CMc Agreement CFTC 2020 11 02.pdf

Sol. Reference No. 47PF0020R0097 GSA Contract No:

Document: CMc101/AUGUST 2020 (The Agreement)

Construction Manager as Constructor (CMc) Contract for:

CFTC Consolidation Project at Metcalfe Federal Building, 77 W Jackson Blvd, Chicago, IL, 60604-3511

The Agreement

Table of Contents

I. Project Information A. Project Summary B. The Contract C. Period Of Performance D. Work Conditions/Site Requirements E. Authorized Representatives F. Contract Liquidated Damages Rate G. Buy American Exceptions H. Statement of Work, Specifications, Drawings, Exhibits and Other Attachments

II. Prices

A. Basis of Pricing B. Contract Price Form

III. Terms and Conditions

A. Definitions B. Contractor Responsibilities C. Contractor Management and Personnel D. Project Schedule E. Submittals F. Finality of Contract Modifications G. Liquidated Damages H. Insurance Requirements I. Performance and Payment Bonds J. Order of Precedence K. Administrative Matters L. Non-Compliance with Contract Requirements M. Safeguarding Sensitive Data and Information Technology Resources N. Additional Terms and Conditions

i. GSAR 552.236-74, Evaluation of Options (Mar 2019)

ii. GSAR 552.236-77, Government’s Right to Exercise Options (Mar 2019)

iii. Allowance Procedures

iv. Substitution of Personnel

IV. Contract Clauses A. (1) GSAR 552.236-79, Construction-Manager-As-Constructor (JAN 2020)

(2) FAR 52.230-2, Cost Accounting Standards (Jun 2020) (3)FAR 52.230-3, Disclosure and Consistency of Cost Accounting Practices (Jun 2020)

(4) FAR 52.230-6, Administration of Cost Accounting Standards (June 2010)

B.

Additional Clauses Incorporated in Full Text

1. FAR 52.222-99 Establishing a Minimum Wage for Contractor (JUL 2014)

(DEVIATION)

2. FAR 52.223-2 Affirmative Procurement of Biobased Products Under Service and Construction Contracts (SEP 2013)

3. FAR 52.223-9 Estimate of Percentage of Recovered Material Content for EPA-Designated Items (May 08)

4. GSAR 552.204-9 Personal Identity Verification Requirements (OCT 2012)

5. GSAR 552.211-10 Commencement, Prosecution and Completion of Work

(Mar 2019)

6. GSAR 552.211-12 Liquidated Damages – Construction (Mar 2019)

7. GSAR 552.211-13 Time Extensions (Mar 2019)

8. GSAR 552.211-70 Substantial Completion (Mar 2019)

9. GSAR 552.232-5 Payments Under Fixed-Price Construction Contracts (Mar

2019)

10. GSAR 552.236-6 Superintendence by the Contractor (Mar 2019)

11. GSAR 552.236-11 Use and Possession Prior to Completion (Mar 2019)

12. GSAR 552.236-15 Schedules for Construction Contracts (Mar 2019)

Alternate III (Jan 2020)

13. GSAR 552.236-21 Specifications and Drawings for Construction (Mar 2019)

Alternate II (Jan 2020)

14. GSAR 552.236-71 Contractor Responsibilities (Mar 2019) Alternate II (Jan

2020)

15. GSAR 552.236-72 Submittals (Mar 2019)

16. GSAR 552.252-6 Authorized Deviations in Clauses (Deviation FAR 52.252-6) (Sep 99)

17. FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (AUG 2020)

18. Buy American Requirements

19. Additional Clauses

i. GSAR 552.236-70 Authorities and Limitations (Mar 2019)

ii. GSAR 552.236-73 Subcontracts (Apr 1984)

iii. GSAR 552.243-71 Equitable Adjustments (Mar 2019)

iv. 52.219-6 Notice of Total Small Business Set-Aside (2020)

v. 52.219-14 Limitations on Subcontracting (2020)

20. Limitations on Subcontracting

21. FAR 52.219-14, Limitations on Subcontracting (JAN 2017)

22. FAR 52.223-21, FOAMS (Jun 2016)

23. FAR 52.244-5, Competition in Subcontracting (DEC 96)

C. Clauses Incorporated by Reference

D. Subcontract Requirements

I. Project Information

I.A. Project Summary

This is a Construction Manager as Constructor (CMc) Contract, and includes requirements for the Design Phase Services and the option(s) for Construction Services at a Guaranteed Maximum Price (GMP) Option.

The Commodity Futures Trading Commission (CFTC) Chicago office is currently located in a leased office location and the objective of this project is to consolidate their programs into federally owned space designed and constructed on the 7th and 8th floors of the Metcalfe building. The Scope of Project includes the demolition and interior build-out the 27,881 usable square feet (USF) for CFTC on the 7th and 8th floors of the

Metcalfe Federal Building as well as some minor modifications to existing meeting rooms and a storage closet at the GSA Conference Center on the 3rd floor for audio visual scope. The project will include architectural and mechanical, electrical, plumbing and fire protection (MEPFP). Infrastructure (conduit, backboxes, etc.) for audio / visual, security and cybersecurity are also required. The layout of the interior build-out is primarily enclosed offices and rooms with some open office area. The partitions and ceiling have specific construction assemblies to address acoustical requirements. Two existing rooms outside of the interior build-out on the 8th floor will require some minor demolition, patching, painting and installation of wallcovering so the two rooms can be utilized as storage. Modification or replacement of the door, frame or hardware will also be required. Furniture coordination and installation is not part of the scope of the project, except for their final power and data connections.

