RFP CFOM-12-SO-0063.pdf

CFOM-12-SO-0063

Table of contents

Part I - General Information Part II - General Performance Requirements Part III - Scope of Services Part IV- Contract Specifications Part V- Payment to Contractor Part VI- Federal Acquisition Regulation (FAR) Clauses Part VII – Offeror Representations and Certifications Part VIII – Proposal Preparation Instructions

1. Federal Acquisition Regulation Provisions

2. Date, Time and Place Proposals are Due

3. Mandatory Site Visit

4. Questions about the RFP

5. Proposal Form and Content

Part IX - Proposal Evaluation Criteria Part X – List of Solicitation Attachments Attachment A - Pricing Form (Stipulated Sum Proposal) Attachment B -Preliminary Project Schedule Attachment C – Landlord Rules and Regulations Attachment D – Drawings and Specifications Attachment E – Non-Disclosure Agreement Attachment F – AIA Documents

Part I - General Information

OVERVIEW OF THE SOLICITATION

This is a request for Proposals (RFP) issued by the Commodity Futures Trading Commission, an independent agency of the federal government. The contract that results from this RFP will include executed AIA forms as shown in Attachment F, as well as this RFP. Instructions for preparing and submitting proposals are provided in RFP Part VIII, and proposal evaluation criteria are provided in RFP Part IX.

The contract for construction will be a lump sum contract between the contractor and the CFTC.

Payments to the Contractor shall be made in part by CFTC from appropriated funds and in part by the Sublandlord, Brown Brothers Harriman, from the tenant improvement allowance. Federal Acquisition Regulation (FAR) clauses implementing the Prompt Payment Act shall apply to payments made by CFTC but not to payments made by the Sublandlord. The Sublandlord will make payments after receiving authorization from CFTC.

PROJECT SUMMARY

CFTC’s offices are located at 140 Broadway. CFTC currently occupies all of the 20th floor (24,343 RSF) and part of the 19th floor (15,020 RSF). CFTC will immediately expand into approximately 7,074 RSF on the 18th floor and in May of 2012 expand into approximately 15,073 RSF on the 18th and 19th floors. Concurrent with the expansions CFTC plans to make some modifications to the existing space, as well as replacing the carpet and repainting the entire space.

MANDATORY SITE VISIT

Offerors will be required to attend a site visit scheduled for 1:00 PM EST on December 5, 2011 at 140 Broadway, New York, NY. See Part VIII (3) for further information.

QUESTIONS REGARDING THE SOLICITATION

Questions regarding this solicitation must be submitted via email to ngraham@cftc.gov. no later than November 28, 2011. CFTC will attempt but cannot guarantee to answer all questions submitted by that date. See Part VIII (4) for further information.

AVAILABILITY OF DRAWINGS AND SPECIFICATIONS

Drawings and specifications are available for download on an FTP site maintained by the Architect. Offerors may access these drawings and specifications by submitting via email a completed Non-Disclosure Agreement (NDA) as set forth in Attachment E to the RFP and a copy of the Offeror’s valid Contractor’s License to ngraham@cftc.gov. After receipt of an acceptable NDA and license, the Contracting officer will send instructions via email to the Offeror on how to access the FTP site. See Part IV for further information.

LABOR UNION REQUIREMENTS

The project site is a commercial office building and all trades performing work in the building must be union. Refer to Attachment C of the RFP for more specific information.

PROJECT TEAM:

Tenant (Owner) Commodity Futures Trading Commission 1155 21st Street, N.W.

Washington, D.C. 20581

Landlord Hines 140 Broadway 21st floor New York, New York 10005

Sub Landlord Brown Brothers Harriman & Co.

140 Broadway New York, New York 10005-1101

Project Manager Studley, Inc.

Suite 420E 555 13th Street NW Washington, D.C. 20004

Architects RTKL Associates Inc.

2101 L Street NW Suite 200 Washington DC 20037

RFP SCHEDULE

Site Visit (Mandatory) Proposals Due

December 5, 2011 December 19, 2011

Estimated Award Date January 16, 2012 Project Schedule See Exhibit B

MAGNITUDE OF PROJECT

The Government estimates that price range for this requirement will be between $1,000,000 and $5,000,000.

BID GUARANTEE

Offerors must provide a bid guarantee in accordance with 52.228-1 Bid Guarantee (see Part VIII of the RFP).

REPRESENTATION:

The Contractor represents that, prior to submitting its response to this Request For Proposal, it has carefully reviewed the enclosed documents. The Contractor further represents that it has satisfied itself as to the actual conditions of the premises, existing construction, actual elevations, site logistics including loading dock and hoisting requirements, local code restrictions, and any other conditions affecting the completion of the intended work, it being hereby understood and agreed that no considerations will be allowed subsequently to the Contractor's submission of its response to the Request For Proposal by reason of error or oversight on the part of the Contractor or on account of interference by other Contractor's activities.

