Attachment_2_Simplified_Construction_Terms_Provisions_Clauses_34pgs.pdf

Solicitation (RFQ) No. 140P8326Q00056 Attachment 2 – Terms, Provisions and Clauses

Table of Contents

Part I – The Schedule

Section A – Solicitation/Contract Form

Section B – Supplies or Services and Prices

B.1 – Bid Schedule

Section C – Description/Specifications/Statement of Work

C.1 – Project Specifications

Section D – Packaging and Marking

Section E – Inspection and Acceptance

E.1 – 52.246-12 – Inspection of Construction (AUG 1996)

Section F – Deliveries or Performance

F.1 – Clauses Incorporated by Reference

F.2 –52.211-10 – Commencement, Prosecution, and Completion of Work (APR 1984)

F.3 – Deliverable (Post-Award): Contractor’s Daily Logs

Section G – Contract Administration Data

G.1 – Contract Administration

G.2 –1452.201-70 – Authorities and Delegations (SEP 2011)

G.3 – 1452.204-70 – Release of Claims – Department of the Interior (JUL 1996)

G.4 – Construction Contract Administration

G.5 – Contractor Performance Assessment Reporting System (NOV 2015)

G.6 – Electronic Invoicing and Payment Requirements - Invoice Processing Platform (IPP) (FEB 2021)

Section H – Special Contract Requirements

H.1 – Wage Rates

H.2 – Workers Compensation

H.3 – Site Specific Safety and Health Plan

H.4 – Seasonal Shutdown

H.5 – Archeological Findings…………………………………………………………………………………………………10

H.6 – Conduct of Operations

Part II – Contract Clauses

Section I – Contract Clauses

I.1 – Clauses Incorporated by Reference

I.1 – 52.204-30 – Federal Acquisition Supply Chain Security Act Orders—Prohibition (DEC 2023)

I.2 – 52.225-9 – Buy American–Construction Materials (OCT 2022)

I.3 - 52.228-13 Alternative Payment Protections (JUL 2000)………………………………………………….21

I.5 – 1452.228-70 – Liability Insurance – Department of Interior (JUL 1996)

I.7 – 1452.237-70, Information Collection – Department of the Interior (JUL 1996)

I.8 – 52.252-2 – Clauses Incorporated by Reference (FEB 1998)

I.9 – 52.252-6 – Authorized Deviations in Clauses (NOV 2020)

Part III – List of Documents, Exhibits, and Other Attachments

Section J – List of Attachments

J.1 – Attachments

Part IV – Representations and Instructions

Section K – Representations, Certifications, and Other Statements of Offerors

K.1 – 52.204-29 – Federal Acquisition Supply Chain Security Act Orders—Representation and Disclosures (DEC 2023)

K.2 – 52.204-8 – Annual Representations and Certifications (OCT 2025)

Section L – Instructions, Conditions, and Notices to Offerors

L.1 – Provisions Incorporated by Reference

L.2 – 52.201-1 – Acquisition 360: Voluntary Survey (Sep 2023)

L.3 – 52.216-1 – Type of Contract (APR 1984)

L.4 – 52.222-5 – Construction Wage Rate Requirements—Secondary Site of the Work (MAY 2014)

L.5 – 52.225-10 – Notice of Buy American Requirement--Construction Materials (MAY 2014) .. 29

L.6 – 52.236-27 – Site Visit (Construction) (FEB 1995)-Alternate I (FEB 1995)

L.7 – 52.252-1 – Solicitation Provisions Incorporated by Reference (FEB 1998)

L.8 – Instructions for the Submission of Quotations and Other Information

L.9 – Responsibility Determination

Section M - Evaluation Factors for Award

M.1 – Evaluation Factors for Award

Part I – The Schedule

Section A – Solicitation/Contract Form

Solicitation, Offer, and Award (SF 1442) - pages 1- 3 of this package.

Section B – Supplies or Services and Prices

B.1 – Price Schedule

Quoters shall fill in the lump sum price for the single line item in the Price Schedule provided in Attachment no. 5 “Forms to Return with Quote”.

Section C – Description/Specifications/Statement of Work

C.1 – Project Specifications

See the attached project specifications (SOW) listed in Section J, below.

Section D – Packaging and Marking

There are no clauses in this section.

Section E – Inspection and Acceptance

E.1 – 52.246-12 – Inspection of Construction (AUG 1996)

(a) Definition. “Work” includes, but is not limited to, materials, workmanship, and manufacture and fabrication of components.

(b) The Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements. The Contractor shall maintain complete inspection records and make them available to the Government. All work shall be conducted under the general direction of the Contracting Officer and is subject to Government inspection and test at all places and at all reasonable times before acceptance to ensure strict compliance with the terms of the contract.

