Attachment H - Deviations to the FAR.pdf

Solicitation Number: 75F40122Q00001 Title: Patent Legal Services

Attachment H

Deviations to the FAR

• FAR Class Deviation 2020-05 - Implementation of the United States-

Mexico-Canada-Agreement (USMCA)

• FAR Deviation 18-01 (Attachment D)_Whistleblower Protection

(Commercial)

• HHS Class Deviation 2020-20 - Accelerated Payments

CAAC Letter 2020-05 FAR text 2020-014

United States-Mexico-Canada Agreement

Baseline is FAC 2020-06

Additions shown by: [bolded]. Deletions shown by: struck.

June 22, 2020

PART 4—ADMINISTRATIVE AND INFORMATION MATTERS

SUBPART 4.12—REPRESENTATIONS AND CERTIFICATIONS

4.1202 Solicitation provision and contract clause.

(a) Insert the provision at 52.204-8, Annual Representations and

Certifications, in solicitations, except for commercial item solicitations issued under FAR part 12. The contracting officer shall check the applicable provisions at 52.204-8(c)(2). Use the provision with its Alternate I in solicitations issued after

October 1, 2022, that will result in a multiple-award contract with more than one North American Industry Classification System code assigned (see 19.102(b)). When the provision at 52.204-7, System for Award Management, is included in the solicitation, do not separately include the following representations and certifications:

(28) 52.225-4, Buy American—Free Trade Agreements—Israeli Trade

Act Certificate (Basic, Alternates I, II, and III).

PART 13 - SIMPLIFIED ACQUISITION PROCEDURES

Subpart 13.3 - Simplified Acquisition Methods

13.302-5 Clauses.

(d)* * *

(3) (i) When an acquisition for supplies for use within the

United States cannot be set aside for small business concerns and trade agreements apply (see subpart 25.4), substitute the clause at FAR 52.225-3, Buy American-Free Trade Agreements-

Israeli Trade Act, used with Alternate I or Alternate II, if appropriate, instead of the clause at FAR 52.225-1, Buy

American-Supplies.

PART 18—EMERGENCY ACQUISITIONS

SUBPART 18.1—AVAILABLE ACQUISITION FLEXIBILITIES

18.120 [[Reserved]] Use of patented technology under the North

American Free Trade Agreement.

Requirement to obtain authorization prior to use ogf patented technology may be waived in circumstances of extreme urgency or national emergency. (See 27.204-1.)

PART 22 – APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

SUBPART 22.15—PROHIBITION OF ACQUISITION OF PRODUCTS PRODUCED BY

FORCED OR INDENTURED CHILD LABOR

22.1503 Procedures for acquiring end products on the List of

Products Requiring Contractor Certification as to Forced or

Indentured Child Labor.

(b) The requirements of this subpart that result from the appearance of any end product on the List do not apply to a solicitation or contract if the identified country of origin on the List is—

(1) Canada, and the anticipated value of the acquisition is

$25,000 or more (see subpart 25.4);

(2) Israel, and the anticipated value of the acquisition is

$50,000 or more (see 25.406);

(3[2]) Mexico, and the anticipated value of the acquisition is

$83,099 or more (see subpart 25.4); or

(4[3]) Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, [Canada,] Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Italy, Japan, Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New

Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak

Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or the United Kingdom and the anticipated value of the acquisition is $182,000 or more (see 25.402(b)).

22.1505 Solicitation provision and contract clause.

(a) * * * For solicitations estimated to equal or exceed $25,000[$50,000], the contracting officer must exclude from the

List in the solicitation end products from any countries identified at 22.1503(b), in accordance with the specified thresholds.

PART 25—FOREIGN ACQUISITION

25.003 Definitions.

As used in this part—

“Designated country” means any of the following countries:

(1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as

“the Separate Customs Territory of Taiwan, Penghu, Kinmen and

Matsu” (Chinese Taipei)), Ukraine, or United Kingdom);

(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El

Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);

“Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore.