Part II - General Performance Requirements

1. Contractor shall manage, with its own personnel and qualified subcontractors, all construction work required for the demolition, construction, and refurbishing in accordance with the Contract Documents prepared by the Architect and Engineer. It is the intent of this Request for Proposals to contract with a General Contractor who will provide "above" industry standard construction services as referenced in Part III - Scope Of Services.

2. Contractor shall be required to provide space within the work area for its temporary field office and a conference room for weekly Owner's meetings. In addition, subcontractor shanties and staging areas will be located within the construction area.

3. Contractor shall not include any costs for the following:

Electrical Service Ventilation and Cooling Water

4. Rubbish removal from the tenant space down to the loading dock will be the Contractor's responsibility. All labor, small dumpster and loading dock dumpster cost shall be included in Contractor's proposal.

5. A final cleaning will be required by the Contractor prior to Substantial Completion. Contractor shall include in its proposal the cost to complete a final cleaning. The final cleaning shall included vacuuming carpets, wiping down millwork, cleaning window interiors, bathrooms, etc.

6. Contractor shall visit the site to verify that it has familiarized itself with the building regarding access, hoisting, existing conditions, etc., and any cost associated with same are included in its proposal.

7. Owner shall obtain and pay for all costs associated with securing the building permit necessary for the completion of the work. Bonds, permits, licenses, etc., required for conducting business shall be provided and paid for by this Contractor.

8. The Contractor shall maintain a detailed and accurate accounting system and such controls shall be in place as may be necessary for proper financial management. Contractor's records and receipts shall allow for ready identification of all charges included in subcontracts, purchase orders, change orders, invoices and Application for Payments and Owner shall have the right to audit, at any time, all of the Contractors records related to this project and the work.

9. Contractor shall be responsible for advising Owner and its consultants of all laws, ordinances, rules, regulations, orders, state and local building codes or requirements of authorities having jurisdiction over the project. If Contractor performs work under the contract knowing it to be contrary to the requirements of authorities having jurisdiction over the work and without advising Owner or its consultants of such requirements, the Contractor shall assume full responsibility for such work and all associated costs for appropriate modifications which may be required by authorities having jurisdiction over the work.

10. Contractor shall clean up all waste materials, rubbish and debris resulting from its operations at such frequencies as required to maintain a clean and safe working job-site. Contractor shall coordinate the preferred route and procedures for removal of construction debris with Landlord and Building Management and shall coordinate all necessary additional cleanup as part of construction operations, such that the building corridors, elevators, stairwells and common areas are maintained free from accumulations of waste material, rubbish and debris.

11. Contractor shall be responsible for the structural integrity of the building during its construction operations. All structural modifications and concentrated loading of materials must be reviewed and approved through the Landlord and/or Building Management.

12. Contractor is responsible for maintaining a secured job site at all times. In addition, contractor and its subcontractor and representatives shall comply with all security regulations of the building.

13. Contractor shall maintain a detailed and accurate shop drawing and product submittal control system for the project. The system shall be updated on a daily basis and reported to the Architect and Engineer for coordination at all weekly Owner's Meetings. The schedule responsibility is that of the Contractor and negligence in coordinating the shop drawing process does not relieve Contractor from the contractual obligation of Substantial Completion.

14. The Construction Schedule for this contract is included as Attachment B to the RFP. The Contractor shall comply with this schedule. Any changes to this schedule prior to award will be reflected in the contract award documents. Any changes after award must be reflected in contract modifications or change orders signed by the Owner’s Contracting Officer.

15. Any cost and/or Schedule changes consisting of additions, deletions or modifications shall be authorized by a written Scope Change signed by Project Manager and Owner’s Contracting Officer. Contractor shall provide detailed back-up and pricing so that the cost claim can be properly evaluated.

16. Contractor shall comply with all Landlord rules and regulations. The current version of landlord rules and regulations are provided in Attachment C to the RFP.

Part III - Scope of Services

CONSTRUCTION GENERAL MANAGEMENT AND COORDINATION

• Meet with the landlord to ascertain regulations, procedures, construction standards, approval processes, and procedures for coordinating the construction work with the building staff.

• Coordinate and supervise the work being performed by trade contractors, outside suppliers and vendors for the project's duration. Assure that all work and furnished materials comply with the contract documents.

• The General Contractor shall coordinate the efforts of all trade contractors to insure that the project is on schedule and is well constructed in accordance with the documents.

• Maintain a full-time superintendent at the job site with support staff(s) required for the coordination and inspection of work.

• Establish on-site organization and lines of authority in order to carry out the overall plans of the

Owner and Architect in all phases of the project.

• Establish and implement procedures for opening and maintaining a clear line of communication among Owner, Architect, Consultants, and Project Manager for all the phases of the project.

• Prepare and develop an on-site record-keeping system which will be of sufficient detail to satisfy an audit by Owner. Such records shall include, but shall not be limited to, daily logs, progress schedules, manpower breakdowns (daily by trade), financial reports, quantities, material lists, shop drawing logs, and the like.

• Obtain the general building permits and certificates of occupancy required by authorities having jurisdiction over the project.

• Expedite and coordinate the procurement of all legally required permits, licenses, and certificates.