I.B. The Contract

(1) The Contract consists of the SF1442, the Agreement, the Statement of Work, Specifications, Drawings, Exhibits, Amendments, Modifications, and other Attachments identified herein (collectively, the Contract Documents). The Contract contains the entire agreement of the Parties, and no prior written or oral agreement, express or implied, shall be admissible to contradict or modify any part of the Contract.

(2) The Construction Documents, as that term is defined in this Agreement, shall be deemed incorporated into the Contract Documents upon acceptance of all deliverables described in the

Design Phase Services Statement of Work, and shall supersede and replace all Specifications and Drawings contained in the Contract Documents at award of the Contract.

(3) In consideration for, and upon condition of, the Contractor's completion of the Design Phase

Services, GSA shall pay the Contractor the firm-fixed-price for Design Phase Services, subject to the terms and conditions set forth in this Contract. If the GMP Option is exercised, then the

Contractor shall be required to complete the Construction Services. In consideration for completion of the Construction Services under the GMP Option, the Contractor shall be entitled to the allowable cost of performance not to exceed the GMP, subject to the terms and conditions set forth in this Contract.

(4) The construction work includes all construction work on the project, including the Work performed under the GMP Option, any firm-fixed-price options, or any Contract modifications for construction work. Any construction work performed under this Contract includes all labor, materials, equipment, tools, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution of the construction work described in and reasonably inferable from the Contract Documents, whether temporary or permanent.

I.C. Period of Performance

(1) Design Phase Services

(a) Commencement of Design Phase Services. The Contractor shall commence performance of the Design Phase Services within 10 days after the Contractor receives the Notice to Proceed (NTP).

(b) Completion of Design Phase Services. Design Phase Services shall be complete upon acceptance of all deliverables required by the Design Phase Services Statement of Work.

(2) Construction Services (the Work)

(a) Commencement of the Work. If the Government exercises the GMP Option, the Contractor shall commence performance of the construction within 10 days after the Contractor receives the Notice to Proceed (NTP) for the Work.

(b) Substantial Completion. If the Government exercises the GMP Option, the Contractor shall achieve Substantial Completion of the Construction Phase Work, as that term is defined in this Agreement, no later than 184 calendar days from issuance of Notice to Proceed (NTP)) for the Work.

(3) Contract Completion.-Construction Services. If the Government exercises the GMP Option, the Contractor shall achieve Contract Completion, as the term is defined in this Agreement, within 93 calendar days of Substantial Completion.

I.D. Work Conditions/Site Requirements

Refer to Division 1 specification Section 011400 for further guidance.

I.E. Authorized Representatives

(1) This Contract is between the United States of America, acting by and through the

Administrator of General Services (GSA), and the Contractor (the Parties). References in this

Contract to "the Owner" or "the Government" shall be understood to refer to GSA. The following individual is designated as the only authorized GSA representative under this Contract, unless other warranted contracting officers are designated in writing:

Authorized Representative Information:

Contracting Officer’s Information

Name: Alicia Lerum

Address: 316 Robert St N Room 306, St Paul, MN 55101-1495

Telephone: 612-725-1863

Authorized Representative Information:

Email: Alicia.Lerum@gsa.gov

(2) For the applicable authorities and limitations, see Section IV of this Agreement, GSAR 552.236-70.

I.F. Contract Liquidated Damages Rate

In accordance with GSAR 552.211-12, Liquidated Damages – Construction in Section IV of this Agreement, liquidated damages shall be calculated at the rate of $3,699.39 per calendar day.

I.G. Buy American Exceptions

For the applicable Buy American clause and any exceptions, see Section IV of this Agreement.

I.H. Statement of Work, Specifications, Drawings, Exhibits, and Other Attachments

The following documents are incorporated by reference into this Contract.

(1) CMc SOW CFTC 2020 10 21, and Appendices (including specifications and drawings)

(2) SF1442 and SF1442 CFTC 2020 11 02

(3) Davis Bacon Wage Determination IL20190009

(4) Other attached documents

II. Prices

II.A. Basis of Pricing

(1) Contract Prices. All Contract prices set forth in this Section include all costs, including, but not limited to the cost of work performed by subcontractors and consultants, indirect costs, fees, expenses, taxes, and profit, necessary to complete the Design Phase Services (Base Contract), and firm-fixed-price options for construction work, if any, in accordance with the Contract Documents. For pricing information regarding the GMP Option, see Paragraph IV.A., Construction Manager as Constructor (CMc) Guaranteed Maximum Price with CMc Contingency Allowance and Shared Savings.

(2) Knowledge of Conditions Affecting Price. FAR 52.236-3, Site Investigations and Conditions Affecting the Work, is incorporated by reference in this Contract. The Contractor is presumed to have established all prices with knowledge of general and local conditions that may affect the cost of Contract performance at the site where the Work is to be performed, to the extent that such information is reasonably obtainable.

