Attachment 2 - Clauses and Provisions.pdf

DOCUMENT NUMBER SOLICITATION NUMBER

FA302221Q0317 (Not Set)

CLAUSES INCORPORATED BY REFERENCE

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SECTION

252.201-7000 Contracting Officer's Representative. 1991-12 SEC G

252.203-7000 Requirements Relating to Compensation of Former DoD Officials.

2011-09 SEC I

252.203-7002 Requirement to Inform Employees of Whistleblower Rights. 2013-09 SEC I

252.203-7005 Representation Relating to Compensation of Former DoD Officials.

2011-11 SEC K

252.204-7003 Control of Government Personnel Work Product. 1992-04 SEC I 252.204-7004 Antiterrorism Awareness Training for Contractors. 2019-02 SEC I 252.204-7006 Billing Instructions. 2005-10 SEC G

252.204-7008 Compliance with Safeguarding Covered Defense Information Controls.

2016-10 SEC L

252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting.

2019-12 SEC I

252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support.

2016-05 SEC I

252.204-7018 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services.

2021-01 SEC I

252.215-7013 Supplies and Services Provided by Nontraditional Defense Contractors.

2018-01 SEC L

252.223-7006 Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials.

2014-09 SEC I

252.223-7008 Prohibition of Hexavalent Chromium. 2013-06 SEC I 252.225-7001 Buy American and Balance of Payments Program. 2017-12 SEC I 252.225-7002 Qualifying Country Sources as Subcontractors. 2017-12 SEC I 252.225-7048 Export-Controlled Items. 2013-06 SEC I

252.232-7003 Electronic Submission of Payment Requests and Receiving Reports.

2018-12 SEC G

252.232-7010 Levies on Contract Payments. 2006-12 SEC I

252.232-7017 Accelerating Payments to Small Business Subcontractors- Prohibition on Fees and Consideration.

2020-04 SEC I

252.236-7000 Modification Proposals--Price Breakdown. 1991-12 SEC G 252.236-7005 Airfield Safety Precautions. 1991-12 SEC I

252.237-7010 Prohibition on Interrogation of Detainees by Contractor Personnel.

2013-06 SEC I

252.243-7001 Pricing of Contract Modifications. 1991-12 SEC I 252.244-7000 Subcontracts for Commercial Items. 2020-10 SEC I

252.246-7004 Safety of Facilities, Infrastructure, and Equipment for Military Operations.

2010-10 SEC I

52.203-18 Prohibition on Contracting with Entities that Require Certain

Internal Confidentiality Agreements or Statements- Representation.

2017-01 SEC L

52.204-16 Commercial and Government Entity Code Reporting. 2020-08 SEC L 52.204-18 Commercial and Government Entity Code Maintenance. 2020-08 SEC I 52.204-22 Alternative Line Item Proposal. 2017-01 SEC L 52.204-7 System for Award Management. 2018-10 SEC K

52.232-40 Providing Accelerated Payments to Small Business Subcontractors.

2013-12 SEC I

52.204-19 Incorporation by Reference of Representations and Certifications.

2014-12 SEC I

52.225-10 Notice of Buy American Requirement-Construction Materials. 2014-05 SEC M 52.232-39 Unenforceability of Unauthorized Obligations. 2013-06 SEC I 52.236-2 Differing Site Conditions. 1984-04 SEC I 52.236-28 Preparation of Proposals-Construction. 1997-10 SEC L 52.242-14 Suspension of Work. 1984-04 SEC I 52.242-15 Stop-Work Order. 1989-08 SEC F 52.243-1 Changes-Fixed-Price. 1987-08 SEC I 52.243-4 Changes. 2007-06 SEC I 52.246-12 Inspection of Construction. 1996-08 SEC E 52.249-2 Termination for Convenience of the Government (Fixed-Price). 2012-04 SEC I 52.249-10 Default (Fixed-Price Construction). 1984-04 SEC I 52.232-18 Availability of Funds. 1984-04 SEC I

CLAUSES IN FULL TEXT

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52.212-1 Instructions to Offerors-Commercial Items. 2021-07

As prescribed in , insert the following provision:12.301(b)(1)

Instructions to Offerors-Commercial Items (Jun 2020)

(a) North American Industry Classification System (NAICS) code and small business size standard.