Assemble these documents for the trade contractor and deliver to Owner at the completion of the project.

• Coordinate the aspects of the work with local municipal authorities, governmental agencies, utility companies, etc., who may be involved in the project.

• Coordinate the work of all trade contractors through final completion and the Owner's acceptance.

Conduct a comprehensive final inspection to insure that the quality of labor and materials are in accordance with the contract documents and all deficient items corrected in a timely fashion.

• Conduct regularly scheduled and unscheduled job meetings through the construction process. These meetings should be attended by all affected parties, who will discuss procedures, progress, problems, scheduling and open items. Prepare and issue minutes for each meeting.

• Coordinate the activities of trade contractors and vendors that may be hired directly by the Owner.

• Constantly review the adequacy of the trade contractor's supervision, personnel and equipment and the availability of necessary materials and supplies. Where inadequate, direct that the necessary action be taken by the trade contractors involved.

• Establish and provide an inspection system for safety programs and procedures to be followed by all trade contractors.

Coordinate Testing and Controlled Inspection

• Establish and provide an inspection system for safety programs and procedures to be followed by all trade contractors.

• Develop and establish for Owner’s benefit and use a quality inspection control system in order to insure that the required standards of construction are met.

• Develop a checking and testing procedure which will insure that all systems are adequately tested and balanced prior to their acceptance.

• Coordinate all testing provided by others as required by the technical sections of the specifications, building ownership, and as required by the building code. Keep an accurate record of all tests, inspections conducted, findings and test reports. Submit final test reports to Owner and Architect.

Services of professional engineers and Architect as required by the building code would be performed for Owner directly.

• All of the above test reports, records and results shall be turned over to building management when requested.

Coordinate Shop Drawing Submissions

• Prepare a detailed submittal schedule at the start of the project for approval and use by the Architect.

• Receive and review all shop drawings, cuts, samples, delivery schedules, materials lists, etc. for compliance with the contract documents. Provide comments before submitting information to the Architect for concurring review and approval.

• Oversee the submission of all shop drawings, composite shop and coordination drawings, brochures and material samples. Monitor and implement the flow of all documents and materials to insure the proper sequence of approvals by the Architect so as not to delay the progress of the work.

• Establish and maintain on-site, a complete library of all current contract documents, approved shop drawings and approved material samples.

Review all Payment Requests

• The Contractor’s bid breakdown submitted in accordance with RFP Attachment A, as revised by any change orders approved by the Owner, shall be the basis for the schedule of values for payment purposes. A “Pencil Draw” shall be submitted to the Owner’s Contracting Officer five (5) days before each Pay Application is submitted and shall show progress against the schedule of values in percentages and dollars for each portion of the work, including the percentage and dollar allocation for each subcontract.

• All applications for payment will be submitted through the General Contractor in accordance with established procedures. Trade contract applications for payment along with partial waiver of lien and an affidavit of payment made by each trade contractor must accompany each application.

• Recommend to Owner the institution of any partial or complete default action against any contractor(s). Where deemed necessary, determine amounts due under default settlement and prepare budget estimated for completion of work.

Review and Coordinate All Change Order Requests

• Receive and review all change order requests from the subcontractors. Review unit prices, time and material charges and similar items. Consult with Project Manager, Architect, and after mutual agreement, submit recommendations to Owner..

• Review all changes proposed by Owner and/or Architect and make recommendations regarding the impact with respect to cost and or schedule.

• Ensure that all approved change orders are satisfactorily carried out in the construction process.

• Implement the specification and Owner's procedures for the processing of change orders, including applications for extensions of time.

• With respect to portions of the work performed by change orders, or otherwise, on a time-and-material, unit-cost, or similar basis, which requires the keeping of records and computations, maintain adequate cost accounting records to satisfy the specifications and Owner's procedures.

Provide and Supervise General Conditions Items

• The General Contractor will provide and supervise general condition items. All items purchased specifically to satisfy general conditions for this project will be turned over to the Owner in good condition, or be properly disposed of, at the conclusion of the project.

Provide Scheduling Administration

• During the course of construction, the General Contractor will make an analysis of the materials and equipment that will be required on the job. It will determine and issue dates for shop drawing submission and approval, off site fabrication and manufacturing, and delivery dates required to meet with job progress. It will maintain a scheduling system to expedite material and equipment deliveries through the course of construction.

POST CONSTRUCTION

• At the proper time, coordinate the completion of punchlists, together with the Architect, indicating the items or work remaining to be accomplished, and insure that these items are completed in an expeditious manner. Prepare certificates of substantial and final completion, if required.

• Assemble all guarantees, warranties, operating manuals, etc., as required by the contract documents and forward two copies to Project Manager, and one copy each to the Architect and Engineer, certifying that they are complete and cover all work as required.

• Receive, check and forward to Project Manager all releases of claims required prior to issuance of final certificate of completion and final payments to subcontractors. Make recommendations on the withholding of payments to subcontractors where deemed necessary to protect Owner. Determine value of uncorrected work.