(3) Unit Prices and Allowances. If any portion of the construction work is to be performed on a unit price basis (Unit Priced Work), the unit price established in the Contract shall include all costs of coordinating and incorporating the Unit Price Work into the construction work. The Contractor shall only be obligated to perform Unit Priced Work to the extent that an allowance has been established in an amount sufficient to compensate the Contractor for such Unit Priced Work at the established unit prices. The Contractor shall be obligated to perform such work in excess of a unit quantity for which an Allowance is sufficient only if directed by the Contracting Officer in writing. The Contractor shall be bound to the unit price or prices set forth herein in all equitable adjustments for changes including unit priced work, and no markups shall be applied to such unit prices.

(4) Firm-fixed-price Options. If any portion of the construction work is to be performed upon the timely exercise of a firm-fixed-price option, the option price shall include all costs of coordinating and incorporating such work into the remaining construction work. An adjustment to the Contract price for such additional work shall be computed solely on the basis of the option price or prices set forth herein.

(5) Work Packages. The Contractor and the Government may agree to develop early work packages for construction work that stand alone from the remainder of the Work. The Parties must agree bilaterally to the scope, schedule and pricing for any such work package, and Contract must be modified accordingly. If such work package reduces the scope of the Construction Services under the GMP Option, the Estimated Cost of the Work (ECW) shall be reduced, and the CMc Contingency Allowance (CCA), Fee and GMP shall be adjusted accordingly. These early work packages shall include specific completion milestones.

(6) Bid Rates. If this Contract includes Bid Rates to be used in determination of equitable adjustments (e.g., overhead, profit, daily rates for time-related costs), such rates shall be deemed to include all costs recoverable as components of an equitable adjustment consistent with the requirements, definitions, and exclusions applicable to equitable adjustments set forth in this Contract, and consistent with the Contractor's cost accounting practices. Unless otherwise specified, the bid rates shall be deemed to include only the Contractor's costs, and not the costs of any subcontractors.

(7) Shared Savings. The Contractor shall be entitled to the percentage of any shared savings as indicated in paragraph (g) of GSAR 552.236-79, Construction-Manager-As-Constructor (see Section IV.A)

II.B. Contract Price Form

CLIN ITEM PRICE

1 BASE: Design Phase Services (Firm Fixed Price) $

2 Target Estimated Cost of Work (ECW) $

3 CMc Contingency Allowance (CCA) Percentage 3%

4 CCA (2 x3) $

5 Fee Percentage __%

6 Fee (2 x 5) $

OPTION 1: Guaranteed Maximum Price (GMP) Option for Construction Services (2+4+6) $

8 Total Evaluated Price (1+7) $

III. Terms and Conditions

III.A. Definitions

(1) "Design Phase" means the phase of the Project during which the design is developed and completed.

(2) "Design Phase Services" means design phase construction management services, constructability reviews and other related services as described in the Statement of Work.

(3) "Construction Documents" mean the 100% complete specifications and construction drawings developed during the Design Phase.

(4) "Work" means the Construction Services under the GMP Option

III.B. Contractor Responsibilities

GSAR 552.236-71, Contractor Responsibilities (Alternate II JAN 2020) is located in Section IV.A. of this Agreement and is supplemented as follows

(1) The Contracting Officer has sole discretion to accept or reject all or part of any proposal by the Contractor related to design.

Commencement, Prosecution, and Completion of Work

FAR 52-211-10, Commencement, Prosecution, and Completion of Work, and GSAR 552.211- 10, Commencement, Prosecution and Completion of Work is supplemented as follows:

Upon exercise of the GMP Option or issuance of a modification commencing construction work, the Contractor shall not commence performance until the Contracting Officer has issued NTP for the Work. The Contractor shall diligently prosecute the construction work so as to achieve Substantial Completion, as defined in GSAR 552.211-70, Substantial Completion (Mar 2019) and within the time specified in Paragraph I.C. of the Agreement. If this Contract specifies different completion dates for different phases or portions of the construction work, the Contractor shall diligently prosecute the Work so as to achieve Substantial Completion of such phases or portions of the Work within the times specified.

For the purposes of FAR 52.236-1, Performance of Work by the Contractor, the Contractor shall perform at least 12% of the construction work. The Contractor shall furnish the Contracting Officer within 10 days after the award of the construction option, a letter outlining the items of work he will perform with his own forces

The Contractor shall be liable to the Government in accordance with applicable law for all damages to the Government caused by the Contractor’s negligent performance of services furnished under this Contract. Neither the Government’s review or acceptance of, nor payment for, the design services required under this Contact shall be construed as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract.

III.C. Contractor Management and Personnel

FAR 52.236-6, Superintendence by the Contractor, and GSAR 552.236-6, Superintendence by the Contractor located in Section IV.A. of this Agreement is supplemented as follows

(1) The Contractor shall designate a principal of the firm or other senior management official to provide executive oversight and problem resolution resources to the Project for the entire life of the Contract, including the GMP Option.

III.D. Project Schedule

GSAR 552.236-15, Schedules for Construction Contracts is supplemented as follows:

(1) The Contractor shall develop a Design Phase Project Schedule to plan, coordinate, and perform the services during the design phase. This schedule shall be produced using widely used, commercially available computer software such as Microsoft Project,®. The schedule will be coordinated with the Architect's schedule of design submissions and show milestones for completion of Design Reviews and cost reconciliation. It will also include a milestone for establishing the ECW for the construction option.