SUBPART 25.4—Trade Agreements

25.400 Scope of subpart.

(a) This subpart provides policies and procedures applicable to acquisitions that are covered by—

(1) The World Trade Organization Government Procurement

Agreement (WTO GPA), as approved by Congress in the Uruguay

Round Agreements Act (Pub. L. 103-465);

(2) Free Trade Agreements (FTA), consisting of—

(i) NAFTA (the North American Free Trade Agreement, as approved by Congress in the North American Free Trade Agreement

Implementation Act of 1993 (Pub. L. 103-182) (19 U.S.C. 3301 note))[USMCA (United States-Mexico-Canada Agreement, as approved by Congress in the United States-Mexico-Canada Agreement

Implementation Act (Government Procurement Agreement applicable only to United States and Mexico) (Pub. L. 116-113) (19 U.S.C.

chapter 29 (sections 4501-4732))];

25.401 Exceptions.

(b) In the World Trade Organization Government Procurement

Agreement (WTO GPA) and each FTA, there is a U.S. schedule that lists services that are excluded from that agreement in acquisitions by the United States. Acquisitions of the following services are excluded from coverage by the U.S. schedule of the

WTO GPA or an FTA as indicated in this table:

The service

(Federal Service Codes from the Federal

Procurement Data

System Product/Service

Code Manual are indicated in parentheses for some services.)

WTO

GPA

AND

KOREA

FTA

Bahrain FTA, CAFTA-DR, Chile FTA, Columbia FTA, NAFTA[USMCA], Oman FTA, Panama FTA, and Peru FTA

Singapore

FTA

Australia and

Morocco

FTA

(1) All services purchased in support of military services overseas.

X X X X

(2) (i) Automatic data processing (ADP) telecommunications and transmission services

(D304), except enhanced (i.e., value-added) telecommunications services.

X X

(ii) ADP teleprocessing and timesharing services

(D305), telecommunications network management services (D316), automated news services, data services or other information services

(D317), and other ADP and telecommunications services (D399)

X X

(iii) Basic * * X X telecommunications network services

(i.e., voice telephone services, packet-switched data transmission services, circuit-switched data transmission services, telex services, facsimile services, and private leased circuit services, but not information services, as defined in 47 U.S.C. 153(24))

(3) Dredging X X X X

(4) (i) Operation and management contracts of certain Government or privately owned facilities used for

Government purposes, including Federally

Funded Research and

Development Centers

X

(ii) Operation of all

Department of Defense, Department of Energy, or the National

Aeronautics and Space

Administration facilities; and all

Government-owned research and development facilities or Government-owned environmental laboratories

* * X * * X

(5) Research and development

X X X X

(6) Transportation services (including launching services, but not including travel agent services)

X X X X

(7) Utility services X X X X

(8) Maintenance, repair, modification, rebuilding and installation of equipment related to ships (J019)

(9) Nonnuclear ship repair

(J998)

*NOTE 1. Acquisitions of the services listed at (2)(iii) of this table are a subset of the excluded services at (2)(i) and (ii), and are therefore not covered under the WTO GPA.

**NOTE 2. Acquisitions of the services listed at (4)(ii) of this table are a subset of the excluded services at (4)(i), and are therefore not covered under the WTO GPA.

25.402 General.

(b) The value of the acquisition is a determining factor in the applicability of trade agreements. Most of these dollar thresholds are subject to revision by the U.S. Trade

Representative approximately every 2 years. The various thresholds are summarized as follows:

TABLE 1 TO PARAGRAPH (b)

Trade agreement

Supply contract

(equal to or

Service contract

(equal to or

Construction contract

(equal to or exceeding) exceeding) exceeding)

WTO GPA $182,000 $182,000 $7,008,000

FTAs:

Australia FTA 83,099 83,099 7,008,000

Bahrain FTA 182,000 182,000 10,802,884

CAFTA-DR (Costa Rica, Dominican Republic, El

Salvador, Guatemala, Honduras, and Nicaragua)

83,099 83,099 7,008,000

Chile FTA 83,099 83,099 7,008,000

Colombia FTA 83,099 83,099 7,008,000

Korea FTA 100,000 100,000 7,008,000

Morocco FTA 182,000 182,000 7,008,000

NAFTA[USMCA]:

—Canada 25,000 83,099 10,802,884

-Mexico 83,099 83,099 10,802,884

Oman FTA 182,000 182,000 10,802,884

Panama FTA 182,000 182,000 7,008,000

Peru FTA 182,000 182,000 7,008,000

Singapore FTA 83,099 83,099 7,008,000

Israeli Trade Act 50,000

Subpart 25.11 - Solicitation Provisions and Contract Clauses

25.1101 Acquisition of supplies.

The following provisions and clauses apply to the acquisition of supplies and the acquisition of services involving the furnishing of supplies.

(b)(1)(i) Insert the clause at 52.225-3, Buy American—Free Trade

Agreements—Israeli Trade Act, in solicitations and contracts if—

(A) The acquisition is for supplies, or for services involving the furnishing of supplies, for use within the United States, and the acquisition value is $25,000[$50,000] or more, but is less than $182,000;

(ii) If the acquisition value is $25,000 or more but is less than $50,000, use the clause with its Alternate I.

