Base Agreement.pdf

Other Transaction Authority

AGREEMENT BETWEEN

THE UNITED STATES GOVERNMENT

REPRESENTED BY

Naval Undersea Warfare Center

1176 Howell St.

Bldg 1320/204

Newport, RI 02841

AND

COMPANY NAME

STREET ADDRESS

CITY, STATE ZIP CODE

Agreement No.: N66604-FY-9-XXXX Total Amount of the Agreement: $

Authority: 10 U.S.C. § 4022

Contents

ARTICLE I: SCOPE OF THE AGREEMENT

ARTICLE II: STATEMENT OF WORK (SOW)

ARTICLE III: SECURITY REQUIREMENTS

ARTICLE IV: TERM

ARTICLE V: AGREEMENT ADMINISTRATION

ARTICLE VI: INSPECTION AND ACCEPTANCE

ARTICLE VII: SHIPPING

ARTICLE VIII: OBLIGATION AND PAYMENT

ARTICLE IX: ALLOWABLE COSTS

ARTICLE X: INCREMENTAL FUNDING

ARTICLE XI: ACCEPTABLE COST SHARE

ARTICLE XII: AGREEMENT CLOSE-OUT

ARTICLE XIII: FOLLOW-ON PRODUCTION

ARTICLE XIV: REGISTRATION IN THE SYSTEM FOR AWARD MANAGEMENT

ARTICLE XV: COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT PROCUREMENT

ARTICLE XVI: COMPTROLLER GENERAL ACCESS TO INFORMATION

ARTICLE XVI: PROCUREMENT INTEGRITY ACT (PIA)

ARTICLE XVII: CHANGES

ARTICLE XVIII: ORGANIZATIONAL CONFLICTS OF INTEREST

ARTICLE XIX: LIMITATION OF LIABILITY

ARTICLE XX: DUTY FREE ENTRY

ARTICLE XXI: NIST SP 800-171 DOD ASSESSMENT REQUIREMENTS

ARTICLE XXII: COMPANY COMPLIANCE WITH THE CYBERSECURITY MATURITY MODEL

ARTICLE XXIII: SECURITY PROHIBITIONS AND EXCLUSIONS REPRESENTATIONS AND

CERTIFICATIONS 26

ARTICLE XXIV: DISPUTES

ARTICLE XXV: PROPRIETARY INFORMATION

ARTICLE XXVI: PUBLICATION AND ACADEMIC RIGHTS

ARTICLE XXVII: DATA RIGHTS

ARTICLE XXVIII: PATENT RIGHTS

ARTICLE XXIX: FOREIGN ACCESS TO TECHNOLOGY AND EXPORT CONTROL

ARTICLE XXX: TITLE AND DISPOSITION OF PROPERTY

ARTICLE XXXI: GOVERNING LAW AND JURISDICTION

ARTICLE XXXII: SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT

REPORTING 43

ARTICLE XXXIII: INTELLECTUAL PROPERTY INFRINGEMENT

ARTICLE XXXIV: FORCE MAJEURE

ARTICLE XXXV: ORDER OF PRECEDENCE

ARTICLE XXXVI: EXECUTION

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

The Naval Undersea Warfare Center (NUWC) is responsible for delivering undersea warfare (USW) capability that enables decisive warfighting advantage to the Fleet. NUWC is expanding Tactical Oceanography (TAC-O) prototyping efforts under the Commercial Solutions Opening (CSO) to demonstrate its military effectiveness as described in paragraph B of this article. This Other Transaction Agreement (OTA) is awarded based upon the proposal by INSERT COMPANY NAME, hereinafter referred to as “The Company” in response to NUWC’s Commercial Solutions Opening.

B. Definitions

“Agreement” refers to this Other Transaction Agreement, as authorized under 10 U.S.C. § 4022, between the Government and the COMPANY.

“Agreements Officer (AO)” is the warranted Agreements Officer authorized to sign the final agreement for the Government.

“Agreements Officer’s Representative (AOR)” is the individual designated by the Government on a per project basis to monitor all technical aspects and approve invoices; the AOR shall only assist in administration of the agreement and prototype project to the extent expressly delegated such administration authority in writing in the Agreement by the responsible Agreements Officer.

“Contracting Activity” means an element of an agency designated by the agency head and delegated broad authority regarding acquisition functions. It also means elements or another agency designated by the director of a defense agency which has been delegated contracting authority through its agency charter.

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

“Development” means the systematic use, under whatever name, of scientific and technical knowledge in the design, development, test, or evaluation of an existing or potential new technology, product or service (or of an improvement in an existing technology, product or service) for the purpose of meeting specific performance requirements or objectives. Development includes the research functions of design engineering, prototyping, and engineering testing.

“Effective Date” means the date when this Agreement is signed and executed by the Agreements Officer for the Government.

“Government” means the U.S. Government.

“Government Fiscal Year” means the period commencing on October 1 and ending September 30 of the following calendar year.

