Attachment 4 - Terms and conditions FAC 2022-6 26 May 2022.pdf

Attachment 4

TERMS AND CONDITIONS

70Z03822RE0000001

Federal Acquisition Regulation (FAR) and Homeland Security Acquisition Regulation (HSAR) Clauses and Provisions The clauses and provisions contained herein are applicable to any order awarded as a result of this solicitation. The terms and conditions set forth herein supersede all other terms and conditions.

Acceptance of the order in accordance with (IAW) FAR 15 constitutes acceptance of all terms and conditions contained herein.

The following clauses and provisions are included:

52.212-1 Instructions to Offerors - Commercial Items Nov 2021

Period of Acceptance of Offers Prices must remain effective for 150 days after solicitation closes.

Notice of Pre-award Survey

(a) Offerors are advised that the Government may contact potential contractors to ascertain their capabilities to perform the work specified in this solicitation. In addition to financial statements and credit rating checks, the Government may visit a prospective contractor's facility(s). Areas of interest on this survey may include, but are not limited to the following:

(1) Performance plans

(2) Quality assurance and control plans

(3) Workload factor for manpower utilization

(4) Management plan for handling peak workloads

(5) Production capability

(i) Plant facilities, equipment, and labor resources

(ii) Purchasing and subcontracting

(iii) Performance record and ability to meet delivery schedules

(b) Offerors are advised that accomplishment of this survey is a part of the evaluation process and is not to be construed as an indication that an offeror will receive or is in the best position to receive the resultant award. However, any offeror that fails to meet the requirements of the site survey will no longer be considered for award.

Proposal Preparation and Submission The Contractor shall furnish a proposal of the proposed Radar Sensor Systems (RSS).

In addition to FAR 52.212-1, Instruction to Offerors-Commercial Items, the following information is provided for submission of proposals. In an effort to reduce paperwork and costs, all responses to this solicitation shall be submitted electronically via e-mail to Rose.A.Bateman@uscg.mil and Kathrine.R.Leach@uscg.mil by the closing time and date. The total email cannot exceed ten (10) megabytes. It is the Offeror's responsibility to ensure the completeness of its proposal. Offerors that fail to provide all information required by this solicitation notice in their proposal may not be further considered for award.

To ensure submissions are received and processed appropriately, offerors shall submit their proposals in a minimum six (6) separate electronic files as set forth below:

Volume Description Maximum Pages

Number of Electronic

C iI Factor 1-Technical Performance Requirements

Subfactor 1-Threshold Performance Requirements Subfactor 2-User Interface Subfactor 3-Total System Weight & Dimensions Subfactor 4-Objective Performance Requirements

(Note: Each Subfactor shall be clearly identified in this volume)

II Factor 2-Training (to include Maintenance Training and Operator Training Plan) 25

III Factor 3-Past Performance (Past Performance Information Sheet Provided)

Attachment 5 Provided

IV Factor 4-Price Attachment 1: Schedule of Supplies

(Note: If adding additional pages to the Schedule of Supplies provided, the maximum number of total pages shall not exceed 15)

Attachment 1 Provided

V Performance Specification Questionnaire Attachment 3

VI Non-Disclosure Agreement (NDA) Attachment 6

Electronic Files:

Files shall be submitted in Microsoft Office format and/or PDF Format.

Proposals shall be submitted so that each page will print on 8.5" x 11" paper.

Each page within a section shall be numbered consecutively.

Font shall be Times New Roman twelve (12) point, except for diagrams and drawings where impractical.

Each page containing proprietary information should be so marked.

Each page shall contain the following legend at the bottom of each sheet: This Document is

Source Selection Sensitive Information in accordance with (IAW) FAR 2.101 and 3.104.

Files should be named as follows:

o 70Z03822RE0000001 – Your Company Name – Technical Performance Requirements o 70Z03822RE0000001 – Your Company Name – Training o 70Z03822RE0000001 – Your Company Name – Past Performance o 70Z03822RE0000001 – Your Company Name – Attachment 1: Schedule of Supplies o 70Z03822RE0000001 – Your Company Name – Performance Specification Questionnaire o 70Z03822RE0000001 – Your Company Name – Non-Disclosure Agreement (NDA)

All responses shall be properly written and comply with solicitation requirements. Restating the solicitation requirements will not be an acceptable response for any of the below criteria.

