after termination, it is determined that the COMPANY was not in default, or that the default was excusable, the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of the Government.

ARTICLE 4: MANAGEMENT, ADMINISTRATION, AND MODIFICATION

4.1 Administration

The AO is responsible for the review and approval of any recommendations to modify the TR, or other proposed changes to the terms and conditions of this Agreement. If additional terms and conditions are required to be included to address work that may be required under this Agreement, they will be included by mutual written modification to this Agreement. Administrative and contractual matters under this Agreement shall be referred to the representatives identified in Agreement Administration.

The AO may designate an AOR to perform specific technical or administrative functions.

The AOR has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms of the Agreement.

4.2 Modifications

The AO may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this Agreement in any one or more of the following:

(1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications;

(2) Method of shipment or packing; or

(3) Place of delivery.

If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this Agreement, whether or not changed by the order, the AO shall make an equitable adjustment in the Agreement price, the delivery schedule, or both, and shall modify the Agreement.

The COMPANY must assert its right to an adjustment within 30 days from the date of receipt of the written order. The AO may receive and act upon a proposal submitted before final payment of the Agreement.

Failure to agree to any adjustment shall be a dispute under Article 6 Disputes.

However, nothing in this article shall excuse the COMPANY from proceeding with the Agreement as changed.

Recommendations for modifications, including justifications to support any changes to the (technical requirements) TR and terms of this agreement may originate with either a request from the COMPANY to the AOR and AO, or the Government through the AO.

This documentation will detail the technical, chronological, and financial impact of the proposed modification to the program. The AO and the COMPANY shall approve any Agreement modification. The Government is not obligated to pay for additional or revised pay activities until the CLIN Schedule is formally revised and made part of this Agreement via modification signed by the AO, and the project schedule is updated to incorporate pay activity changes resulting from the modification. If the AO designates an AOR, the COMPANY will receive a copy of the written designation. It will specify the extent of the AOR's authority to act on behalf of the AO.

The AO is responsible for the review and approval of any recommendations to modify the TR, or other proposed changes to the terms and conditions of this Agreement. If additional terms and conditions are required to be included to address work that may be required under this Agreement, they will be included by mutual written modification to this Agreement.

For minor or administrative Agreement modifications (e.g. changes in the paying office or appropriation data, changes to Government or the Company's personnel identified in the Agreement) no signature is required by the Company. Administrative modifications may be unilaterally executed by the AO provided that the COMPANY is notified of such modifications in writing (email accepted). All modifications except for administrative modifications shall be made by mutual written agreement of the parties.

The AO is responsible for initiating all modifications to this Agreement.

4.3 Changes

4.3.1 Change Order

(1) The Agreements Officer may, at any time, without notice to the sureties, if any, by written order designated or indicated to be a change order, make changes in the work within the general scope of the agreement, including changes-

a. In the specifications (including drawings and designs);

b. In the method or manner of performance of the work;

c. In the Government-furnished property or services; or

d. Directing acceleration in the performance of the work.

(2) Any other written order (which, as used in this paragraph (2), includes direction, instruction, interpretation, or determination) from the Agreements Officer that causes a change will be treated as a change order under this article; Provided, that the Contractor gives the Agreements Officer written notice stating

a. The date, circumstances, and source of the order; and

b. That the Contractor regards the order as a change order.

(3) Except as provided in this article, no order, statement, or conduct of the

Agreements Officer shall be treated as a change under this article or entitle the Contractor to an equitable adjustment.

(4) If any change under this article causes an increase or decrease in the

Contractor’s cost of, or the time required for, the performance of any part of the work under this agreement, whether or not changed by any such order, the Agreements Officer may make an equitable adjustment and modify the agreement in writing. However, except for an adjustment based on defective specifications, no adjustment for any change under paragraph (2) of this article shall be made for any costs incurred more than 20 days before the Contractor gives written notice as required. In the case of defective specifications for which the Government is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with the defective specifications.

(5) The COMPANY must assert its right to an adjustment under this article within 30 days after (1) receipt of a written change order under paragraph (1) of this article or (2) the furnishing of a written notice under paragraph (2) of this article, by submitting to the Agreements Officer a written statement describing the general nature and amount of the proposal, unless this period is extended by the Government. The statement of proposal for adjustment may be included in the notice under paragraph (2) of this article.

(6) No proposal by the COMPANY for an equitable adjustment shall be allowed if asserted after final payment under this agreement.

4.3.2 Changes and Changed Conditions

(1) The Agreements Officer may, in writing, order changes in the drawings and specifications within the general scope of the agreement.