• Expedite the contractor's preparation of "as built" drawings of the entire project. The complete "as-built" drawings shall be subject to the approval of the Architect and submitted to Owner for their records upon final completion of the project.

• After completion of project, General Contractor will be responsible for expeditious follow-up and correction of all punch list items.

Part IV- Contract Specifications

1. Drawings and Specifications incorporated by reference – The drawings and specifications listed in Attachment D are hereby incorporated by reference.

2. Availability of Drawings and Specifications - Drawings and specifications are available for download on an FTP site maintained by the Architect. Offerors may access these drawings and specifications by submitting via email a completed Non-Disclosure Agreement (NDA) as set forth in Attachment E to the RFP and a copy of the Offeror’s valid Contractor’s License to ngraham@cftc.gov. After receipt of an acceptable NDA and license, the Contracting officer will send instructions via email to the Offeror on how to access the FTP site.

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Part V- Payment to Contractor

1. Payments made by the Sublandlord - Payments to the Contractor shall be made in part by CFTC from appropriated funds and in part by the Sublandlord, Brown Brothers Harriman, from the tenant improvement allowance. The Sublandlord will make payments after receiving authorization from CFTC. CFTC will provide such authorization to the Sublandlord no later than 30 days after receiving an Application for Payment that meets all requirements of this contract.

2. Schedule of Values - Payments shall be based on the schedule of values. The schedule of values shall be the original contract sum allocated to portions of the work as shown on the final completed Attachment A to this RFP submitted by the Contractor. The schedule of values may be revised to reflect approved change orders in a form acceptable to the Contracting officer.

3. Billing Address - Payment applications shall be submitted to the Contracting Officer at the following address:

Office of Financial Management Attention: Nicholas Graham, Contracting Officer 1155 21st Street, NW Washington, DC 20581

Invoices may also be submitted by email to ngraham@cftc.gov.

4. Federal Acquisition Regulation (FAR) Payment Clauses –

(a) The following FAR clauses apply only to payments made directly by CFTC and do not apply to payments made by the Sublandlord: 52.232-33, Payment by Electronic Funds Transfer— Central Contractor Registration, and 52.232.27 Prompt Payment for Construction Contracts, as modified in this contract.

(b) All payments shall be subject to clause 52.232-5, Payments under Fixed-Price Construction Contracts, as modified in this contract, and except as set forth in paragraph (a) of this clause, all other terms and conditions of this contract.

(c) The FAR clauses referenced above are included in Part VI of the RFP.

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Part VI- Federal Acquisition Regulation (FAR) Clauses

This contract incorporates one or more FAR 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.

The full text of a clause may also be accessed electronically at this address:

http://www.acquisition.gov/comp/far/index.html

NUMBER TITLE DATE

52.202-1 Definitions JUL 04 52.203-3 Gratuities APR 84 52.203-5 Covenant Against Contingent Fees APR 84 52.203-6 Restrictions on Subcontractor Sales to the Government SEP 06 52.203-7 Anti-Kickback Procedures OCT 10 52.203-8 Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity JAN 97 52.203-10 Price or Fee Adjustment for Illegal or Improper Activity JAN 97 52.203-12 Limitation on Payments to Influence Certain Federal Transactions OCT 10 52.204-4 Printed or Copied Double-Sided on Recycled Paper AUG 00 52.204-7 Central Contractor Registration APR 08 52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors

Debarred, Suspended, or Proposed for Debarment

DEC 10

52.209-9 Updates of Publicly Available Information Regarding Responsibility Matters Alternate I

JAN 11

52.211-10 Commencement, Prosecution, and Completion of Work APR 84 52.215-2 Audit and Records-Negotiation OCT10 52.215-17 Waiver of Facilities Capital Cost of Money OCT 97 52.219-4 Notice of Price Evaluation Preference for HUBZone Small Business

Concerns Alternate I

JAN 11

52.219-9 Small Business Subcontracting Plan JAN 11 52.219-8 Utilization of Small Business Concerns JAN 11 52.219-16 Liquidated Damages – Subcontracting Plan JAN 11 52.219-25 Small Disadvantaged Business Participation Program-Disadvantaged Status and

Reporting

DEC 10

52.219-28 Post-Award Small Business Program Rerepresentation APR 09 52.222-3 Convict Labor JUN 03 52.222-4 Contract Work Hours and Safety Standards Act—Overtime Compensation JUL 05 52.222-21 Prohibition of Segregated Facilities FEB 99 52.222-26 Equal Opportunity MAR 07 52.222-27 Affirmative Action Compliance Requirements for Construction FEB 99 52.222-35 Equal Opportunity for Veterans SEP 10 52.222-36 Affirmative Action for Workers with Disabilities OCT 10 52.222-37 Employment Reports Veterans SEP 10 52.222-40 Notification of Employee Rights Under the National Labor Relations Act DEC 10 52.222-50 Combating Trafficking in Persons FEB 09

52.222-54 Employment Eligibility Verification JAN 09 52.223-2 Affirmative Procurement of Biobased Products Under Service and Construction

