OF_347_Individual_Clauses_12-2013.doc

BROADCASTING BOARD OF GOVERNORS

INTERNATIONAL BROADCASTING BUREAU (BBG/IBB-CON)

SUPPLEMENTAL TERMS AND CONDITIONS

PURCHASE/DELIVERY ORDER WITH INDIVIDUALS

OPTIONAL FORM 347

52.213-4 Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items) (NOV 2013)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses that are incorporated by reference:

(1) The clauses listed below implement provisions of law or Executive order:

(i) 52.222-3, Convict Labor (June 2003) (E.O. 11755).

(ii) 52.222-21, Prohibition of Segregated Facilities (Feb 1999) (E.O. 11246).

(iii) 52.222-26, Equal Opportunity (Mar 2007) (E.O. 11246).

(iv) 52.222-50, Combating Trafficking in Persons (Feb 2009) (22 U.S.C. 7104(g)).

(v) 52.225-13, Restrictions on Certain Foreign Purchases (June 2008) (E.o.s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

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

(vii) 52.233-4, Applicable Law for Breach of Contract Claim (Oct 2004) (Pub. L. 108-77, 108-78).

(2) Listed below are additional clauses that apply:

(i) 52.232-1, Payments (Apr 1984).

(ii) 52.232-8, Discounts for Prompt Payment (Feb 2002).

(iii) 52.232-11, Extras (Apr 1984).

(iv) 52.232-25, Prompt Payment (Jul 2013).

(v) 52.233-1, Disputes (July 2002).

(vi) 52.244-6, Subcontracts for Commercial Items (Jul 2013).

(vii) 52.253-1, Computer Generated Forms (Jan 1991).

(viii) 52.232-39, Unenforceability of Unauthorized Obligations (Jun 2013).

(b) The Contractor shall comply with the following FAR clauses, incorporated by reference, unless the circumstances do not apply:

(1) The clauses listed below implement provisions of law or Executive order:

(i) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Jul 2013) (Pub. L. 109-282) (31 U.S.C. 6101 note) (Applies to contracts valued at $25,000 or more).

(ii) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (Nov 2013) (E.O. 13126). (Applies to contracts for supplies exceeding the micro-purchase threshold.)

(iii) 52.222-20, Walsh-Healey Public Contracts Act (Oct 2010) (41 U.S.C. 35-45) (Applies to supply contracts over $15,000 in the United States, Puerto Rico, or the U.S. Virgin Islands).

(iv) 52.222-35,Equal Opportunity for Veterans (Sep 2010) (38 U.S.C. 4212) (applies to contracts of $100,000 or more).

(v) 52.222-36, Affirmative Action for Workers with Disabilities (Oct 2010) (29 U.S.C. 793). (Applies to contracts over $15,000, unless the work is to be performed outside the United States by employees recruited outside the United States.) (For purposes of this clause, United States includes the 50 States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.)

(vi) 52.222-37, Employment Reports on Veterans (Sep 2010) (38 U.S.C. 4212) (applies to contracts of $100,000 or more).

(vii) 52.222-41, Service Contract Act of 1965 (Nov 2007) (41 U.S.C. 351, et seq.) (Applies to service contracts over $2,500 that are subject to the Service Contract Act and will be performed in the United States, District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, Johnston Island, Wake Island, or the outer continental shelf lands.)

(viii) 52.223-5, Pollution Prevention and Right-to-Know Information (May 2011) (E.O. 13423) (Applies to services performed on Federal facilities).

(ix) 52.223-15, Energy Efficiency in Energy-Consuming Products (Dec 2007) (42 U.S.C. 8259b) (Unless exempt pursuant to 23.204, applies to contracts when energy-consuming products listed in the ENERGY STAR® Program or Federal Energy Management Program (FEMP) will be—

(A) Delivered;

(B) Acquired by the Contractor for use in performing services at a Federally-controlled facility;

(C) Furnished by the Contractor for use by the Government; or

(D) Specified in the design of a building or work, or incorporated during its construction, renovation, or maintenance.)

(x) 52.225-1, Buy American Act—Supplies (Feb 2009) (41 U.S.C. 10a-10d) (Applies to contracts for supplies, and to contracts for services involving the furnishing of supplies, for use in the United States or its outlying areas, if the value of the supply contract or supply portion of a service contract exceeds the micro-purchase threshold and the acquisition—

(A) Is set aside for small business concerns; or

(B) Cannot be set aside for small business concerns (see 19.502-2), and does not exceed $25,000).

