Attachment A - OTA_Progressive_Design-Build_Construction_Articles.pdf

Table of Contents

ARTICLES FOR PROGRESSIVE DESIGN-BUILD CONSTRUCTION

OTHER TRANSACTION AGREEMENT

PROJECT TITLE: _____________________________

AGREEMENT NUMBER: ______________________

SECTION 1: FOUNDATIONAL ARTICLES

ARTICLE 1: DEFINITIONS

ARTICLE 2: SCOPE OF THE AGREEMENT

ARTICLE 3: TERM OF AGREEMENT AND NOTICE TO PROCEED

SECTION 2: EXECUTION AND MANAGEMENT

ARTICLE 4: PROGRESSIVE DESIGN-BUILD RESPONSIBILITY

ARTICLE 5: DESIGN

ARTICLE 6: CONSTRUCTION

ARTICLE 7: SUBCONTRACTOR AGREEMENT

ARTICLE 8: SMALL BUSINESS SUBCONTRACTORS

ARTICLE 9: GOVERNMENT FURNISHED PROPERTY

SECTION 3: FINANCIAL

ARTICLE 10: OBLIGATION AND PAYMENT

*(NON-NEGOTIABLE: Anti-Deficiency Act, 31 U.S.C. § 1341)

ARTICLE 11: LIQUIDATED DAMAGES FOR CONSTRUCTION

SECTION 4: RISK AND LIABILITY

ARTICLE 12: BONDING REQUIREMENTS

*(STATUTORY MANDATE: Miller Act, 40 U.S.C. §§ 3131-3133)

ARTICLE 13: INSURANCE REQUIREMENTS

ARTICLE 14: RESPONSIBILITY AND INDEMNIFICATION

*(NON-NEGOTIABLE: Anti-Deficiency Act, 31 U.S.C. § 1341)

ARTICLE 15: TITLE TO AND DISPOSITION OF PROPERTY

SECTION 5: PROBLEM RESOLUTION AND CHANGES

ARTICLE 16: CHANGES TO THE AGREEMENT

ARTICLE 17: SUSPENSION OF WORK

ARTICLE 18: FORCE MAJEURE

ARTICLE 19: DISPUTE RESOLUTION

ARTICLE 20: TERMINATION

SECTION 6: LEGAL AND COMPLIANCE

ARTICLE 21: STATUTORY AUTHORITY AND APPLICABLE LAW

*(NON-NEGOTIABLE: Federal Public Policy Laws)

ARTICLE 22: GOVERNING LAW AND JURISDICTION

*(NON-NEGOTIABLE: Sovereign Immunity & Tucker Act, 28 U.S.C. § 1491(a)(1))

ARTICLE 23: COMPLIANCE WITH APPLICABLE LABOR LAWS

*(NON-NEGOTIABLE: 40 U.S.C. ch. 31; CWHSSA, 40 U.S.C. ch. 37; 18 U.S.C. § 874)

ARTICLE 24: PREFERENCE FOR DOMESTIC CONSTRUCTION MATERIALS

*(STATUTORY MANDATE: Buy American Act, 41 U.S.C. chapter 83)

ARTICLE 25: INFORMATION AND SUPPLY CHAIN SECURITY

*(NON-NEGOTIABLE: Section 889 FY19 NDAA; NIST SP 800-171)

ARTICLE 26: CONFIDENTIAL AND PROPRIETARY INFORMATION

ARTICLE 27: DATA RIGHTS

ARTICLE 28: FOREIGN ACCESS TO TECHNOLOGY AND EXPORT CONTROL

*(NON-NEGOTIABLE: ITAR, 22 C.F.R. Part 120; EAR, 15 C.F.R. Parts 730–774)

ARTICLE 29: NATIONAL DEFENSE PRIORITY RATING AND SPECIAL AUTHORITY

*(NON-NEGOTIABLE: DPAS, 15 C.F.R. Part 700)

ARTICLE 30: CONGRESSIONAL AUTHORIZATION & LIMITATION ON CONSTRUCTION

*(NON-NEGOTIABLE: 10 U.S.C. § 2808a & Anti-Deficiency Act)

SECTION 7: CONCLUDING PROVISIONS

ARTICLE 31: ASSIGNMENT

*(STATUTORY MANDATE: Assignment of Claims Act, 31 U.S.C. § 3727; 41 U.S.C. § 6305)

ARTICLE 32: ORDER OF PRECEDENCE

ARTICLE 33: MISCELLANEOUS

ATTACHMENTS:

ATTACHMENT 1: SCOPE OF SERVICES (SOS) – To be determined ATTACHMENT 2: MILESTONE AND PAYMENT SCHEDULE – To be determined ATTACHMENT 3: WAGE DETERMINATION – To be determined

SECTION 1: FOUNDATIONAL ARTICLES

ARTICLE 1: DEFINITIONS

1.1 A/E (Architect-Engineer) means the licensed professional, firm, or team responsible for planning, design, and preparation of technical drawings and specifications for the project.