(iii) If the acquisition value is $50,000 or more but is less than $83,099, use the clause with its Alternate II.

(ivii]) If the acquisition value is $83,099 or more but is less than $100,000, use the clause with its Alternate III.

(2)(i) Insert the provision at 52.225-4, Buy American—Free Trade

Agreements—Israeli Trade Act Certificate, in solicitations containing the clause at 52.225-3.

(ii) If the acquisition value is $25,000 or more but is less than $50,000, use the provision with its Alternate I.

(iii) If the acquisition value is $50,000 or more but is less than $83,099, use the provision with its Alternate II.

(iv[ii]) If the acquisition value is $83,099 or more, but is less than $100,000, use the provision with its Alternate III.

PART 27—PATENTS, DATA, AND COPYRIGHTS

SUBPART 27.2—PATENTS AND COPRIGHTS

27.204 Patented technology under trade agreements.

27.204-1 Use of patented technology under the North American

Free Trade Agreement[United States-Mexico-Canada Agreement].

(a) The requirements of this section apply to the use of technology covered by a valid patent when the patent holder is from a country that is a party to the North American Free Trade

Agreement (NAFTA).

(b) Article 1709(10) of NAFTA generally requires a user of technology covered by a valid patent to make a reasonable effort to obtain authorization prior to use of the patented technology.

However, NAFTA provides that this requirement for authorization may be waived in situations of national emergency or other circumstances of extreme urgency, or for public noncommercial use.

(c) Section 6 of Executive Order 12889, “Implementation of the

North American Free Trade Act,” of December 27, 1993, waives the requirement to obtain advance authorization for an invention used or manufactured by or for the Federal Government. However, the patent owner shall be notified in advance whenever the agency or its contractor knows or has reasonable grounds to know, without making a patent search, that an invention described in and covered by a valid U.S. patent is or will be used or manufactured without a license. In cases of national emergency or other circumstances of extreme urgency, this notification need not be made in advance, but shall be made as soon as reasonably practicable.

(d) The contracting officer, in consultation with the office having cognizance of patent matters, shall ensure compliance with the notice requirements of NAFTA Article 1709(10) and

Executive Order 12889. A contract award should not be suspended pending notification to the patent owner.

(e) Section 6(c) of Executive Order 12889 provides that the notice to the patent owner does not constitute an admission of infringement of a valid privately-owned patent.

(f) When addressing issues regarding compensation for the use of patented technology, Government personnel should be advised that

NAFTA uses the term “adequate remuneration.” Executive Order

12889 equates “remuneration” to “reasonable and entire compensation” as used in 28 U.S.C. 1498, the statute that gives jurisdiction to the U.S. Court of Federal Claims to hear patent and copyright cases involving infringement by the Government.

(g) When questions arise regarding the notice requirements or other matters relating to this section [with regard to use of patented technology under the USMCA], the contracting officer should consult with legal counsel.

27.204-2 Use of patented technology under the General

Agreement on Tariffs and Trade (GATT).

Article 31 of Annex 1C, Agreement on Trade-Related Aspects of

Intellectual Property Rights, to GATT (Uruguay Round) addresses situations where the law of a member country allows for use of a patent without authorization, including use by the Government.

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

SUBPART 52.2—TEXTS OF PROVISIONS AND CLAUSES

52.204-8 Annual Representations and Certifications.

As prescribed in 4.1202(a), insert the following provision:

ANNUAL REPRESENTATIONS AND CERTIFICATIONS (MAR 2020 [DATE])

(C)(1) * * *

(xxi) 52.225-4, Buy American-Free Trade Agreements-Israeli Trade Act Certificate. (Basic, Alternates I, II, and III.)

This provision applies to solicitations containing the clause at

52.225-3.

(A) If the acquisition value is less than $25,000[50,000], the basic provision applies.

(B) If the acquisition value is $25,000 or more but is less than $50,000, the provision with its Alternate I applies.

[(B)](C) If the acquisition value is $50,000 or more but is less than $83,099, the provision with its Alternate II applies.

[(C)](D) If the acquisition value is $83,099 or more but is less than $100,000, the provision with its Alternate III applies.

52.212-3 Offeror Representations and Certifications—Commercial

Items.

As prescribed in 12.301(b)(2), insert the following provision:

OFFEROR REPRESENTATIONS AND CERTIFICATIONS—COMMERCIAL ITEMS (JUN 2020[DATE])

(g)(1) Buy American—Free Trade Agreements—Israeli Trade Act

Certificate. (Applies only if the clause at FAR 52.225-3, Buy

American—Free Trade Agreements—Israeli Trade Act, is included in this solicitation.)

