Combined Synopsis Solicitation - 50310224Q0118.pdf

TO: PROSPECTIVE QUOTERS

SUBJECT: COMBINED SYNOPSIS/SOLICITATION 50310224Q0118, EXECUTIVE

PROTECTION SERVICES

DATE: JULY 26, 2024

1. General Information

Document Type: Combined Synopsis/Solicitation for Commercial Services Solicitation Number: 50310224Q0118, Executive Protection Services Posted Date: July 26, 2024 Original Response Date: August 5, 2024 PSC: S206, Housekeeping - Guard Set Aside: Not Applicable NAICS Code: 561612, Security Guards and Patrol Services

2. Contracting Office and Contracting Officer Point of Contact

U.S. Securities and Exchange Commission (SEC) Office of Acquisitions Attn: Ms. Khaleelah Wright 100 F Street NE Washington, DC 20549 Office: (202) 551-7731 E-mail: wrightkh@sec.gov

3. Description

a. This is a combined synopsis/solicitation for commercial services prepared in accordance with the format in Federal Acquisition Regulation (FAR) Subpart 12.6, as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; quotes are being requested and a written solicitation will not be issued.

b. This solicitation is a Request for Quotation (RFQ) and is assigned solicitation number 50310224Q0118. It is the Quoter’s responsibility to monitor SAM.gov for the release of amendments (if any).

c. This solicitation and incorporated provisions and clauses are those in effect through Federal

Acquisition Circular (FAC) 2024-05, effective May 22, 2024.

mailto:dyec@sec.gov https://www.acquisition.gov/far/part-12#FAR_Subpart_12_6 https://sam.gov/content/home

d. This solicitation is issued on an unrestricted basis. The assigned North American Industry

Classification System (NAICS) code is 561612, Security Guards and Patrol Services, with a small business size standard of $29 Million. The assigned Product or Service Code (PSC) is S206, Housekeeping - Guard.

e. The SEC intends to procure executive protection services, as described in Attachment #1, Statement of Work (SOW).

All interested companies must provide quotes for services in accordance with the SOW for a total of five (5) years.

The awardee will be issued a Basic Ordering Agreement (BOA).

f. Attachment #1, SOW, contains a full description of the requirements.

g. The period of performance will be September 9, 2024 through September 8, 2029. The place of performance will be at the SEC Headquarters in Washington, DC and ten (10) Regional Offices located in Atlanta, GA; Boston, MA; Chicago, IL; Denver, CO; Fort Worth, TX; Los Angeles.

CA; Miami, FL; New York, NY; Philadelphia, PA; and San Francisco, CA.

h. FAR Provision 52.212-1, Instructions to Offerors – Commercial Products and Commercial

Services (SEP 2023), applies to this acquisition. The following is addenda to FAR 52.212-1:

Quotes submitted in response to this solicitation shall include a technical quote and a separate price quote, as described below:

i. Technical Quote: The technical quote shall consist of a technical description of the executive protection services being offered to evaluate the Quoter’s capability to meet the requirements of Attachment #1, SOW.

ii. Price Quote: The price quote shall consist of the following:

1) The Quoter’s System for Award Management (SAM) Unique Entity Identification (UEI) number.

All Quoters must have an active registration in SAM to participate in this acquisition. The SEC will not accept quote submissions from Quoters that do not have an active registration in SAM.

2) Acknowledgement of receipt of all solicitation amendment(s), if any.

3) A completed copy of FAR Provision 52.212-3, Offeror Representations and Certifications

– Commercial Products and Commercial Services (MAY 2024), or confirmation that the Quoter has completed its annual representations and certifications electronically in SAM and that the representations and certifications currently posted are current, accurate, complete, and applicable to this solicitation.

4) A completed Attachment #2, Pricing Worksheet. Proposed pricing shall be inclusive of all fees. Do not break out the price or provide any other pricing detail, except as noted in Attachment #2, unless otherwise requested by the Contracting Officer. The SEC requests all available discounts.

5) Any Commercial Supplier Agreements (CSAs) (e.g., hotel agreement, terms of use, or similar agreement). The Government will review and may accept CSAs only to the extent terms do not conflict with Federal procurement law. The Quoter is directed to review Securities and Exchange Commission Instruction (SECI) 7001.00, Commercial Supplier Agreements – Unenforceable Clauses (OCT 2022).