1.2 Administrative Agreements Officer (AAO) means a warranted Agreements Officer delegated authority to administer delegated functions in support of the Agreement.

1.3 Adequate Security means protective measures commensurate with the consequences and probability of loss, misuse, unauthorized access to, or modification of information.

1.4 Agreement or OTA refers to the Other Transaction Agreement executed between the Government and the Design-Builder for the purpose of executing a Progressive Design-Build project. This Agreement is authorized under 10 U.S.C. § 2808a. It is not a procurement contract, grant, or cooperative agreement and is not subject to the Federal Acquisition Regulation (FAR).

1.5 Agreements Officer (AO) is the warranted Government official with authority to enter into, administer and/or terminate this Agreement.

1.6 Agreements Officer’s Representative (AOR) is the individual designated by the Government to monitor technical and administrative performance and provide oversight of the Agreement.

1.7 Confidential Information means information and materials determined by the Disclosing Party to be of a confidential, proprietary, or Trade Secret nature and is designated in writing as such prior to the time of their disclosure. Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate marking, shall constitute Confidential or proprietary Information or a Trade Secret if such Disclosing Party, within thirty calendar days after disclosure, notifies the Receiving Party in writing describing the material or information and indicating that it is confidential, proprietary, or a Trade Secret, provided that any disclosure of information by the Receiving Party prior to receipt of such notice shall not constitute a breach by the Receiving Party of its obligations. “Confidential Information” includes any information and materials considered proprietary or a Trade Secret by the Design-Builder on its own behalf or on behalf of their subcontractors or suppliers.

1.8 Controlled Unclassified Information (CUI) is information that requires safeguarding or dissemination controls pursuant to and consistent with applicable law, regulations, and Government-wide policies, but is not classified. Instructions for the use, marking, dissemination, and storage of CUI can be found in DoD Instruction 5200.48, “Controlled Unclassified Information

(CUI)”.

1.9 Data means recorded information, regardless of form or method of recording, including technical data and software. Data does not include financial, administrative, cost, pricing, or management information.

1.10 Date of Completion is the date on which all work is completed or the date on which the period of performance ends.

1.11 Days means calendar days unless otherwise stated.

1.12 Deliverable Property includes the following described items acquired or produced by the Design-Builder that are or should be allocable or properly chargeable to this Agreement under sound and generally accepted accounting principles and practices:

(a) Parts, materials, inventories, and work in process;

(b) Special tooling and special test equipment to which the Government is to acquire title;

(c) Nondurable (i.e., noncapital) tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment and other similar manufacturing aids, title to which would not be obtained as special tooling under paragraph 1.12(b) of this Article; and

(d) Drawings and technical data, to the extent the Design-Builder or subcontractors are required to deliver them to the Government by other Articles of this Agreement.

1.13 Design-Builder means the Awardee of this Other Transaction Agreement.

1.14 Foreign Firm or Institution means a firm or organization organized under the laws of a country other than the United States, including entities owned or controlled by foreign governments, firms, or individuals.

1.15 Guaranteed Maximum Price (GMP): The maximum price payable to the Design-Builder for the complete performance of Phase 2 Services under this Agreement. The GMP constitutes a fixed, non-adjustable ceiling on the Government’s total financial liability for the defined project scope.

The Design-Builder assumes all risk for costs, overhead, or expenses incurred in the performance of the work that exceeds the GMP. The GMP includes all direct and indirect costs, fees, contingencies, and any potential allowances as required to complete the Project.

1.16 Government means the United States of America, acting through the United States Air Force

(USAF).

1.17 Milestone means a defined and scheduled event signifying the completion of a major deliverable or a set of related deliverables as identified in the Statement of Services. For the construction portion of the agreement, the Government shall make payments on work accomplished which meets the standards of quality established under the agreement, as approved by the AO and formally accepted by the Government.

1.18 Off-Ramp refers to a contractual mechanism that allows the Government to discontinue the Progressive Design-Build relationship if a fair and reasonable GMP for construction cannot be achieved. Upon off-ramp, the Government retains rights to the completed design to continue the project through another delivery method or contractor.

1.19 Party means the Government or the Design-Builder.

1.20 Parties means the Government and the Design-Builder, collectively.

1.21 Progressive Design-Build (PDB) refers to a collaborative project delivery method where a single entity, the Design-Builder, is responsible for both design and construction. Under this delivery method, the project scope, design, and contract price are developed progressively with active owner (i.e., the Government) collaboration.

1.22 Property refers to tangible personal property used in performance of the Agreement, excluding items consumed during execution of the work.

1.23 System for Award Management (SAM) refers to the official U.S. Government system where entities register to do business with the Federal Government. https://www.sam.gov

1.24 Sensitive Compartmented Information Facility (SCIF) is an accredited facility where sensitive compartmented information may be stored, processed, or discussed.

1.25 Scope of Services (SOS) refers to a Government-provided document outlining the tasks, requirements, and deliverables for specific phases of the project.

1.26 Termination for Convenience means the exercise of the Government’s right to completely or partially terminate performance of work under this Agreement when it is in the Government’s interest in accordance with Article 20.