Contracts

DEC 07

52.223-3 Hazardous Material Identification and Material Safety Data Alternate I

JAN 97

JUL 95

52.223-6 Drug-Free Workplace MAY 01 52.223-9 Estimate of Percentage of Recovered Material Content for EPA- Designated

Products

MAY 08

52.223-15 Energy Efficiency in Energy-Consuming Products DEC 07 52.223-17 Affirmative Procurement of EPA-designated Items in Service and Construction

Contracts

MAY 08

52.223-18 Contractor Policies to Ban Text Messaging While Driving SEP 10 52.225-9 Buy American Act – Construction Materials SEP 10 52.225-13 Restrictions on Certain Foreign Purchases JUN 08 52.227-1 Authorization and Consent DEC 07 52.227-2 Notice and Assistance Regarding Patent and Copyright DEC 07 52.227-4 Patent Indemnity—Construction Contracts DEC 07 52.228-2 Additional Bond Security OCT 97 52.228-11 Pledges of Assets FEB 92 52.228-12 Prospective Subcontractor Requests for Bonds OCT 95 52228-14 Irrevocable Letter of Credit DEC 99 52.228-15 Performance and Payment Bonds - Construction OCT 10 52.229-3 Federal, State, and Local Taxes APR 03 52.232-17 Interest OCT 10 52.232-23 Assignment of Claims JAN 86 52.232-33 Payment by Electronic Funds Transfer—Central Contractor Registration (this clause applies only to payments made by CFTC)

OCT 03

52.233-1 Disputes Alternate I

JUL 02

DEC 91

52.233-3 Protest after Award AUG 96 52.233-4 Applicable Law for Breach of Contract Claim OCT 04 52.236-1 Performance of Work by the Contractor

(The applicable percentage is twelve percent (12%)

APR 84

52.236-2 Differing Site Conditions APR 84 52.236-3 Site Investigation and Conditions Affecting the Work APR 84 52.236-5 Material and Workmanship APR 84 52.236-6 Superintendence by the Contractor APR 84 52.236-7 Permits and Responsibilities NOV 91 52.236-9 Protection of Existing Vegetation, Structures, Equipment, Utilities, and

Improvements

APR 84

52.236-10 Operations and Storage Areas APR 84 52.236-11 Use and Possession Prior to Completion APR 84 52.236-12 Cleaning Up APR 84 52.236-13 Accident Prevention NOV 91 52.236-15 Schedules for Construction Contracts APR 84 52.236-21 Specifications and Drawings for Construction

Alternate I

FEB 97

APR 84

52.242-13 Bankruptcy JUL 95

52.242-14 Suspension of Work APR 84 52.243-4 Changes JUN 07 52.244-6 Subcontracts for Commercial Items DEC 10 52.245-1 Government Property (If Government Furnishes Property for Use in Contract

Performance)

AUG 10

52.246-12 Inspection of Construction AUG 96 52.246-21 Warranty of Construction MAR 94 52.248-3 Value Engineering—Construction OCT 10 52.249-2 Termination for Convenience of the Government (Fixed-Price)

Alternate I

MAY 04

SEP 96

2.249-10 Default (Fixed-Price Construction) APR 84 52.251-1 Government Supply Sources AUG 10 52.252-2 Clauses Incorporated by Reference FEB 98 52.253-1 Computer Generated Forms JAN 91

The following clauses are included in full text:

52.209-9 UPDATES OF PUBLICLY AVAILABLE INFORMATION REGARDING RESPONSIBILITY MATTERS (JAN 2011)

(a) The Contractor shall update the information in the Federal Awardee Performance and Integrity Information System (FAPIIS) on a semi-annual basis, throughout the life of the contract, by posting the required information in the Central Contractor Registration database at http://www.ccr.gov.

(b)(1) The Contractor will receive notification when the Government posts new information to the Contractor’s record.

(2) The Contractor will have an opportunity to post comments regarding information that has been posted by the Government. The comments will be retained as long as the associated information is retained, i.e., for a total period of 6 years. Contractor comments will remain a part of the record unless the Contractor revises them.

(3)(i) Public requests for system information posted prior to April 15, 2011, will be handled under Freedom of Information Act procedures, including, where appropriate, procedures promulgated under E.O. 12600.

As required by section 3010 of Public Law 111-212, all information posted in FAPIIS on or after April 15, 2011, except past performance reviews, will be publicly available.

Alternate I (Jan 2011). As prescribed in 9.104-7(c)(2), redesignate paragraph (a) of the basic clause as paragraph (a)(1) and add the following paragraph (a)(2):

(2) At the first semi-annual update on or after April 15, 2011, the Contractor shall post again any required information that the

Contractor posted prior to April 15, 2011.

(End of clause)

52.232-5 PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS (SEPT 2002) (DEVIATION)

(a) Payment of price. The Government shall pay the Contractor the contract price as provided in this contract.