The NAICS code(s) and small business size standard(s) for this acquisition appear elsewhere in the solicitation. However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.

. Submit signed and dated offers to the office specified in this solicitation (b) Submission of offers at or before the exact time specified in this solicitation. Offers may be submitted on the SF 1449, letterhead stationery, or as otherwise specified in the solicitation. As a minimum, offers must show-

The solicitation number;(1)

The time specified in the solicitation for receipt of offers;(2)

The name, address, and telephone number of the offeror;(3)

A technical description of the items being offered in sufficient detail to evaluate (4) compliance with the requirements in the solicitation. This may include product literature, or other documents, if necessary;

Terms of any express warranty;(5)

Price and any discount terms;(6)

"Remit to" address, if different than mailing address;(7)

A completed copy of the representations and certifications at FAR 52.212-3 (see FAR (8) 52.212-3(b) for those representations and certifications that the offeror shall complete electronically);

Acknowledgment of Solicitation Amendments;(9)

Past performance information, when included as an evaluation factor, to include recent (10) and relevant contracts for the same or similar items and other references (including contract numbers, points of contact with telephone numbers and other relevant information); and

If the offer is not submitted on the SF 1449, include a statement specifying the extent of (11) agreement with all terms, conditions, and provisions included in the solicitation. Offers that fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration.

. The offeror agrees to hold the prices in its offer firm for 30 (c) Period for acceptance of offers calendar days from the date specified for receipt of offers, unless another time period is specified in an addendum to the solicitation.

. When required by the solicitation, product samples shall be submitted at or (d) Product samples prior to the time specified for receipt of offers. Unless otherwise specified in this solicitation, these samples shall be submitted at no expense to the Government, and returned at the sender's request and expense, unless they are destroyed during preaward testing.

. Offerors are encouraged to submit multiple offers presenting alternative terms (e) Multiple offers and conditions, including alternative line items (provided that the alternative line items are consistent with subpart 4.10 of the Federal Acquisition Regulation), or alternative commercial items for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately.

Late submissions, modifications, revisions, and withdrawals of offers. (f) Offerors are (1) responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that offers or revisions are due.

(2) Any offer, modification, revision, or withdrawal of an offer received at the Government (i) office designated in the solicitation after the exact time specified for receipt of offers is "late" and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and-

If it was transmitted through an electronic commerce method authorized by the (A) solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:

00 p.m. one working day prior to the date specified for receipt of offers; or

There is acceptable evidence to establish that it was received at the Government (B) installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers; or

If this solicitation is a request for proposals, it was the only proposal received.(C)

However, a late modification of an otherwise successful offer, that makes its terms more (ii) favorable to the Government, will be considered at any time it is received and may be accepted.

Acceptable evidence to establish the time of receipt at the Government installation includes (3) the time/date stamp of that installation on the offer wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.

If an emergency or unanticipated event interrupts normal Government processes so that (4) offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

Offers may be withdrawn by written notice received at any time before the exact time set (5) for receipt of offers. Oral offers in response to oral solicitations may be withdrawn orally. If the solicitation authorizes facsimile offers, offers may be withdrawn via facsimile received at any time before the exact time set for receipt of offers, subject to the conditions specified in the solicitation concerning facsimile offers. An offer may be withdrawn in person by an offeror or its authorized representative if, before the exact time set for receipt of offers, the identity of the person requesting withdrawal is established and the person signs a receipt for the offer.

). The Government intends to evaluate (g) Contract award (not applicable to Invitation for Bids offers and award a contract 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. The Government may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and waive informalities and minor irregularities in offers received.

. The Government may accept any item or group of items of an offer, unless (h) Multiple awards the offeror qualifies the offer by specific limitations. Unless otherwise provided in the Schedule, offers may not be submitted for quantities less than those specified. The Government reserves the right to make an award on any item for a quantity less than the quantity offered, at the unit prices offered, unless the offeror specifies otherwise in the offer.