Award on Initial Proposals

The Government retains the right to award without discussions. Offerors shall assume the Government has no prior knowledge of their experience and will base its evaluation solely on the information presented in the Offeror’s proposal. Therefore, Offerors are encouraged to provide their best proposal with the materials requested for evaluation. However, in the event that discussions are considered necessary, the Government retains the right to limit the number of Offerors included in the competitive range for purposes of efficiency.

1. EVALUATION FACTORS

a. Evaluation Criteria –The provision at Federal Acquisition Regulation (FAR) 52.212-2 Evaluation of Commercial Items dated Nov 2021 is applicable to this solicitation. The Government will award a contract resulting from this solicitation to the responsible Offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered.

b. Factor Identification – This evaluation will evaluate the offerors by the proposals received in response to the Radar Sensor Systems for the MH-60 and MH-65 Request for Proposals using the following factors:

Factor 1 - Technical Performance Requirements o Sub Factor 1 – Threshold Performance Requirements o Sub Factor 2 – User Interface o Sub Factor 3 – Total System Weight & Dimensions o Sub Factor 4 – Objective Performance Requirements

Factor 2 -Training Factor 3 - Past Performance Factor 4 - Price

c. Order of Importance – The evaluation factors listed below are listed in order of importance. All non-price factors when combined are significantly more important than price. Award will be made to the offeror whose proposal represents the best value to the Government.

2. FACTOR 1: TECHNICAL PERFORMANCE REQUIREMENTS

The Offeror’s Technical proposal will be evaluated to determine if the offeror can provide an RSS that meets the meets or exceeds the Technical Performance Requirements. The Technical Performance Requirements will be evaluated to determine if the offeror demonstrates an understanding and ability to provide the required RSS and support to assist with aircraft integration and testing in accordance with (IAW) the Statement of Work (SOW). A risk rating will also be assigned to each Sub Factor to reflect the Government’s confidence in the offeror’s ability to meet the Request for Proposal (RFP) requirements, based on the following sub-factors; in order of importance. Offerors will be required to provide the following minimum information with their proposal for evaluation.

2.1 Sub Factor 1 – Threshold Performance Requirements

Submission Requirements: Threshold Performance Requirements are those requirements that “shall” be included in the offerors RSS. The offeror is required to complete the solicitation Attachment 3 – Performance Specifications Questionnaire, for Sub-Factors 1-4 indicating whether or not the RSS “exceeds”, “meets”, or “does not meet” each specification listed. If an offeror’s RSS includes items that exceed the Technical Performance Requirements, these items should be stated on this Attachment or in the proposal and will be taken into consideration for the overall best value to the Government. Offerors that do not complete this Attachment, may be considered unacceptable and excluded from further consideration.

Threshold Performance Evaluation: Threshold Performance Requirements will be evaluated to determine an overall rating of “exceeds”, “meets”, or “does not meet”. If the offeror does not meet a threshold performance requirement, the proposed RSS will be determined to “not meet” the Government’s requirement.

2.2 Sub Factor 2 – User Interface

Submission Requirements: User Interface are those requirements that “shall” be included in the RSS.

User Interface Evaluation: The user interface evaluation will assess how the offeror will meet the requirements associated with Pilot interface (control head and displays). User Interface will be evaluated to determine an overall rating of “exceeds”, “meets”, or “does not meet”.

2.3 Sub Factor 3 – Total System Weight and Dimensions

Submission Requirements: The offerors proposal shall clearly indicate the total weight of the RSS, including Line Replacement units (LRUs). The dimensions of the RSS’s antenna and gimbal assembly shall be compatible with the current host aircraft’s nose cone for both the MH-60 and MH-

65. An alternate design will not be considered. The offeror’s proposal shall clearly indicate the dimensions of the RSS to include but not limited to the receiver/transmitter dimensions, antenna dimensions and control unit.

Total System Weight and Dimensions Evaluation: The evaluation will assess if the Offeror’s system meets the maximum weight of 35lbs, inclusive of LRUs. The evaluation will also assess whether the Offeror’s RSS is within the required dimension constraints. The system weight and dimensions will be given an overall rating of “meets” or “does not meet”.

2.4 Sub Factor 4 – Objective Performance Requirements

Submission Requirements: Objective Performance Requirements are those “desired” requirements for the RSS. The Objective Performance Requirements will be evaluated to determine an overall rating of “exceeds”, “meets”, or “does not meet”.