(xi) 52.232-33, Payment by Electronic Funds Transfer—System for Award Management (Jul 2013). (Applies when the payment will be made by electronic funds transfer (EFT) and the payment office uses the System for Award Management (SAM) database as its source of EFT information.)

(xii) 52.232-34, Payment by Electronic Funds Transfer—Other than System for Award Management (Jul 2013). (Applies when the payment will be made by EFT and the payment office does not use the SAM database as its source of EFT information.)

(xiii) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. App. 1241). (Applies to supplies transported by ocean vessels (except for the types of subcontracts listed at 47.504(d).)

(2) Listed below are additional clauses that may apply:

(i) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (Aug 2013) (Applies to contracts over $30,000).

(ii) 52.211-17, Delivery of Excess Quantities (Sept 1989) (Applies to fixed-price supplies).

(iii) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (Mar 2009) (Pub. L. 110-247) (Applies to contracts greater than $25,000 that provide for the provision, the service, or the sale of food in the United States.)

(iv) 52.247-29, F.o.b. Origin (Feb 2006) (Applies to supplies if delivery is f.o.b. origin).

(v) 52.247-34, F.o.b. Destination (Nov 1991) (Applies to supplies if delivery is f.o.b. destination).

(c) FAR 52.252-2, Clauses Incorporated by Reference (Feb 1998). This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es): https://acquisition.gov/far

(d) Inspection/Acceptance. The Contractor shall tender for acceptance only those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. The Government must exercise its postacceptance rights—

(1) Within a reasonable period of time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(e) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence, such as acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(f) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges that the Contractor can demonstrate to the satisfaction of the Government, using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred that reasonably could have been avoided.

(g) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(h) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(FAC 2005–67)

(End of clause)

Additional Clauses for OF-347 Added by CON:

In addition to the Clauses and Provisions contained in the Form IBB-999, Supplemental Terms and Conditions Purchase/Delivery Orders with Individuals, OF-347, the following Clauses are also incorporated in this purchase/delivery order award:

(a) 52.204-7 System for Award Management (JUL 2013)

i) System for Award Management (SAM) database is the primary Government repository for Contractor information required to conduct business with the Government. Registration is required for award and processing of payments. NOTE: Vendors are required register in the SAM to do business with the government via Internet site https://www.sam.gov/portal/public/SAM/.

(b) 52.223-6 Drug Free Workplace (MAY 2001)

(c) 52.242-15 Stop-Work Order (AUG 1989)

(d) 52.243-1 Changes—Fixed Price (AUG 1987) Alternate III (APR 1984)

(e) 52.227-17 Rights in Data-Special Works (DEC 2007)

(f) Service Contracts. This acquisition instrument is a “nonpersonal services contract” as that term is defined in the Federal Acquisition Regulation at Subpart 37.101. It is, therefore, understood and agreed that the Contractor and/or the Contractor’s employee: (1) Shall perform the services specified herein as independent c/ontractors, not as employees of the Government; (2) Shall be responsible for their own management and administration of the work required and bear sole responsibility for complying with any and all technical, schedule, or financial requirements or constraints attendant to the performance of this contract; (3) Shall be free from supervision or control by any Government employee with respect to the manner or method of performance of the services specified; but (4) Shall, pursuant to the Government’s right and obligation to inspect, accept, or reject the work, comply with such general direction of the Contracting Officer, the Contracting Officer’s Representative (COR) or the Alternate Contracting Officer’s Representative (ACOR) as is necessary to ensure accomplishment of the contract objective.

(g) Government - Contractor Relations

(1) The Government and the Contractor understand and agree that the services to be delivered under this contract by the contractor to the Government are non-personal services and the parties recognize and agree that no employer-employee relationship exists or will exist under the contract between the Government and the Contractor's personnel. It is, therefore, in the best interest of the Government to afford both parties a full understanding of their respective obligations.

(2) Contractor personnel under this contract shall not:

(i) Be placed in a position where they are under the supervision, direction, or evaluation of a Government employee.

(ii) Be placed in a position of command, supervision, administration or control over Government personnel, or over personnel of other Contractors under other BBG contracts, or become a part of the Government organization.

(iii) Be used in administration or supervision of Government procurement activities.

(3) Employee relationship.

(i) The services to be performed under this contract do not require the Contractor or his/her personnel to exercise personal judgment and discretion on behalf of the Government. Rather the Contractor's personnel will act and exercise personal judgment and discretion on behalf of the Contractor.