Availability of requirements documents cited in the solicitation.(i)

(1) The GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, (i)

FPMR Part 101-29, and copies of specifications, standards, and commercial item descriptions cited in this solicitation may be obtained for a fee by submitting a request to- GSA Federal Supply Service

Specifications Section Suite 8100 470 East L'Enfant Plaza, SW Washington, DC 20407 Telephone (202) 619-8925 Facsimile (202) 619-8978.

If the General Services Administration, Department of Agriculture, or Department of (ii) Veterans Affairs issued this solicitation, a single copy of specifications, standards, and commercial item descriptions cited in this solicitation may be obtained free of charge by submitting a request to the addressee in paragraph (i)(1)(i) of this provision. Additional copies will be issued for a fee.

Most unclassified Defense specifications and standards may be downloaded from the (2) following ASSIST websites:

ASSIST ( https://assist.dla.mil/online/start/).(i)

Quick Search ( http://quicksearch.dla.mil/).(ii)

ASSISTdocs.com (http://assistdocs.com).(iii)

Documents not available from ASSIST may be ordered from the Department of Defense (3) Single Stock Point (DoDSSP) by-

Using the ASSIST Shopping Wizard (https://assist.dla.mil/wizard/index.cfm);(i)

Phoning the DoDSSP Customer Service Desk (215) 697-2179, Mon-Fri, 0730 to 1600 (ii) EST; or

Ordering from DoDSSP, Building 4, Section D, 700 Robbins Avenue, Philadelphia, PA (iii) 19111-5094, Telephone (215) 697-2667/2179, Facsimile (215) 697-1462.

Nongovernment (voluntary) standards must be obtained from the organization responsible (4) for their preparation, publication, or maintenance.

(Applies to all offers that exceed the micro-purchase threshold, and (j) Unique entity identifier.

offers at or below the micro-purchase threshold if the solicitation requires the Contractor to be registered in the System for Award Management (SAM).) The Offeror shall enter, in the block with its name and address on the cover page of its offer, the annotation "Unique Entity Identifier" followed by the unique entity identifier that identifies the Offeror's name and address. The Offeror also shall enter its Electronic Funds Transfer (EFT) indicator, if applicable. The EFT indicator is a four-character suffix to the unique entity identifier. The suffix is assigned at the discretion of the Offeror to establish additional SAM records for identifying alternative EFT accounts (see FAR subpart 32.11) for the same entity. If the Offeror does not have a unique entity identifier, it should contact the entity designated at www.sam.gov for unique entity identifier establishment directly to obtain one. The Offeror should indicate that it is an offeror for a Government contract when contacting the entity designated at www.sam.gov for establishing the unique entity identifier.

[Reserved](k)

. If a post-award debriefing is given to requesting offerors, the Government shall (l) Debriefing disclose the following information, if applicable:

The agency's evaluation of the significant weak or deficient factors in the debriefed (1) offeror's offer.

The overall evaluated cost or price and technical rating of the successful and the debriefed (2) offeror and past performance information on the debriefed offeror.

The overall ranking of all offerors, when any ranking was developed by the agency during (3) source selection.

A summary of the rationale for award;(4)

For acquisitions of commercial items, the make and model of the item to be delivered by (5) the successful offeror.

Reasonable responses to relevant questions posed by the debriefed offeror as to whether (6) source-selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.

(End of provision)

52.212-4 Contract Terms and Conditions-Commercial Items. 2018-10

As prescribed in , insert the following clause:12.301(b)(3)

Contract Terms and Conditions-Commercial Items (OCT 2018)

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

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

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

. The Contractor or its assignee may assign its rights to receive payment due as a (b) Assignment result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727).

However, when a third party makes payment ( use of the Governmentwide commercial purchase e.g., card), the Contractor may not assign its rights to receive payment under this contract.

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

. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the (d) Disputes parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, 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.

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

. The Contractor shall be liable for default unless nonperformance is caused (f) Excusable delays 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.

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

Name and address of the Contractor;(i)

Invoice date and number;(ii)

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

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

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

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

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

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

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

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

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

If EFT banking information is not required to be on the invoice, in order for the (B) invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause ( 52.232-33, Payment by e.g., 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.

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

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

. The Contractor shall indemnify the Government and its officers, employees (h) Patent indemnity 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.