Objective Performance Requirements Evaluation: The evaluation will assess if the offeror’s RSS “exceeds”, “meets” or “does not meet” the Governments desired requirements. An Offeror’s RSS that “does not meet” any of the objective performance requirements, will not be marked negatively during evaluation.

3. FACTOR 2: TRAINING

Submission Requirements: The offeror shall submit a training plan for one (1) RSS Operator Training and one (1) RSS Maintenance Training as separate sessions, in accordance with (IAW) the SOW sections 5.5 and 5.6. Both the Maintenance and Operator Training shall include up to twelve (12) USCG personnel per session, totaling twenty-four (24) students max for both the operator and maintenance training. The offeror’s proposal shall clearly state how they will accomplish the training and a brief description of what the training includes.

Training Evaluation: Offerors will be evaluated on their ability to provide both Operator and Maintenance Training as separate sessions. The offerors training plan will be evaluated to determine if the objectives of the training are clear and the number of personnel being trained meet the USCG’s requirement. The Government will assign training a rating of “exceeds”, “meets”, or “does not meet”.

4. FACTOR 3: PAST PERFORMANCE

Submission Requirements: The offeror shall submit past performance on information sheets provided in the solicitation for the following:

Past Performance will be evaluated to assess the confidence in the offeror’s ability to fulfill the solicitation requirements of a similar nature. The Past Performance evaluation will assess the offeror’s ability to successfully accomplish the proposed effort based on the offeror’s demonstrated Past Performance. The Government may use information available from past contracts/purchase orders with the USCG, delivery information found in the USCG’s Asset Maintenance Management Information System (AMMIS) system, and any information found using sources such as Federal Government sources, Past Performance Information Retrieval System (PPIRS)/Contractor Performance Assessment Reporting System (CPARS). The Contractor may submit up to three (3) references for work completed within the past three (3) years. The reference should include the Period of Performance (POP), contract number, Point of Contact (POC) and dollar value. The Government reserves the right to limit or expand the number of references it decides to contact and to contact additional references other than those provided by the offeror.

If an offeror does not have a record of relevant past performance or past performance information is either unavailable or so sparse that no meaningful rating can be reasonably assigned, the offeror will receive a Neutral Confidence rating.

Past Performance Evaluation: An assessment of the offeror’s past performance will be completed to determine the offeror’s probability of meeting the solicitation requirements. The past performance evaluation will consider each offeror’s demonstrated recent and relevant record of performance in supplying supplies that meet the contract requirements. An assessment of an offeror’s past performance record will determine the offeror’s probability of successfully performing as proposed will also be completed.

The offeror may provide up to three (3) contract references completed in the last three (3) years. Contracts (references) listed may include those with the Federal Government, State and Local Governments or their agencies, and Commercial Customers.

The Government may use information available from past contracts/purchase orders with the USCG, delivery information found in the USCG’s AMMIS system, and any information found using sources such as Federal Government sources, PPIRS/ CPARS. The Government reserves the right to limit or expand the number of references it decides to contact and to contact additional references other than those provided by the offeror. In the event that the offeror does not have a record of past performance or past performance information is either unavailable or so sparse that no meaningful rating can be reasonably assigned, the offeror will receive a Neutral Confidence rating.

The recency and relevancy of the information, the source of the information, context of the data and general trends in the Contractor’s performance will be considered. For purposes of this evaluation, recency is defined as active or completed efforts performed within the past three (3) years.

5. FACTOR 4: PRICE

Submission Requirements: The offeror shall provide pricing as requested in Attachment 1 – Schedule of Supplies of the RFP. Any quantity price discounts, discounts for prompt payment, and/or trade-ins should be included in this section. Offerors may provide additional information in their price build up, but shall be included in this volume and shall not exceed 15 pages total. The offeror shall price the desired extended warranty and indicate the duration of the extended warranty. The Offeror’s proposal will be evaluated using one (1) or more of the techniques defined in FAR 15.404-1, in order to determine if it is fair and reasonable. Total price evaluation will be for the base period, all option periods excluding the desired extended warranty. The extended warranty; if priced will be evaluated for price reasonableness using techniques for FAR 15.404-1, not as part of the final evaluated price. Failure to propose pricing for the base period and the option periods on individual line items may result in a proposal being excluded from further consideration.