“Other Transactions Authority (OTA)” is the term commonly used to refer to the 10 USC § 4022 authority to enter into transactions other than contracts, grants or cooperative agreements. The Department of Defense (DoD) currently has authority to make awards that are directly relevant to enhancing the mission effectiveness of personnel of the DoD or improving platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or to improvement of platforms, systems, components, or materials in use by the armed forces. OTA Agreement are acquisition instruments that generally are not subject to the federal laws and regulations governing procurement (FAR based) contracts. As such, they are not required to comply with the Federal Acquisition Regulation (FAR), its supplements (i.e. DFARS) or laws that are limited in applicability to procurement contracts.

“Parties” means Government and the COMPANY by its authorized agent where collectively identified and “Party” where each entity is individually identified.

“Program” means the overall effort to be funded by the Agreement, which is described in the Statement of Work appended to this Agreement as Attachment I.

“Prototype Project” or “project” means the individual projects being directly funded under this Agreement.

C. Follow-on Production

Follow-on production efforts may be executed under this Agreement in accordance with 10 U.S.C. § 4022, following successful completion of any prototype project awarded under this Agreement.

ARTICLE II: STATEMENT OF WORK (SOW)

See attached SOW, Attachment 1.

ARTICLE III: SECURITY REQUIREMENTS

All COMPANY personnel shall adhere to the Security provisions of 32 CFR Part 117 – National Industrial Security Program Operating Manual (NISPOM) and the security requirements of the attached DD254 (if included). While performing work at a Government Facility, COMPANY personnel shall comply with the security regulations of the host facility. Applicable FAR, DFARS, NMCARS clauses, and NAVSEA text shall be adhered to in the performance of this contract. Security incidents shall be promptly reported through the COMPANY’s Facility Security Officer (FSO), to the Agreement Officer’s Representative (AOR), Technical Point of Contact (TPOC), and the Cognizant Security Office to NUWCDIVNPT Security.

Controlled Unclassified Information (CUI) including Legacy FOUO and Covered Defense Information (meeting the definition of 48 CFR 252.204–7012(a)) generated and/or provided under this contract shall be marked and safeguarded as specified in DoD Instruction 5200.48, CUI available at:

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/520048p.PDF. Any product containing Covered Defense Information shall be assigned a distribution statement (distribution statements B through F) in accordance with DoDI 5230.24 (Distribution Statements on Technical Documents); and DoDI 5230.24, Enclosure 3 Procedures, available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/523024p.pdf.

INFORMATION SECURITY: If the work is performed at the COMPANY’s facility, the COMPANY shall implement and maintain security procedures and controls to prevent unauthorized disclosure of classified information and controlled unclassified information (CUI) and to control distribution of CUI in accordance with National Industrial Security Program Operating Manual (NISPOM) codifying 32 CFR Part 117, NISPOM Rule, and SECNAVIST M-5510.36B. If the work is performed at the Government's facility, the COMPANY shall comply with facility policy.

CUI INCIDENT REPORTING AND RESPONSE: The COMPANY shall promptly report any unauthorized, inadvertent, or illegal release or disclosure of CUI to the AOR / Technical Point of Contact (TPOC), Procuring Contracting Officer, and the Security Office. COMPANY personnel shall coordinate this effort through the relevant industry site FSO.

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/523024p.pdf

PUBLIC RELEASE: Any controlled unclassified information pertaining to this Agreement shall not be released for public dissemination, including posting to any social media sites such as Facebook or Twitter, unless it has been approved for public release by appropriate U.S. Government authority. Proposed public releases shall be submitted for approval prior to release through the appropriate U.S. Government Office.

ARTICLE IV: TERM

A. The Term of this Agreement

This Agreement will be available for a period of five years from award. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified in the SOW, shall be given effect, notwithstanding this Article.

B. Early Termination of Agreement

Subject to a reasonable determination that the Program, or a prototype project funded under the Program, will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate performance of work under this Agreement, in whole or in part, if the AO determines that a termination is in the Government’s interest. The AO shall terminate this Agreement by delivering to the COMPANY a Notice of Termination specifying the extent of termination and the effective date of such termination.

After receipt of a Notice of Termination, and except as directed by the AO, the COMPANY shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due:

(1) Stop work and direct its subagreement holders/vendors/suppliers/partners to stop work as specified in the notice.

(2) Place no further orders for materials, services, or facilities, except as necessary to complete ongoing tasking commensurate with the SOW.

(3) Terminate all orders to the extent they relate to the work terminated.

(4) Assign to the Government, as directed by the AO, all right, title, and interest of the COMPANY under the orders terminated, in which case the Government shall have the right to settle or to pay any termination settlement proposal arising out of those terminations.

(5) With approval or ratification to the extent required by the AO, settle all outstanding liabilities and termination settlement proposals arising from the termination of orders; the approval or ratification will be final for purposes of this clause.

(6) As directed by the AO, transfer title to the following, where applicable, and deliver to the Government --

(i) The fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and

(ii) The completed or partially completed plans, drawings, information, and other property that, if the order had been completed, would have been required to be furnished to the Government.

(7) Complete performance of any work not terminated, if applicable.

(8) Take any action that may be necessary, or that the AO may direct, for the protection and preservation of the property related to the project that is in the possession of the COMPANY and in which the Government has or may acquire an interest.

(9) Use its best efforts to sell, as directed or authorized by the AO, any property of the types referred to under Article IV.B. Termination Provisions.