(c) Government inspections and tests are for the sole benefit of the Government and do not --

(1) Relieve the Contractor of responsibility for providing adequate quality control measures;

(2) Relieve the Contractor of responsibility for damage to or loss of the material before acceptance;

(3) Constitute or imply acceptance; or

(4) Affect the continuing rights of the Government after acceptance of the completed work under paragraph (i) of this section.

(d) The presence or absence of a Government inspector does not relieve the Contractor from any contract requirement, nor is the inspector authorized to change any term or condition of the specification without the Contracting Officer’s written authorization.

(e) The Contractor shall promptly furnish, at no increase in contract price, all facilities, labor, and material reasonably needed for performing such safe and convenient inspections and tests as may be required by the Contracting Officer. The Government may charge to the Contractor any additional cost of inspection or test when work is not ready at the time specified by the Contractor for inspection or test, or when prior rejection makes reinspection or retest necessary. The Government shall perform all inspections and tests in a manner that will not unnecessarily delay the work. Special, full size, and performance tests shall be performed as described in the contract.

(f) The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the work with an appropriate adjustment in contract price. The Contractor shall promptly segregate and remove rejected material from the premises.

(g) If the Contractor does not promptly replace or correct rejected work, the Government may --

(1) By contract or otherwise, replace or correct the work and charge the cost to the Contractor; or

(2) Terminate for default the Contractor’s right to proceed.

(h) If, before acceptance of the entire work, the Government decides to examine already completed work by removing it or tearing it out, the Contractor, on request, shall promptly furnish all necessary facilities, labor, and material. If the work is found to be defective or nonconforming in any material respect due to the fault of the Contractor or its subcontractors, the Contractor shall defray the expenses of the examination and of satisfactory reconstruction. However, if the work is found to meet contract requirements, the Contracting Officer shall make an equitable adjustment for the additional services involved in the examination and reconstruction, including, if completion of the work was thereby delayed, an extension of time.

(i) Unless otherwise specified in the contract, the Government shall accept, as promptly as practicable after completion and inspection, all work required by the contract or that portion of the work the Contracting Officer determines can be accepted separately. Acceptance shall be final and conclusive except for latent defects, fraud, gross mistakes amounting to fraud, or the Government’s rights under any warranty or guarantee.

(End of Clause)

Section F – Deliveries or Performance

F.1 – Clauses Incorporated by Reference

The following contract clauses pertinent to this section are incorporated by reference (by Citation Number, Title, and Date) per the clause at FAR “52.252-2 – Clauses Incorporated By Reference” in Section I of this contract. See FAR 52.252-2 for an internet address (if specified) for electronic access to a clause’s full text.

52.242-14 Suspension of Work (APR 1984)

F.2 –52.211-10 – Commencement, Prosecution, and Completion of Work (APR 1984)

The Contractor shall be required to

(a) commence work under this contract within 10 calendar days after the date the Contractor receives the notice to proceed,

(b) prosecute the work diligently, and

(c) complete the entire work ready for use not later than *60 days following receipt of the notice to proceed. The time stated for completion shall include final cleanup of the premises.

(End of Clause)

F.3 – Deliverable (Post-Award): Contractor’s Daily Logs

Contractor shall prepare a daily log for each day work is performed under this contract. Copies of daily logs shall be submitted to the Contracting Officer, and may be compiled and submitted weekly, with payroll.

Time necessary for completion of daily log is approximately 15 to 30 minutes. The contractor may choose to use its own format as long as the following elements are included on the log:

(a) Project Name

(b) Contract number

(c) Date

(d) Prime Contractor and/or Subcontractor

(e) Work performed, including number of employees by job categories (indicate if "prime" or "sub")

(f) Heavy equipment on job, hours worked (indicate if "prime" or "sub")

(g) Materials delivered

(h) Official visitors to site

(i) Inspections performed

(j) Verbal instruction received from government on construction deficiencies

(k) Certification (prime contractor's signature/COR's signature)

Section G – Contract Administration Data

G.1 – Contract Administration

The Project Inspector and first Point of Contact for this contract will be:

Casey Hicks Telecommunications Specialist Mount Rainier National Park

Work: TBD casey_hicks@nps.gov

The Contracting Officer's Representative (COR) for this contract will be:

Colby Mackley Chief of Facility Management-Project Team Supervisor Mount Rainier National Park Colby_Mackley@nps.gov

The Contract Specialist (CS) for this contract will be:

Michael Abner Contract Specialist michael_abner@ios.doi.gov

The Contracting Officer (CO) with overall responsibility for this contract will be:

Provided upon contact award.

G.2 –1452.201-70 – Authorities and Delegations (SEP 2011)

(a) The Contracting Officer is the only individual authorized to enter into or terminate this contract, modify any term or condition of this contract, waive any requirement of this contract, or accept nonconforming work.

(b) The Contracting Officer will designate a Contracting Officer's Representative (COR) at time of award.

The COR will be responsible for technical monitoring of the contractor's performance and deliveries. The COR will be appointed in writing, and a copy of the appointment will be furnished to the Contractor.