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

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

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

(b) for the appropriate EFT clause.

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

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

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

Circumstances of the overpayment ( , duplicate payment, erroneous payment, (A) e.g.

liquidation errors, date(s) of overpayment);

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

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

Contractor point of contact.(D)

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

. (6) Interest All amounts that become payable by the Contractor to the Government under this (i) 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.

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

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

33.211 if-

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

The Contractor fails to liquidate a debt previously demanded by the Contracting (B) 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

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

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

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

The date fixed under this contract.(A)

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

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

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

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

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

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

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

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

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

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

. The Government reserves the right to (l) Termination for the Government's convenience 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 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.

. The Government may terminate this contract, or any part hereof, for (m) Termination for cause 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.

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

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

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

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

The Contractor agrees to comply with (r) Compliance with laws unique to Government contracts.

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

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

The schedule of supplies/services.(1)

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

The clause at 52.212-5.(3)

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

Solicitation provisions if this is a solicitation.(5)

Other paragraphs of this clause.(6)

The Standard Form 1449.(7)

Other documents, exhibits, and attachments.(8)

The specification.(9)

[Reserved](t) Unauthorized Obligations. (u) Except as stated in paragraph (u)(2) of this clause, when any (1) 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:

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

Neither the Government nor any Government authorized end user shall be deemed to (ii) 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.

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

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

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

(End of clause)

52.232-27 Prompt Payment for Construction Contracts. 2017-01

As prescribed in , insert the following clause:32.908(b)

Prompt Payment for Construction Contracts (JAN 2017)

Notwithstanding any other payment terms in this contract, the Government will make invoice payments under the terms and conditions specified in this clause. The Government considers payment as being made on the day a check is dated or the date of an electronic funds transfer. Definitions of pertinent terms are set forth in sections 2.101, 32.001, and 32.902 of the Federal Acquisition Regulation.

All days referred to in this clause are calendar days, unless otherwise specified. (However, see paragraph (a)(3) concerning payments due on Saturdays, Sundays, and legal holidays.)

Invoice payments- (a) . For purposes of this clause, there are several (1) Types of invoice payments types of invoice payments that may occur under this contract, as follows:

Progress payments, if provided for elsewhere in this contract, based on Contracting (i) Officer approval of the estimated amount and value of work or services performed, including payments for reaching milestones in any project.

The due date for making such payments is 14 days after the designated billing office (A) receives a proper payment request. If the designated billing office fails to annotate the payment request with the actual date of receipt at the time of receipt, the payment due date is the 14 thday after the date of the Contractor’s payment request, provided the designated billing office receives a proper payment request and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements.

The due date for payment of any amounts retained by the Contracting Officer in (B) accordance with the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, is as specified in the contract or, if not specified, 30 days after approval by the Contracting Officer for release to the Contractor.

Final payments based on completion and acceptance of all work and presentation of (ii) release of all claims against the Government arising by virtue of the contract, and payments for partial deliveries that have been accepted by the Government ( each separate building, public work, or other e.g., division of the contract for which the price is stated separately in the contract).

The due date for making such payments is the later of the following two events:(A)

The 30 thday after the designated billing office receives a proper invoice from the (1) Contractor.

The 30 thday after Government acceptance of the work or services completed by (2) the Contractor. For a final invoice when the payment amount is subject to contract settlement actions (e.

release of claims), acceptance is deemed to occur on the effective date of the contract settlement.g., If the designated billing office fails to annotate the invoice with the date of actual (B) receipt at the time of receipt, the invoice payment due date is the 30 thday after the date of the Contractor’s invoice, provided the designated billing office receives a proper invoice and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements.

. The Contractor shall prepare and submit invoices to the designated (2) Contractor's invoice billing office specified in the contract. A proper invoice must include the items listed in paragraphs (a)(2)

(i) through (a)(2)(xi) of this clause. If the invoice does not comply with these requirements, the designated billing office must return it within 7 days after receipt, with the reasons why it is not a proper invoice. When computing any interest penalty owed the Contractor, the Government will take into account if the Government notifies the Contractor of an improper invoice in an untimely manner.