(2) The Contractor shall use a Critical Path Method ("CPM") Construction Project Schedule to plan, coordinate, and perform the Work under the GMP Option. The Construction Project Schedule shall be produced using widely used, commercially available computer software that is capable of generating and monitoring a CPM schedule and is compatible with Meridian Proliance.® For example, compatible software includes Microsoft Project,® Primavera P6. The contractor shall submit the Project Schedule both electronic and hardcopy print format.

III.E. Submittals

FAR 52.236-21, Specifications and Drawings for Construction, GSAR 552.236-73, Submittals located in Section IV.A. of the Agreement is supplemented as follows:

(1) The Contractor shall prepare and submit to the Contracting Officer shop drawings, samples, calculations, product information, mockups, GSA Form 184 (associated 184A and 184B as necessary), and other submittals (collectively, "submittals") demonstrating compliance with Contract requirements for all Work components as specified elsewhere in this Contract.

III.F. Finality of Contract Modifications As set forth elsewhere in this Contract, the Contractor is entitled to additional consideration under certain conditions, including the issuance of change orders. It is the Contractor's duty to include in proposals for equitable adjustment or other consideration all compensation to which it may be entitled, including cost and time. Unless otherwise explicitly stated in a modification to the Contract providing such consideration, adjustments to the Contract price or time agreed upon therein shall be deemed to provide all compensation to which the Contractor is entitled, and shall constitute final settlement of the Contractor's entitlement to compensation on account of the change or other condition giving rise to the modification

III.G. Liquidated Damages

The Contractor acknowledges that time is of the essence for the performance of the Work, and that determining actual damages from delay would be extremely difficult and impractical. If the Contractor fails to achieve Substantial Completion of the Work in accordance with FAR 52.211- 12, Liquidated Damages, GSAR 552.211-12, Liquidated Damages and within the time specified in this Contract, the Contractor shall be liable to the Government for liquidated damages at the rate specified in Section I (Project Information), paragraph entitled, “Liquidated Damages Rate,” for each calendar day following the required completion date that the Work is not Substantially Complete.

III.H. Insurance Requirements

(1) The Contractor shall obtain and maintain for the entire life of the Contract, in addition to any insurance required by law, the following minimum kinds and amounts of insurance required pursuant to FAR clause 52.228-5, Insurance – Work on a Government Installation, and GSAR 552.228-5, Government as Additional Insured.

(a) Workers' compensation insurance in the amount required by the jurisdiction in which the Contract is performed. The Contractor shall obtain Employers' liability coverage of at least $2,000,000. If occupational diseases are not covered by workers' compensation insurance, Employers' liability coverage shall include occupational diseases.

(b) Broad form comprehensive commercial general liability insurance in the amount of at least $5,000,000 per occurrence. Such insurance shall include, but not be limited to, contractual liability, bodily injury and property damage.

(c) Comprehensive automobile liability covering the operation of all automobiles used in connection with performing the Contract in the amount of at least $1,000,000 per person and $2,500,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage.

(2) The Contractor shall promptly provide to the Contracting Officer proof that it has obtained insurance required by the Contract in the form of certificates of insurance. The Contractor shall submit to the Contracting Officer all renewal certificates issued during the life of this Contract immediately upon issuance.

III.I. Performance and Payment Bonds

FAR 52.228-15, Performance and Payment Bonds – Construction, is supplemented as follows:

(1) "Original Contract Price" means the GMP established at award of this Contract.

(2) The Contractor shall furnish required performance and payment bonds within 14 days of exercise of the GMP Option.

(3) Receipt by the Government of required performance and payment bonds is a condition precedent to issuance of the NTP.

III.J. Order of Precedence

Different requirements within this Contract shall be deemed inconsistent only if compliance with both cannot be achieved. In case of inconsistency between Contract Documents, the following order of precedence shall apply:

(1) Section IV of the Agreement

(2) Sections I, II, and III of the Agreement

(3) The Statement of Work

(4) The Specifications

(5) The Drawings

(6) Exhibits and Other Attachments

III.K. Administrative Matters

(1) Project Meetings. The Contractor shall attend a preconstruction conference and shall participate in regularly scheduled Project meetings.

(2) Payments. FAR clause 52.232-5, Payments under Fixed-Price Construction Contracts, is supplemented by GSAR 552.232-5 Payments under Fixed-Price Construction Contracts located in Section IV.A. of this Agreement. In accordance with the relevant FAR and GSAR clauses, GSA requires the following data be included with each invoice:

(a) Invoices shall be submitted in an original and two (2) copies to the designated billing office specified in this Contract or in individual delivery/work orders.

(b) Invoices must include the Account Document Number (ADN) assigned at award.

(c) The Contractor shall submit the following information or documentation with each invoice:

(i) GSA Form 184A and/or 184B - Construction Progress Report (Construction Phases Only), including the updated Schedule of Values upon which the payment request is based;

(ii) GSA Form 2419 - Certification of Progress Payments Under Fixed-Price Construction Contract;

(iii) The payment terms that apply for the particular services rendered

(iv) Additional documentation:

Notarized Release of Claims with final invoice.