(ii) Rules, regulations, directives, and requirements that are issued by Broadcasting Board of Governors under its responsibility for good order, administration, and security are applicable to all personnel who enter the Government installation or who travel on Government transportation. This is not to be construed or interpreted to establish any degree of Government control that is inconsistent with a non-personal services contract.

(4) Inapplicability of employee benefits. This contract does not create an employer-employee relationship. Accordingly, entitlements and benefits applicable to such relationships do not apply.

(i) Payments by the Government under this contract are not subject to Federal income tax withholdings.

(ii) Payments by the Government under this contract are not subject to the Federal Insurance Contributions Act.

(iii) The Contractor is not entitled to unemployment compensation benefits under the Social Security Act, as amended, by virtue of performance of this contract.

(iv) The Contractor is not entitled to workman's compensation benefits by virtue of this contract.

(v) The entire consideration and benefits to the Contractor for performance of this contract is contained in the provisions for payment under this contract.

(5) Notice. It is the Contractor's, as well as, the Government's responsibility to monitor contract activities and notify the Contracting Officer if the Contractor believes that the intent of this clause has been or may be violated.

(i) The Contractor should notify the Contracting Officer in writing promptly, within three calendar days from the date of any incident that the Contractor considers to constitute a violation of this clause. The notice should include the date, nature and circumstance of the conduct, the name, function and activity of each Government employee or Contractor official or employee involved or knowledgeable about such conduct, identify any documents or substance of any oral communication involved in the conduct, and the estimate in time by which the Government must respond to this notice to minimize cost, delay or disruption of performance.

(ii) The Contracting Officer will promptly, within three calendar days after receipt of notice, respond to the notice in writing. In responding, the Contracting Officer will either:

(a) Confirm that the conduct is in violation and when necessary direct the mode of further performance,

(b) Countermand any communication regarded as a violation,

(c) Deny that the conduct constitutes a violation and when necessary direct the mode of further performance; or

(d) In the event the notice is inadequate to make a decision, advise the Contractor what additional information is required, and establish the date by which it should be furnished by the Contractor and the date thereafter by which the Government will respond.

(6) VOA Journalistic Code. The VOA Journalistic Code, attached hereto as Exhibit A, requires that the Agency maintain an appearance of impartiality to ensure the objectivity and credibility of its broadcasts. In order to do so, VOA journalists must be careful about engaging in certain political activities if the sponsoring group(s) or other participants are identified with a particular perspective on a political issue and the journalists’ participation might put into question VOA’s impartiality. These political activities include, but are not limited to: running for public office; campaigning; demonstrating, or endorsing candidates or legislative initiatives; participating in marches or rallies involving causes related to issues that VOA covers; signing petitions; and serving on government boards or commissions.

Contractor hereby understands and agrees that by entering into the Contract, Contractor will adhere to the VOA Journalistic Code, including its requirement of maintaining an appearance of impartiality. Failure to perform according to these standards undermines the quality of the journalistic product and may result in the Agency’s rejection of the materials submitted under this Contract, or termination of the Contract for default, or both.

(7) Copyright - Contractor herein assigns all copyright to any and all artistic work created under this contract / agreement to the Broadcasting Board of Governors.

(8) Trademark – Contractor hereby acknowledges that all trademarks produced in the course of this Contract, as well as any goodwill attributed to those marks, belong to the Broadcasting Board of Governors. If the Agency seeks registration of the marks, Contractor shall provide any and all necessary assistance (absent expenditure of funds) in registering the mark(s).

(9) Security Clearance. This contract/agreement/order is subject to the favorable completion of a security background check. In the event it is determined that the contractor will require an identification badge for access to BBG facilities, a background check will be conducted by the BBG Office of Security. A non-favorable report will result in the contractor being denied access to BBG facilities and possible termination of the contract/agreement/order.

(10) Standards of Conduct. The contractor (i.e., PSC) shall maintain satisfactory standards of competency, conduct, cleanliness, appropriate dress and integrity. The Contractor shall adhere to standards of conduct that reflect credit on themselves and the United States Government. Except as noted, the Contracting Officer reserves the right to immediately “Terminate the Contract for Default” for failure to comply with the standards of conduct delineated herein and as follows:

(a) Use of Government Furnished Equipment (“GFE”) and misappropriation of Government Furnished Materials (“GFM”). The Contractor shall restrict their use of Government Furnished Equipment (e.g., computers, telephones, video equipment, copying or fax machines, or the internet) and Government Furnished Materials (e.g., paper, ink, pens, replenish- able office supplies) to the performance of the work prescribed herein. Contractor use of GFE or GFM for personal or other reasons may result in immediate “Termination for Default” as noted previously.