Price Evaluation: To facilitate uniformity in evaluation, offerors shall use the spreadsheet provided as an attachment to the RFP titled “Attachment I- Schedule of Supplies” in the format provided for pricing. The price evaluation will be based upon the total evaluated price for each offeror. The Government will evaluate the price for award purposes by adding the total price for all option periods to the total price for the base period. Any quantity price discounts and discounts for prompt payment should be included in this section. Offerors shall include as much information as possible in the price buildup. Failure to propose pricing on individual line items may result in a proposal being excluded from further consideration. The Government will also evaluate prices for each contract period of performance. Items with a “TBD” (To Be Determined) quantity will be evaluated using a quantity of one (1) each for determining fair and reasonableness and determining the best value to the government. The Government may determine that a proposal is unacceptable if the option period prices are significantly unbalanced.

Proposals shall include a firm-fixed price for each CLIN specified in the schedule for the base period and all option periods. The Total Evaluated Price will be calculated as the sum total of the base years and all option periods. Any quantity price discounts and discounts for prompt payment should be included in this section. Offerors shall use the attachment included in the RFP labeled “Attachment 1-Schedule of Supplies” for their price proposal. The total price will be evaluated in accordance with FAR 15.404-1(b) to determine fairness and reasonableness.

52.212-3 Offeror Representations and Certifications - Commercial Products May 2022 And Commercial Services X Alternate I of 52.212-3 Oct 2014

The offeror shall complete only paragraph (b) of this provision if the Offeror has completed the annual representations and certification electronically in the System for Award Management (SAM) accessed through https://www.sam.gov. If the Offeror has not completed the annual representations and certifications electronically, the Offeror shall complete only paragraphs (c) through (v) of this provision.

52.212-4 Contract Terms and Conditions Commercial Items Nov 2021

Addendum

Quality Assurance:

This section is applicable to all orders for products that will ultimately touch USCG aircraft.

1. The Contractor shall, immediately upon discovery, notify and disclose conditions to the Contracting Officer of any event, supply change, material change, supply malfunction, counterfeit/suspect parts or materiel, defect or non-airworthy condition of any product or component (to include components used in repairs) found to potentially cause a non-conformity to the original specifications of this order. The Government reserves the right to inspect any non-conforming product or component. Therefore, the Contractor shall obtain approval from the Contracting Officer prior to the disposition of any non-conforming product or component.

2. The Contractor’s quality control manual shall address in detail the Contractor’s risk management, test, inspection, non-conforming product and counterfeit/suspect parts processes.

3. The Contractor shall immediately notify the Contracting Officer of any changes that potentially have an impact on the product. Changes may include but are not limited to products, processes, materiel, supplier sources, manufacturing facility location and personnel qualifications.

4. Upon notification of the change, the USCG will approve or deny the change. Facility location changes may require the Government to perform a facility inspection. The Contractor shall allow the Government access to all applicable areas of the Contractor’s facilities to ensure compliance with contractual requirements. In the event that the change is not approved by the USCG, the contract, delivery order or task order may be cancelled or terminated in accordance with FAR.

5. The Contractor shall retain all records in accordance with FAR 4.7 Contractor Records Retention.

The Contractor shall be required to permit Government access to applicable records retained at any level of the supply chain.

6. Unless otherwise specified, the Contractor shall flow down all requirements in this order to their supply chain, to include all subcontractors and suppliers.

Packaging Instructions:

1. The USCG Aviation Logistics Center (ALC) is a supply depot; therefore, material will be stored and transshipped to various users. The container shall be packed and labeled suitable for shipment via land, air, or sea. Packaging material shall NOT consist of the following: popcorn, shredded paper, Styrofoam of any type, or peanut packaging.

2. Each part shall be individually packed in a separate envelope, box, carton or crate. For bulk packages, packaging of material up to 100 each per package is acceptable. Each individual container shall be labeled on the inside with National Stock Number, Part Number, Serial Number, Quantity, Nomenclature, Purchase Order Number, and Purchase Order Line Item Number. Packing List and Certification/Documentation shall be placed on the outside of individual containers.

3. The internal packing material shall be sufficient to prevent damage during shipment, handling and storage. Preservation and protection shall be provided to prevent corrosion, deterioration or decay during warehouse storage for a period of one year.

Shipping Instructions:

1. Items shall be shipped to the following address:

USCG Aviation Logistics Center Receiving Section, Bldg. 63 1664 Weeksville Road Elizabeth City, NC 27909-5001

Contract Number: (to be determined at time of issuance) Delivery Order Number: (to be determined at time of issuance)

All system and components purchased under this contract shall be shipped to the USCG (ALC) unless otherwise specified by the COR.