No reimbursement or compensation will be provided by the SEC to Quoters for preparation of responses to this solicitation. In addition, the SEC reserves the right to make no award resulting from this solicitation.

i. FAR Provision 52.212-2, Evaluation – Commercial Products and Commercial Services (NOV

2021), applies to this acquisition.

i. The Government intends to award a Basic Ordering Agreement (BOA) resulting from this solicitation to the responsible Quoter whose quote, conforming to the solicitation, will be most advantageous to the Government, price and other factors considered. The following factors will be used to evaluate quotes:

1) Technical capability of the Quoter to meeting the SEC’s requirement; and

2) Price.

Technical capability shall be evaluated on an “acceptable” or “unacceptable” basis in accordance with the tasks/requirements outlined in Section 2 of Attachment #1, SOW.

The basis of evaluation shall be Lowest Price Technically Acceptable (LPTA). Quotes shall be evaluated to determine whether the executive protection services offered meet all requirements outlined in Attachment #1, SOW. Those quotes that meet all requirements shall be rated as “acceptable.” Those quotes that do not meet all requirements shall be rated as “unacceptable” and will not be considered for award. Award shall be made to the lowest priced, technically acceptable Quoter.

ii. A written notice of award or acceptance of a quote, mailed or otherwise furnished to the successful Quoter within the time for acceptance specified in the quote, shall result in a binding contract without further action by either party. Before the quote’s specified expiration time, the Government may accept a quote whether or not there are negotiations after its receipt unless a written notice of withdrawal is received before award.

j. As aforementioned, the Quoter shall submit a completed copy of FAR Provision 52.212-3, Offeror Representations and Certifications – Commercial Products and Commercial Services

(MAY 2024), with its quote. However, if the Quoter confirms that it has completed its annual representations and certifications electronically in SAM and that the representations and certifications currently posted are current, accurate, complete, and applicable to this solicitation, the Quoter does not need to complete and submit a copy of FAR Provision 52.212-3.

k. FAR Clause 52.212-4, Contract Terms and Conditions – Commercial Products and Commercial

Services (NOV 2023), applies to this acquisition.

l. FAR Clause 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Products and Commercial Services (MAY 2024), applies to this acquisition. In Section (b), the following clauses apply:

• 52.203-17, Contractor Employee Whistleblower Rights (NOV 2023).

• 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (JUN

2020).

• 52.204-27, Prohibition on a ByteDance Covered Application (JUN 2023).

• 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors

Debarred, Suspended, or Proposed for Debarment (NOV 2021).

• 52.222-3, Convict Labor (JUN 2003).

• 52.222-21, Prohibition of Segregated Facilities (APR 2015).

• 52.222-26, Equal Opportunity (SEP 2016).

• 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020).

• 52.222-37, Employment Reports on Veterans (JUN 2020).

• 52.222-50, Combating Trafficking in Persons (NOV 2021)

• 52.226-8, Encouraging Contractor Policies to Ban Text Messaging While Driving (MAY

2024).

• 52.232-33, Payment by Electronic Funds Transfer – System for Award Management (OCT

2018).

m. The following additional terms and conditions are applicable to this acquisition:

FAR Clauses Incorporated By Reference:

52.212-4 Contract Terms and Conditions – Commercial Products and Commercial Services NOV 2023

52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

This contract incorporates one (1) or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es):

https://www.acquisition.gov/browse/index/far https://www.acquisition.gov/browse/index/far

Applicable Securities and Exchange Commission Instructions (SECIs):

5003.05 SUBMISSION OF INVOICES - DELPHI EINVOICING SYSTEM

(JANUARY 2022)

(a) The Securities and Exchange Commission (SEC) will only accept electronic invoices submitted through the Delphi eInvoicing system on a completion of work basis.

(b) Payment system registration. All persons accessing the Delphi eInvoicing web-portal will be required to have their own unique user Delphi eInvoicing ID and password and be credentialed through login.gov.

(1) Electronic authentication. See www.login.gov for instructions. Click on the following link for instructions on establishing a login.gov account: https://login.gov/help/creating-an-account/how-do-i-create-an-account-with-logingov/.