Name and address of the Contractor.(i)

Invoice date and invoice number. (The Contractor should date invoices as close as (ii) possible to the date of mailing or transmission.)

Contract number or other authorization for work or services performed (including order (iii) number and line item number).

Description of work or services performed.(iv)

Delivery and payment terms ( discount for prompt payment terms).(v) e.g., Name and address of Contractor official to whom payment is to be sent (must be the (vi) same as that in the contract or in a proper notice of assignment).

Name (where practicable), title, phone number, and mailing address of person to notify (vii) in the event of a defective invoice.

For payments described in paragraph (a)(1)(i) of this clause, substantiation of the (viii) amounts requested and certification in accordance with the requirements of the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts.

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

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

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

If EFT banking information is not required to be on the invoice, in order for the (B) invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision ( 52.232-38, Submission of Electronic Funds e.g., Transfer Information with Offer), contract clause ( 52.232-33, Payment by Electronic Funds e.g., Transfer-System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer-Other Than System for Award Management), or applicable agency procedures.

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

Any other information or documentation required by the contract.(xi)

. The designated payment office will pay an interest penalty automatically, (3) Interest penalty without request from the Contractor, if payment is not made by the due date and the conditions listed in paragraphs (a)(3)(i) through (a)(3)(iii) of this clause are met, if applicable. However, when the due date falls on a Saturday, Sunday, or legal holiday, the designated payment office may make payment on the following working day without incurring a late payment interest penalty.

The designated billing office received a proper invoice.(i)

The Government processed a receiving report or other Government documentation (ii) authorizing payment and there was no disagreement over quantity, quality, Contractor compliance with any contract term or condition, or requested progress payment amount.

In the case of a final invoice for any balance of funds due the Contractor for work or (iii) services performed, the amount was not subject to further contract settlement actions between the Government and the Contractor.

. The Government will compute the interest penalty in (4) Computing penalty amount accordance with the Office of Management and Budget prompt payment regulations at .5 CFR Part 1315

For the sole purpose of computing an interest penalty that might be due the Contractor (i) for payments described in paragraph (a)(1)(ii) of this clause, Government acceptance or approval is deemed to occur constructively on the 7 thday after the Contractor has completed the work or services in accordance with the terms and conditions of the contract. If actual acceptance or approval occurs within the constructive acceptance or approval period, the Government will base the determination of an interest penalty on the actual date of acceptance or approval. Constructive acceptance or constructive approval requirements do not apply if there is a disagreement over quantity, quality, or Contractor compliance with a contract provision. These requirements also do not compel Government officials to accept work or services, approve Contractor estimates, perform contract administration functions, or make payment prior to fulfilling their responsibilities.

The prompt payment regulations at 5 CFR1315.10(c) do not require the Government to (ii) pay interest penalties if payment delays are due to disagreement between the Government and the

Contractor over the payment amount or other issues involving contract compliance, or on amounts temporarily withheld or retained in accordance with the terms of the contract. The Government and the Contractor shall resolve claims involving disputes, and any interest that may be payable in accordance with the clause at FAR 52.233-1, Disputes.

. The designated payment office will pay an interest penalty (5) Discounts for prompt payment automatically, without request from the Contractor, if the Government takes a discount for prompt payment improperly. The Government will calculate the interest penalty in accordance with the prompt payment regulations at .5 CFR Part 1315

Additional interest penalty. (6) The designated payment office will pay a penalty amount, (i) calculated in accordance with the prompt payment regulations at in addition to the 5 CFR Part 1315 interest penalty amount only if-

The Government owes an interest penalty of $1 or more;(A)

The designated payment office does not pay the interest penalty within 10 days after (B) the date the invoice amount is paid; and

The Contractor makes a written demand to the designated payment office for (C) additional penalty payment, in accordance with paragraph (a)(6)(ii) of this clause, postmarked not later than 40 days after the date the invoice amount is paid.