(2) If changes under paragraph (1) increase or decrease the cost of, or time required for performing the work, the Agreements Officer may make an equitable adjustment (see paragraph (3)) upon submittal of a "proposal for adjustment" (hereafter referred to as proposal) by the COMPANY before final payment under the contract.

(3) The Agreements Officer will not make an equitable adjustment under paragraph

(2) unless-

a. The COMPANY has submitted and the Agreements Officer has received the required written notice; or

b. The Agreements Officer waives the requirement for the written notice.

(4) Failure to agree to any adjustment shall be a dispute under the Disputes article.

(5) No request by the COMPANY for an equitable adjustment to the agreement under this article shall be allowed, unless the COMPANY has given the written notice required; provided, that the time prescribed in paragraph (1) of this article for giving written notice may be extended by the Agreements Officer.

ARTICLE 5: OBLIGATION AND PAYMENT

5.1 Obligation of Funds

This Agreement is funded in accordance with the amount annotated in the award document. In no case shall the Government's financial obligations exceed the amount obligated on the Agreement, or as may be adjusted by amendment, change order, or change directive to this Agreement. The Government is not obligated to reimburse the COMPANY for expenditures in excess of the amount obligated by the Government. If a modification becomes necessary in performance of this Agreement, pursuant to Article 4, the AO and the COMPANY shall execute a revised CLIN Schedule and update the project schedule to reflect pay activity changes resulting from the modification.

5.1.1 The total estimated value for the full performance of this Prototype Agreement is $[Insert Total Agreement Value].

5.1.2 This Agreement is incrementally funded. The sum of $[Insert Currently Obligated Amount] is presently obligated and made available for payment of payable milestones/performance through [Insert Date or Specific Milestone/Phase].

5.1.3 The Government is not obligated to reimburse or pay the Performer (Company) for any costs incurred, work performed, or milestones achieved in excess of the total funds currently obligated under this Agreement.

5.2 Inspection and Acceptance

The Government has the right to inspect and test all supplies and services called for by the Agreement, to the extent practicable at all times and places during the term of the Agreement. The Government shall perform inspections and tests in a manner that will not unduly delay the work.

If any of the supplies or services do not conform with Agreement requirements, the Government may require the COMPANY to replace the supplies or perform the services again in conformity with Agreement requirements, at no increase in amount. When the supplies or services are for correction, the COMPANY shall be liable for all transportation costs.

If the COMPANY fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with Agreement requirements, the Government may (1) by contract or otherwise, perform the services or replace the supplies and charge to the COMPANY any cost incurred by the Government that is directly related to the performance of such service or replacement; or (2) terminate the

Agreement for cause.

Acceptance shall be conclusive, except for latent defects, fraud, or gross mistakes amounting to fraud.

5.3 Payments

5.3.1 The Government shall pay the COMPANY, upon the submission of proper invoices, the prices stipulated in this Agreement for supplies delivered and accepted or services rendered and accepted. Payment will be made in accordance with the Prompt Payment Act. Invoices shall be submitted electronically through the designated Government system (e.g., Wide Area WorkFlow (WAWF)).

5.3.2 The Government will make payment under this contract by electronic funds transfer (EFT). Payments will be made by the Defense Finance Accounting Service (DFAS) within 30 calendar days of an accepted invoice in PIEE. Refer to this agreement for further details how to submit and process invoices through PIEE. The COMPANY shall be registered and maintain active registration in the System for Award Management (SAM) at https://www.sam.gov to receive EFT payments.

5.3.3 The COMPANY shall maintain adequate records to account for all obligated funding under this Agreement.

5.3.4 Unenforceability of Unauthorized Obligations: All supplies or services provided under this Agreement must be ordered and funded, in writing, by the Agreements Officer. The Government will not be bound by any supplies or services that were not ordered and funded in accordance with this article.

5.3.5 Limitation of Government Obligation: In no case shall the Government's financial liability exceed the amount(s) obligated under this Agreement.

5.4 Financial Records and Reports:

The COMPANY shall maintain adequate records to account for Federal funds received under this Agreement and shall maintain adequate records to account for COMPANY Project Agreement funding provided under this Agreement.

ARTICLE 6: DISPUTES

6.1 General

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues pertaining to this Agreement under this article, with the objective of resolving any misunderstanding, disagreement, claims, or disputes by mutual agreement.

6.2 Dispute Resolution Procedures

Any disagreement, claim or dispute between the Government and the COMPANY concerning questions of fact or law arising from or in connection with this Agreement, https://www.google.com/url?q=https%3A%2F%2Fwww.sam.gov and, whether or not involving an alleged breach of this Agreement, may be raised only under this Article.

Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable, with the goal of settlement within three months of identification of the issue. Every reasonable attempt will be made to resolve all issues at the AO's level.

Alternative Dispute Resolution (ADR) procedures to include, but not limited to settlement negotiations, mediation and fact-finding, will be used to the maximum extent practicable. Whenever the COMPANY submits, in writing, a claim or issue to the Government, the AO shall consider the claim or issue and, within 60 calendar days of receipt of the claim or issue in dispute, either:

(1) Prepare and transmit a written decision to the COMPANY, which shall include the basis for the decision, and accordingly document the Agreement file or;

(2) Notify the COMPANY of a specific date when the AO will render a decision if more time is needed for response. The notice will inform the COMPANY of the reason for delaying the decision.

In the event the COMPANY decides to appeal the decision, the AO shall make every effort to encourage the COMPANY to enter into ADR procedures with the AO. The ADR procedure applicable to this Agreement expressed in subparagraphs below:

(1) Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party through the cognizant AO in writing documenting the relevant facts, identifying unresolved issues, specifying the clarification or remedy sought, and documenting the rationale as to why the clarification/remedy is appropriate. Within 10 working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Senior Contracting Official (SCO), MICC. The other Party shall submit a written position on the matter(s) in dispute within 30 calendar days after being notified that a decision has been requested. The SCO will conduct a review of the matter(s) in dispute and render a decision in writing within 30 calendar days of receipt of such a position. Any such decision is final and binding, unless a Party shall, within 30 calendar days request further review as provided by this article. If requested within 30 calendar days of the decision by SCO, further review will be conducted by the President of the COMPANY and the MICC SCO. In the event of a decision, or in absence of a decision within 60 calendar days of referral to the President of the COMPANY and the MICC SCO (or such other period as agreed to by the parties), either party may pursue any right or remedy provided by law. Alternatively, the parties may agree to explore and establish an ADR procedure to resolve this dispute.

6.3 Limitation of Damages

No Party shall be liable to any other Party for consequential, punitive, special and incidental damages or other indirect damages, whether arising in Agreement (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party's willful misconduct;

Notwithstanding the foregoing, claims for contribution toward third-party injury, damage, or loss are not limited, waived, released, or disclaimed.

6.4 Claim

In the event of a Claim arising under this Agreement, the COMPANY shall submit it in writing to the AO for a final decision. For any Claim exceeding $100,000, it must be certified that:

(1) The claim is made in good faith;

(2) The supporting data are accurate and complete to the best of the

COMPANY's knowledge and belief;

(3) The amount requested accurately reflects the adjustment for which the

COMPANY believes the Government is liable; and (d) the certifier is authorized to certify the claim on behalf of the COMPANY.

The AO shall, within 60 days of receipt of the claim, issue a written final decision. The decision shall be in writing and shall furnish the COMPANY a copy. The decision shall include a statement of facts, a reference to the pertinent Agreement provisions, state the reasons for the decision, and shall inform the COMPANY of its appeal rights. This decision shall be final and binding unless the COMPANY appeals the decision to the U.S. Court of Federal Claims within 12 months.

6.5 Protest after Award

If the COMPANY receives notice of a protest filed with the Government Accountability Office (GAO), the U.S. Court of Federal Claims, or a protest filed with the agency, the COMPANY shall immediately suspend performance or terminate the protested award, unless continued performance is justified, in writing, for urgent and compelling reasons or is determined to be in the best interest of the Government.

The COMPANY shall proceed diligently with the performance of this Agreement, pending final resolution of any request for relief, claim, appeal, or action arising under the Agreement, and comply with any decision of the AO.

ARTICLE 7: CONFIDENTIAL INFORMATION

7.1 Exchange of Information

The Government may from time to time disclose Government Confidential Information to the COMPANY and its subcontractors or suppliers, in connection with a particular project, and the COMPANY and its subcontractors or suppliers, may from time to time disclose information that is Trade Secret or Confidential Information to the Government in connection with the OTA or performance thereunder. Neither the Government nor COMPANY or their subcontractors or suppliers shall be obligated to transfer Confidential Information or Trade Secrets independently developed by the Government or the COMPANY or their subcontractors or suppliers, absent an express written agreement between the Parties providing the terms and conditions for such disclosure.