(2) To create a login.gov account, the user will need a valid e-mail address and a working phone number. The user will create a password and then login.gov will reply with an e-mail confirming the e-mail address.

(3) In order to set up a new user account or make changes to existing vendor Delphi eInvoice users who will submit invoices through the eInvoicing web-portal for payment and tracking purposes, notify iSupplier@sec.gov and include the contract number, the user’s full name, valid e-mail address (group mailboxes are not recommended), and current phone number of all vendor users.

Vendor users will be notified via e-mail when the account is created. The vendor user will be provided detailed instructions for logging into their Delphi eInvoicing account.

(4) Training on Delphi. To facilitate use of Delphi, comprehensive user information is available at http://einvoice.esc.gov.

(5) Account Management. Vendors are responsible to contact the Delphi Help Desk when their firm’s points of contacts will no longer be submitting invoices so they can be removed from the system. Instructions for contacting the Delphi Help Desk can be found at http://einvoice.esc.gov.

(c) Contractors are cautioned against submitting an invoice prior to goods and services being received/accepted. Invoices submitted prematurely may be rejected. Software license maintenance and subscriptions may be invoiced at the beginning of the contract period of performance.

(d) The SEC’s Delphi eInvoicing system is managed by the Enterprise Services Center (ESC). In order to receive payment and in accordance with the Prompt Payment Act, all invoices submitted as attachments in the Delphi eInvoicing web-portal shall contain the following:

(1) Company logo or letterhead

(2) Company name and payment address

(3) Company Point of Contact (POC) for the invoice with phone and e-mail

(4) Invoice number and invoice date https://login.gov/help/creating-an-account/how-do-i-create-an-account-with-logingov/ https://login.gov/help/creating-an-account/how-do-i-create-an-account-with-logingov/ mailto:iSupplier@sec.gov http://einvoice.esc.gov/ http://einvoice.esc.gov/

(5) Billing period

(6) SEC contract number

(7) Task/delivery order number (if applicable)

(8) SEC Contracting Officer’s Representative (COR) name

(9) Amount billed (by Contract Line Item Number (CLIN)), current and cumulative

(10) Total amount billed this period

(11) Cumulative total billed to date

(12) Brief description of services performed - general description only

(e) If the contract includes allowances for travel, all invoices which include charges pertaining to travel expenses will catalog a breakdown of reimbursable expenses with the appropriate receipts to substantiate the travel expenses.

5004.00 APPOINTMENT OF CONTRACTING OFFICER’S REPRESENTATIVE (COR)

(JANUARY 2022)

(a) A Securities and Exchange Commission (SEC) COR has been designated for administration and information relating to this contract. The SEC may also assign one (1) or more Alternate CORs (ACORs) for this contract. The COR or ACOR, if assigned, may not re-delegate his or her authority; only the Contracting Officer (CO) has this authority.

(b) The COR will manage the contract in coordination with the CO, and within the terms of the contract. The COR’s responsibilities include reviewing invoices and charges by the Contractor, informing the CO of areas where exceptions are taken, and accepting or rejecting invoices in the SEC’s financial system. The COR shall be the primary Point of Contact (POC) responsible for communicating administrative guidance for on-boarding and off-boarding of Contractor Personnel, mandatory trainings, Government closures, and other events as necessary. Unless otherwise specified in this contract, inspection and acceptance of supplies and/or services to be furnished under this contract will be performed by the COR.

(c) Only the CO has the authority to change the terms and conditions of the contract. The COR may request a contract modification, but the CO will make the final determination. The COR may not agree to or issue a change to the contract terms and conditions. In the event the Contractor effects changes to the contract at the direction of any person other than the CO, the changes will be considered to have been made without any authority and no adjustments will be made to the contract.

6001.00 SEC NON-DISCLOSURE REQUIREMENTS AND AGREEMENTS (AUGUST

2022)

a. Required non-disclosure agreements are attached and must be completed and returned to the Contracting Officer before starting work under this contract.

b. Provisions of the SEC Regulation Concerning Conduct of Members and Employees and Former Members and Employees of the Commission expressly prohibit unauthorized disclosure and improper use of confidential or non-public information or documents. See 17 C.F .R. § 200.7353(b)(1) & (b)(2).