(b) Disorderly or Disruptive Conduct. Disruptive activities which interfere with the normal and efficient broadcast operations and disorderly conduct [including but not limited to: (1) use of abusive or offensive language, (2) quarreling, (3) carrying of weapons, (4) intimidation by words and/or actions, (5) sexual harassment, or (6) offensive physical contact] do not contribute to the accomplishment of the objective of the contract and shall not be tolerated or condoned. The Government/Agency has exclusive discretion in the determination as to what behavior is disorderly or disruptive to normal broadcast operations.

(c) Intoxicants and Narcotics. The contractor shall not possess, sell, consume, or be under the influence of intoxicants such as alcohol, illegal drugs, or other controlled substances (i.e., narcotics) while on government leased, rented or owned premises, or while performing the work prescribed herein.

(d) Job Competency. Acceptance of a Delivery or Task Order serves as the Contractor’s confirmation that they are fully qualified to perform the work. Failure to possess the requisite skills (e.g., inadequate proficiency in the language or culture) may be deemed as evidence of misrepresentation and grounds for immediate Termination for Default as noted previously.

(e) Accurate Invoicing. The Contractor shall submit invoices that properly reflect the work performed. Submittal of an invoice that does not accurately reflect or otherwise misrepresents the work performed, may be considered fraud subjecting the Contractor to immediate “Termination for Cause.”

(f) Misrepresentation of Contractual Relationship/Conflict of Interest. The Contractor shall not take any actions, produce any documentation, or disseminate any information via any medium which misrepresents the character of the independent contractual relationship created by this Contract or which conflicts with the mission and goals of the Government/Agency, including but not limited to: (1) creation of business cards, letterheads, or promotional materials utilizing government logos or other identifiable markings; (2) creation of a web site or internet blog containing Government/Agency logos, symbols, or other identifiable markings, or purporting to represent the Government/Agency (3) attempting to enter into agreements with third parties purporting to have contractual or other authority to legally bind the Government/Agency. A violation of this paragraph may subject the Contractor to an immediate “Termination for Cause.”

(g) Criminal or other Legal Actions. Nothing in this section is in lieu of any legal actions that may be taken by or on behalf of the government in the protection of its rights, property or interest. In certain circumstances the Contractor may be subject to criminal actions as allowed by law. Criminal charges may be pursued for the following actions, including but not limited to: falsification or unlawful concealment, removal, mutilation, or destruction of any official documents, electronic files, or records; or concealment of material facts by willful omission from official documents, electronic files, or hard copy records; unauthorized use of Government property, theft, vandalism, or immoral conduct; unethical or improper use of official authority or credentials; security violations; organizing or participating in gambling in any form in the work place and/or utilizing GFE or GFM for such purposes; and unlawful possession of weapons. A violation of this paragraph may subject the Contractor to an immediate “Termination for Cause.”

Exhibit A

THE JOURNALISTIC CODE

PREAMBLE

Since 1942, the Voice of America has built a global reputation as a consistently reliable source of news and information. Accuracy, balance, comprehensiveness, and objectivity are attributes audiences around the world have come to expect of VOA broadcasters and their product. These standards are legally mandated in the VOA Charter (Public Laws 94-350 and 103-415). Because of them, VOA has become an inspiration and information lifeline to nations and peoples around the world.

SUMMARY

Adhering to the principles outlined in the Charter, VOA reporters and broadcasters must strive for accuracy and objectivity in all their work. They do not speak for the U.S. government. They accept no treatment or assistance from U.S. government officials or agencies that is more favorable or less favorable than that granted staff of private sector news agencies. Furthermore, VOA professionals, careful to preserve the integrity of their organization, strive for excellence and avoid imbalance or bias in their broadcasts. The Voice of America pursues its mission today in a world conflict-ridden and unstable in the post-Cold War era. Broadcasting accurate, balanced and complete information to the people of the world, and particularly to those who are denied access to accurate news, serves the national interest and is a powerful source of inspiration and hope for all those who believe in freedom and democracy.