(i) The offeror certifies that each end product, except those listed in paragraph (g)(1)(ii) or (g)(1)(iii) of this provision, is a domestic end product and that for other than COTS items, the offeror has considered components of unknown origin to have been mined, produced, or manufactured outside the United States.

The terms “Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product,” “commercially available off-the-shelf (COTS) item,” “component,” “domestic end product,” “end product,”

“foreign end product,” “Free Trade Agreement country,” “Free

Trade Agreement country end product,” “Israeli end product,” and

“United States” are defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act.”

(ii) The offeror certifies that the following supplies are Free

Trade Agreement country end products (other than Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end products) or

Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—

Israeli Trade Act”

Free Trade Agreement Country End Products (Other than

Bahrainian, Moroccan, Omani, Panamanian, or Peruvian End

Products) or Israeli End Products:

Line Item No.

Country of Origin

(iii) The offeror shall list those supplies that are foreign end products (other than those listed in paragraph (g)(1)(ii) of this provision) as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act.”

The offeror shall list as other foreign end products those end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a

COTS item and does not meet the component test in paragraph (2) of the definition of “domestic end product.”

Other Foreign End Products

[List as necessary]

(iv) The Government will evaluate offers in accordance with the policies and procedures of FAR Part 25.

(2) Buy American—Free Trade Agreements—Israeli Trade Act

Certificate, Alternate I. If Alternate I to the clause at FAR

52.225-3 is included in this solicitation, substitute the following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision:

(g)(1)(ii) The offeror certifies that the following supplies are

Canadian end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—

Israeli Trade Act”:

Canadian End Products:

(List as necessary)

(3) Buy American—Free Trade Agreements—Israeli Trade Act

Certificate, Alternate II. If Alternate II to the clause at FAR

52.225-3 is included in this solicitation, substitute the following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision:

(g)(1)(ii) The offeror certifies that the following supplies are

Canadian end products or Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade

Agreements—Israeli Trade Act”:

Canadian or Israeli End Products:

(4[3]) Buy American—Free Trade Agreements—Israeli Trade Act

Certificate, Alternate III. If Alternate III to the clause at

FAR 52.225-3 is included in this solicitation, substitute the following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision:

(g)(1)(ii) The offeror certifies that the following supplies are

Free Trade Agreement country end products (other than

Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end products) or Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—

Israeli Trade Act”:

Free Trade Agreement Country End Products (Other than

Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian End

Products) or Israeli End Products:

(5[4]) Trade Agreements Certificate. (Applies only if the clause at FAR 52.225-5, Trade Agreements, is included in this solicitation.)

52.212-5 Contract Terms and Conditions Required To Implement

Statutes or Executive Orders—Commercial Items.

As prescribed in 12.301(b)(4), insert the following clause:

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE

ORDERS—COMMERCIAL ITEMS (JUN 2020[DATE])

(b) * * *

(28) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (JAN 2020[DATE]) (E.O. 13126).

(49)(i) 52.225-3, Buy American—Free Trade Agreements—

Israeli Trade Act (MAY 2014JUL 2020)(41 U.S.C. chapter 83, 19

U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, [19 U.S.C. chapter 29 (sections 4501-

4732),] Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-

43.

(ii) Alternate I (MAY 2014) of 52.225-3.

(iii) Alternate II (MAY 2014[DATE]) of 52.225-3.

(i[ii]v) Alternate III (MAY 2014) of 52.225-3.

(50) 52.225-5, Trade Agreements (OCT 2019[DATE]) (19

U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

52.222-19 Child Labor—Cooperation with Authorities and

Remedies.

As prescribed in 22.1505(b), insert the following clause:

CHILD LABOR—COOPERATION WITH AUTHORITIES AND REMEDIES (JAN 2020[DATE])

(a) Applicability. This clause does not apply to the extent that the Contractor is supplying end products mined, produced, or manufactured in—

(1) Canada, and the anticipated value of the acquisition is

$25,000 or more;

(2) Israel, and the anticipated value of the acquisition is

$50,000 or more;

(3[2]) Mexico, and the anticipated value of the acquisition is

$83,099 or more; or

(4[3]) Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, [Canada,] Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Italy, Japan, Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New

Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak

Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or the United Kingdom and the anticipated value of the acquisition is $182,000 or more.

52.225-3 Buy American—Free Trade Agreements—Israeli Trade Act.

As prescribed in 25.1101(b)(1)(i), insert the following clause:

BUY AMERICAN—FREE TRADE AGREEMENTS—ISRAELI TRADE ACT (MAY 2014[DATE])

(a) Definitions. As used in this clause—

“Free Trade Agreement country” means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore.