Changes to this delegation will be made by written changes to the existing appointment or by issuance of a new appointment.

(c) The COR is not authorized to perform, formally or informally, any of the following actions:

(1) Promise, award, agree to award, or execute any contract, contract modification, or notice of intent that changes or may change this contract;

(2) Waive or agree to modification of the delivery schedule;

(3) Make any final decision on any contract matter subject to the Disputes Clause;

(4) Terminate, for any reason, the Contractor's right to proceed;

(5) Obligate in any way, the payment of money by the Government.

(d) The Contractor shall comply with the written or oral direction of the Contracting Officer or authorized representative(s) acting within the scope and authority of the appointment memorandum. The Contractor need not proceed with direction that it considers to have been issued without proper authority. The Contractor shall notify the Contracting Officer in writing, with as much detail as possible, when the COR has taken an action or has issued direction (written or oral) that the Contractor considers to exceed the COR's appointment, within 3 days of the occurrence. Unless otherwise provided in this contract, the Contractor assumes all costs, risks, liabilities, and consequences of performing any work it is directed to perform that falls within any of the categories defined in paragraph (c) prior to receipt of the Contracting Officer's response issued under paragraph (e) of this clause.

(e) The Contracting Officer shall respond in writing within 30 days to any notice made under paragraph (d) of this clause. A failure of the parties to agree upon the nature of a direction, or upon the contract action to be taken with respect thereto, shall be subject to the provisions of the Disputes clause of this contract.

(f) The Contractor shall provide copies of all correspondence to the Contracting Officer and the COR.

(g) Any action(s) taken by the Contractor, in response to any direction given by any person acting on behalf of the Government or any Government official other than the Contracting Officer or the COR acting within his or her appointment, shall be at the Contractor's risk.

G.3 – 1452.204-70 – Release of Claims – Department of the Interior (JUL 1996)

After completion of work and prior to final payment, the Contractor shall furnish the Contracting Officer with a release of claims against the United States relating to this contract. The Release of Claims form (DI-

137) shall be used for this purpose. The form provides for exception of specified claims from operation of the release.

G.4 – Construction Contract Administration

Federal Acquisition Regulation (FAR) 36.211(b) requires agencies provide description of policies and procedures that apply to definitization of equitable adjustments for change orders under construction contracts and data on the time required to definitize equitable adjustments for change orders under construction contracts. This information can be found at:

https://www.doi.gov/pam/acquisition/policy/constructioncontract.

(End of clause)

G.5 – Contractor Performance Assessment Reporting System (NOV 2015) In accordance with DOI and NPS policy, past performance evaluations may be prepared for this acquisition.

For more information see the Contractor Performance Assessment Reporting System (CPARS), available online at https://cpars.gov/.

https://www.doi.gov/pam/acquisition/policy/constructioncontract https://cpars.gov/

G.6 – Electronic Invoicing and Payment Requirements - Invoice Processing Platform (IPP) (FEB 2021)

Payment requests must be submitted electronically through the U. S. Department of the Treasury's Invoice Processing Platform System (IPP).

"Payment request" means any request for contract financing payment or invoice payment by the Contractor. To constitute a proper invoice, the payment request must comply with the requirements identified in the applicable Prompt Payment clause included in the contract, or the clause 52.212-4 Contract Terms and Conditions - Commercial Items included in commercial item contracts. The IPP website address is: https://www.ipp.gov.

Under this contract, the following documents are required to be submitted as an attachment to the IPP invoice:

The Contractor shall submit a draft Invoice Package, including copies of the following documents, to the National Park Service’s (NPS) Contracting Officer’s Representative (COR), with a copy to the Contracting Officer (CO), a minimum of 5 working days prior to submittal of the formal Invoice through IPP. Within 5 working days of receipt, the COR shall provide an acceptability recommendation to the CO. If the COR recommends acceptance, the Contractor shall submit a copy of the final version of the COR’s checklist and the Invoice Package to the NPS through IPP.

1. Completed copy of the COR’s final Construction Payment Request Checklist (Submit only with the formal submittal to IPP)

2. Completed copy of the Pay Estimate Form (including signed certification of subcontractor payments as required by contract clause 52.232-5)

3. Certified copies of Payroll Reports per Contract clause 52.222-8 Payrolls and Basic Records.

4. Completed copy of the Payroll Report PII Certification sheet

5. Information required by contract clause 52.232-27, Prompt Payment for Construction Contracts

6. A copy of the current construction schedule

7. A copy of the current Schedule of Values (can be built into the business invoice and not be a separate document so long as the business invoice shows for each line item the percentages for work completed, remaining work, as well as dollar amounts for what’s being invoiced, and what’s remaining).