7.2 Confidentiality and Authorized Disclosure:

The Receiving Party agrees, to the extent permitted by law, that Confidential Information and Trade Secrets shall remain the property of the Disclosing Party (no one shall disclose unless they have the right to do so), and that, unless otherwise agreed to by the Disclosing Party, Confidential Information and Trade Secrets shall not be disclosed, divulged, or otherwise communicated by it to third parties or used by it for any purposes other than in connection with specified project efforts, except to the extent that such information must be communicated (a) to subcontractors, vendors, consultants, and other third parties in connection with the performance of this Agreement; (b) as required by governmental agencies or otherwise required by law; (c) as required for financial, insurance or tax audits, subject to a confidentiality agreement with the auditor; or (d) as may be authorized in writing by the party from whom that information originated;

provided that the duty to protect such "Confidential Information" and "Trade Secrets" shall not extend to materials or information that:

(1) Are received or become available without restriction to the Receiving Party under a proper, separate agreement,

(2) Are not identified with a suitable notice or legend per Article entitled

"Confidential Information" herein,

(3) Are lawfully in possession of the Receiving Party without such restriction to the Receiving Party at the time of disclosure thereof as demonstrated by prior written records,

(4) Are or later become part of the public domain through no fault of the

Receiving Party,

(5) Are received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party that made the disclosure,

(6) Are developed independently by the Receiving Party without use of

Confidential Information or Trade Secrets as evidenced by written records, and

(7) Are required by law or regulation to be disclosed; provided, however, that the Receiving Party has provided written notice to the Disclosing Party promptly so as to enable such Disclosing Party to seek a protective order or otherwise prevent disclosure of such information.

7.3 Return of Proprietary Information

Upon the request of COMPANY, the Government shall promptly return all copies and other tangible manifestations of the Confidential Information or Trade Secrets disclosed but may keep one copy for audit and business records purposes, provided such retained copies must be held in a secure, non-production, and non-active archival system and shall not be readily accessible by or used by the Government's operational personnel. Upon request by the Government, COMPANY shall promptly return all copies and other tangible manifestations of the Confidential Information disclosed by the Government but may keep one copy for legal, regulatory and audit archival purposes provided such retained copies must be held in a secure, non-production, and non-active archival system and shall not be readily accessible by or used by the COMPANY's operational personnel. As used in this section, tangible manifestations include human readable media as well as magnetic and digital storage media.

7.4 Term

Except to the extent covered by and subject to other provisions of this Agreement, the obligations of the Receiving Party under this Article shall continue for a period of five years after the expiration or termination of this Agreement.

Each Party agrees to use the Confidential Information of the other solely for the purposes of this Agreement and shall protect such information from unauthorized use and disclosure by using, at a minimum, a reasonable degree of care. Confidential Information shall be marked with a restrictive legend.

7.5 Subcontracts

The Government and the COMPANY shall flow down the requirements of this Article to their respective personnel, agents, partners, and team members receiving such Confidential Information or Trade Secrets under this OTA.

ARTICLE 8: DATA RIGHTS

8.1 Rights in Data – General

The term “Data,” as used in this article, means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

The COMPANY shall not, without the prior written permission of the AO, assert copyright in any data first produced in the performance of this contract.

8.2 Allocation of Principal Rights

Data that will be delivered, furnished, or otherwise provided to the Government under this Agreement, in which the Government has previously obtained rights, shall be delivered, furnished, or provided with the pre- existing rights, unless (a) the parties have agreed otherwise, or (b) any restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.

8.3 Marking of Data

Any Data delivered under this Agreement shall be marked with the following legend:

"This data is being delivered as Technical Data, as defined in Agreement [INSERT AGREEMENT NUMBER]. Use, duplication, or disclosure is subject to the restrictions as stated in Agreement [INSERT AGREEMENT NUMBER] between the COMPANY and the Government."

8.4 Unmarked COMPANY Data

Data delivered to the Government without any restrictive markings shall be deemed to have been furnished with unlimited rights. The Government is not liable for the disclosure, use, or reproduction of such data. If the COMPANY learns of a release to the Government of its unmarked Data that should have contained a restricted legend, the COMPANY will have the opportunity to cure such omission going forward by providing written notice to the AO within six months of the erroneous release.

8.5 Prior Technology

In the event it is necessary for the COMPANY to furnish the Government with Data which existed prior to, or was produced outside of this Agreement, and such Data embodies trade secrets or comprises commercial or financial information which is privileged or confidential, and such Data is so identified with a suitable notice or legend, the Data will be maintained in confidence and disclosed and used by the Government and such Government Contractors or contract employees that the Government may hire on a temporary or periodic basis only for the purpose of carrying out the Government's responsibilities under this Agreement. Data protection will include proprietary markings and handling, and the signing of nondisclosure agreements by such Government Contractors or contract employees.

The COMPANY shall not be obligated to provide Data that existed prior to, or was developed outside of this Agreement to the Government. Upon completion of activities under this Agreement, such Data will be disposed of as requested by the COMPANY.

The COMPANY is required to provide full…