The Contractor, and its employees, agents, subcontractors, and subcontractor personnel who will have access to confidential or non-public information or documents in the performance of the contract, agree to be bound by the provisions of Sections 200.735-3(b)(1) and 200.735-3(b)(2) of the SEC's Regulation Concerning Conduct and the terms set forth in the attached non-disclosure agreements (Attachments 1& 2). For purposes of this clause, "confidential or non-public information," is defined as information generated by or in the possession of the SEC that is commercially valuable, trade secret, market sensitive, proprietary, related to an SEC enforcement or examination matter, subject to privilege, protected by the Privacy Act 5U.S.C. § 552a), or otherwise deemed confidential or non-public by an SEC division director or office head, and is not otherwise available to the public.

c. An officer or executive authorized to bind the Contractor shall execute the non-disclosure agreement (Attachment 1) on behalf of the Contractor and return it to the Contracting Officer prior to the Contractor commencing work on the contract. The Contractor shall submit to the Contracting Officer a list of its employees, agents, and subcontractors that will be authorized access to SEC information by virtue of performing the requirements set forth in this contract. Each person identified on the list shall then sign the non-disclosure agreement on behalf of themselves (Attachment 2) and submit it to the Contracting Officer before commencing work on the contract.

d. The Contractor shall also ensure that all of its employees, agents, and subcontractors assigned to perform the requirements set forth in this contract adhere to the terms of the non-disclosure agreement, protecting all confidential or non-public information, and to not divulge to any unauthorized person.

Assignment of staff who has not executed the non-disclosure agreement or failure to adhere to this statement shall result in action by the Contracting Officer, as deemed appropriate. Violation of this clause or the attached non-disclosure agreements by the Contractor, its employees, agents, subcontractors, or subcontractor personnel may result in default of the contract and/or civil suits and/or criminal prosecution.

6002.00 TYPE OF CONTRACT (JANUARY 2022)

This is a Time-and-Materials (T&M) type contract/agreement.

6004.00 APPROVAL OF SUBCONTRACTS (JANUARY 2022)

The Contractor shall not enter into a contractual agreement with any party to furnish any of the work or services under this contract/agreement without the written approval of the Contracting Officer. This provision shall not be interpreted as requiring the approval of contracts for employment between the contractor and personnel assigned for services thereunder.

6005.00 TRAVEL (JUNE 2024)

a. All approved travel related expenses will be reimbursed in accordance with the current Federal Travel Regulation found in Title 41 of the Code of Federal Regulations (CFR).

b. The reimbursement of travel expenses is subject to the following limitations: (1) any subsistence allowance (i.e., meals and lodging) is limited by a per diem allowance prescribed by the link above; (2) expenses incurred as a result of travel using a personal automobile are reimbursed as prescribed by the link above; (3) reimbursement of air and train travel is limited to the most economical rate and reasonable traveled route; and (4) each out-of-pocket travel and allowable miscellaneous administrative expense exceeding $75 requires a receipt that is to be attached to the contractor's invoice.

6006.00 CONFLICTS OF INTEREST (JANUARY 2022)

General

Subpart 9.5 of the Federal Acquisition Regulation (FAR) 48 C.F.R. 9.5, prescribes responsibilities, general rules, and procedures for identifying, evaluating, and resolving organization conflicts of interest.

(b) Purpose

The purpose of this SEC Instruction (SECI) is to avoid, neutralize, or otherwise mitigate organizational conflicts of interest which might exist related to a Contractor's performance of work required by this contract. Such conflicts may arise in situations including, but not limited to:

(1) A Contractor's participation as an offeror, or representative of an offeror, in a procurement in which it has provided assistance in the preparation of the Government's requirements and specifications;

(2) A Contractor providing advisory assistance to the Government for a procurement in which the Contractor, or a firm which the Contractor represents, is an actual or potential offeror; and

(3) A Contractor's participation as an offeror, or representative of an offeror, in a procurement where the Contractor has obtained confidential or proprietary information relating to competing offers as a result of the Contractor's work on prior contracts.

(c) Definition

For the purposes of this SECI, the term "Contractor" means: the Contractor; any of the Contractor's parents, affiliates, or other entities in which the Contractor or such parents or affiliates have a financial interest; successors in interest to the Contractor or any of its parents or affiliates; proposed consultants or subcontractors at any tier; and employees thereof.