(3) Prompt Payment. In accordance with FAR clause 52.232-27, the period for payments is as follows:

(a) Progress Payments: 14 days

(b) Subsequent Subcontractor Payments: 7 days

(4) Payment Information. The General Services Administration (GSA) makes information on contract payments available electronically at Office of the Chief Financial Officer (https://finance.ocfo.gsa.gov/pii/piinotice.aspx?token=PI002). The Contractor may register at the site and review its record of payments. This site provides information only on payments made by GSA, not by other agencies.

(5) Security Clearances. Contractor shall comply with the following requirements pertaining to security clearances.

(a) All personnel performing work under the Contract on the Project site must obtain an Enter on Duty (EOD) determination before they will be granted access to the site.

(b) To obtain an EOD determination, Contractor shall submit for all such personnel fingerprints on Form SF87 and a completed Contractor Information Worksheet (CIW). Detailed information is available at GSA Access Card . USAccess Credentialing Centers can be located at US Access Centers .

(c) In addition, all such personnel who will be on site 6 months or longer must apply for and receive clearance in accordance with Homeland Security Presidential Directive 12 (HSPD- 12). See Section IV, Contract Clauses, GSAR 552.204-9.

(6) Safeguarding and Dissemination of Controlled Unclassified Information (CUI) Building

Information

This clause applies to all recipients of CUI building information (which falls within the CUI

Physical Security category), including offerors, bidders, awardees, contractors, subcontractors, lessors, suppliers and manufacturers.

Marking CUI. Contractors must submit any contractor-generated documents that contain building information to GSA for review and identification of any CUI building information that may be included. In addition, any documents GSA identifies as containing CUI building information must be marked in accordance with the Order and the Marking Controlled

Unclassified Information Handbook (the current version may be found at https://www.archives.gov/files/cui/20161206-cui-marking-handbook-v1-1.pdf) before the original or any copies are disseminated to any other parties. If CUI content is identified, the CO may direct the contractor, as specified elsewhere in this contract, to imprint or affix CUI document markings (CUI) to the original documents and all copies, before any dissemination, or authorized GSA employees may mark the documents.

1. Authorized recipients.

a. Building information designated as CUI must be protected with access strictly controlled and limited to those individuals having a Lawful Government Purpose to access such information, as defined in 32 C.F.R. § 2002.4(bb). Those with such a Lawful Government Purpose may include

Federal, state and local government entities, and non-governmental entities engaged in the conduct of business on behalf of or with GSA. Non-governmental entities may include architects, engineers, consultants, contractors, subcontractors, suppliers, utilities, and others submitting an offer or bid to GSA, or performing work under a GSA contract or subcontract.

Recipient contractors must be registered as “active” in the System for Award Management

(SAM) database at www.sam.gov, and have a Lawful Government Purpose to access such information. If a subcontractor is not registered in the SAM database and has a Lawful

Government Purpose to possess CUI building information in furtherance of the contract, the subcontractor must provide to the contractor its DUNS number or its tax ID number and a copy of its business license. The contractor must keep this information related to the subcontractor for the duration of the contract and subcontract.

b. All GSA personnel and contractors must be provided CUI building information when needed for the performance of official Federal, state, and local government functions, such as for code compliance reviews and the issuance of building permits. Public safety entities such as fire and utility departments may have a Lawful Government Purpose to access CUI building information on a case-by-case basis. This clause must not prevent or encumber the necessary dissemination of CUI building information to public safety entities.

2. Dissemination of CUI building information:

a. By electronic transmission. Electronic transmission of CUI information outside of the GSA network must use session encryption (or alternatively, file encryption) consistent with National

Institute of Standards and Technology (NIST) SP 800- 171. Encryption must be through an approved NIST algorithm with a valid certification, such as Advanced Encryption Standard or

Triple Data Encryption Standard, in accordance with Federal Information Processing Standards

Publication 140-2, Security Requirements for Cryptographic Modules, as required by GSA policy.

b. By nonelectronic form or on portable electronic data storage devices. Portable electronic data storage devices include CDs, DVDs, and USB drives. Nonelectronic forms of CUI building information include paper documents, photographs, and film, among other formats.

i. By mail. Contractors must only use methods of shipping that provide services for monitoring receipt such as track and confirm, proof of delivery, signature confirmation, or return receipt.

ii. In person. Contractors must provide CUI building information only to authorized recipients with a Lawful Government Purpose to access such information. Further information on authorized recipients is found in section 1 of this clause.

3. Record keeping. Contractors must maintain a list of all entities to which CUI is disseminated, in accordance with sections 2 and 3 of this clause. This list must include, at a minimum: (1) the name of the state, Federal, or local government entity, utility, or firm to which CUI has been disseminated; (2) the name of the individual at the entity or firm who is responsible for protecting the CUI building information, with access strictly controlled and limited to those individuals having a Lawful Government Purpose to access such information; (3) contact information for the named individual; and (4) a description of the CUI building information provided. Once “as built” drawings are submitted, the contractor must collect all lists maintained in accordance with this clause, including those maintained by any subcontractors and suppliers, and submit them to the

CO. For Federal buildings, final payment may be withheld until the lists are received.

4. Safeguarding CUI documents. CUI building information (both electronic and paper formats) must be stored within controlled environments that prevent unauthorized access. GSA contractors and subcontractors must not take CUI building information outside of GSA or their own facilities or network, except as necessary for the performance of that contract. Access to the information must be limited to those with a Lawful Government Purpose for access.