The proceeds of any transfer or disposition of project property will be applied to reduce any payments to be made by the Government under this Agreement, including credited to the price or cost of the work, or paid in any other manner directed by the AO.

In the event of a termination of this Agreement, the Government shall have patent rights as described in Article XXVIII, ‘Patent Rights’, and rights in Data as described in Article XXVII, ‘Data Rights’. Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article XXIV, Disputes.

Nothing in this section shall be construed as a limitation of the rights of either Party in the event of a breach of contract or default by the other Party.

C. Stop Work Clause

As directed by the AO, the COMPANY shall stop all, or any part, of the work called for under this Agreement for a period as determined at the time of the written order is delivered, and for any further period to which the Parties may agree. The order shall be specifically identified as a stop-work order issued under this Article. Upon receipt of the order, the COMPANY shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within the prescribed period as determined in the stop-work order, or within any extension of that period to which the Parties shall have agreed, the AO shall either:

(a) Cancel the stop-work order; or

(b) Terminate the work covered by this Agreement.

If a stop work order issued under this clause is canceled, the COMPANY shall resume work. The Government shall make an equitable adjustment in the delivery schedule or negotiated price, or both, and the Government’s share of this Agreement shall be modified, in writing, accordingly, if—

(1) The stop-work order results in an increase in the time required for, or in the cost properly allocable to, the performance of any part of this Agreement; and

(2) The COMPANY asserts its right to the adjustment within 30 days after the end of the period of work stoppage; provided, that, if the Government decides the facts justify the action, the Government may receive and act upon a proposal submitted at any time before final payment under this Agreement.

ARTICLE V: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by NUWC may be made only by the AO. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the Parties:

NUWCDIVNPT:

Agreements Officer Naval Undersea Warfare Center 1176 Howell St.

Newport, RI 02841 Phone: (401) 832-4828 E-mail: christopher.j.kenney10.civ@us.navy.mil

Julianna Ricci Agreements Specialist

Naval Undersea Warfare Center 1176 Howell St.

Newport, RI 02841 Phone: (401) 832 5617 E-mail: julianna.b.ricci.civ@us.navy.mil

AOR: Liz Miller Agreements Officer Representative

Naval Undersea Warfare Center 1176 Howell St.

Newport, RI 02841 Phone: (401) 832-6671 E-mail: elizabeth.v.miller3.civ@us.navy.mil

Each Party may change its representatives named in this Article by written notification to the other Party.

ARTICLE VI: INSPECTION AND ACCEPTANCE

(a) The Government has the right to inspect and test all materials furnished and services performed under this Agreement, to the extent practicable at all places and times, including during the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the COMPANY or any subagreement holder engaged in prototype project performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

(b) If the Government performs inspection or tests on the premises of the COMPANY or subagreement holder engaged in a prototype project performance, the COMPANY shall furnish and shall require subagreement holders to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

(c) Unless otherwise specified, the Government will accept or reject deliveries as promptly as practicable after delivery.

(d) If the COMPANY fails to proceed with reasonable promptness to perform required replacement or correction, the Government may terminate the prototype project.

(e) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under the prototype project.

ARTICLE VII: SHIPPING

(a) Specific shipping instructions will be included in prototype projects executed under this Agreement.

(b) All deliveries shall be FOB Destination, unless otherwise stated in prototype projects.

(c) Risk of loss or damage to the supplies provided under prototype projects executed under this Agreement shall remain with the COMPANY executing said project until, and shall pass to the Government upon:

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

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

(d) Unless otherwise specified, all hardware shall be packaged in accordance with the COMPANY’s commercial best practice to ensure undamaged arrival at destination. At the time of delivery, the COMPANY shall prepare and furnish to the Government a receiving report in the Wide Area Work Flow (WAWF).

ARTICLE VIII: OBLIGATION AND PAYMENT

A. Project Payments:

See Statement of Work, Attachment 1.

B. Accounting System Requirements:

Relevant to all cost share and cost reimbursement arrangements: Prior to the submission of invoices, the COMPANY shall have and maintain an established accounting system which complies with Generally Accepted Accounting Principles (GAAP) and the requirements of this Agreement. The COMPANY shall provide independent verification from a third-party auditor that their accounting system is appropriate for tracking cost share contributions made by the COMPANY. Consistent with this stipulation, an acceptable accounting system will be one in which all cash receipts and disbursements are controlled and documented properly.

C. Payments:

(a) The Government’s liability to make payments is limited only to those funds obligated under prototype projects executed under this Agreement. The Government may incrementally fund projects in accordance with the Incremental Funding clause. If a modification becomes necessary in performance of a project the AO shall establish and execute a revised payment schedule consistent with the current project plan.

(b) The COMPANY shall submit invoices for processing according to the milestone payment schedule via the Procurement Integrated Enterprise Environment application of the Wide Area Work Flow (WAWF) system, according to the guidelines set forth below. Payments will be made by Defense Finance and Accounting Service,

(c) All schedules of payments for prototype projects will include the applicable negotiated Line Items for each selected and funded prototype. For fixed price prototype projects payments will be based on the completed tasking performed by the COMPANY, and for cost type prototype projects, payments will be based on actual costs incurred.

(d) Any costs incurred prior to the execution of any prototype project will be the sole responsibility of the COMPANY and will not be used as the basis of a claim against or construed as an obligation of the Government.