The Contractor must use the IPP website to register access and use IPP for submitting requests for payment. The Contractor Government Business Point of Contact (as listed in SAM) will receive enrollment instructions via email from the Federal Reserve Bank of St. Louis (FRBSTL) prior to the contract award date, but no more than 3 - 5 business days of the contract award date. Contractor assistance with enrollment can be obtained by contacting the IPP Production Helpdesk via email ippgroup@bos.frb.org or phone (866) 973-3131.

If the Contractor is unable to comply with the requirement to use IPP for submitting invoices for payment, the Contractor must submit a waiver request in writing to the Contracting Officer with its quotation.

https://www.ipp.gov/

Section H – Special Contract Requirements

H.1 – Wage Rates Construction Wage Rates formally known as Davis-Bacon Wage Rates apply for this project and are attached to this solicitation (See Section J). The project is located in Pierce County, Washington, Wage Decision no. WA20260127.

H.2 – Workers Compensation The Contractor is required to be insured against liability for workmen's compensation in accordance with requirements set forth by the Washington State Department of Labor & Industries. Evidence of coverage is required before commencement of project work.

H.3 – Site Specific Safety and Health Plan A site specific safety and health plan shall be prepared covering on-site work to be performed by the contractor and all subcontractors. The prime contractor shall be responsible for development, implementation, and oversight of the site specific plan. The site specific safety and health plan shall establish in detail, the protocols necessary for recognition, evaluation, and control of hazards associated with each task performed. The plan shall address site specific safety and health requirements and procedures based upon site specific conditions. The level of detail provided in the site specific safety and health plan shall be tailored to the type of work, complexity of operations to be performed, and hazards anticipated. The site specific safety and health plan shall address, in as much detail as possible, anticipated tasks, their related hazards, and anticipated control measures.

As work proceeds, the site specific safety and health plan shall be adapted to new situations and new conditions. Changes and modifications to the accepted site specific safety and health plan shall be made with the knowledge and concurrence of the safety office, site superintendent, and contracting office. Should any unforeseen hazard become evident during the performance of work, the contractor shall bring such hazard to the attention of the safety office and COR, both verbally and in writing for resolution as soon as possible. In the interim, necessary action shall be taken to re-establish and maintain safe working conditions in order to safeguard on-site personnel, visitors, the public, and the environment.

Prior to submittal to the COR, the site specific safety and health plan shall be signed and dated by the prime contractor's safety and health manager and site superintendent. The site specific safety and health plan shall be part of the contractor's safety and Health program. The contractor shall submit to the COR the contractor's site specific safety and health plan for review and approval by the safety office.

Work performed under this contract shall comply with applicable federal, state, and local safety and occupational health laws and regulations. This includes, but is not limited to, Occupational Safety and Health Administration (OSHA) standards, 29 CFR, Part 1910 and Part 1926. Where the requirements of applicable laws, criteria, ordinances, regulations, and referenced documents vary the most stringent requirements shall apply.

H.4 – Seasonal Shutdown It is recognized that seasonal climatic conditions regularly occur in some of the National Park Service areas that restrict and in some cases prohibit normal construction activities. The actual timing of a seasonal shutdown will be determined by the Contracting Officer. The Contractor shall give the Contracting Officer at least two weeks’ notice prior to the anticipated resumption of work. The actual date that work is resumed is subject to the approval of the Contracting Officer. The amount of time during a seasonal shutdown is taken into consideration when the completion time as stated in the Contract is determined.

Therefore, the contract time will not be extended due to seasonal shutdowns.

H.5 – Archeological Findings

(a) Petroglyphs, artifacts, burial grounds or remains, structural features, ceremonial, domestic, and archeological objects of any nature, historic or prehistoric, found within the construction area, are the property of and will be removed only by the Government. Should Contractor's operations uncover or his employees find any archeological remains, Contractor shall suspend operations at the site of discovery;

notify Contracting Officer immediately of the findings; and continue operations in other areas. Included with the notification shall be a brief statement of the location and details of the findings. Should the temporary suspension of work at the site result in delays, or the discovery site require archeological studies resulting in delays or additional work for Contractor, he will be compensated by an equitable adjustment under the General Provisions of the Contract.

H.6 – Conduct of Operations At all times the Contractor shall conduct his organization in conformance with the rules and regulations promulgated by the Secretary of the Interior for the National Park Service, and with such appropriate regulations as the Superintendent may prescribe. Work on Saturdays, Sundays, Federal holidays or at night may be performed only with the prior consent of the Contracting Officer. No signs or advertisements (except those specified herein) shall be displayed on the construction site or within the park except with approval of the Contracting Officer.

Part II – Contract Clauses

Section I – Contract Clauses

I.1 – Clauses Incorporated by Reference

The following contract clauses pertinent to this section are incorporated by reference (by Citation Number, Title, and Date) per the clause at FAR “52.252-2 – Clauses Incorporated By Reference” in Section I of this contract. See FAR 52.252-2 for an internet address (if specified) for electronic access to a clause’s full text.