(d) Restrictions The Contractor agrees:

(1) To remain ineligible to participate in any capacity (including participating as a prime contractor, subcontractor, or as the representative of another party) in offers, contracts, or subcontracts (whether solicited or unsolicited) that directly relate to the Contractor's performance of work under this contract.

(2) To execute, prior to beginning work on a contract, such Confidentiality Agreements, Non-Disclosure Agreements, or other documents which the Contracting Officer may, in their sole discretion, require in order to protect the proprietary nature or confidentiality of information provided by the Government or otherwise received by the Contractor in connection with its work under this contract.

(3) As otherwise provided in this contract, not to accept any compensation or any other form of payment from a broker, potential lessor, or any source other than the Government for services rendered under this contract, and to employ aggressive strategies to minimize the Government's lease costs where the Contractor would be entitled by common business practice to receive a real estate commission or any form of payment from a broker, potential lessor, or other party, for work performed under this contract.

(4) To immediately notify the Contracting Officer of any offer of compensation, other form of payment, or thing of value, made by a broker, potential lessor, or any source other than the Government to the Contractor related to services rendered under this Contract, regardless of whether such offer was made during Contractor's performance of work under a given contract or subsequent to Contractor's completion of work under such contract.

(5) Prior to the acceptance of a contract, request to immediately notify the Contracting Officer of any potential conflict of interest which would prevent or limit the Contractor's ability to perform the work required under the contract.

(6) To immediately notify the Contracting Officer of any conflict of interest discovered during the Contractor's performance of work pursuant to a Government contract; provided that the Contracting Officer shall have the right to impose such restrictions as they deem appropriate on Contractor's performance based on the existence of such a conflict or, if the Contracting Officer determines that such restrictions would not adequately address the conflict of interest at issue, to terminate the Contractor's performance of work under the contract at no cost to the Government.

(7) As otherwise provided in this contract, that if the Contractor declines to accept a task order request and subsequently participates (either directly or as a representative of another party) in a Government procurement action that was the subject of the task order request, then the fee which the Contractor would have been entitled to receive for such task order work or the fee actually paid by the Government for the task order's performance by another contractor, whichever is greater, shall be applied toward the Contractor's minimum order guarantee.

(8) That in the event that the Contractor knowingly withholds the existence of a conflict of interest from the Government, that the Contracting Officer may terminate this contract at no cost to the Government and any minimum guarantee(s) otherwise applicable to the Contractor will be forfeited; provided, that the foregoing shall be in addition to all other remedies and causes of action which the Government may have against the Contractor, including the suspension and/or debarment of the Contractor.

(9) To include this Conflict of Interest SEC Instruction, including this subparagraph, in all of the Contractor's subcontracts at all tiers (appropriately modified to preserve the Government's rights hereunder) which involve the performance of work by subcontractors in support of this contract.

(10) That, in addition to the remedies enumerated above, the Government may terminate this contract for cause in the event of the Contractor's breach of any of the above restrictions.

6007.00 COMPLIANCE WITH REGULATIONS (JANUARY 2022)

a. The Contractor shall comply with all statutes, regulations, directives, instructions, and references applicable to the conduct of this acquisition as imposed by the Federal Government and the SEC, including, without limitation, those specified or referred to in this contract.

b. The Contractor and its employees performing work on-site at SEC facilities shall become acquainted with and shall comply with the rules and regulations of the SEC's facilities, including, but not limited to security, controlled access, personnel clearances, and conduct with respect to health and safety at the site, regardless of whether or not title to the facility is vested in the SEC.

6020.00 CONTRACTOR WORKFORCE INCLUSION (JANUARY 2022)

a. The Contractor confirms its commitment to equal opportunity in employment and contracting, and that it shall ensure, to the maximum extent possible and consistent with applicable law, the fair inclusion of minorities and women in its workforce.

b. The Contractor shall insert the substance of this contract standard in each subcontract for services awarded for performance of this contract with a dollar value of $100,000 or more.