Alternate I [[Reserved]] (MAY 2014). As prescribed in

25.1101(b)(1)(ii), add the following definition to paragraph (a) of the basic clause, and substitute the following paragraph (c) for paragraph (c) of the basic clause:

“Canadian end product” means an article that—

(1) Is wholly the growth, product, or manufacture of Canada; or

(2) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Canada into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.

(c) Delivery of end products. 41 U.S.C. chapter 83 provides a preference for domestic end products for supplies acquired for use in the United States. In accordance with 41 U.S.C. 1907, the component test of the Buy American statute is waived for an end product that is a COTS item (See 12.505(a)(1)). In addition, the

Contracting Officer has determined that NAFTA applies to this acquisition. Unless otherwise specified, NAFTA applies to all items in the Schedule. The Contractor shall deliver under this contract only domestic end products except to the extent that, in its offer, it specified delivery of foreign end products in the provision entitled “Buy American—Free Trade Agreements—

Israeli Trade Act Certificate.” If the Contractor specified in its offer that the Contractor would supply a Canadian end product, then the Contractor shall supply a Canadian end product or, at the Contractor's option, a domestic end product.

Alternate II (MAY 2014[DATE]). As prescribed in

25.1101(b)(1)(iii), add the following definition to paragraph

(a) of the basic clause, and substitute the following paragraph

(c) for paragraph (c) of the basic clause:

“Canadian end product” an article that—

(1) Is wholly the growth, product, or manufacture of Canada; or

(2) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Canada into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.

(c) Delivery of end products. 41 U.S.C. chapter 83 provides a preference for domestic end products for supplies acquired for use in the United States. In accordance with 41 U.S.C. 1907, the component test of the Buy American statute is waived for an end product that is a COTS item (See 12.505(a)(1)). In addition, the

Contracting Officer has determined that NAFTA and the Israeli

Trade Act apply[ies] to this acquisition. Unless otherwise specified, these[this] trade agreements apply[ies] to all items in the Schedule. The Contractor shall deliver under this contract only domestic end products except to the extent that, in its offer, it specified delivery of foreign end products in the provision entitled “Buy American—Free Trade Agreements—

Israeli Trade Act.” If the Contractor specified in its offer that the Contractor would supply a Canadian end product or an

Israeli end product, then the Contractor shall supply a Canadian end product, an Israeli end product or, at the Contractor's option, a domestic end product.

Alternate III (May 2014). As prescribed in

25.1101(b)(1)[(iii)](iv), delete the definition of “Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product” and add in its place the following definition of “Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end product” in paragraph (a) of the basic clause; and substitute the following paragraph (c)for paragraph (c) of the basic clause:

52.225-4 Buy American—Free Trade Agreement—Israeli Trade Act

Certificate.

As prescribed in 25.1101(b)(2)(i), insert the following provision:

BUY AMERICAN—FREE TRADE AGREEMENTS—ISRAELI TRADE ACT CERTIFICATE (MAY 2014)

(a) The offeror certifies that each end product, except those listed in paragraph (b) or (c) of this provision, is a domestic end product and that for other than COTS items, the offeror has considered components of unknown origin to have been mined, produced, or manufactured outside the United States. The terms

“Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product,” “commercially available off-the-shelf (COTS) item,”

“component,” “domestic end product,” “end product,” “foreign end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “Israeli end product,” and “United States” are defined in the clause of this solicitation entitled “Buy

American—Free Trade Agreements—Israeli Trade Act.”

(b) The offeror certifies that the following supplies are Free

Trade Agreement country end products (other than Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end products) or

Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—

Israeli Trade Act”:

FREE TRADE AGREEMENT COUNTRY END PRODUCTS (OTHER THAN BAHRAINIAN, MOROCCAN,

OMANI, PANAMANIAN, OR PERUVIAN END PRODUCTS) OR ISRAELI END PRODUCTS:

(c) The offeror shall list those supplies that are foreign end products (other than those listed in paragraph (b) of this provision) as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act.”

The offeror shall list as other foreign end products those end products manufactured in the United States that do not qualify as domestic end products, i.e., an end product that is not a

COTS item and does not meet the component test in paragraph (2) of the definition of “domestic end product.”

Other Foreign End Products:

(d) The Government will evaluate offers in accordance with the policies and procedures of Part 25 of the Federal Acquisition

Regulation.

(End of provision)

Alternate I [[Reserved]] (MAY 2014). As prescribed in

25.1101(b)(2)(ii), substitute the following paragraph (b) for paragraph (b) of the basic provision:

(b) The offeror certifies that the following supplies are

Canadian end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—

Israeli Trade Act—Balance of Payments Program”:

Canadian End Products:

Line Item No.