Inspection and Acceptance:

1. Inspection and acceptance of material under this order shall be performed at destination by local

USCG personnel to ensure that items are IAW manufacturer's specifications and will consist of count and condition only.

2. A Certificate of Conformance (COC) IAW FAR 52.246-15 shall be required for all items provided on this order. The COC must include the National Stock Number, Part Number, Serial Number, and Purchase Order Number and must be signed by the Contractor’s authorized representative.

Delivery Terms:

Free On Board (F.O.B.) Point The F.O.B. point for all systems and component shipments under this contract is F.O.B. Destination.

The Contractor is responsible for all shipping costs to ALC, unless otherwise noted, under this contract and associated delivery/task orders. Prices in the schedule include all applicable customs, duties, taxes and shipping charges; therefore, no additional charges for shipping these systems will be allowed unless indicated on an individual task/delivery order.

F.O.B. destination is the F.O.B. point for all deliverables. The USCG requires delivery of all items as stated below after receipt of the order (ARO). However, early deliveries are desired and will be accepted.

Partial deliveries are acceptable.

First Delivery (CLINS: 0001-0009): 180 Calendar days After Receipt of Order (ARO)

Production Units(CLINS: 0010-0018): Minimum of four (4) Shipsets plus an additional two (2) controllers (CLIN: 0012) within 180 Calendar days ARO and four (4) Shipsets each month thereafter until order is fulfilled.

Note: MH-60 Shipsets contain an additional controller per RSS (Two (2) controllers).

MH-65 Shipset contains only one (1) controller per RSS. (One (1) controller).

Invoicing Instructions

(a) WHEN TO SUBMIT: The Contractor shall first:

(1) Receive a fully-executed purchase order, contract, delivery order or task order

(2) Provide the required supplies or services, and

(3) Have ACTIVE status in the System for Award Management (SAM) at https://www.sam.gov

(b) HOW TO SUBMIT: The Contractor’s invoice and the completed DD-250 (when required) shall be prepared IAW FAR 52.212-4 and sent to the below billing office.

BILLING OFFICE: The Contractor is HIGHLY encouraged to email the invoice to ALC- Fiscal@uscg.mil. The other option is to mail it to:

Chief, Fiscal Branch

USCG ALC

Fiscal Branch, Bldg. 63 1664 Weeksville Road Elizabeth City, NC 27909 Contract number: (To be determined at contract award).

Delivery/Task Order number: (To be assigned at time of issuance)

The final invoice submitted under the awarded contract shall be clearly marked and labeled FINAL.

(c) PAYMENT INFORMATION: All payments will be made electronically IAW FAR 52.232-33.

(d) PAYMENT INQUIRIES: All payment inquiries can be sent to ALC-Fiscal-Inquiries@uscg.mil and the Contract Specialist.

Full Text FAR Clauses

52.203-17 Contractor Employee Whistleblower Rights and Requirement Sept 2013 To Inform Employees of Whistleblower Rights (DHS-USCG Deviation 14-01)

(a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies in the enhancement of whistleblower protections for Contractor employees established at 10 U.S.C. 2409 by section 827 of the NDAA for FY 2013 (Pub. L. 112-239) and FAR 3.908.

(b) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 10 U.S.C. 2409, as described in section 3.908 of the FAR.

(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts over the simplified acquisition threshold. (End of clause)

52.216-18 Ordering Aug 2020

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from date of contract award through one-year from date of contract award for the base period and for options, effective date of option exercise through one-year from effective date of option exercise.

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

(c) If mailed, a delivery order or task order is considered “issued” when — (1) If sent by mail (includes transmittal by U.S. mail or private delivery service), the Government deposits the order in the mail; (2) If sent by fax, the Government transmits the order to the Contractor's fax number; or (3) If sent electronically, the Government either— (i) Posts a copy of the delivery order or task order to a Government document access system, and notice is sent to the Contractor; (ii) Distributes the delivery order or task order via email to the Contractor's email address. (d) Orders may be issued by methods other than those enumerated in this clause only if authorized in the contract. (End of Clause)

52.216-19 Delivery – Order Limitations Oct 1995

(a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than one (1), the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to honor --

(1) Any order for a single item in excess of the total estimated contract line item quantity;

(2) Any order for a combination of items in excess of 50% of estimated contract quantities; or

(3) A series of orders from the same ordering office within 30 Calendar days that together call for quantities exceeding the limitation in subparagraph (b)(1) or (2) of this section.