(b) Progress payments. The Government shall make progress payments monthly as the work proceeds, or at more frequent intervals as determined by the Contracting Officer, on estimates of work accomplished which meets the standards of quality established under the contract, as approved by the Contracting Officer. Progress payments shall be calculated using the approved schedule of values which shall allocate the Contract Sum to each portion of the work. The schedule of values shall be based on the initial Contract Sum plus the value of approved change orders. Payment amounts shall reflect the percentage of work completed for each element of the schedule of values, and shall also include the amount of the Contract Sum allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation into the completed construction (or, if approved in advance by the Owner and in compliance with other requirements of this clause, suitably stored off the site at a location agreed upon in writing). The total for work completed and materials and equipment delivered shall be reduced by the retainage of ten percent; and that amount shall be further reduced by any previous payments and also by any additional amounts withheld for cause by the Contracting Officer.

(1) The Contractor’s request for progress payments shall include the following substantiation:

(i) An itemization of the amounts requested, related to the various elements of work reflected in the approved schedule of values.

(ii) A listing of the amount included for work performed by each subcontractor under the contract.

(iii) A listing of the total amount of each subcontract under the contract.

(iv) A listing of the amounts previously paid to each such subcontractor under the contract.

(v) A waiver of liens against the Owner and the Landlord executed by the prime and each subcontractor having received previous payments. Waivers shall be in a form acceptable to the Contracting Officer and shall at a minimum acknowledge receipt of the total amount of previous payments received by the party executing the waiver.

(vi) Additional supporting data in a form and detail required by the Contracting Officer.

(2) In the preparation of estimates, the Contracting Officer may authorize material delivered on the site and preparatory work done to be taken into consideration. Material delivered to the Contractor at locations other than the site also may be taken into consideration if—

(i) Consideration is specifically authorized by this contract; and

(ii) The Contractor furnishes satisfactory evidence that it has acquired title to such material and that the material will be used to perform this contract.

(c) Contractor certification. Along with each request for progress payments, the Contractor shall furnish the following certification, or payment shall not be made: (However, if the Contractor elects to delete paragraph (c)(4) from the certification, the certification is still acceptable.)

I hereby certify, to the best of my knowledge and belief, that—

(1) The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the contract;

(2) All payments due to subcontractors and suppliers from previous payments received under the contract have been made, and timely payments will be made from the proceeds of the payment covered by this certification, in accordance with subcontract agreements and the requirements of Chapter 39 of Title 31, United States Code;

(3) This request for progress payments does not include any amounts which the prime contractor intends to withhold or retain from a subcontractor or supplier in accordance with the terms and conditions of the subcontract; and

(4) This certification is not to be construed as final acceptance of a subcontractor’s performance.

(Name)

(Title)

(Date)

(d) Refund of unearned amounts. If the Contractor, after making a certified request for progress payments, discovers that a portion or all of such request constitutes a payment for performance by the Contractor that fails to conform to the specifications, terms, and conditions of this contract (hereinafter referred to as the “unearned amount”), the Contractor shall—

(1) Notify the Contracting Officer of such performance deficiency; and

(2) Be obligated to pay the Government an amount (computed by the Contracting Officer in the manner provided in paragraph (j) of this clause) equal to interest on the unearned amount from the 8th day after the date of receipt of the unearned amount until—

(i) The date the Contractor notifies the Contracting Officer that the performance deficiency has been corrected; or

(ii) The date the Contractor reduces the amount of any subsequent certified request for progress payments by an amount equal to the unearned amount.

(e) Retainage. The Contracting Officer shall retain ten percent (10%) of the amount of the progress payments. When the work is substantially complete, the Contracting Officer may retain from previously withheld funds and future progress payments that amount the Contracting Officer considers adequate for protection of the Government and shall release to the Contractor all the remaining withheld funds. Upon determination by the Contracting Officer that the work is substantially complete, the Contractor shall be due the entire Contract Sum less any amounts the Contracting Officer shall withhold for incomplete work and retainage applicable to such work. Also, on completion and acceptance of each separate building, public work, or other division of the contract, for which the price is stated separately in the contract, payment shall be made for the completed work without retention of a percentage. The Contractor shall ensure that a requirement for ten percent retainage of progress payments is included in all subcontracts at every tier unless the requirement is waived by the Contracting Officer.

(f) Title, liability, and reservation of rights. All material and work covered by progress payments made shall, at the time of payment, become the sole property of the Government, but this shall not be construed as—

(1) Relieving the Contractor from the sole responsibility for all material and work upon which payments have been made or the restoration of any damaged work; or

(2) Waiving the right of the Government to require the fulfillment of all of the terms of the contract.

(g) Reimbursement for bond premiums. In making these progress payments, the Government shall, upon request, reimburse the Contractor for the amount of premiums paid for performance and payment bonds (including coinsurance and reinsurance agreements, when applicable) after the Contractor has furnished evidence of full payment to the surety. The retainage provisions in paragraph (e) of this clause shall not apply to that portion of progress payments attributable to bond premiums.