5. Destroying CUI building information. When no longer needed, CUI building information must either be returned to the CO or destroyed in accordance with guidelines in NIST Special

Publication 800-88, Guidelines for Media Sanitization.

6. Notice of disposal. The contractor must notify the CO that all CUI building information has been returned or destroyed by the contractor and its subcontractors or suppliers in accordance with paragraphs 4 and 5 of this clause, with the exception of the contractor's record copy. This notice must be submitted to the CO at the completion of the contract to receive final payment.

For leases, this notice must be submitted to the CO at the completion of the lease term.

7. CUI security incidents. All improper disclosures or receipt of CUI building information must be immediately reported to the CO and the GSA Incident Response Team Center at gsa-ir@gsa.gov. If the contract provides for progress payments, the CO may withhold approval of progress payments until the contractor provides a corrective action plan explaining how the contractor will prevent future improper disclosures of CUI building information. Progress payments may also be withheld for failure to comply with any provision in this clause until the contractor provides a corrective action plan explaining how the contractor will rectify any noncompliance and comply with the clause in the future.

8. Subcontracts. The contractor and subcontractors must insert the substance of this clause in all subcontracts.

[End of clause]

III.L. Non-Compliance with Contract Requirements

In the event the Contractor, after receiving written notice from the Contracting Officer of non-compliance with any requirement of this Contract, fails to initiate promptly such action as may be appropriate to comply with the specified requirement within a reasonable period of time, the Contracting Officer shall have the right to order the Contractor to stop any or all work under the Contract until the Contractor has complied or has initiated such action as may be appropriate to comply within a reasonable period of time. The Contractor will not be entitled to any extension of Contract time or payment for any costs incurred as a result of being ordered to stop work for such cause.

III.M. Safeguarding Sensitive Data and Information Technology Resources

In accordance with FAR 39.105, this section is included in the contract. This section applies to all users of sensitive data and information technology (IT) resources, including awardees, contractors, subcontractors, lessors, suppliers and manufacturers. The following GSA policies must be followed.

These policies can be found at Directives Library.

1. CIO P 2100.1K GSA Information Technology (IT) Security Policy

2. CIO P 2100.2B GSA Wireless Local Area Network (LAN) Security

3. CIO 2100.3C Mandatory Information Technology (IT) Security Training Requirement for

Agency and Contractor Employees with Significant Security Responsibilities

4. CIO 2104.1A CIO CHGE 1 GSA Information Technology IT General Rules of Behavior

5. CIO 2105.1 C CHGE 1 GSA Section 508: Managing Electronic and Information

Technology for Individuals with Disabilities

6. CIO 2106.1 GSA Social Media Policy

7. CIO 2107.1 Implementation of the Online Resource Reservation Software

8. CIO 2160.4A Provisioning of Information Technology (IT) Devices

9. CIO 2162.1 Digital Signatures

10. CIO P 2165.2 GSA Telecommunications Policy

11. CIO P 2180.1 GSA Rules of Behavior for Handling Personally Identifiable Information

(Pll)

12. CIO 2182.2 Mandatory Use of Personal Identity Verification (PIV) Credentials

13. CIO P 1878.2A Conducting Privacy Impact Assessments (PIAs) in GSA

14. CIO IL-13-01 Mobile Devices and Applications

15. CIO 2102 Information Technology (IT) Integration Policy

16. HCO 9297.1 GSA Data Release Policy

(i) GSAR 552.236-74, Evaluation of Options (MAR 2019) Evaluation of Options (Mar 2019)

The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s).

(End of provision)

(ii) GSAR 552.236-77, Government’s Right to Exercise Options (MAR 2019) Government's Right to Exercise Options. (Mar 2019)

(a) The Government may exercise any option in writing in accordance with the terms and conditions of the contract within the period of performance.

(b) If the Government exercises the option, the contract shall be considered to include this option clause. (End of clause)

(iii) Allowance Procedures

Allowances can only be requested for known, identified and anticipated work, beyond the required base scope, that cannot be fully quantified. Unit rates must be provided for allowances. Lump sums are not allowed. An allowance will contain a set amount of money, incorporated into the contract at award or through modification, and prior

17.H CO 9297.2B GSA Information Breach Notification Policy 18.A DM P 9732.1 D Suitability and Personnel Security

The contractor and subcontractors must insert the substance of this section in all subcontracts.

III.N Paragraph (i) of GSAR 552.236-79, Construction-Manager-As-Constructor, is supplemented as follows:

Prior to the use of the CMc Contingency Allowance (CCA), the Contractor shall coordinate approval following these procedures:

1. Except in emergencies, prior to any CCA expenditure, the Contractor must submit a CCA proposal to Contracting Officer for review and approval.

2. In the case of an emergency, the Contractor must submit a CCA request proposal to the Contracting Officer no later than the following business day, unless the Contracting Officer agrees to an extension.

3. The Contractor shall track all CCA usage on their schedule of values submitted with each payment request.

III.O. Additional Terms and Conditions to the Contractor’s use of the allowance, a request in writing to the project team, Project Manager, Contracting Officer’s Representative, Contracting Officer and Contract Specialist must be submitted. Additionally, the Contractor will be responsible for tracking all allowances and providing a monthly allowance tracking sheet.