(c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph

(b) of this section.

(d) Notwithstanding paragraphs (b) and (c) of this section, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within 15 Calendar days after issuance, with written notice stating the Contractor’s intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

(End of Clause)

52.216-21 Requirements Oct 1995

(a) This is a requirements contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies or services specified in the Schedule are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the Government’s requirements do not result in orders in the quantities described as “estimated” or “maximum” in the Schedule, that fact shall not constitute the basis for an equitable price adjustment.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. Subject to any limitations in the Order Limitations clause or elsewhere in this contract, the Contractor shall furnish to the Government all supplies or services specified in the Schedule and called for by orders issued in accordance with the Ordering clause. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(c) Except as this contract otherwise provides, the Government shall order from the Contractor all the supplies or services specified in the Schedule that are required to be purchased by the Government activity or activities specified in the Schedule.

(d) The Government is not required to purchase from the Contractor requirements in excess of any limit on total orders under this contract.

(e) If the Government urgently requires delivery of any quantity of an item before the earliest date that delivery may be specified under this contract, and if the Contractor will not accept an order providing for the accelerated delivery, the Government may acquire the urgently required goods or services from another source.

(f) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided, that the Contractor shall not be required to make any deliveries under this contract six (6) months after expiration date of ordering period.

(End of Clause)

52.232-19 Availability of Funds for the Next Fiscal Year Apr 1984 Funds are not presently available for performance under this contract beyond September 30, 2022. The Government’s obligation for performance of this contract beyond that date is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise for performance under this contract beyond September 30, 2022, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability, to be confirmed in writing by the Contracting Officer.

(End of clause)

Full Text FAR Clauses

52.252-6 Authorized Deviations in Clauses Nov 2020

(a) The use in this solicitation or contract of any Federal Acquisition Regulation (48 CFR Chapter

1) clause with an authorized deviation is indicated by the addition of “(DEVIATION)” after the date of the clause.

(b) The use in this solicitation or contract of any Homeland Security Acquisition Regulation (48 CFR Chapter 30) clause with an authorized deviation is indicated by the addition of “(DEVIATION)” after the name of the regulation.

(End of clause)

52.204-21 Basic Safeguarding of Covered Contractor Information Systems Nov 2021

(a) Definitions. As used in this clause–

Covered contractor information system means an information system that is owned or operated by a contractor that processes, stores, or transmits Federal contract information.

Federal contract information means information, not intended for public release, that is provided by or generated for the Government under a contract to develop or deliver a product or service to the Government, but not including information provided by the Government to the public (such as on public websites) or simple transactional information, such as necessary to process payments.

Information means any communication or representation of knowledge such as facts, data, or opinions, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual (Committee on National Security Systems Instruction (CNSSI) 4009).

Information system means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information (44 U.S.C.

3502).

Safeguarding means measures or controls that are prescribed to protect information systems.

(b) Safeguarding requirements and procedures.

(1) The Contractor shall apply the following basic safeguarding requirements and procedures to protect covered contractor information systems. Requirements and procedures for basic safeguarding of covered contractor information systems shall include, at a minimum, the following security controls:

(i) Limit information system access to authorized users, processes acting on behalf of authorized users, or devices (including other information systems).

(ii) Limit information system access to the types of transactions and functions that authorized users are permitted to execute.

(iii) Verify and control/limit connections to and use of external information systems.

(iv) Control information posted or processed on publicly accessible information systems.

(v) Identify information system users, processes acting on behalf of users, or devices.

(vi) Authenticate (or verify) the identities of those users, processes, or devices, as a prerequisite to allowing access to organizational information systems.

(vii) Sanitize or destroy information system media containing Federal Contract Information before disposal or release for reuse.

(viii) Limit physical access to organizational information systems, equipment, and the respective operating environments to authorized individuals.

(ix) Escort visitors and monitor visitor activity; maintain audit logs of physical access;

and control and manage physical access devices.

(x) Monitor, control, and protect organizational communications (i.e., information transmitted or received by organizational information systems) at the external boundaries and key internal boundaries of the information systems.

(xi) Implement subnetworks for publicly accessible system components that are physically or logically separated from internal networks.

(xii) Identify, report, and correct information and information system flaws in a timely manner.

(xiii) Provide protection from malicious code at appropriate locations within organizational information systems.