1.27 Termination for Default means the exercise of the Government’s right to completely or partially terminate the Agreement in accordance with Article 20.

1.28 Trade Secret means all forms and types of financial, business, scientific, technical, economic, or engineering or otherwise proprietary information, including, but not limited to, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if:

(a) The owner thereof has taken reasonable measures to keep such information secret; and

(b) The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.

1.29 Unique Entity Identifier (UEI) is the 12-character alphanumeric identifier assigned to entities registered in SAM.

1.30 United States Air Force (USAF) is the Federal agency responsible for managing this solicitation and executing the Agreement.

https://www.sam.gov/

ARTICLE 2: SCOPE OF THE AGREEMENT

2.1 Background

This requirement will be executed using a Progressive Design-Build (PDB) model under Other Transaction authority pursuant to 10 U.S.C. § 2808a which permits the Department of Defense to execute transactions for facility repair and construction projects, including all associated planning, design, and engineering efforts. Other Transaction (OT) is a special acquisition instrument authorized by Congress. As a transaction other than a standard contract, grant, or cooperative agreement, this OT is exempt from the Federal Acquisition Regulation (FAR) and its supplements (e.g., DFARS). This flexible authority enables a more streamlined and collaborative approach to project execution. The award of the subject OT to the Design-Builder utilizing a qualifications-based selection (QBS) process shall constitute a competitive procedure allowing for the execution of a follow-on production contract or transaction. The Government intends to establish a collaborative, integrated team environment where the selected Design-Builder works closely with the Government to refine requirements, advance the design, and align scope, cost, and schedule within the established affordability constraints.

2.2 General Services

(a) The Government shall provide the Design-Builder with Project Criteria describing program requirements and objectives for the Project. Project Criteria may include conceptual documents, design specifications, design performance specifications, and other technical materials and requirements prepared by or for Government use.

(b) If Project Criteria have not been developed prior to the execution of this Agreement, the Design-Builder will assist in developing Project Criteria.

(c) The Design-Builder shall review and prepare a written evaluation of such criteria, including recommendations for different and innovative approaches to the design and construction of the Project. The Parties shall meet to discuss the written evaluation of Project Criteria and agree upon what revisions, if any, should be made to such criteria.

2.3 Agreement Structure – Phased Services

(a) Phase 1 Services. Design-Builder shall perform the services of design, pricing, and other services for the Project based on Project Criteria, as may be revised in accordance with Section 2.2, as set forth in Attachment 1, Scope of Services (SOS). Design-Builder must perform such services to the level of completion required for the Parties to establish a Guaranteed Maximum Price (GMP) for award of the Phase 2 Agreement. The GMP for Phase 2 shall be developed during Phase 1 on an “open-book estimate” basis. Design-Builder’s compensation for Phase 1 Services is set forth in

Attachment 2. The level of completion required for Phase 1 Services is defined in Attachment 1, SOS.

(b) Phase 2 Services. Design-Builder’s Phase 2 services shall consist of the completion of design services for the Project, the procurement of all materials and equipment for the Project, the performance of construction services for the Project, the start-up, testing, and commissioning of the Project, and the provision of warranty services, all as further described in the Phase 2 agreement.

(c) Pricing Structure and GMP. This Agreement is structured as a fixed-price OT utilizing milestone-based payments in support of the above-mentioned Phased services provided. Upon completion of the Phase 1 services, or as otherwise designated in the SOS, Design-Builder shall submit a GMP proposal for the completion of the Phase 2 design and construction. Upon negotiation of a fair and reasonable price for the GMP for Phase 2, and subject to the availability of funds, the Parties may execute the Phase 2 award.

(i) The Design-Builder guarantees that the total price to the Government for the complete execution of Phase 2 Services shall not exceed the established GMP. The specific documents used as a basis for the GMP shall be identified in the Phase 2 bilateral modification.

(ii) The Design-Builder does not guarantee any specific line item provided as part of the GMP and has the sole discretion to apply savings due to underruns in one line item to cover overruns in any other line item.

(iii) The Design-Builder will be responsible for completing the work and paying all costs of completion that may exceed the GMP at its own risk in accordance with this Agreement.

(iv) Transition from Phase 1 to Phase 2 is contingent upon mutual agreement of scope, schedule, and fixed pricing, and will be implemented through a bilateral modification. The Government reserves the right to not proceed to Phase 2. If the Parties cannot agree regarding the scope or price of Phase 2, or if the Government does not receive sufficient funding to execute a modification for Phase 2, the Parties will “off ramp” at the conclusion of Phase 1 services.

(v) Should unforeseen events or agreed-upon changes affect the construction timeline, a revised schedule shall be negotiated by the Parties. Any such revision requires a formal bilateral modification to this Agreement to become effective. Design-Builder shall be responsible for performance of the work set forth in the SOS. The Design-Builder shall provide all documentation required in accordance with the deliverables table set forth in the SOS.