c. Within ten (10) business days of a written request from the Director of the Commission’s Office of Minority and Women Inclusion (OMWI Director) or designee, or such longer time as the OMWI Director or designee determines, and without any additional consideration, action or authorization required from the OMWI Director, the Contractor shall provide documentation, satisfactory to the OMWI Director, of the actions it has undertaken (and as applicable, the actions each covered subcontractor under the contract has undertaken) to demonstrate its good faith efforts to comply with the aforementioned provisions.

d. For purposes of this contract, “good faith efforts” shall include actions by the Contractor (and as applicable, actions by each covered subcontractor under the Service Contract) to identify and, if present, remove barriers to minority and women employment or expansion of employment opportunities for minorities and women within its workforce. Efforts to remove such barriers may include, but are not limited to, recruiting to ensure that applicant pools include minorities and women, providing job-related training, or other activity that could lead to removing such barriers.

e. The documentation requested by the OMWI Director or designee to demonstrate good faith efforts may include, but is not limited to, one or more of the following:

1. The total number of Contractor’s employees, and the number of employees by race, ethnicity, gender, and job title or EEO-1 Report job category (e.g., EEO-1 Report(s));

2. A list of covered subcontract awards for services under the contract, and for each covered subcontract award, the dollar amount, date of award, and the subcontractor’s race, ethnicity, and/or gender ownership status;

3. The contractor’s plan for ensuring the fair inclusion of minorities and women in its workforce, including outreach efforts; and

4. For each covered subcontractor, the documentation specified in paragraphs 1. and 3. above.

f. Consistent with Section 342(c)(3) of the Dodd-Frank Wall Street Reform and Consumer Protection

Act (the “Dodd-Frank Act”), 12 U.S.C. 5452(c)(3), a Contractor’s failure to demonstrate to the OMWI Director that it has made good faith efforts to include minorities and women in its workforce (and as applicable, failure to demonstrate that its subcontractor(s) has made such good faith efforts) may result in termination of the contract for default after the contractor is provided written notice and an opportunity to cure the failure in accordance with the procedures set forth in FAR Subpart 49.402-3(d), other contractual remedies, referral to the Office of Federal Contract Compliance Programs (OFCCP), or other appropriate action.

g. Compliance with this standard does not necessarily satisfy the requirements of EO 11246, as amended, nor does it preclude OFCCP compliance evaluations and/or enforcement actions undertaken pursuant to that Executive Order, or demonstrate compliance with other FAR clauses that may be included in this contract.

6024.00 GOVERNMENT CLOSURES AND MODIFIED OPERATIONS (MARCH 2023)

a. In the event of Government closure or modified operations, performance under this contract, in whole or in part, may be deemed essential by the SEC and required to continue. (For the purpose of this instruction, “Government closure” includes, but is not limited to, those due to local or national emergencies, inclement weather, Government shutdown, administrative closings, or similar Government directed closings. “Modified operations” may include, but is not limited to, recommended/required telework, unavailability of certain Government facilities, or other scenarios where alternative operations are necessary.)

b. The Contractor shall coordinate with the COR or the CO when Government closure or modified operations are anticipated. When not otherwise addressed in the Terms and Conditions of the contract, only a CO may approve requests for telework for Contractor Personnel required to work on-site at an SEC facility, work hour changes, or other accommodations, if necessary.

c. For contract performance that does not continue during a government closure or modified operations, Contractors shall refer to the Terms and Conditions of the contract and their internal company policies, as needed.

d. Unless otherwise specified by statute, Contractors will not be paid for performance that has not occurred. For firm-fixed price contracts, the government reserves the right to renegotiate pricing when work cannot be performed. For other than firm fixed price contracts (i.e., time and materials and labor hour contracts), the contractor will not be reimbursed in the event of a government closure or delayed arrival when work is not performed.

http://www.gpo.gov/fdsys/granule/USCODE-2011-title12/USCODE-2011-title12-chap53-subchapIII-partC-sec5452 https://www.acquisition.gov/sites/default/files/current/far/html/Subpart%2049_4.html#wp1083185 http://www.dol.gov/ofccp/ http://www.dol.gov/ofccp/ http://www.dol.gov/compliance/laws/comp-eeo.htm

e. This instruction is supplemental and does not preempt conflicting FAR clauses or other federal laws or regulations.