(List as necessary)

Alternate II (MAY 2014[DATE]). As prescribed in

25.1101(b)(2)[(ii)](iii), substitute the following paragraph (b) for paragraph (b) of the basic provision:

(b) The offeror certifies that the following supplies are

Canadian end products or Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade

Agreements—Israeli Trade Act—Balance of Payments Program”:

Canadian or Israeli End Products

Alternate III (MAY 2014). As prescribed in

25.1101(b)(2)[(iii)](iv), substitute the following paragraph (b) for paragraph (b) of the basic provision:

52.225-5 Trade Agreements.

As prescribed in 25.1101(c)(1), insert the following clause:

TRADE AGREEMENTS (OCT 2019[DATE])

(a) Definitions. As used in this clause.

Caribbean Basin country end product—

(1) Means an article that—

(i)(A) Is wholly the growth, product, or manufacture of a

Caribbean Basin country; or

(B) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed; and

(ii) Is not excluded from duty-free treatment for Caribbean countries under 19 U.S.C. 2703(b).

(A) For this reason, the following articles are not Caribbean Basin country end products:

(1) Tuna, prepared or preserved in any manner in airtight containers;

(2) Petroleum, or any product derived from petroleum;

(3) Watches and watch parts (including cases, bracelets, and straps) of whatever type including, but not limited to, mechanical, quartz digital, or quartz analog, if such watches or watch parts contain any material that is the product of any country to which the Harmonized Tariff Schedule of the United

States (HTSUS) column 2 rates of duty apply (i.e., Afghanistan, Cuba, Laos, North Korea, and Vietnam); and

(4) Certain of the following: textiles and apparel articles;

footwear, handbags, luggage, flat goods, work gloves, and leather wearing apparel; or handloomed, handmade, and folklore articles;

(B) Access to the HTSUS to determine duty-free status of articles of these types is available at https://usitc.gov/tata/hts/index.htm. In particular, see the following:

(1) General Note 3(c), Products Eligible for Special Tariff treatment.

(2) General Note 17, Products of Countries Designated as Beneficiary Countries under the United States-Caribbean Basin

Trade Partnership Act of 2000.

(3) Section XXII, Chapter 98, Subchapter II, Articles Exported and Returned, Advanced or Improved Abroad, U.S. Note

7(b).

(4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for Special Tariff Benefits under the United States-Caribbean

Basin Trade Partnership Act; and

(2) Refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the acquisition, includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.

Designated country means any of the following countries:

(1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade

Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei)”), Ukraine, or United

Kingdom);

(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El

Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);

(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of

Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or

(4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the

Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and

Tobago).

Designated country end product means a WTO GPA country end product, an FTA country end product, a least developed country end product, or a Caribbean Basin country end product.

End product means those articles, materials, and supplies to be acquired under the contract for public use.

Free Trade Agreement country end product means an article that—

(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement (FTA) country; or

(2) In the case of an article that consists in whole or in transformed in an FTA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services)

Least developed country end product means an article that—

(1) Is wholly the growth, product, or manufacture of a least developed country; or transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product, includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.

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

U.S.-made end product means an article that is mined, produced, or manufactured in the United States or that is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed., WTO GPA country end product means an article that—

(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed.

The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services, (except transportation services)

(b) Delivery of end products. The Contracting Officer has determined that the WTO GPA and FTAs apply to this acquisition.

Unless otherwise specified, these trade agreements apply to all items in the Schedule. The Contractor shall deliver under this contract only U.S.-made or designated country end products except to the extent that, in its offer, it specified delivery of other end products in the provision entitled “Trade

Agreements Certificate.”

(End of clause)

52.225-11 Buy American—Construction Materials Under Trade

Agreements.

As prescribed in 25.1102(c), insert the following clause:

BUY AMERICAN—CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (OCT 2019[DATE])

(a) Definitions. As used in this clause—

“Designated country” means any of the following countries:

(1) A World Trade Organization Government Procurement Agreement

(WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or United Kingdom);

(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El

Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);

Alternate I (MAY 2014[DATE]). As prescribed in 25.1102(c)(3), add the following definition of “Bahrainian, Mexican, or Omani construction material” to paragraph (a) of the basic clause, and substitute the following paragraphs (b)(1) and (b)(2) for paragraphs (b)(1) and (b)(2) of the basic clause:

“Bahrainian, Mexican, or Omani construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of Bahrain, Mexico, or Oman; or

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in Bahrain, Mexico, or Oman into a new and different construction material distinct from the materials from which it was transformed.