(ii) The Contractor shall support written demands for additional penalty payments with the (A) following data. The Government will not request any additional data. The Contractor shall-

Specifically assert that late payment interest is due under a specific invoice, and (1) request payment of all overdue late payment interest penalty and such additional penalty as may be required;

Attach a copy of the invoice on which the unpaid late payment interest was due; (2) and

State that payment of the principal has been received, including the date of receipt.(3)

If there is no postmark or the postmark is illegible-(B)

The designated payment office that receives the demand will annotate it with the (1) date of receipt provided the demand is received on or before the 40 thday after payment was made; or

If the designated payment office fails to make the required annotation, the (2) Government will determine the demand’s validity based on the date the Contractor has placed on the demand, provided such date is no later than the 40 thday after payment was made.

. If this contract provides for contract financing, the Government (b) Contract financing payments will make contract financing payments in accordance with the applicable contract financing clause.

. The Contractor shall include in each subcontract for (c) Subcontract clause requirements property or services (including a material supplier) for the purpose of performing this contract the following:

. A payment clause that obligates the Contractor to pay (1) Prompt payment for subcontractors the subcontractor for satisfactory performance under its subcontract not later than 7 days from receipt of payment out of such amounts as are paid to the Contractor under this contract.

. An interest penalty clause that obligates the Contractor to pay (2) Interest for subcontractors to the subcontractor an interest penalty for each payment not made in accordance with the payment clause-

For the period beginning on the day after the required payment date and ending on the (i) date on which payment of the amount due is made; and

Computed at the rate of interest established by the Secretary of the Treasury, and (ii) published in the , for interest payments under 41 U.S.C. 7109 in effect at the time the Federal Register Contractor accrues the obligation to pay an interest penalty.

. A clause requiring each subcontractor to-(3) Subcontractor clause flowdown

Include a payment clause and an interest penalty clause conforming to the standards set (i) forth in paragraphs (c)(1) and (c)(2) of this clause in each of its subcontracts; and

Require each of its subcontractors to include such clauses in their subcontracts with (ii) each lower-tier subcontractor or supplier.

. The clauses required by paragraph (c) of this clause shall (d) Subcontract clause interpretation not be construed to impair the right of the Contractor or a subcontractor at any tier to negotiate, and to include in their subcontract, provisions that-

. Permit the Contractor or a subcontractor to retain (without cause) a (1) Retainage permitted specified percentage of each progress payment otherwise due to a subcontractor for satisfactory performance under the subcontract without incurring any obligation to pay a late payment interest penalty, in accordance with terms and conditions agreed to by the parties to the subcontract, giving such recognition as the parties deem appropriate to the ability of a subcontractor to furnish a performance bond and a payment bond;

. Permit the Contractor or subcontractor to make a determination that (2) Withholding permitted part or all of the subcontractor’s request for payment may be withheld in accordance with the subcontract agreement; and

. Permit such withholding without incurring any obligation to pay (3) Withholding requirements a late payment penalty if-

A notice conforming to the standards of paragraph (g) of this clause previously has been (i) furnished to the subcontractor; and

The Contractor furnishes to the Contracting Officer a copy of any notice issued by a (ii) Contractor pursuant to paragraph (d)(3)(i) of this clause.

. If a Contractor, after making a request for payment to (e) Subcontractor withholding procedures the Government but before making a payment to a subcontractor for the subcontractor’s performance covered by the payment request, discovers that all or a portion of the payment otherwise due such subcontractor is subject to withholding from the subcontractor in accordance with the subcontract agreement, then the Contractor shall-

. Furnish to the subcontractor a notice conforming to the standards of (1) Subcontractor notice paragraph (g) of this clause as soon as practicable upon ascertaining the cause giving rise to a withholding, but prior to the due date for subcontractor payment;

. Furnish to the Contracting Officer, as soon as practicable, a (2) Contracting Officer notice copy of the notice furnished to the subcontractor pursuant to paragraph (e)(1) of this clause;

. Reduce the subcontractor’s progress payment (3) Subcontractor progress payment reduction by an amount not to exceed the amount specified in the notice of withholding furnished under paragraph (e)(1) of this clause;

. Pay the subcontractor as soon as practicable after the (4) Subsequent subcontractor payment correction of the identified subcontract performance deficiency, and-

Make such payment within-(i)

Sevendays after correction of the identified subcontract performance deficiency (A) (unless the funds therefor must be recovered from the Government because of a reduction under paragraph (e)(5)(i)) of this clause; or