(xiv) Update malicious code protection mechanisms when new releases are available.

(xv) Perform periodic scans of the information system and real-time scans of files from external sources as files are downloaded, opened, or executed.

(2) Other requirements. This clause does not relieve the Contractor of any other specific safeguarding requirements specified by Federal agencies and departments relating to covered contractor information systems generally or other Federal safeguarding requirements for controlled unclassified information (CUI) as established by Executive Order 13556.

(c) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (c), in subcontracts under this contract (including subcontracts for the acquisition of commercial products or commercial services, other than commercially available off-the-shelf items), in which the subcontractor may have Federal contract information residing in or transiting through its information system.

52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders – Commercial Products and Commercial Services May 2022

(DEVIATIONS 20-05 Rev 1 and 20-07)

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

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

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (Nov 2021) (Section 1634 of Pub. L. 115-91).

(DEVIATION 20-05)

(a) Definitions. As used in this clause¬

"Covered article" means any hardware, software, or service that¬

(1) Is developed or provided by a covered entity;

(2) Includes any hardware, software, or service developed or provided in whole or in part by a covered entity; or

(3) Contains components using any hardware or software developed in whole or in part by a covered entity.

"Covered entity" means¬

(1) Kaspersky Lab;

(2) Any successor entity to Kaspersky Lab;

(3) Any entity that controls, is controlled by, or is under common control with Kaspersky Lab; or

(4) Any entity of which Kaspersky Lab has a majority ownership.

(b) Prohibition. Section 1634 of Division A of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) prohibits Government use of any covered article. The Contractor is prohibited from¬

(1) Providing any covered article that the Government will use on or after October 1, 2018; and

(2) Using any covered article on or after October 1, 2018, in the development of data or deliverables first produced in the performance of the contract.

(c) Reporting requirement.

(1) In the event the Contractor identifies covered article provided to the Government during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report, in writing, via email, to the Contracting Officer, Contracting Officer's Representative, and the Enterprise Security Operations Center (SOC) at NDAA Incidents@hq.dhs.gov, with required information in the body of the email. In the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil.

For indefinite delivery contracts, the Contractor shall report to the Enterprise SOC, Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) and Contracting Officer's Representative(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2) The Contractor shall report the following information pursuant to paragraph (c)(1) of this clause:

(i) Within 1 business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; brand; model number (Original Equipment Manufacturer (OEM) number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the report pursuant to paragraph (c) (l) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of a covered article, any reasons that led to the use or submission of the covered article, and any additional efforts that will be incorporated to prevent future use or submission of covered articles.

(d) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts, including subcontracts for the acquisition of commercial products or commercial services. (End of clause)

(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (Nov 2021) (Section 889(a)(1)(A) of Pub. L. 115-232).

(DEVIATION 20-05 Rev 2)

(a) Definitions. As used in this clause—

“Backhaul” means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).

"Covered foreign country" means The People's Republic of China.

"Covered telecommunications equipment or services" means¬

(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);

(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);

(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or

(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

"Critical technology" means¬

(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations;

(2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled-

(i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

(ii) For reasons relating to regional stability or surreptitious listening;

(3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities);

(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);

(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or

(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of2018 (50 U.S.C. 4817).

“Interconnection arrangements” means arrangements governing the physical connection of two or more networks to allow the use of another’s network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.

“Reasonable inquiry” means an inquiry designed to uncover any information in the entity’s possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.

“Roaming” means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.

“Substantial or essential component” means any component necessary for the proper function or performance of a piece of equipment, system, or service.

(b) Prohibition.

(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115–232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.

The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104.

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115–232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract.

(c) Exceptions. This clause does not prohibit contractors from providing—

(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(d) Reporting requirement.

(1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause in writing via email to the Contracting Officer, Contracting Officer’s Representative, and the Network Operations Security Center (NOSC) at NDAA_Incidents@hq.dhs.gov, with required information in the body of the email. In the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the NSOC, Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) and Contracting Officer’s Representative(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause

(i) Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.

(e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial products or commercial services.

(End of clause)

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

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

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

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

[Contracting Officer check as appropriate.]

(1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Nov 2021), with Alternate I (Nov 2021) (41 U.S.C. 4704 and 10 U.S.C. 2402).

(2) 52.203-13, Contractor Code of Business Ethics and Conduct (Nov 2021) (41 U.S.C. 3509)).

(3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of

2009 (Jun 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

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

(5) [Reserved].

(6)…