2.4 Joint Risk Register

(a) The Design-Builder shall develop and maintain a Joint Risk Register in close coordination with the Government. The purpose of the register is to proactively identify, analyze, and mitigate project risks throughout both Phase 1 and Phase 2. During Phase 1, the register shall serve as a foundational, open-book component for collaboratively developing and negotiating the Phase 2 GMP proposal described in Section 2.3.

(b) The Government shall have the right to review and approve the Risk Register and any substantive updates. The specific format, content, and review procedures shall be defined in the

SOS.

ARTICLE 3: TERM OF AGREEMENT AND NOTICE TO PROCEED

3.1 System for Award Management

The Design-Builder shall have an active Federal Government registration in the System for Award Management (SAM) when submitting an offer in response to this solicitation and at the time of award. Additionally, the Design-Builder shall maintain an active registration in SAM during performance and through final payment under this agreement. To register in SAM, go to https://www.sam.gov.

3.2 Term of this Agreement

The term of this Agreement commences upon the effective date of the bilaterally executed agreement and continues as defined in the SOS. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

3.3 Notice to Proceed Authority

The AO will issue a written Notice to Proceed (NTP) to authorize the Design-Builder to commence performance under this Agreement. The NTP shall specify the scope of work, period of performance, and funding authorized. No work shall begin until the Design-Builder receives a written NTP executed by the AO.

3.4 Phased Performance Structure

Performance under this Agreement shall be executed in phases consistent with a PDB approach as identified in Article 2 above. Authorization to proceed beyond each phase requires an Agreement modification executed by the AO and subsequent NTP.

SECTION 2: EXECUTION AND MANAGEMENT

ARTICLE 4: PROGRESSIVE DESIGN-BUILD RESPONSIBILITY

4.1 Applicable Codes and Standards

All design and construction work performed under this Agreement shall comply with the specific codes and standards listed in the SOS. At a minimum, this shall include applicable Unified Facilities Criteria (UFC) and industry-standard building, electrical, mechanical, and fire protection codes.

ARTICLE 5: DESIGN

5.1 Standard of Care and Design Responsibility

(a) Responsibility of Design-Builder: The Design-Builder is responsible for the professional quality, technical accuracy, and coordination of all designs, drawings, specifications, and other non-construction services furnished by the Design-Builder under this Agreement. The Design- Builder must, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications, and other non-construction services and perform any necessary rework or modifications, including any damage to real or personal property, resulting from the design error or omission.

(b) Professional Standard and Suitability: The standard of care for all design services performed under this Agreement shall be the care and skill ordinarily used by members of the architectural and engineering professions. Architects or engineers registered in the state of fill-in to practice in the particular professional field shall prepare or review and approve the design of architectural, structural, mechanical, electrical, civil, or other engineering features of the work.

Notwithstanding the professional standard of care, the Design-Builder warrants and guarantees that all design deliverables shall be fit for the Government's intended purpose as described in the Scope of Services (SOS) and Project Criteria and shall perform in accordance with all specified performance standards. In the event that the Agreement specifies that portions of the Work be performed in accordance with a performance standard, the design services shall be performed so as to achieve such standards.

(c) No Waiver of Rights: The Government's review, approval of, or payment for any services required under this Agreement shall not be construed as a waiver of any rights under this Agreement or any cause of action arising from the Design-Builder's performance. The Design- Builder remains liable to the Government for damages caused by its negligent performance.

(d) Rights and Remedies: The rights and remedies of the Government provided for under this Agreement are in addition to any other rights and remedies provided by law.

5.2 Site Investigation, Conditions Affecting the Work, and Government-Furnished Data

(a) Design-Builder acknowledges that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost. This includes: (i) conditions bearing upon transportation, disposal, handling, and storage of materials; (ii) the availability of labor, water, electric power, and roads; (iii) uncertainties of weather, river stages, tides, or similar physical conditions at the site; (iv) the configuration and characteristics of the surface and subsurface ground conditions; (v) the character of equipment and facilities needed preliminary to and during work performance; and (vi) any other relevant factors.

(b) Design-Builder also acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the Government, as well as from the drawings and specifications made a part of this Agreement. Any failure of Design-Builder to take the actions described and acknowledged in this paragraph will not relieve Design-Builder from responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the Government.

(c) Factual Reliance on Government Data: Notwithstanding the foregoing, under this Progressive Design-Build delivery model, the Parties establish a collaborative risk-sharing framework regarding existing conditions. While the Design-Builder is required to perform reasonable visual walk-throughs and site validations during Phase 1, the Design-Builder is entitled to rely on the factual accuracy and completeness of physical surveys, utility maps, hazardous materials reports, and geotechnical reports expressly furnished by the Government for the project.

If such factual data is later demonstrated to contain material errors or omissions that could not have been reasonably discovered by a standard visual inspection during Phase 1, such errors shall be addressed under Article 6.1 (Differing Site Conditions).

5.3 Permits and Responsibilities – Design

The Design-Builder shall, without additional expense to the Government, be responsible for obtaining all necessary licenses and permits and for complying with all applicable Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work. The Design- Builder is also responsible for all damages to persons or property that occurs to the extent caused by Design-Builder’s fault or negligence. The Design-Builder is also responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit of work which may have been accepted under the Agreement.