6027.00 DISCLOSURE OF INFORMATION (NOVEMBER 2023)

(a) The Contractor shall not refer to this contract in press releases, announcements, commercial advertising or similar promotions, or other publications in such a manner as to state or imply that the product or service provided is endorsed or preferred by the Federal Government or is considered by the Government to be superior to other products or services.

(b) The Contractor and those acting on behalf of the Contractor shall not release to anyone outside the

Contractor’s organization any classified or unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this contract or any program related to this contract, unless—

(1) The Contracting Officer has given prior written approval; or

(2) The information is otherwise in the public domain before the date of release.

(c) Requests for approval shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 30 days before the proposed date for release.

(d) The Contractor agrees to include a similar requirement in each subcontract under this contract. Subcontractors shall submit requests for authorization to release through the prime contractor to the Contracting Officer.

(e) The provisions and restrictions of this Instruction are consistent with and do not supersede, conflict with, or otherwise alter the obligations, rights, or liabilities created by existing statute or executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling executive orders and statutory provisions are incorporated into this Instruction and are controlling.

7001.00 COMMERCIAL SUPPLIER AGREEMENTS - UNENFORCEABLE CLAUSES

(OCTOBER 2022)

(a) Purpose

The purpose of this Securities and Exchange Commission (SEC) Instruction (SECI) is to implement the Federal Acquisition Regulation (FAR) 12.302(c) Class Waiver approved by the SEC Senior Procurement Executive that addresses conflicting and/or problematic terms in Commercial Supplier Agreements (CSAs) (e.g., license agreements, terms of service (TOS), terms of sale or purchase, End User License Agreements (EULAs), and similar agreements).

(b) Order of Precedence

When FAR 52.212-4 is present in the solicitation or contract at issue, its paragraphs are tailored to reflect:

(s)(2) (‘The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations paragraphs of this clause, and SECI 7001.00, Commercial Supplier Agreements - Unenforceable Clauses.’); and (s)(4) (‘Addenda to this solicitation or contract, including any license agreements as amended by SECI 7001.00, Commercial Supplier Agreements - Unenforceable Clauses.’)

(c) Unenforceable Clauses

When any supply or service acquired under this contract is subject to a CSA, the following language shall be deemed incorporated into the CSA. As used herein, ‘this agreement’ means the CSA:

(1) Notwithstanding any other provision of this agreement, when the end user is the SEC, the following shall apply:

(i) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR Part 12.)

(ii) End user. This agreement shall bind the SEC as the end user but shall not operate to bind a

Government employee or person acting on behalf of the Government in his or her personal capacity.

(iii)Law and disputes. This agreement is governed by Federal law.

(A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S.

territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

(B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

(C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

(iv)Continued performance. The supplier or licensor shall not unilaterally revoke, terminate, or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance per FAR 52.212-4(d).

(v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

(vi) Updating terms.

(A) After award, the Contractor may unilaterally revise terms if they are not material. A material change is defined as:

(1) Terms that change Government rights or obligations;

(2) Terms that increase Government prices;

(3) Terms that decrease overall level of service; or

(4) Terms that limit any other Government right addressed elsewhere in this contract.

(B) For revisions that will materially change the terms of the contract, the revised CSA must be incorporated into the contract using a bilateral modification.

(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative.

(viii) Indemnification (by licensor). Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. § 516.

(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:

(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the SEC. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.

(B) This charge, if disputed by the SEC, will be resolved in accordance with FAR 52.212-

4(d) (Disputes); no payment obligation shall arise on the part of the SEC until the conclusion of the dispute process.

(C) Any audit requested by the Contractor will be performed at the Contractor’s expense, without reimbursement by the Government.

(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

(xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government’s prior approval, except as expressly permitted under FAR 52.212-4(b).

(xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed ‘confidential information’. Issues regarding release of ‘unit pricing’ will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation, or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (1), the language, provisions, or clause of paragraph (1) shall prevail to the extent of such inconsistency.

n. The Defense Priorities and Allocations System (DPAS) does not apply to this acquisition.

o. Quoters shall submit quotes via e-mail to the Contracting Officer, at wrightkh@sec.gov, no later than 10:00 AM Eastern Time (ET) on August 5, 2024. Late quotes shall not be accepted.

p. Attachments:

• Attachment #1, SOW

• Attachment #2, Pricing Worksheet

End of Document mailto:dyec@sec.gov