Sevendays after the Contractor recovers such funds from the Government; or(B)

Incur an obligation to pay a late payment interest penalty computed at the rate of interest (ii) established by the Secretary of the Treasury, and published in the , for interest payments Federal Register under 41 U.S.C. 7109 in effect at the time the Contractor accrues the obligation to pay an interest penalty;

. Notify the Contracting Officer upon-(5) Notice to Contracting Officer

Reduction of the amount of any subsequent certified application for payment; or(i)

Payment to the subcontractor of any withheld amounts of a progress payment, (ii) specifying-

The amounts withheld under paragraph (e)(1) of this clause; and(A)

The dates that such withholding began and ended; and(B)

. Be obligated to pay to the Government an amount equal to interest (6) Interest to Government on the withheld payments (computed in the manner provided in 31 U.S.C.3903(c)(1)), from the 8 thday after receipt of the withheld amounts from the Government until-

The day the identified subcontractor performance deficiency is corrected; or(i)

The date that any subsequent payment is reduced under paragraph (e)(5)(i) of this clause.(ii) Third-party deficiency reports- (f) . If a Contractor, after making (1) Withholding from subcontractor payment to a first-tier subcontractor, receives from a supplier or subcontractor of the first-tier subcontractor (hereafter referred to as a "second-tier subcontractor") a written notice in accordance with 40 U.S.C. 3133, asserting a deficiency in such first-tier subcontractor’s performance under the contract for which the Contractor may be ultimately liable, and the Contractor determines that all or a portion of future payments otherwise due such first-tier subcontractor is subject to withholding in accordance with the subcontract agreement, the Contractor may, without incurring an obligation to pay an interest penalty under paragraph (e)(6) of this clause-

Furnish to the first-tier subcontractor a notice conforming to the standards of paragraph (i)

(g) of this clause as soon as practicable upon making such determination; and

Withhold from the first-tier subcontractor’s next available progress payment or (ii) payments an amount not to exceed the amount specified in the notice of withholding furnished under paragraph (f)(1)(i) of this clause.

. As soon as practicable, but not later than 7 days (2) Subsequent payment or interest charge after receipt of satisfactory written notification that the identified subcontract performance deficiency has been corrected, the Contractor shall-

Pay the amount withheld under paragraph (f)(1)(ii) of this clause to such first-tier (i) subcontractor; or

Incur an obligation to pay a late payment interest penalty to such first-tier subcontractor (ii) computed at the rate of interest established by the Secretary of the Treasury, and published in the

, for interest payments under 41 U.S.C. 7109 in effect at the time the Contractor accrues Federal Register the obligation to pay an interest penalty.

. The Contractor shall issue a written notice of any (g) Written notice of subcontractor withholding withholding to a subcontractor (with a copy furnished to the Contracting Officer), specifying-

The amount to be withheld;(1)

The specific causes for the withholding under the terms of the subcontract; and(2)

The remedial actions to be taken by the subcontractor in order to receive payment of the (3) amounts withheld.

. The Contractor may not request payment from the (h) Subcontractor payment entitlement Government of any amount withheld or retained in accordance with paragraph (d) of this clause until such time as the Contractor has determined and certified to the Contracting Officer that the subcontractor is entitled to the payment of such amount.

. A dispute between the Contractor and subcontractor relating to (i) Prime-subcontractor disputes the amount or entitlement of a subcontractor to a payment or a late payment interest penalty under a clause included in the subcontract pursuant to paragraph (c) of this clause does not constitute a dispute to which the Government is a party. The Government may not be interpleaded in any judicial or administrative proceeding involving such a dispute.

. Except as provided in paragraph (i) of this clause, (j) Preservation of prime-subcontractor rights this clause shall not limit or impair any contractual, administrative, or judicial remedies otherwise available to the Contractor or a subcontractor in the event of a dispute involving late payment or nonpayment by the Contractor or deficient subcontract performance or nonperformance by a subcontractor.

. The Contractor’s obligation to pay an (k) Non-recourse for prime contractor interest penalty interest penalty to a subcontractor pursuant to the clauses included in a subcontract under paragraph (c) of this clause shall not be construed to be an obligation of the Government for such interest penalty.