5.4 Management of Design Revisions

(a) Approval Required: The Design-Builder must obtain the approval of the Designer of Record (DOR) and the written concurrence of the Government before implementing any revision to a Government-concurred design, before proceeding with the revision.

(b) Changes at Design-Builder’s Expense: Unless a change is initiated by the Government or results from incorrect criteria furnished by the Government, any revision proposed by the Design- Builder that results in additional cost shall be solely at the Design-Builder’s expense.

(c) Tracking and Documentation: The Design-Builder shall track all approved revisions to the reviewed and accepted design and incorporate them into the as-built design documentation in accordance with agreed-upon procedures. The Designer of Record must document its professional concurrence on the as-builts for any revisions in the stamped and sealed drawings and specifications.

ARTICLE 6: CONSTRUCTION

6.1 Differing Site Conditions

(a) The Design-Builder shall promptly and without further disturbing the site, provide written notice to the AO of:

(i) Subsurface or latent physical conditions at the site, which differ materially from those indicated in this Agreement; or

(ii) Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the Agreement.

(b) The AO shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Design-Builder’s cost of, or the time required for, performing any part of the work under this Agreement, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this Article and the Agreement modified in writing accordingly.

(c) No request for an equitable adjustment under this Article will be allowed unless the Design- Builder has given the written notice required; provided, that the time prescribed in paragraph

6.1(a) of this Article for giving written notice may be extended by the AO.

(d) No request by the Design-Builder for an equitable adjustment to the Agreement for differing site conditions shall be allowed if made after final payment under this Agreement.

6.2 Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements

(a) The Design-Builder shall preserve and protect all structures, equipment, and vegetation (such as trees, shrubs, and grass) on or adjacent to the work site, which are not to be removed, and which do not unreasonably interfere with the work required under this Agreement. The Design- Builder shall only remove trees when specifically authorized to do so and shall avoid damaging vegetation that will remain in place. If any limbs or branches of trees are broken during Agreement performance, or by the careless operation of equipment, or by workmen, the Design- Builder shall trim those limbs or branches with a clean cut and paint the cut with a tree-pruning compound as directed by the AO.

(b) The Design-Builder shall protect from damage all existing improvements and utilities: (i) at or near the work site, and (ii) on adjacent property of a third party, the locations of which are made known to or should be known by the Design-Builder.

(c) The Design-Builder shall repair any damage to those facilities, including those that are the property of a third party, to the extent caused by Design-Builder’s failure to exercise reasonable care in performing the work. If the Design-Builder fails or refuses to repair the damage caused by Design-Builder promptly, the AO may have the necessary work performed and charge the cost to the Design-Builder.

6.3 Cleaning Up

The Design-Builder shall at all times keep the work area, including storage areas, free from accumulations of waste materials. Before completing the work, the Design-Builder must remove from the work and premises any rubbish, tools, scaffolding, equipment, and materials that are not the property of the Government. Upon completing the work, the Design-Builder shall leave the work area in a clean, neat, and orderly condition satisfactory to the AO.

6.4 Permits and Responsibilities – Construction

The Design-Builder shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work. The Design- Builder shall also be responsible for all damages to persons or property that occurs as a result of the Design-Builder’s fault or negligence. The Design-Builder shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit of work which may have been accepted under the Agreement.

6.5 Material and Workmanship

(a) Materials and Workmanship: All equipment and materials incorporated into the work covered by this Agreement shall be new and of the most suitable grade for their intended purpose, unless specified otherwise. Any references in the specifications to a trade name or catalog number shall be regarded as establishing a standard of quality, not as limiting competition. The Design- Builder may, at its option, use any equipment, material, article, or process that, in the judgment of the AO, is equal to that named in the specifications, unless otherwise specifically provided in this Agreement.

(b) Workmanship: All work shall be performed in a skillful and workmanlike manner. The AO may require, in writing, the removal of any employee deemed incompetent, careless, or otherwise objectionable.

(c) Superintendence: The Design-Builder shall directly superintend the work or provide a competent superintendent on the worksite at all times, who has the authority to act for the Design-Builder and is satisfactory to the AO.

6.6 Joint Quality Management and Collaborative Inspection

(a) Joint Quality Management Plan (JQMP): Rather than establishing an adversarial "inspection and correction" dynamic, the Parties shall execute this Agreement under a collaborative Joint Quality Management Plan. The JQMP, to be finalized during Phase 1, shall define joint inspection hold-points, pre-demolition/pre-installation review meetings, and co-inspection teams comprised of both Government and Design-Builder representatives.

(b) Contractor Quality Control: The Design-Builder shall maintain an adequate Quality Control (QC) inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements. The Design-Builder shall maintain complete joint inspection records, logs, and photograph registries, making them accessible to the Government via a shared digital environment. All work is subject to Government inspection, validation, and test at all places and at all reasonable times before acceptance.