(h) Final payment. The Government shall pay the amount due the Contractor under this contract after—

(1) Completion and acceptance of all work;

(2) Presentation of a properly executed voucher; and

(3) Presentation of release of all claims against the Government arising by virtue of this contract, other than claims, in stated amounts, that the Contractor has specifically excepted from the operation of the release. A release may also be required of the assignee if the Contractor’s claim to amounts payable under this contract has been assigned under the Assignment of Claims Act of 1940 (31 U.S.C. 3727 and 41 U.S.C. 15).

(i) Limitation because of undefinitized work. Notwithstanding any provision of this contract, progress payments shall not exceed 80 percent on work accomplished on undefinitized contract actions. A “contract action” is any action resulting in a contract, as defined in FAR Subpart 2.1, including contract modifications for additional supplies or services, but not including contract modifications that are within the scope and under the terms of the contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.

(j) Interest computation on unearned amounts. In accordance with 31 U.S.C. 3903(c)(1), the amount payable under paragraph (d)(2) of this clause shall be—

(1) Computed at the rate of average bond equivalent rates of 91-day Treasury bills auctioned at the most recent auction of such bills prior to the date the Contractor receives the unearned amount; and

(2) Deducted from the next available payment to the Contractor.

(k) The Contractor shall pay each subcontractor no later than seven days after receipt of payment from Owner the amount to which the subcontractor is entitled, reflecting percentages actually retained by the Owner. The Contractor, by appropriate agreement with each subcontractor, shall require each subcontractor to make payments to sub-subcontractors in a similar manner.

(End of clause)

52.232.27 PROMPT PAYMENT FOR CONSTRUCTION CONTRACTS (OCT 2008)

NOTE: THIS CLAUSE APPLIES ONLY TO PAYMENTS MADE DIRECTLY BY CFTC AND DOES NOT APPLY TO PAYMENTS

MADE BY THE SUBLANDLORD.

Notwithstanding any other payment terms in this contract, the Government will make invoice payments under the terms and conditions specified in this clause. The Government considers payment as being made on the day a check is dated or the date of an electronic funds transfer. Definitions of pertinent terms are set forth in sections 2.101, 32.001, and 32.902 of the Federal Acquisition Regulation. All days referred to in this clause are calendar days, unless otherwise specified. (However, see paragraph (a)(3) concerning payments due on Saturdays, Sundays, and legal holidays.)

(a) Invoice payments—

(1) Types of invoice payments. For purposes of this clause, there are several types of invoice payments that may occur under this contract, as follows:

(i) Progress payments, if provided for elsewhere in this contract, based on Contracting Officer approval of the estimated amount and value of work or services performed, including payments for reaching milestones in any project.

(A) The due date for making such payments is 30 days after the designated billing office receives a proper payment request. If the designated billing office fails to annotate the payment request with the actual date of receipt at the time of receipt, the payment due date is the 30th day after the date of the Contractor’s payment request, provided the designated billing office receives a proper payment request and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements.

(B) The due date for payment of any amounts retained by the Contracting Officer in accordance with the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, is as specified in the contract or, if not specified, 30 days after approval by the Contracting Officer for release to the Contractor.

(ii) Final payments based on completion and acceptance of all work and presentation of release of all claims against the Government arising by virtue of the contract, and payments for partial deliveries that have been accepted by the Government (e.g., each separate building, public work, or other division of the contract for which the price is stated separately in the contract).

(A) The due date for making such payments is the later of the following two events:

(1) The 30th day after the designated billing office receives a proper invoice from the

Contractor.

(2) The 30th day after Government acceptance of the work or services completed by the

Contractor. For a final invoice when the payment amount is subject to contract settlement actions (e.g., release of claims), acceptance is deemed to occur on the effective date of the contract settlement.

(B) If the designated billing office fails to annotate the invoice with the date of actual receipt at the time of receipt, the invoice payment due date is the 30th day after the date of the Contractor’s invoice, provided the designated billing office receives a proper invoice and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements.

(2) Contractor's invoice. The Contractor shall prepare and submit invoices to the designated billing office specified in the contract. A proper invoice must include the items listed in paragraphs (a)(2)(i) through (a)(2)(xi) of this clause. If the invoice does not comply with these requirements, the designated billing office must return it within 7 days after receipt, with the reasons why it is not a proper invoice.

When computing any interest penalty owed the Contractor, the Government will take into account if the Government notifies the Contractor of an improper invoice in an untimely manner.

(i) Name and address of the Contractor.

(ii) Invoice date and invoice number. (The Contractor should date invoices as close as possible to the date of mailing or transmission.)

(iii) Contract number or other authorization for work or services performed (including order number and contract line item number).

(iv) Description of work or services performed.

(v) Delivery and payment terms (e.g., discount for prompt payment terms).

(vi) Name and address of Contractor official to whom payment is to be sent (must be the same as that in the contract or in a proper notice of assignment).

(vii) Name (where practicable), title, phone number, and mailing address of person to notify in the event of a defective invoice.

(viii) For payments described in paragraph (a)(1)(i) of this clause, substantiation of the amounts requested and certification in accordance with the requirements of the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts.