52.202-1 Definitions (JUN 2020) 52.203-3 Gratuities (APR 1984) 52.203-17 Contractor Employee Whistleblower Rights (NOV 2023) 52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017) 52.204-13 System for Award Management Maintenance (OCT 2018) 52.204-18 Commercial and Government Entity Code Maintenance (AUG 2020) 52.204-19 Incorporation by Reference of Representations and Certifications (DEC 2014) 52.204-21 Basic Safeguarding of Covered Contractor Information Systems (NOV 2021) 52.204-22 Alternative Line Item Proposal (JAN 2017) 52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by

Kaspersky Lab Covered Entities (DEC 2023) 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance

Services or Equipment (NOV 2021) 52.204-27 Prohibition on a ByteDance Covered Application (JUN 2023) 52.209-10 Prohibition on Contracting with Inverted Domestic Corporations (NOV 2015) 52.219-27 Notice of Set-Aside for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small

Business (SDVOSB) Concerns Eligible Under the SDVOSB Program. (Feb 2024) 52.219-28 Post-Award Small Business Program Representation (JAN 2025) 52.222-3 Convict Labor (JUN 2003) 52.222-6 Construction Wage Rate Requirements (AUG 2018) 52.222-7 Withholding of Funds (MAY 2014) 52.222-8 Payrolls and Basic Records (JUL 2021) 52.222-9 Apprentices and Trainees (JUL 2005) (DEVIATION FEB 2025) 52.222-10 Compliance with Copeland Act Requirements (FEB 1988) 52.222-11 Subcontracts (Labor Standards) (MAY 2014) 52.222-12 Contract Termination-Debarment (MAY 2014) 52.222-13 Compliance with Construction Wage Rate Requirements and Related Regulations (MAY

2014) 52.222-14 Disputes Concerning Labor Standards (FEB 1988) 52.222-15 Certification of Eligibility (MAY 2014) 52.222-36 Equal Opportunity for Workers with Disabilities (JUN 2020) 52.222-50 Combating Trafficking in Persons (OCT 2025) 52.222-62 Paid Sick Leave Under Executive Order 13706 (JAN 2022)

52.223-5 Pollution Prevention and Right-to-Know Information (MAY 2024) 52.223-23 Sustainable Products and Services (MAY 2024) 52.225-13 Restriction on Certain Foreign Purchases (FEB 2021) 52.226-7 Drug-Free Workplace (MAY 2024) 52.226-8 Encouraging Contractor Policies to Ban Text Messaging While Driving (May 2024) 52.232-5 Payments under Fixed-Price Construction Contracts (MAY 2014) 52.232-23 Assignment of Claims (MAY 2014) 52.232-27 Prompt Payment for Construction Contracts (JAN 2017) 52.232-33 Payment by Electronic Funds Transfer-System for Award Management (OCT 2018) 52.232-39 Unenforceability of Unauthorized Obligations (JUN 2013) 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (MAR 2023) 52.233-1 Disputes-(MAY 2014)-Alternate I (DEC 1991) 52.233-3 Protest after Award (AUG 1996) 52.233-4 Applicable Law for Breach of Contract Claim (OCT 2004) 52.236-3 Site Investigation and Conditions Affecting the Work (APR 1984) 52.236-5 Material and Workmanship (APR 1984) 52.236-6 Superintendence by the Contractor (APR 1984) 52.236-7 Permits and Responsibilities (NOV 1991) 52.236-9 Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements (Apr

1984) 52.236-10 Operations and Storage Areas (APR 1984) 52.236-12 Cleaning Up (APR 1984) 52.236-13 Accident Prevention (NOV 1991) 52.236-17 Layout of Work (APR 1984) 52.236-21 Specifications and Drawings for Construction (FEB 1997) 52.236-26 Preconstruction Conference (FEB 1995) 52.243-5 Changes and Changed Conditions (APR 1984) 52.244-6 Subcontracts for Commercial Products and Commercial Services (OCT 2025) 52.246-21 Warranty of Construction (MAR 1994) 52.248-3 Value Engineering-Construction (OCT 2025)-Alternate I (APR 1984) 52.249-1 Termination for Convenience of the Government (Fixed-Price) (Short Form) (APR 1984) 52.253-1 Computer Generated Forms (JAN 1991)

I.1 – 52.204-30 – Federal Acquisition Supply Chain Security Act Orders—Prohibition (DEC 2023)

(a) Definitions. As used in this clause— Covered article, as defined in 41 U.S.C. 4713(k), means—

(1) Information technology, as defined in 40 U.S.C. 11101, including cloud computing services of all types;

(2) Telecommunications equipment or telecommunications service, as those terms are defined in section 3 of the Communications Act of 1934 ( 47 U.S.C. 153);

(3) The processing of information on a Federal or non-Federal information system, subject to the requirements of the Controlled Unclassified Information program (see 32 CFR part 2002); or

(4) Hardware, systems, devices, software, or services that include embedded or incidental information technology.