D. Payment Terms:

Payment terms are Net 30 days from receipt of an acceptable invoice from the COMPANY. Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(a) Definitions. As used in this clause—

“Department of Defense Activity Address Code (DoDAAC)” is a six position code that uniquely identifies a unit, activity, or organization.

“Document type” means the type of payment request or receiving report available for creation in Wide Area WorkFlow (WAWF).

“Local processing office (LPO)” is the office responsible for payment certification when payment certification is done external to the entitlement system.

“Payment Request” means any request for financing payment or invoice payment submitted by the COMPANY under this Agreement.

“Receiving Report” means the data prepared in the manner and to the extent required by Appendix F, Material Inspection and Receiving Report, of the Defense Federal Acquisition Regulation Supplement.

(b) Electronic invoicing. The WAWF system provides the method to electronically process vendor Payment Requests and receiving reports, as authorized by Defense Federal Acquisition Regulation Supplement (DFARS) 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports.

(c) WAWF access. To access WAWF, the COMPANY 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 available at this web site.

(d) WAWF training. The COMPANY should follow the training instructions of the WAWF Web-Based Training Course and use the Practice Training Site before submitting Payment Requests through WAWF.

Both can be accessed by selecting the “Web Based Training” link on the WAWF home page at https://wawf.eb.mil/

(e) WAWF methods of document submission. Document submissions may be via web entry, Electronic Data Interchange, or File Transfer Protocol.

(f) WAWF payment instructions. The COMPANY shall use the following information when submitting Payment Requests and receiving reports in WAWF for any prototype project under this Agreement:

(1) Document type. The COMPANY shall submit Payment Requests using the following document type(s):

(i) For cost-type line items, including labor-hour or time-and-materials, submit a cost voucher.

(ii) For fixed price line items—

(A) That require shipment of a deliverable, submit the invoice and Receiving Report specified by the AO.

(Agreements Officer: Insert applicable invoice and Receiving Report document type(s) for fixed price line items that require shipment of a deliverable.)

(B) For services that do not require shipment of a deliverable, submit either the Invoice 2in1, which meets the requirements for the invoice and Receiving Report, or the applicable invoice and Receiving Report, as specified by the AO.

(Agreements Officer: Insert either “Invoice 2in1” or the applicable invoice and Receiving Report document type(s) for fixed price line items for services.

(iii) For customary progress payments based on costs incurred, submit a progress Payment Request.

(iv) For performance based payments, submit a performance based Payment Request.

(v) For commercial financing, submit a commercial financing request.

(3) Document routing. The COMPANY shall use the information in the Routing Data Table below only to fill in applicable fields in WAWF when creating Payment Requests and Receiving Reports in the system.

Routing Data Table

Field Name in WAWF Data to be entered in WAWF

Pay Official DoDAAC HQ0338

Issue By DoDAAC N66604

Admin DoDAAC TBD

Inspect By DoDAAC N66604

Ship To Code N66604

Ship From N/A

Mark for Code N/A

Service Approver (DoDAAC) N/A

Service Acceptor (DoDAAC) N/A

Accept at Other DoDAAC N/A

LPO DoDAAC N/A

DCAA Auditor DoDAAC N/A

Other DoDAAC(s) N/A

(4) Payment Request. The COMPANY shall ensure a Payment Request includes documentation appropriate to the type of Payment Request in accordance with the payment clause, contract financing clause, or Federal Acquisition Regulation 52.216-7, Allowable Cost and Payment, as applicable.

(5) Receiving Report. The COMPANY shall ensure a Receiving Report meets the requirements of DFARS Appendix F.

(g) WAWF point of contact.

(1) The COMPANY may obtain clarification regarding invoicing in WAWF from the following Contracting Activity’s WAWF point of contact.

N/A

(2) Contact the WAWF helpdesk at 866-618-5988, if assistance is needed.

NOTE: WAWF Email Notification- The COMPANY shall enter the email address identified below in the “Send additional email notifications” field of WAWF once a document is submitted in the system.

To be determined at award.

G. Limitation of Funds: Except as set forth in Article XIX, the Government's financial liability will not exceed the amount obligated under this Agreement and available for payment.

H. Comptroller Access Financial Records and Reports (the following is applicable only in the event the award is over $5,000,000.00). The COMPANY shall maintain adequate records to account for Federal funds received under this Agreement and shall maintain adequate records to account for COMPANY Project Agreement funding provided under this Agreement. COMPANY relevant financial records are subject to examination or audit by or on behalf of the Comptroller General, NUWCDIVNPT Contracting Activity, or other Government Official for a period not to exceed three (3) years after expiration of the term of the Agreement. The Comptroller General, AO or designee shall have direct access to sufficient records and information of any party to this Agreement or any entity that participates in the performance of this Agreement to ensure full accountability for all funding under this Agreement. Such audit, examination or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party. Any audit required during the course of the Program may be conducted by the Comptroller General or other Government Official using Government auditors or, at the request of COMPANY's external CPA accounting firm at the expense of the COMPANY.

ARTICLE IX: ALLOWABLE COSTS

(a) Federal funds and any cost sharing funds are to be used only for costs that a reasonable and prudent person would incur in carrying out the project agreement.