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision (e.g., 52.232-38, Submission of Electronic Funds Transfer Information with Offer), contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration, or 52.232-34, Payment by Electronic Funds Transfer—Other Than Central Contractor Registration), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(xi) Any other information or documentation required by the contract.

(3) Interest penalty. The designated payment office will pay an interest penalty automatically, without request from the Contractor, if payment is not made by the due date and the conditions listed in paragraphs (a)(3)(i) through (a)(3)(iii) of this clause are met, if applicable. However, when the due date falls on a Saturday, Sunday, or legal holiday, the designated payment office may make payment on the following working day without incurring a late payment interest penalty.

(i) The designated billing office received a proper invoice.

(ii) The Government processed a receiving report or other Government documentation authorizing payment and there was no disagreement over quantity, quality, Contractor compliance with any contract term or condition, or requested progress payment amount.

(iii) In the case of a final invoice for any balance of funds due the Contractor for work or services performed, the amount was not subject to further contract settlement actions between the Government and the Contractor.

(4) Computing penalty amount. The Government will compute the interest penalty in accordance with the Office of Management and Budget prompt payment regulations at 5 CFR Part 1315.

(i) For the sole purpose of computing an interest penalty that might be due the Contractor for payments described in paragraph (a)(1)(ii) of this clause, Government acceptance or approval is deemed to occur constructively on the 14th day after the Contractor has completed the work or services in accordance with the terms and conditions of the contract. If actual acceptance or approval occurs within the constructive acceptance or approval period, the Government will base the determination of an interest penalty on the actual date of acceptance or approval. Constructive acceptance or constructive approval requirements do not apply if there is a disagreement over quantity, quality, or Contractor compliance with a contract provision. These requirements also do not compel Government officials to accept work or services, approve Contractor estimates, perform contract administration functions, or make payment prior to fulfilling their responsibilities.

(ii) The prompt payment regulations at 5 CFR 1315.10(c) do not require the Government to pay interest penalties if payment delays are due to disagreement between the Government and the Contractor over the payment amount or other issues involving contract compliance, or on amounts temporarily withheld or retained in accordance with the terms of the contract. The Government and the Contractor shall resolve claims involving disputes, and any interest that may be payable in accordance with the clause at FAR 52.233-1, Disputes.

(5) Discounts for prompt payment. The designated payment office will pay an interest penalty automatically, without request from the Contractor, if the Government takes a discount for prompt payment improperly. The Government will calculate the interest penalty in accordance with the prompt payment regulations at 5 CFR Part 1315.

(6) Additional interest penalty.

(i) The designated payment office will pay a penalty amount, calculated in accordance with the prompt payment regulations at 5 CFR Part 1315 in addition to the interest penalty amount only if—

(A) The Government owes an interest penalty of $1 or more;

(B) The designated payment office does not pay the interest penalty within 10 days after the date the invoice amount is paid; and

(C) The Contractor makes a written demand to the designated payment office for additional penalty payment, in accordance with paragraph (a)(6)(ii) of this clause, postmarked not later than 40 days after the date the invoice amount is paid.

(ii)(A) The Contractor shall support written demands for additional penalty payments with the following data. The Government will not request any additional data. The Contractor shall—

(1) Specifically assert that late payment interest is due under a specific invoice, and request payment of all overdue late payment interest penalty and such additional penalty as may be required;

(2) Attach a copy of the invoice on which the unpaid late payment interest was due; and

(3) State that payment of the principal has been received, including the date of receipt.

(B) If there is no postmark or the postmark is illegible—

(1) The designated payment office that receives the demand will annotate it with the date of receipt provided the demand is received on or before the 40th day after payment was made; or

(2) If the designated payment office fails to make the required annotation, the Government will determine the demand’s validity based on the date the Contractor has placed on the demand, provided such date is no later than the 40th day after payment was made.

(b) Contract financing payments. If this contract provides for contract financing, the Government will make contract financing payments in accordance with the applicable contract financing clause.

(c) Subcontract clause requirements. The Contractor shall include in each subcontract for property or services (including a material supplier) for the purpose of performing this contract the following:

(1) Prompt payment for subcontractors. A payment clause that obligates the Contractor to pay the subcontractor for satisfactory performance under its subcontract not later than 7 days from receipt of payment out of such amounts as are paid to the Contractor under this contract.

(2) Interest for subcontractors. An interest penalty clause that obligates the Contractor to pay to the subcontractor an interest penalty for each payment not made in accordance with the payment clause—

(i) For the period beginning on the day after the required payment date and ending on the date on which payment of the amount due is made; and

(ii) Computed at the rate of interest established by the Secretary of the Treasury, and published in the Federal Register, for interest payments under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) in effect at the time the Contractor accrues the obligation to pay an interest penalty.

(3) Subcontractor clause flowdown. A clause requiring each subcontractor to—

(i) Include a payment clause and an interest penalty clause conforming to the standards set forth in paragraphs (c)(1) and (c)(2) of this clause in each of its subcontracts; and

(ii) Require each of its subcontractors to include such clauses in their subcontracts with each lower-tier subcontractor or supplier.

(d) Subcontract clause interpretation.