FASCSA order means any of the following orders issued under the Federal Acquisition Supply Chain Security Act (FASCSA) requiring the removal of covered articles from executive agency information systems or the exclusion of one or more named sources or named covered articles from executive agency procurement actions, as described in 41 CFR 201–1.303(d) and (e):

(1) The Secretary of Homeland Security may issue FASCSA orders applicable to civilian agencies, to the extent not covered by paragraph (2) or (3) of this definition. This type of FASCSA order may be referred to as a Department of Homeland Security (DHS) FASCSA order.

(2) The Secretary of Defense may issue FASCSA orders applicable to the Department of Defense (DoD) and national security systems other than sensitive compartmented information systems.

This type of FASCSA order may be referred to as a DoD FASCSA order.

(3) The Director of National Intelligence (DNI) may issue FASCSA orders applicable to the intelligence community and sensitive compartmented information systems, to the extent not covered by paragraph (2) of this definition. This type of FASCSA order may be referred to as a DNI FASCSA order.

Intelligence community, as defined by 50 U.S.C. 3003(4), means the following—

(1) The Office of the Director of National Intelligence;

(2) The Central Intelligence Agency;

(3) The National Security Agency;

(4) The Defense Intelligence Agency;

(5) The National Geospatial-Intelligence Agency;

(6) The National Reconnaissance Office;

(7) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs;

(8) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Coast Guard, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Department of Energy;

(9) The Bureau of Intelligence and Research of the Department of State;

(10) The Office of Intelligence and Analysis of the Department of the Treasury;

(11) The Office of Intelligence and Analysis of the Department of Homeland Security; or

(12) Such other elements of any department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence community.

National security system, as defined in 44 U.S.C. 3552, means any information system (including any telecommunications system) used or operated by an agency or by a contractor of an agency, or other organization on behalf of an agency—

(1) The function, operation, or use of which involves intelligence activities; involves cryptologic activities related to national security; involves command and control of military forces; involves equipment that is an integral part of a weapon or weapons system; or is critical to the direct https://www.govinfo.gov/link/uscode/41/4713 https://www.govinfo.gov/link/uscode/40/11101 https://www.govinfo.gov/link/uscode/47/153 https://www.ecfr.gov/current/title-32/part-2002 https://www.ecfr.gov/current/title-41/section-201-1.303#p-201-1.303(d) https://www.ecfr.gov/current/title-41/section-201-1.303#p-201-1.303(e) https://www.govinfo.gov/link/uscode/50/3003 https://www.govinfo.gov/link/uscode/44/3552 fulfillment of military or intelligence missions, but does not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications); or

(2) Is protected at all times by procedures established for information that have been specifically authorized under criteria established by an Executive order or an Act of Congress to be kept classified in the interest of national defense or foreign policy.

Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession about the identity of any covered articles, or any products or services produced or provided by a source. This applies when the covered article or the source is subject to an applicable FASCSA order. A reasonable inquiry excludes the need to include an internal or third-party audit.

Sensitive compartmented information means classified information concerning or derived from intelligence sources, methods, or analytical processes, which is required to be handled within formal access control systems established by the Director of National Intelligence.

Sensitive compartmented information system means a national security system authorized to process or store sensitive compartmented information.

Source means a non-Federal supplier, or potential supplier, of products or services, at any tier.

(b) Prohibition.

(1) Unless an applicable waiver has been issued by the issuing official, Contractors shall not provide or use as part of the performance of the contract any covered article, or any products or services produced or provided by a source, if the covered article or the source is prohibited by an applicable FASCSA orders as follows:

(i) For solicitations and contracts awarded by a Department of Defense contracting office, DoD FASCSA orders apply.

(ii) For all other solicitations and contracts DHS FASCSA orders apply.

(2) The Contractor shall search for the phrase “FASCSA order” in the System for Award Management (SAM) at https://www.sam.gov to locate applicable FASCSA orders identified in paragraph (b)(1).

(3) The Government may identify in the solicitation additional FASCSA orders that are not in SAM, which are effective and apply to the solicitation and resultant contract.

(4) A FASCSA order issued after the date of solicitation applies to this contract only if added by an amendment to the solicitation or modification to the contract (see FAR 4.2304(c)). However, see paragraph (c) of this clause.

(5)

(i) If the contractor wishes to ask for a waiver of the requirements of a new FASCSA order being applied through modification, then the Contractor shall disclose the following:

(A) Name of the product or service provided to the Government;

(B) Name of the covered article or source subject to a FASCSA order;

(C) If applicable, name of the vendor, including the Commercial and Government Entity code and unique entity identifier (if known), that supplied or supplies the covered article or the product or service to the Offeror;

(D) Brand;

(E) Model number (original equipment manufacturer number, manufacturer part number, or wholesaler number);

(F) Item description;

(G) Reason why the applicable covered article or the product or service is being provided or used;

https://www.sam.gov/ https://www.acquisition.gov/far/subpart-4.23#FAR_4_2304

(ii) Executive agency review of disclosures. The contracting officer will review disclosures provided in paragraph (b)(5)(i) to determine if any waiver is warranted. A contracting officer may choose not to pursue a waiver for covered articles or sources otherwise covered by a FASCSA order and to instead pursue other appropriate action.