(b) Construction materials. (1) This clause implements 41 U.S.C.

chapter 83, Buy American, by providing a preference for domestic construction material. In accordance with 41 U.S.C. 1907, the component test of the Buy American statute is waived for construction material that is a COTS item. (See FAR

12.505(a)(2)). In addition, the Contracting Officer has determined that the WTO GPA and all the Free Trade Agreements except the Bahrain FTA, NAFTA[United States-Mexico-Canada

Agreement], and the Oman FTA apply to the this acquisition.

Therefore, the Buy American statute restrictions are waived for designated country construction materials other than Bahrainian, Mexican, or Omani construction materials.

52.225-23 Required Use of American Iron, Steel, and

Manufactured Goods—Buy American Statute—Construction Materials

Under Trade Agreements.

As prescribed in 25.1102(e), insert the following clause:

REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS—BUY AMERICAN STATUTE—

CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (OCT 2019[DATE])

(a) Definitions. As used in this clause—

“Designated country” means any of the following countries:

Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or

United Kingdom);

(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican

Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or

Singapore);

“Recovery Act designated country” means any of the following countries:

Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech

Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, Ukraine, or United Kingdom);

(2) A Free Trade Agreement country (FTA)(Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican

Republic, El Salvador, Guatemala, Honduras, Korea

(Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore); or

Attachment

Department of Health and Human

Service (HHS) Federal Acquisition

Regulation (FAR) Class Deviation 18‐

Whistleblower Protection for Contractor Employees

Solicitation and Contract Addendum for

Commercial Items/Services that Exceed the

Simplified Acquisition Threshold

Background: The FAR currently provides that when the 4‐year pilot program under 41 U.S.C. 4712 expires, the previous whistleblower coverage is back in effect. However, the Civilian Agency

Acquisition Council (CAAC) issued CAAC Letter 2017‐02, dated July

5, 2017, to further implement 41 U.S.C. 4712 (as amended by

Public Law 114‐261) to make permanent the 4‐year pilot program and clarifies the use of certain Whistleblower Protection clauses. In turn, the HHS Deputy Assistant Secretary for Office of Grants and Acquisition Policy and Accountability/Senior

Procurement Executive issued HHS FAR Class Deviation 18‐01, dated

February 8, 2018, to implement CAAC guidance and Enhance

Whistleblower Protection for Contractor Employees.

Pursuant to the above‐stated authorities, the underlying solicitation/contract hereby incorporates the following Terms and Conditions:

PART 3‐IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF

INTEREST

Subpart 3.9‐whistleblower Protections for Contractor Employees 3.900 Scope of subpart.

This subpart implements various statutory whistleblower programs. This subpart does not implement 10 U.S.C. 2409, which is applicable only to DoD, NASA, and the Coast Guard.

41 U.S.C. 4705 (in effect before July 1, 2013). Sections 3.901 through 3 .906 of this subpart implemented 41 U.S.C. 4705, applicable to civilian agencies other than NASA and the Coast

Guard.

41 U.S.C. 4712 (in effect on and after July 1, 2013). Section

3.908 of this subpart implements the pilot program, applicable to civilian agencies other than NASA and the Coast Guard, except as provided in paragraph {d) of this section.

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), implemented in

3.909, applicable to all agencies.

Contracts funded by the American Recovery and Reinvestment Act.

Section 3.907 of this subpart implements section 1553 of the

American Recovery and Reinvestment Act of 2009 (Pub. L. 111‐ 5), and applies to all contracts funded in whole or in part by that

Act.

[This space intentionally left blank.]

52.203‐17 Contractor Employee Whistleblower Rights and

Requirement to Inform Employees of Whistleblower Rights.

(APR 2014)

(a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies in the pilot program on

Contractor employee whistleblower protections established at 41

U.S.C. 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 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 41 U.S.C. 4712, as described in section

3.908 of the Federal Acquisition Regulation.

(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)

PART 52‐SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.212‐4 Contract Terms and Conditions‐Commercial

Items (Deviation 2017‐02). As prescribed in

12.301(b)(3), the following clause applies:

CONTRACT TERMS AND CONDITIONS‐COMMERCIAL ITEMS (DEVIATION 2017‐

XX) (JUNE 2017)

(a)***

Compliance with laws unique to Government contracts. The

Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18

U.S.C. 431 relating to officials not to benefit; 40 U.S.C.

chapter 37, Contract Work Hours and Safety Standards; 41

U.S.C. chapter 87, Kickbacks; 10 U.S.C 2409 relating to whistleblower protections; 49

U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

52.212‐5 Contract Terms and Conditions Required to

Implement Statutes or Executive Orders‐ Commercial Items

(Deviation 2017‐02).