(c) Government Oversight: Government inspections, audits, and validations are performed collaboratively with the Design-Builder. Presence or absence of a Government inspector does not:

(i) Relieve the Design-Builder of responsibility for maintaining the JQMP; (ii) Relieve the Design- Builder of responsibility for damage to or loss of material before acceptance; (iii) Constitute or imply final acceptance; or (iv) Affect the continuing rights of the Government under Section 6.6(h).

(d) Facilities and Labor for Testing: The Design-Builder shall provide, at no increase in contract price, all reasonable facilities, labor, and materials needed for performing safe and convenient inspections and tests under the JQMP. If work is not ready at the time mutually agreed upon for joint inspection, or if a material failure requires re-testing, the Government may charge the Design-Builder any additional direct costs incurred. Joint inspections shall be conducted in a commercial manner designed to minimize project delays.

(e) Correction of Deficiencies: The Design-Builder shall, without charge, replace or correct work identified by the joint inspection team as non-conforming, unless the Government consents in writing to accept the work with an appropriate, bilaterally negotiated downward adjustment in the GMP.

(f) Remedies for Failure to Correct: If the Design-Builder does not promptly correct or replace rejected work, the Government may: (i) By contract, modification, or otherwise, replace or correct the work and charge the actual direct costs to the Design-Builder; or (ii) Terminate for default the Design-Builder's right to proceed in accordance with Article 20.

(g) Examination of Completed Work: If, before acceptance of the entire work, the Government requests the examination of already completed work by removing or tearing it out, the Design- Builder shall promptly furnish the necessary labor, tools, and materials. If the work is found to be defective or non-conforming due to the fault of the Design-Builder or its subcontractors, the Design-Builder shall defray the actual costs of the examination and reconstruction. If, however, the work is found to meet contract requirements, the AO shall make an equitable adjustment to the GMP and schedule to compensate the Design-Builder for the examination and reconstruction.

(h) Final Acceptance: Acceptance of completed work packages or sections shall be made as promptly as practicable. 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.

6.7 Availability and Use of Utility Services

(a) The Government shall make all reasonably required amounts of utilities available to the Design-Builder from existing outlets and supplies, as specified in the Agreement. Unless otherwise provided in the Agreement, the Government will provide utilities at no cost to the Design-Builder.

The Design-Builder shall carefully conserve any utilities furnished.

(b) Before final acceptance of the work by the Government, the Design-Builder shall remove all the temporary connections, distribution lines, and associated paraphernalia.

6.8 Layout of Work

The Design-Builder shall lay out its work from Government established baselines and benchmarks indicated on the drawings and shall be responsible for all measurements in connection with the layout. The Design-Builder shall furnish, at its own expense, all stakes, templates, platforms, equipment, tools, materials, and labor required to lay out any part of the work. The Design-Builder shall be responsible for executing the work to the lines and grades that may be established or indicated by the AO. The Design-Builder shall also be responsible for maintaining and preserving all stakes and other marks established by the AO until authorized to remove them. If such marks are destroyed by the Design-Builder or through its negligence before their removal is authorized, the AO may replace them and deduct the expense of the replacement from any amounts due or to become due to the Design-Builder.

6.9 Operations and Storage Areas

(a) The Design-Builder shall confine all operations (including storage of materials) on Government premises to areas authorized or approved by the AO. The Design-Builder shall hold and save the Government, its officers and agents, free and harmless from liability of any nature occasioned by the Design-Builder’s performance.

(b) Temporary buildings (e.g., storage sheds, shops, offices) and utilities may be erected by the Design-Builder only with the approval of the AO and shall be built with labor and materials furnished by the Design-Builder without expense to the Government. The temporary buildings and utilities shall remain the property of the Design-Builder and shall be removed by the Design- Builder at its expense upon completion of the work.

(c) The Design-Builder must use only established roadways, or use temporary roadways constructed by the Design-Builder when and as authorized by the AO. When materials are transported in prosecuting the work, vehicles shall not be loaded beyond the loading capacity recommended by the manufacturer of the vehicle or prescribed by any Federal, State, or local law or regulation. When it is necessary to cross curbs or sidewalks, the Design-Builder shall protect them from damage. The Design-Builder shall repair or pay for the repair of any damaged curbs, sidewalks, or roads.

6.10 Use and Possession Prior to Completion

(a) Upon agreement with the Design-Builder, the Government shall have the right to take possession of or use any completed or partially completed part of the work but shall not interfere, hinder, or obstruct the Design-Builder in the completion of its work or services. Before taking possession of or using any work, the AO shall furnish the Design-Builder a list of items of work remaining to be performed or corrected on those portions of the work that the Government intends to take possession of or use. However, failure of the AO to list any item of work shall not relieve the Design-Builder of responsibility for complying with the terms of the Agreement. The Government’s possession or use shall not be deemed an acceptance of any work under the Agreement.

(b) While the Government has such possession or use, the Design-Builder shall be relieved of the responsibility for the loss of or damage to the work resulting from the Government’s possession or use, notwithstanding the terms of the Article in this Agreement entitled Permits and Responsibilities – Construction (Article 6.4). If prior possession or use by the Government delays the progress of the work or causes additional expense to the Design-Builder, an equitable adjustment shall be made in the Agreement price or the time of completion, and the Agreement shall be modified in writing accordingly.