(b) No project award will be made under this Agreement on a cost reimbursement basis unless the COMPANY performing under the project agreement has an accounting system that:

(1) is capable of identifying and segregating costs to individual agreements; and

(2) provides for an equitable allocation of indirect costs.

(c) When a COMPANY performing under this Agreement has a system capable of identifying the amounts/costs, the COMPANY will identify the basis for determining actual costs.

(d) If a COMPANY performing under this Agreement is subject to Cost Accounting Standards on other agreements or contracts, then the allowable costs for project awards executed under this Agreement on a cost reimbursement basis are only allowable for reimbursement subject to the cost principles of Federal Acquisition Regulation (FAR) Part 31, Defense Federal Acquisition Regulation Supplement (DFARS) Part 231, and Navy and Marine Corps Acquisition Regulation Supplement (NMCARS) Part 5231, with all mention of COMPANY understood to mean the COMPANY and all mention of Contracting Officer understood to mean AO.

ARTICLE X: FUNDING BY MILESTONE

If a prototype project executed under this Agreement is funded by milestone, then the Government is not obligated to reimburse the COMPANY for costs incurred in excess of the total amount allotted by the Government to the prototype project and the COMPANY is not obligated to continue performance on the prototype project (including actions under the Termination clause of this Agreement) or otherwise incur costs in excess of --

(a) The amount then allotted to the prototype project by the Government or;

(b) If the prototype project involves cost-sharing, the amount then allotted by the Government to the prototype project plus the COMPANY’s corresponding share, until the AO notifies the COMPANY in writing that the amount allotted by the Government has been increased and specifies an increased amount, which shall then constitute the total amount allotted by the Government to the prototype project.

ARTICLE XI: ACCEPTABLE COST SHARE

An acceptable Cost Share must be verifiable from financial records and must not be included as a cost sharing contribution for any other Federal Government contract vehicle. Cost Share cannot be paid by the Federal Government under another contract vehicle, except that Independent Research and Development (IR&D) costs that otherwise meet the Cost Share requirements of 10 U.S.C. § 4022 are allowable subject to the cost principles of FAR 31.205-18 applicable to IR&D costs.

RELEVANT TO ALL COST SHARE AND COST REIMBURSEMENT ARRANGEMENTS: In addition to any other financial reports provided or required, the COMPANY shall notify the AO immediately if any cost share contribution is not made as required.

ARTICLE XII: AGREEMENT CLOSE-OUT

(a) The COMPANY shall, at least 60 days prior to the expiration date of the prototype project award, contact the AO to establish:

(1) All steps needed to close out the award; and

(2) A schedule for completing those steps.

(b) The following provisions shall apply to the closeout:

(1) The AO and Payment Office shall expedite completion of steps needed to close out awards and make prompt final payments to COMPANY.

(2) The COMPANY shall account for any real property and personal property acquired with Federal funds or received from the Federal Government in accordance with the terms of the Agreement.

(c) The closeout of this Agreement does not affect any of the following:

(1) Any specified audit requirements.

(2) Any specified property management requirements.

(3) Records retention as required by the Agreement.

(d) After closeout of this Agreement, a responsibility or requirement created under this Agreement may be modified or ended in whole or in part with the consent of the AO.

ARTICLE XIII: FOLLOW-ON PRODUCTION

Follow-on production efforts may be executed under this Agreement in accordance with 10 U.S.C. § 4022, following successful completion of the resulting prototype project.

ARTICLE XIV: REGISTRATION IN THE SYSTEM FOR AWARD MANAGEMENT

The COMPANY shall hold a current, valid registration in the System for Award Management (SAM) throughout the life of this Agreement.

ARTICLE XV: COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT

PROCUREMENT

The COMPANY 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; 41 U.S.C. § 4712 and 10 U.S.C. § 2409 relating to whistleblower protections; 49 U.S.C. § 40118, Fly American; 41 U.S.C. chapter 21 relating to procurement integrity; and 22 U.S.C. Chapter 78 relating to Combating Trafficking in Persons.

ARTICLE XVI: COMPTROLLER GENERAL ACCESS TO INFORMATION

In projects that provide for payments in a total amount in excess of $5,000,000, the Agreement will include a mandatory clause that provides for the Comptroller General the ability to examine the records of any party to the agreement or any entity that participates in the performance of the agreement.

ARTICLE XVI: PROCUREMENT INTEGRITY ACT (PIA)

As required by 10 U.S.C. §4022(h), all Agreements awarded under this CSO shall be treated as Federal Agency procurements for purpose of 41 U.S.C. Chapter 21. Accordingly, the CSO competitive solicitation process and awards made thereof must adhere to the ethical standards required by the PIA.

ARTICLE XVII: CHANGES

Changes in the terms and conditions of this Agreement or any prototype projects executed under this Agreement, except for minor or administrative corrections, may only be made by written agreement between the COMPANY and the AO.

ARTICLE XVIII: ORGANIZATIONAL CONFLICTS OF INTEREST

(a) Throughout performance, the COMPANY shall monitor all potential conflicts of interest, to include conflicts between its members and the contractors currently developing for and operating the targeted prototype or information systems.

(b) The COMPANY shall ensure prototype-level performance does not conflict with system development or enhancement being performed under other agreements or contracts.