As prescribed in 12.301(b)(4), the following clause applies:

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES

OR EXECUTIVE ORDERS‐ COMMERCIAL ITEMS (DEVIATION 2017‐XX)

(JUNE 2017)

[This space intentionally left blank.]

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 items:

_X_ (1) 52.203‐6, Restrictions on Subcontractor Sales to the

Government (Sept 2006), with Alternate I (Oct 1995) (41

U.S.C. 4704 and 10 U.S.C. 2402).

_X_ (2) 52.203‐13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.SC. 3509).

Note: Applies only if the value of the contract is expected to exceed $5.5 million and the performance period is anticipated to be 120 days or more.

_X_ (3) 52.203‐15, Whistleblower Protections under the

American Recovery and Reinvestment Act of 2009 (June 2010)

(Section 1553 of Pub. L. 111‐5).

Note: Applies only to contracts funded by the American

Recovery and Reinvestment Act of 2009. Please contact the FDA Contracting Officer if you have any questions regarding the application of the clause.

_X_ (4) 52.203‐17, Contractor Employee Whistleblower Rights and

Requirement to Inform Employees of Whistleblower Rights (April

2014) (41 U.S.C. 4712) relating to whistleblower protections).

The paragraphs below are renumbered

52.301 Solicitation provisions and

contract clauses (Matrix). Please see CAAC Letter 17‐02, available at:

https://www.acquisition.gov/sites/default/files/page_file_upload s/CAAC%20Letter%202017‐02.pdf.

HHS FAR Class Deviation 2020-02 Attachment

FAR Deviation Text Baseline is FAC 2020-05, published in the Federal Register on February 27, 2020.

Deviations are shown by [bracketed bold additions] and strikeouts.

FAR text unchanged shown as asterisks *** or *****

PART 12—ACQUISITION OF COMMERCIAL ITEMS

http://www.acquisition.gov/sites/default/files/page_file_uploads/CAAC%20Letter%202017 http://www.acquisition.gov/sites/default/files/page_file_uploads/CAAC%20Letter%202017

Subpart 12.3—Solicitation Provisions and Contract Clauses for the Acquisition of

Commercial Items

12.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

(d) ***

(12) Insert the clause at 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, as prescribed in 32.009-2.

PART 32—CONTRACT FINANCING

32.009 Providing accelerated payments to small business [contractors and to prime contractors that subcontract with a small business concern]subcontractors.

32.009-1 General.

[(a) Pursuant to 31 U.S.C. 3903(a) and 10 U.S.C. 2307(a), agencies shall provide accelerated payments, to the fullest extent permitted by law, with a goal of 15 days after receipt of a proper invoice and all other required documentation, if a specific payment date is not established by contract, to—

1) Small business contractors, and

2) Prime contractors that subcontract with a small business concern, if the prime contractor agrees to make payments to the small business subcontractor in accordance with the accelerated payment date, to the maximum extent practicable, without any further consideration from or fees charged to the subcontractor.]Pursuant to the policy provided by OMB Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors (and as extended by OMB Memoranda M-13-15 and M- 14-10, both titled

Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors), agencies shall take measures to ensure that prime contractors pay small business subcontractors on an accelerated timetable to the maximum extent practicable, and upon receipt of accelerated payments from the Government. This acceleration does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

[(b)] This acceleration does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

32.009-2 Contract clause.

Insert clause 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, in all solicitations and contracts.

SUBPART 32.9—PROMPT PAYMENT

32.903 Responsibilities.

(a) * * *

(5) May authorize the use of the accelerated payment methods specified at 5 CFR 1315.5 [(but see 32.009-1(a))].

32.906 Making payments.

(a) * * *

(2) That the use of accelerated payment methods are necessary (see 32.903(a)(5)) [(but see 32.009-1(a))].

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2—Text of Provisions and Clauses

52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items.

As prescribed in 12.301(b)(4), insert the following clause:

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS—COMMERCIAL ITEM (MAR 2020)[(DEVIATION APR 2020)]

(b) * * *

__ (60) [52.232-40, Providing Accelerated Payments to Small Business Subcontractors (DEC 2013)(DEVIATION APR 2020)(31 U.S.C. 3903 and 10 U.S.C. 2307).

__ (61)] 52.239-1, Privacy or Security Safeguards (AUG 1996) (5 U.S.C. 552a).

__ ([62]61) 52.242-5, Payments to Small Business Subcontractors (JAN 2017)(15…