THE CODE

All staff who report, manage, edit, and prepare programming at VOA in both Central News and language services therefore subscribe to these principles:

Sourcing

· VOA news and programming must be rigorously sourced and verified. VOA normally requires a minimum of two independent (non-VOA) sources before any news writer, background writer, political affairs writer, correspondent or stringer may broadcast information as fact in any language.

· The only exceptions to the double-source requirement are facts directly confirmed by a VOA journalist or significant news drawn from an official announcement of a nation or organization. In those rare instances when a secondary source offers exclusive significant news (e.g., a verified news agency exclusive interview with a chief of state or prominent newsmaker), this story is attributed to the originating agency by name.

Accuracy and Balance

· Accuracy and balance are paramount, and together, they are VOA’s highest priority. Accuracy always comes before speed in VOA Central News reporting and language programming. VOA has a legal obligation to present a comprehensive description of events, reporting an issue in a reliable and unbiased way. Though funded by the U.S. government, VOA airs all relevant facts and opinions on important news events and issues. VOA corrects errors or omissions in its own broadcasts at the earliest opportunity.

· VOA is alert to, and rejects efforts by special interest groups - foreign or domestic - to use its broadcasts as a platform for their own views. This applies to all programs and program segments, including opinion or press roundups, programs discussing letters, listener comments, or call-in shows. In the case of call-ins, views of a single party must be challenged by the interviewer if alternative opinions are unrepresented. In interviews, points of possible discussion are submitted in advance if requested by an interviewee of stature (for example, a chief of state). However, VOA journalists always retain the right and responsibility to pursue newsworthy angles, including entirely fresh lines of questioning, during such interview.

· Whenever VOA reports a charge or accusation made by an individual or a group against another, or presents one side of a controversial issue, a response and/or balancing information will be included in the first use of a news item or feature containing that material. If the balancing information cannot be obtained by the program deadline, or the subject of the charge declines to comment that will be made clear in VOA’s account, and the balancing material will be broadcast as soon as it is available.

Fairness

· VOA has, in the words of the Founding Fathers, "a decent respect for the opinions of mankind." VOA is required to present a full and fair account of events. VOA broadcasters evaluate information solely on its merits, rejecting incitements to violence, sensationalism, personal value judgment, or misleading emphases. Attributions are specific and complete.

· VOA journalists (including correspondents, news and language stringers, political affairs writers, and program hosts) avoid at all times the use of unattributed pejorative terms or labels to describe persons or organizations, except when the individuals and groups use those labels to describe themselves or their activities.

· In news, features and current affairs programming, VOA broadcasters will meticulously avoid fabricating, distorting, or dramatizing an event. If sound at an event illustrates the reporter’s account of that event and is edited for time, the remaining sound effect reflects what occurred in an accurate and balanced way. If there is a risk of misleading the audience, no use will be made of sound effects not actually recorded at the event being described.

Context and Comprehensiveness

· VOA presents events a comprehensive account of America and the world, and puts events in context. That means constant vigilance to reflect America’s and the world’s political, geographical, cultural, ethnic, religious and social diversity. VOA programming represents the broadcast team’s best effort to seek out and present a comprehensive account of the event or trend being reported.

· VOA broadcasters will avoid using announcing or interviewing techniques that add political coloration or bias to their reportage or current affairs programming. Music will not be used to make editorial statements. VOA journalists and all those preparing news and feature programming avoid any action or statement that might convey the appearance of partisanship.

Procedures

When performing official duties, VOA broadcasters leave their personal political views behind. The accuracy, quality and credibility of the Voice of America are our most important assets, and they rest on listeners’ perception of VOA as an objective source of world, regional and U.S. news and information. To that end, all VOA journalists will:

1. Always travel on regular, non-diplomatic passports, and rely no more and no less than private sector correspondents on U.S. missions abroad for support, as set out in the guidelines for VOA correspondents.

2. Assist managers whose duty is to ensure that no VOA employee, contract employee or stringer works for any other U.S. government agency, any official media of another state, or any international organization, without specific VOA authorization.

3. Adhere strictly to copyright laws and agency regulations and always credit the source when quoting, paraphrasing, or excerpting from other broadcasting organizations, books, periodicals, or any print media.

In addition to these journalistic standards and principles, VOA employees recognize that their conduct both on and off the job can reflect on the work of the Voice of America community. They adhere to the highest standards of journalistic professionalism and integrity. They work to foster teamwork, goodwill and civil discourse in the workplace and with their colleagues everywhere in the world, all to enhance the credibility and effectiveness of the Voice of America.

(End of additional clauses)

IBB-999

11/2013