Draft- Attachment J.5 Requirements and Terms for Contractor Use FOIL.docx

Contract No. 693JJ321D000001 Attachment J.5

Requirements and Terms for Contractor Use of the FHWA FOIL Facilities and Equipment for Non-Government Commercial Purposes Approval to Use the FOIL for Non-Government Commercial Use The FHWA authorizes the Contractor to use the FHWA FOIL facilities and equipment for use outside of the contract performance, specifically for performance of crash and impact testing for commercial purposes. The Contractor may use the Government facilities and equipment for non-government commercial use in accordance with the following terms.

FAR References

· FAR 52.245-1(c) Use of Government property, authorizes the Contractor to use Government property, either furnished or acquired under this contract, only for performing this contract, unless otherwise provided for in this contract or approved by the Contracting Officer.

· FAR 45.301 Use and rental, provides that the Contractor may use Government property for non-government commercial purposes in exchange for fair rental or other adequate consideration.

Percentage of Use FHWA authorizes the Contractor to use the FHWA FOIL facilities and equipment for non-governmental commercial purposes for up to 500 hours per year. The quantity of 500 hours per year is estimated to be 25% of the total use (Government and commercial work combined).

NOTE: During performance, the commercial non-contract use may increase based on mutual agreement of the parties and authorization from the Contracting Officer. FHWA intends to re-assess the 500 hours maximum after one year of performance, with the goal of increasing authorized non-government use in the future to the extent feasible and mutually agreeable to the parties, up to an estimated 50% authorized non-government use.

Tracking of Use The Contractor shall track and report hours of non-governmental commercial use in the Contractor’s monthly progress reports.

Scheduling of Use The Contractor shall obtain written pre-approval from the COR for the schedule of non-governmental use of the FOIL. To the extent possible, the Contractor shall submit a monthly request for COR approval of non-governmental use, to be submitted by the 15th of the month prior to the month being requested.

The non-government use shall not interfere with Government use (work under the IDIQ contract), and Government use takes precedence over non-government use.

Government and non-government use may occur concurrently onsite at the FOIL if approved in advance by the COR. In the event of such concurrent use, the work projects, staff, and equipment use must be kept clearly separate. For example, the Contractor may deploy staff to use the FOIL Test Track for non-government use concurrently while other Contractor staff perform Government work using the FOIL Pendulum, and vice versa.

NOTE: It is essential to separately track and delineate Government use from non-government use with respect to labor hours performed under a Time & Materials Task Order. The Contractor must ensure direct labor hours billed to FHWA are performed in support of Government work only.

The Contractor’s non-government commercial use may occur any day of the week with pre-approval from the COR. The TFHRC is open and staffed 24-hours per day including holidays and weekends.

Coordination and scheduling of FOIL use between the Contractor and the COR is a priority to ensure clear communication and understanding of the use schedule at all times. The Contractor shall implement a procedure to ensure the COR is duly informed and has access to a current schedule of FOIL use at all times.

Requirement for COR Approval of Purpose of Non-Government Commercial Use

The Contractor shall obtain pre-approval from the COR with respect to the nature and the purpose of the planned non-government use of the FOIL, i.e. type of testing and goal of testing. The FHWA’s review and pre-approval of the nature and the purpose of the non-government use is necessary to ensure the planned non-government use does not conflict with the mission and goals of the FHWA. FHWA does not seek to obtain proprietary information, but rather to ensure no conflict of interest exists with respect to the agency mission. The Contracting Officer reserves the right to disapprove non-government use if the purpose of such use is determined to create a conflict of interest with the agency mission.

Requirement for Contractor to Operate the FOIL during Non-Government Commercial Use The scheduled non-governmental commercial use of the FOIL shall be managed and staffed by the Contractor. The Contractor may not delegate or rent out the operation of the FOIL to a 3rd party for their use. Rather, the Contractor must remain onsite and operate the FOIL facilities and equipment during the non-governmental use. The Contractor shall not delegate the task of operating the FOIL lab to a 3rd party. In the event the Contractor is found violating this requirement, FHWA reserves the right to terminate the Contractor for default.

The scheduled non-governmental commercial use of the FOIL shall be conducted in accordance with the current FOIL Operations Manual. In particular, the procedures and safety measures of the FOIL Operations Manual apply to all lab operations, both Government and non-government use.

Requirement for Acknowledgement and Disclaimer on Non-Government Commercial Work

An acknowledgment of non-association with FHWA must appear in any product or publication material that mentions the FOIL if such work was based on or developed under non-government commercial use of the FOIL. The Contractor shall not portray non-government commercial work products or materials as associated with, endorsed by, or sponsored by FHWA. The Contractor shall include an appropriate disclaimer as needed. For example, “This material references testing conducted at the FHWA’s Federal Outdoor Impact Laboratory (FOIL). The testing was conducted under a facility commercial-use agreement and is not sponsored by, endorsed by, or associated with the FHWA.”

Visitor and Security Procedures at TFHRC All visitors to TFHRC must comply with the facility’s visitor and security procedures. For non-government commercial use of the FOIL, all visitors must be escorted onsite by Contractor staff with authorized USDOT contractor badges. The Contractor shall coordinate the number and schedule of visitors with the COR in advance of visits.

FHWA Staff Onsite at FOIL Given the FOIL is an outdoor lab at TFHRC, personnel working onsite at TFHRC have viewing access to the activities occurring in the outdoor areas of the FOIL, including viewing of pendulum tests and track crash tests when they are conducted. The Contractor should be aware that non-government commercial use of the FOIL will be viewable by personnel onsite at TFHRC.

Rights to Data The Contractor shall retain all data rights to the non-governmental commercial work performed at the FOIL including publication rights.

Liability Terms During Non-Governmental Commercial Use The Contractor shall be solely responsible for any and all claims, demands, expenses, causes of action, judgments and liability arising out of, or in connection with, any negligent acts or omissions of the Contractor, its agents, subcontractors, employees, assigns, or anyone for whom the Contractor may be responsible. The Contractor shall, with the consent of the Commonwealth Attorney General’s Office, be liable to any and all costs, expenses and attorney’s fees incurred as the result of any such claim, demand, cause of action, judgment or liability, including those costs, expenses and attorneys’ fees incurred by the United States Government and its employees and agents. And subject to the approval of the Commonwealth of Virginia Attorney General’s Office, the Contractor’s liability shall not be limited by any provision or limits of insurance set forth in the resulting contract.

Rental or Adequate Consideration In exchange for non-government commercial use of the FOIL, the Contractor shall provide fair rental or other adequate consideration per FAR 45.301, Use and Rental. The terms of the fair rental or other adequate consideration will include a cost-sharing arrangement for expenses necessary to maintain, upkeep, refresh, and enhance the lab equipment and facility (Task Order 1). The percentage cost share amount and/or nature of the fair rental or other adequate consideration shall be included in the pricing terms of the Task Order award entitled “Operate and Maintain the FOIL.”