An established allowance becomes part of the overall GMP, but it gets tracked separately and requires approval before use. The full amount of an unused allowance is returned to the government.

To differentiate an allowance from a regular GMP line item, a regular GMP line item does not require additional approval before use; it just needs to follow open book accounting.

(iv) Substitution of Personnel

No substitution to key personnel shall be made without prior approval of the CO. In the event that personnel approved by the CO are unable to perform their duties due to death, illness, resignation from the Contractor's employment, the CO's request for removal, or similar reasons, the Contractor shall promptly submit to the CO, in writing, the name and qualifications of a proposed replacement with equal or superior qualifications. This replacement, if approved by the CO, shall be submitted to the Government within three calendar days from the time of removal and shall in no way delay the project schedule. If the schedule is delayed due to the CMc’s lack of timely submittal or lack of an equally qualified submittal, the CMc shall be responsible for any and all resulting costs associated with the delay. Any approved substitutions shall be made at no increase in contract price and/or decrease in capabilities.

IV. Contract Clauses

IV.A. Clauses Incorporated in Full Text

(1) GSAR 552.236-79, Construction-Manager-As-Constructor. (JAN 2020)

(a) General. Pricing for the Guaranteed Maximum Price (GMP) for the option for construction services shall be subject to the requirements below.

(b) Definitions. The following definitions shall apply to this clause:

“Construction-Manager-as-Constructor (CMc) Contingency Allowance (CCA)” means an allowance for the exclusive use of the construction contractor to cover reimbursable costs during construction that are not the basis of a change order. These costs could include estimating, scheduling, and planning errors in the final Estimated Cost of the Work (ECW) or other contractor errors.

“Cost” means allowable costs in accordance with FAR Part 31.

“Cost of Performance” means the final sum of cost of the construction work and fee for the construction work.

“Early Work Package” means a set of construction activities that can be clearly defined and separately performed from the remainder of the construction work. Demolition is an example of an early work package.

“Estimated Cost of the Work (ECW)” means the estimated cost of the construction work, not including home office overhead.

“Fee for the Construction Work” means the amount established for the contractor's profit and home office overhead costs, as described in FAR Part 31, for the construction work.

“Guaranteed Maximum Price (GMP)” means the sum of the ECW, CCA, and the fee for the construction work.

(c) Guaranteed Maximum Price. This contract at award includes a GMP.

(d) Estimated Cost of the Work. The proposed ECW incorporated into the contract at award is a target ECW. A final ECW is negotiated during the design phase and is incorporated into the contract prior to exercise of the GMP option.

(e) Final Estimated Cost of the Work.

(1) Submission Requirements for Final ECW Proposal. During the design phase, and at a time agreed by the Contracting Officer, the Contractor shall submit the following:

(i) A detailed statement of all construction costs, including early work packages in the performance of the construction work to date;

(ii) A detailed breakdown of home office overhead costs and a statement that the accounting practices used for the allocation of home office overhead on this contract is in accordance with the Contractor's established cost accounting practices;

(iii) A proposed final ECW;

(iv) Sufficient data to support the accuracy and reliability of the estimate;

(v) An explanation of the difference between the proposed final ECW and the target

ECW used to establish the GMP; and

(vi) The Contractor's affirmation that:

(A) The Contractor is satisfied that the project as described in the specifications and construction drawings is constructible using commercially practicable means and methods;

(B) The Contractor is satisfied that the construction work has been sufficiently described to enable it to estimate the cost of the work with reasonable accuracy;

(C) The Contractor has disclosed to the Contracting Officer all of its actual knowledge relating to design errors and omissions that may affect the cost of the work; and

(D) The Contractor acknowledges that the final ECW and time established for completion shall not be adjusted on account of cost or time attributable to known design errors and omissions disclosed by the Contractor pursuant to paragraph

(e)(1)(v)(C) of this clause. Unknown design errors and omissions that form the basis for a change order may still be settled in accordance with GSAR 552.243-

71 Equitable Adjustments.

(2) Establishment of the Final ECW. The parties shall negotiate a final ECW based on the data provided under paragraph (e)(1) of this clause. The final ECW shall be established and incorporated into the Contract by bilateral modification. The Contracting

Officer will not accept a final ECW proposal that does not include the written affirmation described in this clause. The Contracting Officer will not exercise the GMP option for construction work unless the final ECW has been incorporated into the contract.

(f) CMc Contingency Allowance. The CCA shall be 3 percent of the ECW ].

(g) Shared Savings Incentive. The Contractor shall be entitled to 30 percent of the difference between the final GMP and the final cost of performance .

(h) Adjustment of ECW and GMP. The ECW and GMP shall be subject to adjustment for changes and any other conditions giving rise to entitlement to an adjustment under this contract. The ECW and GMP may be adjusted down for deletions to the scope of the construction services through a bilateral modification.

(i) Adjustment of CCA. If the sum of the final ECW, CCA, and fee for the construction work is greater than the GMP as established at contract award or as adjusted in accordance with FAR Part 43, then the Contractor should work with the Contracting Officer to identify measures to reduce the overall GMP, including reducing the CCA, reducing the fee, or as a last resort, reducing the scope of the project. At any time, the parties may agree to a different

CCA than the amount expressed at time of contract award. Prior to the use of the CCA, the

Contractor shall coordinate approval following the procedures identified in the contract. For approved CCA uses, the CCA shall be reduced and the ECW shall be adjusted accordingly.