(c) The COMPANY shall immediately report all potential conflicts of interest to the Government.

All white papers and proposals will address potential conflicts of interest and any proposed mitigation. The COMPANY agrees to include in all subagreements a clause requiring all subagreement holders to report all potential or real Organizational Conflict of Interests (OCI) to the Government.

(d) The Government has the right to limit involvement under this Agreement or other action to mitigate OCI. In the event the COMPANY believes that the OCI can be mitigated, the COMPANY shall submit to the AO an OCI mitigation plan.

ARTICLE XIX: LIMITATION OF LIABILITY

(a) With regard to the activities undertaken pursuant to this Agreement, no Party shall make any claim against the other, employees of the other, the others’ related entities (e.g. contractors, subcontractors), or employees of the others’ related entities for any injury to or death of its own employees or employees of its related entities, or for damage to or loss of its own property or that of its related entities, whether such injury, death, damage or loss arises through negligence or otherwise, except in the case of willful misconduct.

(b) The Parties shall not be liable to each other for consequential, punitive, special and incidental damages or other indirect damages, whether arising in contract (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party's willful misconduct.

ARTICLE XX: DUTY FREE ENTRY

(a) Definitions. As used in this clause—

“Component,” means any item supplied to the Government as part of an end product or of another component.

“Customs territory of the United States” means the 50 States, the District of Columbia, and Puerto Rico.

“Eligible product” means—

(1) “Designated country end product,” as defined in the Trade Agreements (either basic or alternate) clause of this Agreement;

(2) Free Trade Agreement country end product, other than a Bahraini end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product, as defined in the Buy American— Free Trade Agreements—Balance of Payments Program (either basic or alternate II) clause of this Agreement; or

(3) Free Trade Agreement country end product other than a Bahraini end product, Korean end product, Moroccan end product, Panamanian end product, or Peruvian end product, as defined in the Buy American—Free Trade Agreements—Balance of Payments Program (either alternate IV or alternate V) clause of this Agreement.

“Qualifying country” and “qualifying country end product” have the meanings given in the Trade Agreements clause, the Buy American and Balance of Payments Program clause, or the Buy American— Free Trade Agreements—Balance of Payments Program clause of this Agreement, basic or alternate.

(b) Except as provided in paragraph (i) of this clause, or unless supplies were imported into the customs territory of the United States before the date of this Agreement or the applicable subagreement, the price of this Agreement shall not include any amount for duty on—

(1) End items that are eligible products or qualifying country end products;

(2) Components (including, without limitation, raw materials and intermediate assemblies) produced or made in qualifying countries, that are to be incorporated in U.S.- made end products to be delivered under this Agreement; or

(3) Other supplies for which the COMPANY estimates that duty will exceed $300 per shipment into the customs territory of the United States.

(c) The COMPANY shall—

(1) Claim duty-free entry only for supplies that the COMPANY intends to deliver to the Government under this Agreement, either as end items or components of end items; and

(2) Pay duty on supplies, or any portion thereof, that are diverted to nongovernmental use, other than—

(i) Scrap or salvage; or

(ii) Competitive sale made, directed, or authorized by the Agreement Officer.

(d) Except as the COMPANY may otherwise agree, the Government will execute duty-free entry certificates and will afford such assistance as appropriate to obtain the duty-free entry of supplies—

(1) For which no duty is included in the Agreement price in accordance with paragraph (b) of this clause; and

(2) For which shipping documents bear the notation specified in paragraph (e) of this clause.

(e) For foreign supplies for which the Government will issue duty-free entry certificates in accordance with this clause, shipping documents submitted to Customs shall—

(1) Consign the shipments to the appropriate—

(i) Military department in care of the COMPANY, including the COMPANY’s delivery address; or

(ii) Military installation; and

(2) Include the following information:

(i) Prime Agreement number and, if applicable, delivery order number.

(ii) Number of the subagreement for foreign supplies, if applicable.

(iii) Identification of the carrier.

(iv)(A) For direct shipments to a U.S. military installation, the notation: “UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE Duty-Free Entry to be claimed pursuant to Section XXII, Chapter 98, Subchapter VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of the United States. Upon arrival of shipment at the appropriate port of entry, District Director of Customs, please release shipment under 19 CFR part 142 and notify Defense Contract Management Agency (DCMA) St.

Louis, St. Louis, MO, ATTN: Duty Free Entry Team, 1222 Spruce Street, Room 9.300, St. Louis, MO 63103-2812, for execution of Customs Form 7501, 7501A, or 7506 and any required duty-free entry certificates.”

(B) If the shipment will be consigned to other than a military installation, e.g., a domestic COMPANY's plant, the shipping document notation shall be altered to include the name and address of the COMPANY, agent, or broker who will notify DCMA St. Louis, Duty Free Entry Team, for execution of the duty-free entry certificate. (If the shipment will be consigned to a COMPANY's plant and no duty-free entry certificate is required due to a trade agreement, the COMPANY shall claim duty-free entry under the applicable trade agreement and shall comply with the U.S. Customs Service requirements. No notification to DCMA St. Louis, Duty Free Entry Team, is required.)

(v) Gross weight in pounds (if freight is based on space tonnage, state cubic feet in addition to gross shipping weight).