(c) Notice and reporting requirement.

(1) During contract performance, the Contractor shall review SAM.gov at least once every three months, or as advised by the Contracting Officer, to check for covered articles subject to FASCSA order(s), or for products or services produced by a source subject to FASCSA order(s) not currently identified under paragraph (b) of this clause.

(2) If the Contractor identifies a new FASCSA order(s) that could impact their supply chain, then the Contractor shall conduct a reasonable inquiry to identify whether a covered article or product or service produced or provided by a source subject to the FASCSA order(s) was provided to the Government or used during contract performance.

(3)

(i) The Contractor shall submit a report to the contracting office as identified in paragraph (c)(3)(ii) of this clause, if the Contractor identifies, including through any notification by a subcontractor at any tier, that a covered article or product or service produced or provided by a source was provided to the Government or used during contract performance and is subject to a FASCSA order(s) identified in paragraph (b) of this clause, or a new FASCSA order identified in paragraph (c)(2) of this clause. For indefinite delivery contracts, the Contractor shall report to both the contracting office for the indefinite delivery contract and the contracting office for any affected order.

(ii) If a report is required to be submitted to a contracting office under (c)(3)(i) of this clause, the Contractor shall submit the report as follows:

(A) If a Department of Defense contracting office, the Contractor shall report to the website at https://dibnet.dod.mil.

(B) For all other contracting offices, the Contractor shall report to the Contracting Officer.

(4) The Contractor shall report the following information for each covered article or each product or service produced or provided by a source, where the covered article or source is subject to a FASCSA order, pursuant to paragraph (c)(3)(i) of this clause:

(i) Within 3 business days from the date of such identification or notification:

(A) Contract number;

(B) Order number(s), if applicable;

(C) Name of the product or service provided to the Government or used during performance of the contract;

(D) Name of the covered article or source subject to a FASCSA order;

(E) If applicable, name of the vendor, including the Commercial and Government Entity code and unique entity identifier (if known), that supplied the covered article or the product or service to the Contractor;

(F) Brand;

(G) Model number (original equipment manufacturer number, manufacturer part number, or wholesaler number);

(H) Item description; and

(I) Any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the information in paragraph (c)(4)(i) of this clause:

(A) Any further available information about mitigation actions undertaken or recommended.

https://dibnet.dod.mil/

(B) In addition, the Contractor shall describe the efforts it undertook to prevent submission or use of the covered article or the product or service produced or provided by a source subject to an applicable FASCSA order, and any additional efforts that will be incorporated to prevent future submission or use of the covered article or the product or service produced or provided by a source that is subject to an applicable FASCSA order.

(d) Removal. For Federal Supply Schedules, Governmentwide acquisition contracts, multi-agency contracts or any other procurement instrument intended for use by multiple agencies, upon notification from the Contracting Officer, during the performance of the contract, the Contractor shall promptly make any necessary changes or modifications to remove any product or service produced or provided by a source that is subject to an applicable FASCSA order.

(e) Subcontracts.

(1) The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (c)(1) of this clause, in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial products and commercial services.

(2) The Government may identify in the solicitation additional FASCSA orders that are not in SAM, which are effective and apply to the contract and any subcontracts and other contractual instruments under the contract. The Contractor or higher-tier subcontractor shall notify their subcontractors, and suppliers under other contractual instruments, that the FASCSA orders in the solicitation that are not in SAM apply to the contract and all subcontracts.

(End of clause)

I.2 – 52.225-9 – Buy American–Construction Materials (OCT 2022)

(a) Definitions. As used in this clause— Commercially available off-the-shelf (COTS) item—

(1) Means any item of supply (including construction material) that is–

(i) A commercial product (as defined in paragraph (1) of the definition of “commercial product” at Federal Acquisition Regulation (FAR) 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products.

"Construction material" means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

Cost of components means—

(1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or https://www.acquisition.gov/far/part-2#FAR_2_101

(2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material.

Critical component means a component that is mined, produced, or manufactured in the United States and deemed critical to the U.S. supply chain. The list of critical components is at FAR 25.105.

Critical item means a domestic construction material or domestic end product that is deemed critical to U.S.

supply chain resiliency. The list of critical items is at FAR 25.105.