6.11 Other Agreements or Contracts

The Government may undertake or award other agreements or contracts for additional work at or near the site of the work under this Agreement. The Design-Builder shall fully cooperate with the other contractors and with Government employees and shall carefully adapt scheduling and performing the work under this Agreement to accommodate the additional work, heeding any direction that may be provided by the AO. The Design-Builder shall not commit or permit any act that will interfere with the performance of work by any other contractor or by Government employees.

6.12 Safety

(a) Accident Prevention: The Design-Builder shall provide and maintain work environments and procedures that safeguard the public, Government personnel, and property. The Design-Builder shall comply with the standards issued by the Secretary of Labor at 29 C.F.R. Part 1926 and 29 C.F.R. Part 1910, and with the latest version of the U.S. Army Corps of Engineers Safety and Health Requirements Manual (EM 385-1-1).

(b) Noncompliance: If the AO becomes aware of any condition that poses a serious danger, the AO will notify the Design-Builder and request immediate corrective action. If the Design-Builder fails to act promptly, the AO may issue an order stopping all or part of the work until satisfactory action is taken. No equitable adjustment will be made for a stop-work order issued under this provision.

(c) Site Safety and Health Officer (SSHO): The Design-Builder shall employ a competent and qualified SSHO at the project site, whose qualifications shall be submitted to the Government for approval. The SSHO's duties and qualifications shall be in accordance with EM 385-1-1.

6.13 Warranty of Construction

(a) Scope of Warranty: In addition to any other Warranties in this Agreement, the Design-Builder warrants that all work performed conforms to the Agreement requirements and is free of any defect in equipment, material, or design furnished, or workmanship performed by the Design- Builder or any of its subcontractors or suppliers at any tier.

(b) Construction Warranty Period: This warranty shall continue for a period of two (2) years from the date of final acceptance of the entire work. If the Government takes possession of any part of the work before final acceptance, this warranty shall continue for a period of two (2) years from the date the Government takes possession.

(c) Remedy: The Design-Builder must, at its own expense, remedy any failure to conform or any defect that is discovered within the warranty period. In addition, the Design-Builder must remedy at its expense any damage to Government owned or controlled real or personal property when that damage is the result of the Design-Builder’s failure to conform to the Agreement requirements, or any defect of equipment, material or workmanship.

(d) Replacement of work damages: The Design-Builder must restore any work damaged in fulfilling the terms and conditions of this article. Its warranty with respect to repair work will run for two (2) years from the date of repair or replacement. The AO shall notify the Design-Builder, in writing, within a reasonable time after the discovery of any failure, defect, or damage.

(e) Failure to Remedy: If the Design-Builder fails to remedy a defect within a reasonable time after receiving notice, the Government has the right to replace or repair the defective work at the Design-Builder's expense.

(f) Subcontractor Warranties: The Design-Builder must obtain all standard commercial warranties from manufacturers and subcontractors and, if directed by the AO, shall enforce these warranties on behalf of the Government.

(g) Extended Manufacturer Warranties: The Design-Builder shall obtain and pass through to the Government all extended manufacturer warranties for major systems and equipment.

6.14 Inspection – Dismantling, Demolition or Removal of Improvements

(a) Unless otherwise designated by the specifications, all workmanship performed under the Agreement is subject to Government inspection at all times and places where dismantling or demolition work is being performed. The Design-Builder must furnish promptly, and at no increase in Agreement price, all reasonable facilities, labor, and materials necessary for safe and convenient inspection by the Government. The Government shall perform inspections in a manner that will not unduly delay the work.

(b) The Design-Builder is responsible for damage to property caused by defective workmanship.

The Design-Builder must promptly segregate and remove from the premises any unsatisfactory facilities, materials, and equipment used in Agreement performance, and promptly replace them with satisfactory items.

6.15 Specifications and Drawings

The Design-Builder shall keep on the work site a copy of the drawings and specifications and shall at all times give the AO access thereto. Anything mentioned in the specifications and not shown on the drawings or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In case of discrepancy in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the AO, who shall promptly make a determination in writing. Any adjustment without such determination shall be at the Design- Builder's own risk and expense.

ARTICLE 7: SUBCONTRACTOR AGREEMENT

7.1 Purpose and Intent

The Government recognizes that the success of the project under this Agreement depends on the close cooperation and integration of the Design-Builder and its subcontractors. By executing this Agreement, the Design-Builder assumes the responsibilities of its subcontractors.

7.2 Exchange of Proprietary Information

Work under this Agreement may require access to proprietary or confidential information from a subcontractor. To the extent that such data is received, the Design-Builder agrees that it shall remain the property of the disclosing party and shall be used solely for the performance of this Agreement. The obligation to protect such information applies only to information that is received in writing and is clearly marked as proprietary or confidential. The Design-Builder agrees to use the same degree of care to protect the subcontractor’s information as it uses to protect its own.