(j) Adjustment of the Fee for the Construction Work. The fee for the construction work may be adjusted for changes that are the basis for a change order, including scope changes, differing site conditions, and Government-caused delays. The fee for the construction work associated with a change order shall not be driven by a fixed percentage. The fee for the construction work is not increased or decreased based on fluctuations in the actual costs of the work. At time of proposal submission, the fee elements may be expressed as a percentage of the ECW, but shall be converted to a fixed amount prior to executing the GMP option.

(k) Conversion to Firm-Fixed-Price Prior to Final Settlement.

(1) Submission Requirements for Conversion to Firm-Fixed Price. If the parties agree to negotiate and establish a firm-fixed-price for construction work prior to the exercise of the

GMP option, or at the request of the Contracting Officer, the Contractor shall submit the following:

(i) A proposed firm-fixed-price proposal for the completion of the construction work, which shall include all markups, including profit

(ii) A detailed statement of any costs incurred in the performance of the contract work to date.

(2) Establishment of Firm-Fixed-Price.

(i) Prior to Exercise of GMP Option. The parties may negotiate and establish a firm-fixed-price for construction work prior to the exercise of the GMP option based on the data provided under paragraph (k)(1) of this clause; provided that the firm-fixed-price shall not exceed the GMP. The Contracting Officer shall have the right, but not the obligation, to bilaterally exercise the GMP option at the firm-fixed-price within 120 calendar days of the establishment of such price.

(ii) After Exercise of the GMP Option. At any time prior to final settlement, the

Contracting Officer may request that the Contractor provide a firm-fixed-price proposal for the completion of construction work in accordance with paragraph (k)(1) of this clause. Within 60 calendar days of such request, the Contractor shall provide such data.

Within 60 calendar days of receipt of the Contractor's proposal, the Contracting Officer shall have the right, but not the obligation, to convert the contract to a firm-fixed-price contract through a bilateral modification at the proposed fixed-price or as otherwise negotiated by the parties; provided that the firm-fixed-price, plus any costs incurred in the performance of the construction work, shall not exceed the GMP.

(iii) If any portion of the contract is converted to a firm-fixed-price, then that portion of the contract is no longer subject to open book accounting, a shared savings incentive, or the need for final settlement. If the contract is not converted to a firm-fixed-price contract, then the final settlement of the Contractor's compensation shall be determined in accordance with paragraph (l) of this clause.

(3) Payments. If this contract is converted to a firm-fixed-price contract, the Contractor shall submit a revised schedule of values for the construction work allocating the unpaid balance of the fixed price to the itemized work activities remaining uncompleted, which shall be the basis for remaining progress payments.

(l) Final Settlement. The final settlement amount shall consist of the cost of performance and the Contractor's shared savings incentive, if any, provided that in no event shall the final settlement exceed the GMP. The final settlement amount shall be the Contractor's total compensation due under the contract.

(1) Submission Requirements for Final Settlement Proposal. The Contractor shall submit a final settlement proposal within 120 days of substantial completion to determine the cost of the construction work, which shall include the following:

(i) A detailed statement of all costs incurred by the Contractor in performing the construction work;

(ii) A firm-fixed-price proposal for the performance of the remaining work, if any, that may be necessary to complete performance of the construction work;

(iii) An executed release of claims, which shall describe any and all exceptions, including a description of any outstanding claims; and

(iv) Any other relevant data that the Contracting Officer may reasonably require.

(2) Determination of the Cost of the Work. The cost of the construction work shall be the sum of all costs incurred by the Contractor in performing the construction work, the proposed fixed price for performance of remaining work, if any, less the residual value of any Contractor retained inventory. In order to determine the cost of the construction work, the Contractor shall be subject to an audit of the Contractor's records and/or the

Contractor's proposal. Establishment of the cost of the construction work shall be subject to negotiation between the Government and the Contractor. In the event that the parties are unable to reach agreement, the Contracting Officer may unilaterally determine the cost of the construction work, and such determination shall be subject to FAR Clause 52.233-

1 Disputes.

(3) Determination of the Shared Savings Incentive. If the final cost of performance is equal to or greater than the final GMP, the Contractor is not entitled to any additional compensation. If the final cost of performance is less than the final GMP, the Contractor is entitled to the percentage specified in paragraph (g) of this clause, of the difference between the final GMP and the final cost of performance, as the shared savings incentive.

(m) Subcontracts. No subcontract placed under this contract may provide for cost-plus-a-percentage of cost. Any costs incurred by the Contractor as a result of such a subcontract shall not be included in the cost of the construction work or the final settlement.

(n) Open Book Access.

(1) At any time prior to converting to firm-fixed-price, the Government and its representatives, including designated auditors and accountants, shall have the right, but not the obligation, to attend any and all project meetings and shall have access to any and all records maintained by the Contractor relating to the contract. The Contractor shall include this requirement for open book access by the Government in its subcontracts for the contract.

(2) After converting to firm-fixed-price, the Government maintains the right to examine records under GSAR Clause 552.215-70.

(o) Termination. If this Contract is terminated, the Contractor shall not be entitled to a shared savings incentive.

(p) The…