(vi) Estimated value in U.S. dollars.

(vii) Activity address number of the contract administration office administering the prime Agreement, e.g., for DCMA Dayton, S3605A.

(f) Preparation of customs forms.

(1)(i) Except for shipments consigned to a military installation, the COMPANY shall—

(A) Prepare any customs forms required for the entry of foreign supplies into the customs territory of the United States in connection with this Agreement; and

(B) Submit the completed customs forms to the District Director of Customs, with a copy to DCMA St. Louis, Duty Free Entry Team for execution of any required duty-free entry certificates.

(ii) Shipments consigned directly to a military installation will be released in accordance with sections 10.101 and 10.102 of the U.S. Customs regulations.

(2) For shipments containing both supplies that are to be accorded duty-free entry and supplies that are not, the COMPANY shall identify on the customs forms those items that are eligible for duty-free entry.

(g) The COMPANY shall—

(1) Prepare (if the COMPANY is a foreign supplier), or shall instruct the foreign supplier to prepare, a sufficient number of copies of the bill of lading (or other shipping document) so that at least two of the copies accompanying the shipment will be available for use by the District Director of Customs at the port of entry;

(2) Consign the shipment as specified in paragraph (e) of this clause; and

(3) Mark on the exterior of all packages—

(i) “UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE”; and

(ii) The activity address number of the contract administration office administering the prime Agreement.

(h) The COMPANY shall notify the AO in writing of any purchase of eligible products or qualifying country supplies to be accorded duty-free entry, that are to be imported into the customs territory of the United States for delivery to the Government or for incorporation in end items to be delivered to the Government. The COMPANY shall furnish the notice to the AO immediately upon award to the supplier and shall include in the notice—

(1) The COMPANY’s name, address, and Commercial and Government Entity (CAGE) code;

(2) Prime Agreement number and, if applicable, delivery order number;

(3) Total dollar value of the prime Agreement or delivery order;

(4) Date of the last scheduled delivery under the prime Agreement or delivery order;

(5) Foreign supplier's name and address;

(6) Number of the subagreement for foreign supplies;

(7) Total dollar value of the subagreement for foreign supplies;

(8) Date of the last scheduled delivery under the subagreement for foreign supplies;

(9) List of items purchased;

(10) An agreement that the COMPANY will pay duty on supplies, or any portion thereof, that are diverted to nongovernmental use other than—

(i) Scrap or salvage; or

(ii) Competitive sale made, directed, or authorized by the AO;

(11) Country of origin; and

(12) Scheduled delivery date(s).

(i) This clause does not apply to purchases of eligible products or qualifying country supplies in connection with this Agreement if—

(1) The supplies are identical in nature to supplies purchased by the COMPANY or any subagreement holder in connection with its commercial business; and

(2) It is not economical or feasible to account for such supplies so as to ensure that the amount of the supplies for which duty-free entry is claimed does not exceed the amount purchased in connection with this Agreement.

(j) The COMPANY shall—

(1) Insert the substance of this clause, including this paragraph (j), in all subagreements for—

(i) Qualifying country components; or

(ii) Nonqualifying country components for which the COMPANY estimates that duty will exceed $200 per unit;

(2) Require subagreement holders to include the number of this Agreement on all shipping documents submitted to Customs for supplies for which duty-free entry is claimed pursuant to this clause;

and

(3) Include in applicable subagreements—

(i) The name and address of the AO for this Agreement;

(ii) The name, address, and activity address number of the contract administration office specified in this Agreement; and

(iii) The information required by paragraphs (h)(1), (2), and (3) of this clause.

ARTICLE XXI: NIST SP 800-171 DOD ASSESSMENT REQUIREMENTS

(a) Definitions.

Basic Assessment” means a COMPANY’s self-assessment of the COMPANY’s implementation of NIST SP 800-171 that—

(1) Is based on the COMPANY’s review of their system security plan(s) associated with covered COMPANY information system(s);

(2) Is conducted in accordance with the NIST SP 800-171 DoD Assessment Methodology; and

(3) Results in a confidence level of “Low” in the resulting score, because it is a self-generated score.

“Covered COMPANY information system” has the meaning given in the clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, of this Agreement.

“High Assessment” means an assessment that is conducted by Government personnel using NIST SP 800- 171A, Assessing Security Requirements for Controlled Unclassified Information that—

(1) Consists of—

(i) A review of a COMPANY’s Basic Assessment;

(ii) A thorough document review;

(iii) Verification, examination, and demonstration of a COMPANY’s system security plan to validate that NIST SP 800-171 security requirements have been implemented as described in the COMPANY’s system security plan; and

(iv) Discussions with the COMPANY to obtain additional information or clarification, as needed; and

(2) Results in a confidence level of “High” in the resulting score.

“Medium Assessment” means an assessment conducted by the Government that—

(1) Consists of—

(i) A review of a COMPANY’s Basic Assessment;

(ii) A thorough document review; and

(iii) Discussions with the COMPANY to obtain additional information or clarification, as needed; and

(2) Results in a confidence level of “Medium” in the resulting score.

(b) Applicability. This clause applies to covered COMPANY information systems that are required to comply with the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, in accordance with Defense Federal Acquisition Regulation System (DFARS) clause at 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, of this Agreement.