7.3 Identified Subcontractors

Subcontractors Project Role

To be completed during execution To be completed during execution

ARTICLE 8: SMALL BUSINESS SUBCONTRACTORS

8.1 Phase 1 Collaborative Development of Small Business Participation

The Parties acknowledge that as of the effective date of this Agreement, no specific small business participation goals have been established, and no specific small business subcontracting firms have been identified. During Phase 1, as the Project scope and requirements are collaboratively defined, the Design-Builder shall actively identify potential small business subcontractors and negotiate small business subcontracting goals. The finalized small business participation plan, including specific firm identifications, scopes of work, and agreed-upon goals, shall be developed on an "open-book" basis during Phase 1 and submitted as an integral part of the Phase 2 Guaranteed Maximum Price (GMP) proposal described in Section 2.3.

8.2 Identification of Small Business Subcontractors(s)

Upon mutual agreement of the Phase 2 scope, schedule, and GMP, the specific small business partners identified during Phase 1 shall be documented in the table below and formally incorporated into this Agreement via the Phase 2 bilateral modification:

Category Commitment (To be completed during Phase 1)

Small Business Partner: Insert Small Business Name and CAGE Code

Design-Builder's Attestation: The Design-Builder attests that the entity identified above qualifies as a small business under the applicable size standard for the work it will perform.

Minimum Scope of Work: Insert Detailed Description of Tasks to be performed by the Small Business Partner

Associated Deliverables: Identify Deliverable(s) to which the Small Business Partner is contributing

Agreed Participation Goal: Insert percentage of total Phase 2 contract value or specific dollar commitment

The Design-Builder shall ensure performance is executed in accordance with the commitments finalized in the table above and its teaming arrangement with the identified Small Business subcontractor(s).

8.3 Flow-Down

If the identified Small Business subcontractor further subcontracts a portion of its work, the Design-Builder shall ensure that such subcontracts do not dilute the significance of the small business's participation in the overall project.

ARTICLE 9: GOVERNMENT FURNISHED PROPERTY

9.1 Applicability

In the event the Government provides any Government Furnished Property (GFP) to the Design- Builder for the performance of this Agreement, the terms of this Article shall apply. All such GFP will be identified in the Scope of Services (SOS) or in a dedicated GFP List attached to this Agreement. If no GFP is listed, this Article is not applicable.

9.2 Use and Liability

The Design-Builder shall use the GFP solely for the performance of this Agreement and assumes the risk for and shall be responsible for any loss, damage, or destruction of the GFP while it is in its possession or control. This liability does not extend to reasonable wear and tear from normal use or to the proper consumption of materials as authorized by the SOS.

9.3 Condition and Return

Upon completion or termination of this Agreement, the Design-Builder shall return all GFP to the Government in a condition at least as good as when it was received, with the exception of reasonable wear and tear or authorized consumption.

9.4 Disposition

The Design-Builder shall not transfer, sell, or otherwise dispose of any GFP without the prior written authorization of the AO.

SECTION 3: FINANCIAL

ARTICLE 10: OBLIGATION AND PAYMENT

10.1 Obligation

(a) The Government’s liability to make payments to the Design-Builder is limited to only those funds obligated under the Agreement or by modification to the Agreement. The Government is not obligated to reimburse the Design-Builder for expenditures in excess of the amount of obligated funds allotted by the Government.

(b) If modification becomes necessary in performance of this Agreement, pursuant to Article 16, Changes to the Agreement, the Parties shall execute a revised Schedule of Milestones and Payment for prospective milestones within the agreed fixed-price structure.

10.2 Payments

(a) Basis for Payment. Payments shall be made in fixed amounts based on the successful completion and Government acceptance of the payable milestones defined in the Schedule of Milestones and Payment. Each milestone payment represents the full and fair value received by the Government for the work accomplished.

(b) Phase 2 Cost-Loaded Schedule and Schedule of Values (SOV). For Phase 2 execution, progress payments shall be tied to an SOV derived from an approved cost-loaded and resource-loaded schedule.

(c) Invoicing and Payment Process.

(i) Method of Payment: All payments by the Government under this Agreement shall be made by electronic funds transfer (EFT). The Government shall make payment to the Contractor using the EFT information contained in the System for Award Management (SAM). In the event that the EFT information changes, the Contractor shall be responsible for providing the updated information to

SAM.

(ii) Progress Verification: The Design-Builder shall document progress against the milestones (and Phase 2 SOV), as required by the SOS.

(iii) Invoice Submission: Following the Agreements Officer's Representative (AOR)'s verification of a complete milestone or SOV progress, the Design-Builder shall submit a corresponding invoice through Wide Area Workflow (WAWF). To access WAWF, the Contractor shall:

(1) Have a designated electronic business point of contact in the System for Award Management at https://www.sam.gov; and

(2) Be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self-registration.

(3) Shall use the information in the Routing Data Table below to fill in applicable fields in WAWF when creating payment requests:

Field Name in WAWF Data to be entered in WAWF

Pay Official DoDAAC To be completed at award

Issu…