Domestic construction material means—

(1) For construction material that does not consist wholly or predominantly of iron or steel or a combination of both-

(i) An unmanufactured construction material mined or produced in the United States; or

(ii) A construction material manufactured in the United States, if–

(A)The cost of its components mined, produced, or manufactured in the United States exceeds 60 percent of the cost of all its components, except that the percentage will be 65 percent for items delivered in calendar years 2024 through 2028 and 75 percent for items delivered starting in calendar year 2029. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic. Components of unknown origin are treated as foreign; or

(B) The construction material is a COTS item; or

(2) For construction material that consists wholly or predominantly of iron or steel or a combination of both, a construction material manufactured in the United States if the cost of foreign iron and steel constitutes less than 5 percent of the cost of all components used in such construction material. The cost of foreign iron and steel includes but is not limited to the cost of foreign iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the construction material and a good faith estimate of the cost of all foreign iron or steel components excluding COTS fasteners. Iron or steel components of unknown origin are treated as foreign. If the construction material contains multiple components, the cost of all the materials used in such construction material is calculated in accordance with the definition of "cost of components".

Fastener means a hardware device that mechanically joins or affixes two or more objects together.

Examples of fasteners are nuts, bolts, pins, rivets, nails, clips, and screws.

Foreign construction material means a construction material other than a domestic construction material.

Foreign iron and steel means iron or steel products not produced in the United States. Produced in the United States means that all manufacturing processes of the iron or steel must take place in the United States, from the initial melting stage through the application of coatings, except metallurgical processes involving refinement of steel additives. The origin of the elements of the iron or steel is not relevant to the determination of whether it is domestic or foreign.

Predominantly of iron or steel or a combination of both means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components excluding COTS fasteners.

Steel means an alloy that includes at least 50 percent iron, between 0.02 and 2 percent carbon, and may include other elements.

https://www.acquisition.gov/far/part-25#FAR_25_105

"United States" means the 50 States, the District of Columbia, and outlying areas.

(b) Domestic preference.

(1) This clause implements 41 U.S.C.chapter 83, Buy American, by providing a preference for domestic construction material. In accordance with 41 U.S.C. 1907, the domestic content test of the Buy American statute is waived for construction material that is a COTS item, except that for construction material that consists wholly or predominantly of iron or steel or a combination of both, the domestic content test is applied only to the iron and steel content of the construction materials, excluding COTS fasteners. (See FAR 12.505(a)(2)). The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraphs (b)(2) and (b)(3) of this clause.

(2) This requirement does not apply to information technology that is a commercial product or to the construction materials or components listed by the Government as follows:

None.

(3) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(2) of this clause if the Government determines that-

(i)The cost of domestic construction material would be unreasonable.

(A) For domestic construction material that is not a critical item or does not contain critical components.

(1)The cost of a particular domestic construction material subject to the requirements of the Buy American statute is unreasonable when the cost of such material exceeds the cost of foreign material by more than 20 percent;

(2)For construction material that is not a COTS item and does not consist wholly or predominantly of iron or steel or a combination of both, if the cost of a particular domestic construction material is determined to be unreasonable or there is no domestic offer received, and the low offer is for foreign construction material that is manufactured in the United States and does not exceed 55 percent domestic content, the Contracting Officer will treat the lowest offer of foreign construction material that exceeds 55 percent domestic content as a domestic offer and determine whether the cost of that offer is unreasonable by applying the evaluation factor listed in paragraph (b)(3)(i)(A)(1) of this clause.

(3)The procedures in paragraph (b)(3)(i)(A)(2) of this clause will no longer apply as of January 1, 2030.

(B) For domestic construction material that is a critical item or contains critical components.

(1)The cost of a particular domestic construction material that is a critical item or contains critical components, subject to the requirements of the Buy American statute, is unreasonable when the cost of such material exceeds the cost of foreign material by more than 20 percent plus the additional preference factor identified for the critical item or construction material containing critical components listed at FAR 25.105.

(2)For construction material that does not consist wholly or predominantly of iron or steel or a combination of both, if the cost of a particular domestic construction material is determined to be unreasonable or there is no domestic offer received, and the low offer is for foreign construction material that does not exceed 55 percent domestic content, the Contracting Officer will treat the lowest foreign offer of construction material that is manufactured in the United States and exceeds 55 percent domestic content as a domestic offer, and determine whether the cost of that offer is unreasonable http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 https://www.acquisition.gov/far/part-12#FAR_12_505 by applying the evaluation factor listed in paragraph (b)(3)(i)(B)(1) of this clause.

(3)The procedures in paragraph (b)(3)(i)(B)(2) of this clause will no longer apply as of January 1, 2030.

(ii) The application of the restriction of the Buy American statute to a particular construction material would be impracticable or inconsistent with the public interest; or

(iii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

(c) Request for determination of inapplicability of the Buy American statute.

(1)

(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(3) of this clause shall include adequate information for Government evaluation of the request, including-

(A) A description of the foreign and domestic construction materials;

(B) Unit of measure;

(C) Quantity;

(D) Price;

(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(3) of this clause.

(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed price comparison table in the format in paragraph (d) of this clause.

(iii) The price of construction material shall include all delivery costs to the construction site and any applicable duty (whether or not a…