(c) Requirements. The COMPANY shall provide access to its facilities, systems, and personnel necessary for the Government to conduct a Medium or High NIST SP 800–171 DoD Assessment, as described in NIST SP 800–171 DoD Assessment Methodology at https://www.acq.osd.mil/asda/dpc/cp/cyber/docs/safeguarding/NIST-SP-800-171-Assessment- Methodology-Version-1.2.1-6.24.2020.pdf , if necessary.

(d) Procedures. Summary level scores for all assessments will be posted in the Supplier Performance Risk System (SPRS) to provide DoD Components visibility into the summary level scores of strategic assessments.

(1) Basic Assessments. A COMPANY may submit, via encrypted email, summary level scores of Basic Assessments conducted in accordance with the NIST SP 800-171 DoD Assessment Methodology to for posting to SPRS.

(i) The email shall include the following information:

(A) Version of NIST SP 800-171 against which the assessment was conducted.

(B) Organization conducting the assessment (e.g., COMPANY self-assessment).

(C) For each system security plan (security requirement 3.12.4) supporting the performance of a DoD agreement—

(1) All industry Commercial and Government Entity (CAGE) code(s) associated with the information system(s) addressed by the system security plan; and

(2) A brief description of the system security plan architecture, if more than one plan exists.

(D) Date the assessment was completed.

(E) Summary level score (e.g., 95 out of 110, NOT the individual value for each requirement).

(F) Date that all requirements are expected to be implemented (i.e., a score of 110 is expected to be achieved) based on information gathered from associated plan(s) of action developed in accordance with NIST SP 800-171.

(ii) If multiple system security plans are addressed in the email described at paragraph (d)(1)(i) of this section, the COMPANY shall use the following format for the report:

System Security Plan

CAGE Codes supported by this plan

Brief description of the plan architecture

Date of assessment

Total Score

Date score of 110 will achieved

(2) Medium and High Assessments. DoD will post the following Medium and/or High Assessment summary level scores to SPRS for each system security plan assessed:

(i) The standard assessed (e.g., NIST SP 800-171 Rev 1).

(ii) Organization conducting the assessment, e.g., DCMA, or a specific organization (identified by Department of Defense Activity Address Code (DoDAAC)).

(iii) All industry CAGE code(s) associated with the information system(s) addressed by the system security plan.

(iv) A brief description of the system security plan architecture, if more than one system security plan exists.

(v) Date and level of the assessment, i.e., medium or high.

(vi) Summary level score (e.g., 105 out of 110, not the individual value assigned for each requirement).

(vii) Date that all requirements are expected to be implemented (i.e., a score of 110 is expected to be achieved) based on information gathered from associated plan(s) of action developed in accordance with NIST SP 800-171.

(e) Rebuttals.

(1) DoD will provide Medium and High Assessment summary level scores to the COMPANY and offer the opportunity for rebuttal and adjudication of assessment summary level scores prior to posting the summary level scores to SPRS (see SPRS User’s Guide https://www.sprs.csd.disa.mil/pdf/SPRS_Awardee.pdf).

(2) Upon completion of each assessment, the COMPANY has 14 business days to provide additional information to demonstrate that they meet any security requirements not observed by the assessment team or to rebut the findings that may be of question.

(f) Accessibility.

(1) Assessment summary level scores posted in SPRS are available to DoD personnel, and are protected, in accordance with the standards set forth in DoD Instruction 5000.79, Defense-wide Sharing and Use of Supplier and Product Performance Information (PI).

(2) Authorized representatives of the COMPANY for which the assessment was conducted may access SPRS to view their own summary level scores, in accordance with the SPRS Software User’s Guide for Awardees.

(3) A High NIST SP 800-171 DoD Assessment may result in documentation in addition to that listed in this clause. DoD will retain and protect any such documentation as “Controlled Unclassified Information (CUI)” and intended for internal DoD use only. The information will be protected against unauthorized use and release, including through the exercise of applicable exemptions under the Freedom of Information Act (e.g., Exemption 4 covers trade secrets and commercial or financial information obtained from a COMPANY that is privileged or confidential).

(g) Subagreement Holder.

https://www.sprs.csd.disa.mil/pdf/SPRS_Awardee.pdf

(1) The COMPANY shall insert the substance of this clause, including this paragraph (g), in all subagreements and other contractual instruments, including subagreements for the acquisition of commercial products or commercial services (excluding commercially available off-the-shelf).

(2) The Subagreement Holder shall not award a subagreement or other contractual instrument, that is subject to the implementation of NIST SP 800–171 security requirements, in accordance with DFARS clause 252.204–7012 of this Agreement, unless the subagreement holder has completed, within the last 3 years, at least a Basic NIST SP 800–171 DoD Assessment, as described in https://www.acq.osd.mil/asda/dpc/cp/cyber/docs/safeguarding/NIST-SP-800-171-Assessment- Methodology-Version-1.2.1-6.24.2020.pdf , for all covered COMPANY information systems relevant to its offer that are not part of an information technology service or system operated on behalf of the Government.

(3) If a subagreement holder does not have summary level scores of a current NIST SP 800-171 DoD Assessment (i.e., not more than 3…